Republic Act No 9344 Juvenile Justice and Welfare

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 Ø a person under 18 years of age Ø a minor 15 years and below has no criminal responsibility at all; Ø 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 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 - 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 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 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)