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RA 9344 [Juvenile Justice And Welfare Act Of 2006] Judge Nimfa R. Cuesta-Vilches

Ra9344 Waterfront

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Page 1: Ra9344 Waterfront

RA 9344 [Juvenile

Justice And Welfare Act

Of 2006]Judge Nimfa R. Cuesta-Vilches

Page 2: Ra9344 Waterfront

RA : 9344 [ Juvenile Justice & Welfare Act of

2006, 20 May 2006 ] Declaration Of State

Policy : Law That Protects Best Interests

Of Child / Right To Care, Special Protection /

Rights Of CICL Under CRC / Applies The Principle Of Restorative Justice

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Coverage Of The LawDifferent Stages

Involving Children At Risk [ Vulnerable To Committing Criminal

Offenses Due To Personal, Family, Social Circumstances ] / CICL

From Prevention To Rehabilitation And

Reintegration

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Best Interests - Totality Of Circumstances, Conditions

Most Congenial To Survival, Protection, Feelings Of

Security Of Child & Most Encouraging To Physical, Psychological, Emotional

Development / Least Detrimental Available

Alternative For Safeguarding Growth, Development

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Restorative Justice - Resolving Conflicts With

Maximum Involvement Of Victim [V], Offender [O],

Community [C] / Reparation For V / Reconciliation Of O- V-C / Reassurance To

O Reintegrated Into Society / Public Safety By Activating O-V-C In Prevention Strategies

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Rights Of A Child : No Torture, Capital

Punishment, Unlawful Deprivation Of Liberty - Detention Last Resort, Shortest Time / Humane Treatment / Separation From Adults / Access To Legal, Other Assistance /

Bail, ROR / Testify / Privacy

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Diversion If Qualified /Minimum Restrictions

On Liberty / Automatic Suspension Of Service

Of Sentence / Probation, If Qualified / Exemption From Perjury / Other Rights Under Existing

Laws / Adopted : Beijing Rules, Riyadh

Guidelines, Rules On JDL

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Rights/Protection Of Victims Participate In Formulation Of

Diversion Contract, Program / Institute Action Against

CICL For Failure To Comply With Conditions Of Diversion

Contract / Enforce Civil Liability Of Child [ Restitution, Damages, Indemnification ] For Acts Of Children Exempt

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Civil Action Arising From Offense Deemed Instituted With Criminal Action Unless Waived, Reserved /

Judgment In Civil Action Absolving Defendant Not Bar To Criminal Action For Same Act [Sec. 12, RJCL; Rule 111, Revised

Rule Of Criminal Procedure]

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Who Is CHILD / CICL?“Child” – Person Under

The Age Of 18 Years“Child In Conflict With The

Law” [CICL] – Child Who Is Alleged, Accused Of

Or Adjudged As Having Committed An Offense Under Philippines Laws

* Liberal Construction Of The Law In Favor Of CICL

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Age Of Criminal Liability / Exemptions : 1] 15 Years Of

Age Or Younger At Time Of Commission Of Offense 2] Above 15 [ 15+1 Day ] But Below 18 Unless Acted

With Discernment – Preliminary Determination By LSWDO, Final By Court

*Given Intervention Programs *Presumption Of

Minority –

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If Age Contested Court Decides Within 24 Hours

3] Status Offenses [Committed Due To Minority]

Children Exempt From Liability For Vagrancy,

Prostitution, Mendicancy, Sniffing Of Glue, Solvents 4] Children Exempt From

Application Of Death Penalty [ Repealed : By RA 9346 ]

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Discernment1] Preliminary

Determination By LSWDO At Initial Investigation

By Law Enforcement [ Social, Cultural,

Economic, Legal Status Of CICL : Developmental

Age / Educational Attainment / Quality Of Peer Group / Strengths

And Weaknesses Of

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Family / Parental Control Over CICL / Attitude

Towards Offense / Harm, Damage Done To Others Out Of Offense / Record

Of Prior Offenses ]2] By Court : Discernment Means Mental Capacity To

Understand Difference Between Right And Wrong And Its Consequences [

Section 4, RJCL ]

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Determination Of Age [ Presumption Of

Minority / Has Rights Of CICL Until Proven 18 YO Or Older ] : Birth Certificate;

Baptismal Certificate; Other Pertinent Document [School

Records] In The Absence: Information

From Child, Physical Appearance, Testimonies Of Other Persons Or Other

Relevant Evidence

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Children Who Are Below The Age Of

