Transcript Republic Act 9344

Republic Act No. 9344
Juvenile Justice and
Welfare Act of 2006
TERESITA R. DOMINGO
Assistant Secretary for Legislative Affairs and
Acting Chairperson, Special Committee
for the Protection of Children
CHILD
 a person under 18 years of age
 a minor 15 years and below has no
criminal responsibility at all;
 above 15 years but below 18 also
has no criminal responsibility
unless they acted with discernment.
DIVERSION
an alternative, child-appropriate process
of determining the responsibility and
treatment of a child in conflict with the
law on the basis of his/her social,
cultural, economic, psychological or
educational
background
without
resorting to formal court proceedings
INTERVENTION
a series of activities designed to
address issues that caused the
child to commit an offense.
•
Primary Intervention - which includes measures
to promote social justice an equal opportunity
which more often than not is the root cause for the
commission of crimes;
•
Secondary Intervention – which includes
measures to assist children at risk; and
•
Tertiary Intervention – which includes measures
to avoid unnecessary contract with the formal
justice system and measures to avoid re-offending
such as diversion, rehabilitation and reintegration
programs.
RIGHTS OF THE CHILD
• Right to be treated with humanity and
respect;
• Right not to be subjected to torture, cruel or
inhuman treatment;
• Right to bail or recognizance;
• Right to privacy;
• Right to probation, if qualified;
• Right to diversion, if qualified;
RIGHTS OF THE CHILD
• Right to automatic suspension of sentence;
• Right not to be deprived arbitrarily of his
liberty or restricted more than as
necessary;
• Right to be separated from adult offenders;
• Right to maintain contact with his family
• Right not be imposed the death sentence
• Right to be free from perjury concealment
or misrepresentation
INITIAL CONTACT
WITH THE CHILD
Refers to the the apprehension or
taking into custody of a child in
conflict with the law by law
enforcement or private citizens
Initial Contact by private citizens
or non-law enforcement officers
In the event
a CICL is
apprehended or taken into
custody by private citizens,
the child shall be immediately
referred to the appropriate law
enforcement officer for the
child to undergo the proper
investigation.
Procedure for Taking Child Custody
From the moment the child is taken into
custody, the law enforcement officer
shall:
1. IDENTIFY himself;
2. EXPLAIN to the child why he is taken
into custody; the offense committed; and
his rights earlier enumerated.
The following should be avoided:
use of vulgar language, display of instruments
of force, subjecting the child to restraint than
is necessary, use of violence or unnecessary
force.
Procedure for Taking Child Custody
3.
NOTIFY the parents/guardians, local or DSWD
social worker, and the PAO, not later than 8 hours
from the time the child is taken into custody;
4.
Immediately DETERMINES the age of the child by
securing his birth/baptismal certificate, school
records or other pertinent documents, or by
interviewing the child or persons who have
knowledge, by physical appearance, etc.
5.
TAKE the child to a medical officer for a physical
and mental examination;
6.
TURN OVER the child to the local/DSWD social
worker within 8 hours after he is taken into custody
INITIAL INVESTIGATION
It is the stage after initial contact
when the law enforcement officer
takes the statement of the CICL.
INITIAL INVESTIGATION
The law enforcement officer shall make
the initial investigation by taking the
statement of the child:
1. in a language that the child
understands
2. in a friendly and non-intimidating
manner
3. in a separate room or place where the
child is comfortable
4. privacy must be observed at all times.
INITIAL INVESTIGATION
The statement shall be taken in the presence of:
a. the child’s lawyer or the PAO lawyer;
b. child’s parents, guardians or nearest
relative, representative of an NGO,
religious group or member of the BCPC;
and
c. the social worker.
