juvenile justice welfare act of 2006

January 24, 2008 Notes of Atty. Debbie G. Dulay

JUVENILE JUSTICE WELFARE ACT OF 2006

Republic Act No. 9344


Overview/Outline of Topics

• Brief History and Background of the Law

• Salient Features of R.A. No. 9344• Role of the Barangay Council for

Protection of Childrence in the Implementation of R.A. 9344


UN Convention on the Rights of the Child

• Four Categories of Child Rights:

• Survival Rights• Developmental Rights• Protection Rights• Participation Rights


Art. 40 of the UN Convention on Child

Rights• Right of CICL to legal help and fair

treatment in a justice system that respects their rights.

• To set a minimum age below which children cannot be held criminally responsible

• To provide the minimum guarantees for the fairness and quick resolution of judicial or alternative proceedings


Philippine Laws• National Laws protecting the Rights of

Children in Conflict with the Law (CICL) were limited.

• P.D. No. 603 or the Child and Youth Welfare Code spelled out special procedures in handling CICL

• Studies showed a gap in the implementation of the law by the Five Pillars of Justice - police, prosecutors, correction, courts and community


Still on Background …• Continued violations of child rights

were easily observed at the time of arrest and incarceration of a CICL.

• Formal education of child offenders who were enrolled at the time of arrest was disrupted. At the same time they also learn vices such as smoking, gambling, drinking and substance abuse from them.


Principle of Restorative Justice

• A process of resolving conflicts with the maximum involvement of the victim, the offender and the community.

• Reparation for the victim / Reconciliation of the offender, the offended party and the community / Reassurance to the offender that he or she can be reintegrated into society


Child Behind Bars


Rosie


Child’s Depiction of his Arrest


On Restorative Justice

• Enhancement of public safety by activating the offender, the victim and the community in prevention strategies.

• It is one that presumes that children in conflict with the law are themselves victims.


Diversion

• The various processes by which child offenders are prevented from entering the formal criminal justice system.

• A typical component of the restorative approach


Revised Penal Code (RPC)

• Outdated because it was enacted in 1932

• Adult-oriented / Distinct circumstances of a CICL are not taken into account / No Diversion / Stigma of Criminality / No provision for aftercare / Punishes Status Offenses

• There is a need for a law outside the RPC


R.A. No. 9344

• Juvenile Justice Welfare Act of 2006

• It became effective on May 20, 2006

• Its Implementing Rules and Regulations (IRR) were enacted on September 19, 2006


General Framework

• Principle of Restorative Justice• Best Interest of the Child


Coverage of the Law• Children in Conflict with the Law

(CICL)– children who are alleged, accused of or

adjudged of or adjudged as having committed an offense under Phil. Laws

• Children-At-Risk– refers to children who are vulnerable to

and at the risk of committing criminal offenses because of personal, family and social circumstances


Age of Criminal Responsibility

• Children above 15 years of age but below 18 years of age who acted WITH DISCERNMENT

• Increased from above 9 years old to above 15 years old


Discernment

• The mental capacity of a child to understand the difference between what is right or wrong and the consequences of his acts

• Discernment relates to the moral significance that the person attaches to the act


Assessment on Discernment

• Preliminary assessment must be conducted by the Local Social Welfare Development Officer (LSWDO) during initial investigation

• Final assessment falls on the Court which hears the case of the CICL


Preliminary Assessment by LSWDO

• Social, Cultural, Economic, Legal Status of CICL

• Developmental age / Educational Attainment / Quality of Peer Group / Strengths and Weaknesses of Family / Parental Control over CICL / Attitude towards Offense / Harm, Damage done to others out of the offense / Record of Prior Offenses


Final Assessment by Court

• It is incumbent upon the prosecution to prove that said minor acted with discernment

• Minor between the ages of 15 and 18 must have FULLY appreciated the consequences of the unlawful act


How to Determine Discernment

• Take into consideration all the facts and circumstances in the records of each case such as:

