Juvenile Justice Welfare Act of 2006
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Transcript of 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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
UN Convention on the Rights of the Child
• Four Categories of Child Rights:
• Survival Rights• Developmental Rights• Protection Rights• Participation Rights
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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.
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Child Behind Bars
January 24, 2008 Notes of Atty. Debbie G. Dulay
Rosie
January 24, 2008 Notes of Atty. Debbie G. Dulay
Child’s Depiction of his Arrest
January 24, 2008 Notes of Atty. Debbie G. Dulay
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.
January 24, 2008 Notes of Atty. Debbie G. Dulay
Diversion
• The various processes by which child offenders are prevented from entering the formal criminal justice system.
• A typical component of the restorative approach
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
General Framework
• Principle of Restorative Justice• Best Interest of the Child
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Status Offenses
• Vagrancy• Prostitution • Violation of Curfew Ordinance • Sniffing of Rugby
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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.
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Contract of Diversion
• Child voluntarily admits commission of the act
• Victim and offender must both agree to diversion
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Barangay Level…
• Participation in available community-based programs including community service
• Participation in education, vocation and life skills programs
January 24, 2008 Notes of Atty. Debbie G. Dulay
Law Enforcement & Prosecution & Social Worker
Level …• Diversion programs previously
specified• Confiscation and forfeiture of
the proceeds or instruments of the crime
January 24, 2008 Notes of Atty. Debbie G. Dulay
Court Level …
• Diversion programs previously specified
• Written or oral reprimand or citation
• Fine • Payment of cost of the proceedings• Institutional care and custody
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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)
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Rehabilitation
• Community-based, Center-based
• Court Order, hearing required for admission
• Gender Sensitivity Training for Personnel
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Prohibited Acts
• Branding, Labeling / Discriminatory Remarks / Threats / Abusive, Coercive, Punitive Measures / Degrading, Inhuman, Cruel Forms of Punishment / Compelling child to perform Involuntary Servitude
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
Additional Information:
• Adults who use minors to beg, as drug couriers, in illegal acts: Liable under Sec. 10 (E) RA 7610; Penalty: Reclusion Perpetua
January 24, 2008 Notes of Atty. Debbie G. Dulay
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
January 24, 2008 Notes of Atty. Debbie G. Dulay
THANK YOU
ATTY. DEBBIE G. DULAYPublic Attorney’s Office – CAR
Justice Hall, Baguio City