Statement shall be signed by the child,
witnessed by all those present
The initial investigation shall record
the following:
a. whether handcuffs or instruments of
restraint were used; if so, the reason therefore;
b. that parents/guardians, social worker and
PAO have been notified of apprehension and
details thereof;
c. exhaustion of measures in determining the
age of the child, details of physical and medical
examination or failure to do so
Thereafter, the CICL is turned over to the
local/DSWD social worker for:
a. INTERVENTION – where the child is 15
years old or below
b. DETERMINATION OF DISCERNMENTwhere the child is above 15 but below 18
years old
INTERVENTION
• where the child is 15 and below in which
case the social worker shall immediately turn
over the child to his parents/guardians and
the appropriate intervention is determined in
consultation with the child and the
parents/guardians.
INTERVENTION
If parents/guardians could not be located, the
child may be released to a
(1) Registered Non-Governmental or Religious
organization;
(2) Member of a Barangay Council for the
Protection of Children (BCPC),
(3) Local social worker; and
(4) in the absence of the enumeration, to the
DSWD
Factors in determining Appropriate
Intervention Programs
1. Personal circumstances of the
child;
2. Needs of the child
3. Family and social background of
the child
4. Influence of the family and
environment on the child's
growth
Factors in determining Appropriate
Intervention Programs
5. Ability and willingness of parents to
guide and supervise
6. Nature and circumstances of the
offense charged
7. Availability of community based
programs for intervention
8. Best interest of the child
DISCERNMENT
DISCERNMENT - where the child is over
15 but below 18 who acted:
• without discernment – for intervention
• with discernment – for diversion provided
the imposable penalty for crime committed
is not more than 6 years
Additional factors to be considered in
determining whether diversion is appropriate:
1. nature and circumstances of the
offense charged
2. frequency or severity of the act
3. personal circumstances of the child
4. influence of family and environment
on the child
Additional factors to be considered in
determining whether diversion is appropriate:
5. reparation of injury to victim
6. safety of community
7. weight of evidence against the
child
8. best interest of the child
Factors in assessing Discernment
a. Facts and circumstances of the case;
b. Educational level and performance of
the child; and
c. Appearance, attitude, conduct and
behavior of the child
Conduct of Diversion
Diversion may be conducted at thea. Katarungan Pambarangay by the
Punong Barangay
b. Police Investigation by the law
enforcer/police
Conduct of Diversion
c. Inquest or Preliminary Investigation
where imposable penalty for the
crime is not more than 6 years by the
prosecutor.
d. Otherwise, where imposable penalty is
more than 6 but does not exceed 12
years, diversion may be conducted
only at the court level by the judge.
The officer conducting the diversion
proceedings shall:
a. explain to the parties the objectives and
value of diversion and consequences of
not undergoing diversion;
b. Ask the child the circumstances which
led him to the commission of the offense,
his motives or purpose ;
c. take the personal circumstances of the
child including that of his parents and
family;
The officer conducting the diversion
proceedings shall:
d. make
the
child
understand
the
consequences of his act and his
corresponding responsibilities therefor;
e.
Ensure that the child understands and
realizes his accountability, is remorseful
and will take on the responsibility of
repairing the harm done.
Factors in the formulation of
Diversion Program
1. Feelings of remorse
2. Ability of parents or legal guardians to
guide and supervise;
3. Victim’s view about the propriety of the
measure to be imposed ; and
4. Availability of community based
programs for rehabilitation and
reintegration of the child
Kinds of Diversion Programs
1. PUNONG BARANGAY LEVEL
a. Restitution of property
b. Reparation of damage caused
c. Indemnification for consequential
damages
d. Written or oral apology
e. Care, guidance and supervision orders
Kinds of Diversion Programs
1. PUNONG BARANGAY LEVEL
f. Training, seminars and lectures on
•
•
•
•
anger management
values formation
problem solving
skills that will aid the child in dealing with
the situation which can lead to repetition
g. Participation in community based
program, education, vocation and life skills
program
Kinds of Diversion Programs
2. LAW ENFORCER AND PROSECUTOR
a. DPs specified under (1)(a) to (1) (g);
and
b. Confiscation and forfeiture of the
instruments of the crime
Kinds of Diversion Programs
3. COURT LEVEL
a. DPs specified under (1)(a) to (1) (g);
b. written or oral reprimand or citation
c. fine
d. payment of cost of proceedings or
e. institutional care and custody
Termination of Diversion Proceedings
1. Contract of Diversion has been
entered into;
2. 45-day period has lapsed without
reaching an agreement;
3. Diversion is found to be
inappropriate;
4. Child/parents or guardians does not
consent to diversion.