Criminal Responsibility :Not Exempt From Civil Liability Which Is Borne

By Parents / Child Released To Parents,

But May Undergo Program Supervised

By Social Worker [SW]

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Treatment : Below 15 Taken Into , Authority

With Initial Contact Must Immediately Release To Parents, BCPC , LSWDO With Notice To LSWDO

To Determine Appropriate Programs With Child,

Parents / If D-A-N, Not Comply With Prevention - Involuntary Commitment

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Initial Contact : Duties Of Law Enforcement -

Explain Apprehension / Constitutional Rights / Identify / Refrain From

Harassing, Abusing / Avoid Firearms, Force,

Restraint, Unless Absolutely Necessary / Refrain From Greater

Restraint On Child Than What Is Necessary

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Avoid Violence Or Unnecessary Force

/ Determine Age Of Child / Turn Over Child To Social Worker Within 8

Hours / Take Child To Medical Officer For

Examination And Treatment / If Detention Is Necessary, Separate

Child From Adult Detainees

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Record : Use Of Handcuffs, Instruments Of Restraint / Notice To Parents, DSWD, PAO / Measures Taken To Determine Age / Ensure

Statements Signed By Child Witnessed By Parents,

Guardian, Social Worker, Or Legal Counsel /

Search On Child Conducted By Officer Of Same Gender

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Diversion : Alternative Child -Appropriate Process To Determine Responsibility

Based On Social, Economic, Cultural Background

Without Formal Court Proceedings If Child Not

Exempt From Liability / Penalty Not > 6 Years

Imprisonment / Not > 12 Years Imprisonment,

COURT Can Order Diversion

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Diversion Is Available At Level Of : Barangay,

Police, Prosecutor, Courts / Mechanism / Forms Are : Conferencing, Mediation, Conciliation / Contract Of Diversion, With Program

Supervised By Local Social Worker / Failure To Comply With Program Gives Victim Option To Institute Action

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Prescription Period Suspended : Prescription Of Offense Suspended

For 45 Days During Diversion [ Penalty For

Light Offenses – 2 Months / < 6 Years : 1-5 Years / >6 <12 Years : 10 Years ] / Also Suspended During Period Of Diversion, But Not To Exceed 2 Years

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When There Is No Diversion [Not Covered- High Penalty/ Child, Parents No Consent]

Punong Barangay / Law Enforcement Officer Within 3 Days Forward Case To

Prosecutor , Municipal Judge For Preliminary

Investigation [PI], Transmittal Displays ‘CHILD’

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Diversion ProgramsRestitution, Reparation,

Indemnification / Apology / Care, Guidance,

Supervision / Counseling / Attendance In Trainings,

Seminars / Education, Vocational, Life Skills Training / Community

Service / Institutional Care [In Court-Ordered Diversion ]

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ProsecutionSpecially Trained For

Inquest, Preliminary Investigation /

Prosecution / Notify PAO / Clarificatory Questions

Necessary, Apply SC RECW [Sec. 13, RJCL] / Determine

If CICL Remains In Custody And Probable Cause - File Information With FC Within 45 Days

From Start Of PI

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Preliminary Investigation:Prosecutor Investigates Torture, ILL -Treatment

Preliminary Investigation Conducted : If Child Does

Not Qualify For Diversion [D] / Child, Parents Do Not Agree To D / Prosecutor Determines

D Not Appropriate Considering Assessment, Recommendation Of SW

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Court ProceedingsApply Privileged Mitigating

Circumstance Of Minority To Fix, Reduce Bail / If

Child Detained : ROR, Bail, Transfer To Youth Home,

Rehabilitation Center / Institutionalization Last Resort, For Shortest

Period / No Detention Of Child In Jail Pending Trial

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Diversion At Court Level : At All Stages [ Robbery, Theft, Section 12 (Possession Of

Paraphernalia), Section 15 (Use), RA 9165 ] / Additional

Programs – Reprimand, Citation, Fine, Costs Of Proceedings, Institutional Care, Custody

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When CICL Found Guilty : Determine Civil Liability, Instead Of Pronouncing Judgment Of Conviction,

Automatic Suspended Sentence / Full Credit Of Time In Detention, Actual

Confinement / Other Disposition Measures Under Rule On Juveniles

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In Conflict With Law [RJCL] Suspended Sentence

