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Ligad vs. Dipolog
A.M.
No. MTJ-01-1386.December
5, 2001
In her letter, dated July
17, 1997,
addressed to then Chief Justice Andres R. Narvasa,
Lourdes R. Ligad (complainant) charged
respondent Judge Teodoro Dipolog,
Municipal Trial Court (MTC) of Plaridel,
Misamis Occidental, with grave abuse of authority for his
refusal to release on recognizance complainanant’s grandson,
Joey Sailan, a minor.
Sailan is the defendant in Criminal Case No. 284-96.
He was charged with violating Presidential Decree (P.D.) No.
1602 (Prescribing Stiffer Penalties on Illegal Gambling).
He was allegedly caught bringing jai-alai (locally known as
“masiao”) tips and tally sheets.
On June
5, 1997,
Atty. Mita Martinez of the Public Attorney’s Office (PAO) filed
a motion for release on recognizance of Sailan,
who was then only thirteen (13) years old, to the custody
of his maternal grandmother, complainant herein. Acting on
the motion, respondent judge issued an Order, dated June
6, 1997, denying the same. He cited the second
paragraph of Section 13 of Rule 114 of the 1985 Rules on Criminal
Procedure, the law then in effect, which stated:
Section 13. Bail, when not required; reduced bail or
recognizance xxx A person
in custody for a period equal to or more than the minimum
of the principal penalty prescribed for the offense charged,
without application of the Indeterminate Sentence Law or any
modifying circumstance, shall be released on a reduced bail
or on his own recognizance, at the discretion of the court.
In denying his release on recognizance,
respondent judge reasoned that Sailan
had not yet been in custody for a period equal to or more
than the minimum of the principal penalty prescribed for the
offense charged.
On June
16, 1997,
the Department of Social Welfare and Development, through
Vivian Sanchez, Social Welfare Officer II, filed a manifestation
with the said lower court recommending that Sailan
be released on recognizance to his maternal grandmother in
accordance with the provisions of P.D. No. 603 (The Child
and Youth Welfare Code). The DSWD particularly cited Article
191 thereof providing that upon recommendation of the DSWD,
the court may release a youthful offender on recognizance,
to the custody of his parents or other suitable person who
shall be responsible for his appearance whenever required.
According to the complainant, when she followed this up with
respondent judge, the latter “arrogantly” told her that “he
is the law and everything is at his discretion.”
Respondent judge particularly
denied the charge of abuse of authority stating that the denial
of the release on recognizance of Joey Sailan
was predicated on the second paragraph of Section 13, Rule
114 of the 1985 of Rules on Criminal Procedure. Moreover,
the movants therein allegedly did not ask for reconsideration
of the assailed orders. He likewise denied having uttered
that “I am the law and everything is at my discretion.” According
to respondent judge, he merely advised the complainant to
instruct her lawyers to file a motion for reconsideration.
In his Memorandum, dated September
9, 1999,
the Court Administrator made the following evaluation:
Respondent Judge explains that
accused could not be released on recognizance because he had
just been arrested and that he had not yet been in custody
for a period equal to or more than the minimum of the principal
penalty prescribed for the offense charged, as provided for
in Section 13 of Rule 114 of the 1985 Rules on Criminal Procedure.
Respondent Judge’s explanation
is but proof of his ignorance of the law. Section 15, Rule
114 of the 1985 Rules on Criminal Procedure, as amended by
Administrative Circular No. 12-94, effective October
1, 1994,
provides that:
“Whenever allowed pursuant to
law or these Rules, the Court may release a person in custody
on his own recognizance or that of a responsible person.”
And being a youthful offender,
he being but thirteen years of age at the time of arrest,
under Article 191, P.D. 603 (The Child and Youth Welfare Code),
he may be committed to the care of the Department of Social
Welfare or the local rehabilitation center or a detention
house.
“A youthful offender held for
physical or mental examination or trial or pending appeal,
if unable to furnish bail, shall from the time of his arrest
be committed to the care of the Department of Social Welfare
or the local rehabilitation center or a detention home in
the province or city which shall be responsible for his appearance
in court whenever required; Provided, That in the absence
of any such center or agency within a reasonable distance
from the venue of the trial, the provincial, city and municipal
jail shall provide quarters for youthful offenders separate
from other detainees.” The court may, in its discretion, upon
recommendation of the Department of Social Welfare or other
agency or agencies authorized by the Court, release a youthful
offender on recognizance, to the custody of his parents or
other suitable person who shall be responsible for his appearance
whenever required.
Respondent Judge should have
taken into consideration that as a minor the accused should
not have been mingled with other detainees. His continued
exposure to the harsh conditions prevailing in a prison would
eventually affect his rehabilitation.