• Appearance / Attitude / Comportment of the CICL

• Before, during and after the commission of the crime

• Also during trial


Determination of Age

• Presumption of minority/ has rights of CICL until proven 18 years old or older

• Birth certificate, baptismal certificate, other pertinent documents (school records)

• In the absence: Information from child, physical appearance, testimonies of other persons or other relevant evidence


Exemptions from Criminal Liability

• A child exactly 15 years old or below

• A child above 15 years old but below 18 years old who acted WITHOUT DISCERNMENT

• Children who commit Status Offenses


Status Offenses

• Vagrancy• Prostitution • Violation of Curfew Ordinance • Sniffing of Rugby


Procedure for Children Criminally Exempted

• They have civil liability to be borne by the parents

• They must undergo TERTIARY INTERVENTION PROGRAM which is the same as a DIVERSION PROGRAM


Intervention Program

• A series of activities designed to address issues that caused the child to commit an offense

• Three Levels – Primary, Secondary and Tertiary

• For CICLs, they must undergo the Tertiary Level of Intervention

• Tertiary Level of Intervention is the same as DIVERSION


Procedure on Intervention

• A CICL 15 years old and below taken into custody, must be immediately released to his/her parents, BCPC, LSWDO

• With Notice to LSWDO to determine appropriate programs with child, parentsif D-A-N (dysfunctional family, abandoned, neglected)

• Child does not comply with intervention, LSWDO files for Involuntary Commitment


Diversion

• An alternative, child-appropriate process of determining the responsibility and treatment of a CICL

• Based on his/her social, cultural, economic, psychological or educational background

• WITHOUT resorting to formal court proceedings


Who Undergoes Diversion?

• CICL above fifteen (15) years but below eighteen (18) years of age who acted with discernment

• Children who are 15 years old and below who committed an offense

• Diversion is the same a Tertiary Intervention


Venues Of Diversion

• Barangay, Police, Prosecutor Level– If offense has imposable penalty

of not more than six (6) years of imprisonment

• Court– If the imposable penalty of more

than six (6) years of imprisonment


Katarungang Pambarangay Level

• Conducted by the Lupon Tagapamayapa, chaired by the Punong Barangay, with the assistance of the members of the BCPC

• Punong Barangay shall conduct mediation / family conferencing / conciliation / adopt indigenous modes of conflict resolution


Barangay Level…

• Absence of the offended party or his/her disagreement in its conduct shall not prevent the proceedings from being conducted.

• The Punong Barangay shall, however, endeavor to obtain the participation and the consent of the offended party in the formulation of the diversion program.


Barangay Level…

• Objectives: restorative justice / formulation of a diversion program

• Child and his/her family shall be present in the conduct of these diversion proceedings

• Offended party may participate in the diversion proceedings


Contract of Diversion

• Child voluntarily admits commission of the act

• Victim and offender must both agree to diversion


Diversion Program

• must be in writing signed by parties & concerned authorities

• Local Social Welfare Officer implements/supervises the Diversion Program

• Diversion proceedings to be completed in 45 days


On Diversion Program…

• Child must present himself/herself at least once a month for reporting & evaluation

• Failure to comply w/ the terms and conditions of DP as certified by the LSWDO, victim has the option to institute appropriate legal action


Formulation of the Diversion Program

• An individualized treatment• Consider the following factors:• Child’s feelings of remorse for the

offense he or she committed / Parents’ or legal guardians’ ability to guide and supervise the child / Victim’s view about the propriety of the measures to be imposed / Availability of community-based programs for rehabilitation and reintegration of the child


Kinds of Diversion Program

• Restitution of property• Reparation of the damage caused• Indemnification for consequential damages• Written or oral apology• Care, guidance and supervision

ordersCounseling for the CICL and the child’s family

• Attendance in trainings, seminar and lectures on: anger management skills, problem solving and/or conflict resolution skills, values formation, other skills in dealing w/ situations which can lead to repetition


Barangay Level…

• Participation in available community-based programs including community service