Applicable Even If Already 18 YO, More At Time Of Pronouncement Of Guilt

Disposition Measures [RJCL]: 1] Care, Guidance,

Supervision, 2] Community Service Orders, 3] Drug And Alcohol Treatment,

4] Group Counseling,

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5] Commitment To Youth Rehabilitation Center

Suspended Sentence : Holding In Abeyance Of Service Of Sentence For

CICL To Undergo Rehabilitation [ Section

4, RJCL ]Article 68, [2] RPC : Impose

Upon Person Over 15 And Under 18, Penalty Next

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Lower Than Prescribed But In Proper Period / Under RA 9165, Penalty On Minor For

Acts Punishable By Life Imprisonment To Death Shall Be Reclusion Perpetua To Death

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Promulgation Of Judgment : CICL Guilty, With Penalty, Civil Liability By Reading In Presence Of CICL Or Counsel [Sec. 31, RJCL ; Sec. 6, Rule 120, RRCP] * Credit In Service Of Sentence : Preventive

Imprisonment - Any Form Of Restraint As Community

Service, Rehabilitation [Sec. 35, RJCL]

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Discharge : On Recommendation Of SW With Custody Of Child, Court Dismisses Case, Orders

Final Discharge Of CICL If Objectives Of Disposition

Measures Fulfilled / Discharge Not Affect Civil Liability Enforced

In Accordance With Law

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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

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Return To Court For Execution Of Judgment :

For Failure To Comply With Disposition,

Rehabilitation Conditions CICL Reached 18 Under

Suspended Sentence: Court Orders Discharge,

Execute Sentence, Extend Rehabilitation Until

Maximum Of 21 Years

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Prohibited ActsBranding, Labeling /

Discriminatory Remarks /Threats / Abusive, Coercive, Punitive

Measures / Degrading, Inhuman, Cruel Forms Of Punishment / Compelling

Child To Perform Involuntary Servitude

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Penalties Under RA 9344Fine Of P20,000 - P50,000 /

Imprisonment Of 8 - 10 Years / Both / Perpetual

Absolute Disqualification, If Involving A Public Officer Or Employee [ Adults Who Use Minors To Beg, As Drug

Couriers, In Illegal Acts : Liable Under Sec. 10 (E) RA 7610, Reclusion Perpetua ]

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[ RA 9165 - Drug Pushers Using Minors As Runners, Couriers,

Messengers Of Dangerous Drugs [Life Imprisonment - Death, Fine P500T - P10M],

Controlled Precursors, Chemicals [12 Years, 1 Day – 20

Years, Fine P100T - P500T ]

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Transitory ProvisionsRetroactive Application For Those < 18 At Commission

Of The Offense 1] CICL 15 YO , Below :

Dismissed, Referred To LSWDO Who Either

Releases CICL To Parents Or For Prevention

Programs If Convicted But With Sentence Suspended

And Undergoing Rehabilitation :

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Released Unless Not To Best Interests Of Child

2] Child Reaching 18 Pending D And Court Proceedings : D Authority Consults LSWDO

Or SCCD For Appropriate Disposition / But If Court Executes Judgment, Child

Can Avail Of Probation Unless Child Has Availed Already

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3] Children Convicted And Serving Sentence At

Effectivity Of RA 9344 But Below 18 YO At Time Of Commission Of Offense : Benefit From Retroactive Application / Appropriate Dispositions / Sentences Adjusted / Released If

Qualified Under RA 9344

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Emerging Issues :1. Dealing With Private

Complainants 2. Admission By CICL As

Condition For Diversion3. Civil Liability : Runs

Counter To Presumption Of Innocence?

4. Retroactive Effect Of Law

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In Relation To Complaint And Information That Have No Allegation Of

Discernment – Amendment And Re - Arraignment

Still Proper, Timely ? 5. Conspiracy Where

Majority Of Those Charged Are Minors Under 17

Years Old : Dismissed As

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To Minors Under 15 Years Old, Adult Accused Remaining – FC

Has Jurisdiction, But What About Proof Of Conspiracy?

6. Suspended Sentence: Including Penalties Of Life Imprisonment

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/ Reclusion Perpetua / Death? [Declarador vs. Hon. Gubaton, G.R. 159208, 18 August 2006]

7. Applying Privileged Mitigating Circumstance Of Minority In

Special Laws/Indivisible Penalty

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“If We Give Respect To

Our Children, When They

Grow Up, They Will Respect Each Other!”