4
The second objective is "the principle of proportionality". This principle is well-known as an
instrument for curbing punitive sanctions, mostly expressed in terms of just deserts in relation
to the gravity of the offence. The response to young offenders should be based on the
consideration not only of the gravity of the offence but also of personal circumstances. The
individual circumstances of the offender (for example social status, family situation, the harm
caused by the offence or other factors affecting personal circumstances) should influence the
proportionality of the reactions (for example by having regard to the offender's endeavour to
indemnify the victim or to her or his willingness to turn to wholesome and useful life).
By the same token, reactions aiming to ensure the welfare of the young offender may go
beyond necessity and therefore infringe upon the fundamental rights of the young individual,
as has been observed in some juvenile justice systems. Here, too, the proportionality of the
reaction to the circumstances of both the offender and the offence, including the victim,
should be safeguarded.
In essence, rule 5 calls for no less and no more than a fair reaction in any given cases of
juvenile delinquency and crime. The issues combined in the rule may help to stimulate
development in both regards: new and innovative types of reactions are as desirable as
precautions against any undue widening of the net of formal social control over juveniles.
6. Scope of discretion
6.1 In view of the varying special needs of juveniles as well as the variety of measures
available, appropriate scope for discretion shall be allowed at all stages of proceedings and at
the different levels of juvenile justice administration, including investigation, prosecution,
adjudication and the follow-up of dispositions.
6.2 Efforts shall be made, however, to ensure sufficient accountability at all stages and levels
in the exercise of any such discretion.
6.3 Those who exercise discretion shall be specially qualified or trained to exercise it
judiciously and in accordance with their functions and mandates.
Commentary
Rules 6.1, 6.2 and 6.3 combine several important features of effective, fair and humane
juvenile justice administration: the need to permit the exercise of discretionary power at all
significant levels of processing so that those who make determinations can take the actions
deemed to be most appropriate in each individual case; and the need to provide checks and
balances in order to curb any abuses of discretionary power and to safeguard the rights of the
young offender. Accountability and professionalism are instruments best apt to curb broad
discretion. Thus, professional qualifications and expert training are emphasized here as a
valuable means of ensuring the judicious exercise of discretion in matters of juvenile
offenders. (See also rules 1.6 and 2.2.) The formulation of specific guidelines on the exercise
of discretion and the provision of systems of review, appeal and the like in order to permit
scrutiny of decisions and accountability are emphasized in this context. Such mechanisms are
not specified here, as they do not easily lend themselves to incorporation into international
standard minimum rules, which cannot possibly cover all differences in justice systems.
7 . Rights of juveniles
7.1 Basic procedural safeguards such as the presumption of innocence, the right to be notified
of the charges, the right to remain silent, the right to counsel, the right to the presence of a
parent or guardian, the right to confront and cross-examine witnesses and the right to appeal
to a higher authority shall be guaranteed at all stages of proceedings.
Commentary