• Participation in education, vocation and life skills programs


Law Enforcement & Prosecution & Social Worker

Level …• Diversion programs previously

specified• Confiscation and forfeiture of

the proceeds or instruments of the crime


Court Level …

• Diversion programs previously specified

• Written or oral reprimand or citation

• Fine • Payment of cost of the proceedings• Institutional care and custody


Court Proceedings

• Apply privileged mitigating circumstance of Minority to fix, Reduce Bail

• IF CHILD IS DETAINED: Release On Recognizance, Bail, Transfer to Youth Home, Rehabilitation Center

• Institutionalization Last Resort, for Shortest Period

• No detention of child in jail pending trial


When CICL Found Guilty

• Determine Civil Liability• Instead of pronouncing judgment

of conviction, automatic suspension of sentence ‘ full credit of time in detention, actual confinement / other disposition measures under SC Rule on JICL


Jurisprudence on Suspension of Sentence

•Automatic Suspension of service of sentence DOES NOT APPLY when penalty is reclusion perpetua, life imprisonment or death (Declarador v. Hon. Gubaton, GR No. 159208, 18 Aug. 2006)


Discharge

• Upon recommendation of Social Worker with custody of Child,

• Court dismisses Case, Orders Final Discharge of CICL if Objectives of disposition measures fulfilled

• Discharge does not affect civil liability enforced in accordance with law


Confidentiality of Records, Proceedings

• Non-disclosure of records to media• Separate police blotter • Coding to conceal identity • Non-use of records in other

proceedings except beneficial to CICL with written consent

• No liability of child for perjury not disclosing being CICL


Rehabilitation

• Community-based, Center-based

• Court Order, hearing required for admission

• Gender Sensitivity Training for Personnel


On Rehabilitation . . .

• Separate Facilities from Adults• Competency, Life Skills Development /

socio-cultural, Recreational Activities / Community Volunteer Projects / Leadership Training

• Special Attention for female CICL (All-Female Team) Separate from male

• Social, Home Life, Health Services / Spiritual Enrichment / Community, Family Welfare Services


Return to Court for Execution of Judgment

• For failure to comply with disposition, rehabilitation condition

• CICL reached 18 under suspended sentence: Court orders discharge, execute sentence, extend rehabilitation until maximum of 21 years old


Center-Based Rehabilitation

• 24-hour group care• Youth Rehabilitation / Training

Centers (must have registration) – established by DSWD

• Youth Detention Homes – by LGUs or Licensed, Accredited NGOs

• Sharing of Costs (1/3 Municipal – Provincial – National) For Care, Maintenance of CICL


Community-Based Programs

• Direct Service• Prevents Disruption of

education, separation of child from family

• Facilitates Rehabilitation and Reintegration

• To minimize stigma to child• Each LGU to establish program


Aftercare

• CICLs whose cases were dismissed due to good behavior as recommended by SW

• Discharge from rehabilitation center

• Provided aftercare for at least 6 months by LSWDO


Prohibited Acts

• Branding, Labeling / Discriminatory Remarks / Threats / Abusive, Coercive, Punitive Measures / Degrading, Inhuman, Cruel Forms of Punishment / Compelling child to perform Involuntary Servitude


PENALTIES UNDER RA 9344

• Fine of P20,000-P50,000 or Imprisonment of 8-10 years or Both

• Perpetual Absolute Disqualification, if involving a public officer or employee


Additional Information:

• Adults who use minors to beg, as drug couriers, in illegal acts: Liable under Sec. 10 (E) RA 7610; Penalty: Reclusion Perpetua


Additional Information …

• Drug pushers using minors as runners, couriers, messengers of dangerous drugs: Liable under R.A. 9165; Penalty: Life Imprisonment-Death, Fine P500T-P10M

• Controlled precursors, chemicals – 12 years, 1 day – 20 years, fine P100T-P500T


THANK YOU

ATTY. DEBBIE G. DULAYPublic Attorney’s Office – CAR

Justice Hall, Baguio City

juvenile justice welfare act of 2006

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