Upload
rabhak-khal-hadjj
View
74
Download
0
Embed Size (px)
Citation preview
RA 9344 [Juvenile
Justice And Welfare Act
Of 2006]Judge Nimfa R. Cuesta-Vilches
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
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
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
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
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
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
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
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]
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
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 –
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 ]
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
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 ]
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
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]
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
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
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
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
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
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
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
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’
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 ]
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
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
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
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
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
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,
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
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
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]
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
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
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
Prohibited ActsBranding, Labeling /
Discriminatory Remarks /Threats / Abusive, Coercive, Punitive
Measures / Degrading, Inhuman, Cruel Forms Of Punishment / Compelling
Child To Perform Involuntary Servitude
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 ]
[ 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 ]
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 :
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
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
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
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
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
/ 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
“If We Give Respect To
Our Children, When They
Grow Up, They Will Respect Each Other!”