Termination of Diversion Proceedings
Note: “Sec. 26 of RA 9344 provide “x
x x The diversion program shall be
effective and binding if accepted by
the
parties
concerned.
The
acceptance shall be in writing and
signed by the parties concerned and
the appropriate authorities.”
PROSECUTORS
• When diversion is deemed terminated as earlier
mentioned or that the CICL is over 15 and under
18 years old who acted with discernment and
the imposable penalty for the offense is more
than 6 years, the law enforcer shall refer the
case to the prosecutor who, before proceeding
to preliminary investigation, shall still endeavour
to arrive at an agreement to a diversion
program.
•
PROSECUTORS
It shall be the duty of the
prosecutor to notify the PAO and
ensure that the child’s rights have
been protected such that it is
incumbent
upon
him
to
investigate allegations of torture,
deprivation of
or unnecessary
restrictions on liberty, if any.
PROSECUTORS
• Should there be a determination of
probable cause, an information shall be
filed before the Family Court within 45
days from the start of the preliminary
investigation.
COURTS
• When the case reaches the court, it
shall determine whether or not
diversion is appropriate provided
that the imposable penalty on the
offense charged is more than 6 but
not more than 12 years
imprisonment.
COURTS
• Pending trial, the court may release
children in detention on bail or
recognizance. In all other cases,
detention
may
be
replaced
by
alternative measures such as close
supervision,
intensive
care
or
placement with a family, educational
setting or home. The child may be
committed to the care of the DSWD,
local rehab center recognized by
government.
COURTS
• Once a child under 18 years at the
time of the commission of the
offense is found guilty, sentence
shall be automatically suspended.
• For convicted and sentenced CICL,
the court may, upon application,
place the child on PROBATION in
lieu of service.
REHABILITATION and INTEGRATION
• Should community based rehabilitation be
inappropriate, the court may order the
commitment of the child to a :
(a) rehabilitation center;
(b) youth detention center;
REHABILITATION and INTEGRATION
(c) agricultural camp, or
(d) other training facilities that will provide the
child with interventions, approaches and
strategies that would change or modify the
negative behaviour of the child into a positive
one enabling him to improve
on his social
functioning leading to his reintegration to his
family and the community.
Preference should be the community based
programs if adequate since it:
a. Prevent disruption of the education or
means of livelihood of the child;
b. Prevent separation from the family;
c. Facilitate rehabilitation and
mainstreaming of the child; and
d. Minimize stigma on the child
TRANSITORY PROVISIONS
A. Those 15 years old and below at the
commission of the offensei) with pending case but released on bail
or recognizance
- case shall be dismissed and the child
referred to the social worker who will
conduct an assessment whether to release
the child to the custody of the
parents/guardians or refer the child to
prevention programs
TRANSITORY PROVISIONS
ii) with pending case and under detention
or suspended sentence
- case shall be dismissed upon motion and
child referred to social worker on the
propriety of releasing the child to his
parents/guardians. If cannot be located and
the child is abandoned, neglected or
abused, a petition of involuntary
commitment shall be filed by the social
worker.
iii) convicted and serving sentence
- Any interested party may file a petition for
habeas corpus.
TRANSITORY PROVISIONS
B. Those above 15 but below 18 at the
commission of the offensei.) with pending case but released on bail
or recognizance
Trial may proceed to prove discernment ;
ii) under suspended sentence
Child to continue with rehabilitation
program;
TRANSITORY PROVISIONS
iii) Convicted and serving sentence
CICL shall be entitled to appropriate
disposition under the Act and the
sentence adjusted accordingly. If
qualified, child shall be immediately
released under the Act or applicable
law. Upon application, the court may
grant probation to the child in lieu of
imprisonment for the remaining
sentence . (Section 42, RA 9344)