The Court Administrator then
recommended that a fine of two thousand pesos (P2,000.00)
be imposed on respondent judge with the warning that a repetition
of the same or similar acts in the future would be dealt with
more severely.
Upon the instance of the Court,
complainant and respondent judge respectively manifested that
they were submitting the case for resolution on the basis
of the pleadings already filed.
The findings and recommendation
of the Court Administrator are well taken
The Court shares his view that
respondent judge betrayed his “ignorance of the law” when
he denied the release of Sailan
to the custody of complainant. Respondent judge erroneously
applied the second paragraph of Section 13 of Rule 114 of
the 1985 Rules on Criminal Procedure. Had he been more circumspect
in ascertaining the applicable laws, respondent judge would
have known that Article 191 of P.D. No. 603 properly applies
in this case since Sailan was a minor. Said provision
of law reads in full as follows:
Art. 191. Case of Youthful Offender
Held for Examination or Trial - A youthful offender held for
physical or mental examination or trial or pending appeal,
if unable to furnish bail, shall from the time of his arrest
be committed to the care of the Department of Social Welfare
or the local rehabilitation center or a detention home in
the province or city which shall be responsible for his appearance
in court whenever required; Provided, That in the absence
of any such center or agency within a reasonable distance
from the venue of the trial, the provincial, city and municipal
jail shall provide quarters for youthful offenders separate
from other detainees. The court may, in its discretion, upon
recommendation of the Department of Social Welfare and Development
or other agency or agencies authorized by the Court, release
a youthful offender on recognizance, to the custody of his
parents or other suitable person who shall be responsible
for his appearance whenever required. However, in the case
of those whose cases fall under the exclusive jurisdiction
of the Military Tribunals, they may be committed at any military
detention or rehabilitation center.
The foregoing provision sets
forth the following guidelines in cases where a minor is held
or arrested:
1) Immediately upon arrest,
the judge shall order that the minor be committed to the care
of the DSWD, local rehabilitation center or a detention home
in the said province or city. The said agency or center entity
shall be responsible for the minor’s appearance during trial;
2) In absence of such agency
or center within a reasonable distance from the venue of the
trial, the provincial, city or municipal jail shall provide
quarters for the minor separate from the adult detainees;
3) Upon recommendation of the
DSWD or any other authorized agency, the judge may, in his
discretion, release the minor on recognizance to his parents
or other suitable person who shall be responsible for his
appearance when required; and
4) In those cases falling under
the exclusive jurisdiction of the military tribunal, the minor
may be committed at any military detention or rehabilitation.
In this case, respondent judge,
in clear violation of the above provision, did not order Sailan’s commitment to the DSWD or any other rehabilitation
center. Instead, as found by the Court Administrator, respondent
judge allowed Sailan’s continued
detention in the municipal jail consequently exposing him
to the harsh conditions therein.
Granting arguendo
that there was no agency or center in the municipality where
Sailan may be committed, still,
the continued detention of Sailan
in the municipal jail is not justified. Article 191 of P.D.
No. 603, as amended, specifically authorizes that, upon recommendation
of the DSWD, a minor may be released on recognizance to the
custody of his parents or other suitable person. Notwithstanding
the recommendation of the DSWD in this case, respondent judge
denied the motion for the release on recognizance of Sailan
by erroneously citing the second paragraph of Section 13,
Rule 114 of the 1985 of Rules on Criminal Procedure. As earlier
stated, said provision is not the applicable law in this case
but Article 191 of P.D. No. 603, Sailan
being a minor. Section 12, Rule 114 of the 1985 Rules on Criminal
Procedure in fact states that:
Whenever allowed pursuant to
law or these Rules, the court may release a person in custody
on his own recognizance or that of a responsible person.
In fine, respondent judge had
failed to live up to the norms embodied in the Code of Judicial
Conduct particularly that which enjoins judges to be faithful
to the law and maintain professional competence. Indeed, respondent
judge owes to the public and to the legal profession to know
the law he is supposed to apply to a given controversy.
People
vs. Ortillas, G.R.
No. 137666, May
20, 2004
On January
6, 1995, an Information was filed
against Marlon Ortillas with the
Makati Regional Trial Court, and
assigned by raffle to Branch 255 (Las Pinas), then presided over by Judge Florentino
M. Alumbres.
Despite the fact that
it is stated in the title of the Information that appellant
was a minor, detained at the Municipal Jail, Las Pinas,
Metro Manila, Presiding Judge Alumbres failed to ascertain and verify the alleged minority
of appellant and determine if the provisions of P.D. No. 603,
otherwise known as The Child and Youth Welfare Code should
be applied to Ortillas.
After arraignment of appellant who pleaded
not guilty to the offense with which he is charged, the trial
court dispensed with the pre-trial and proceeded to trial
on the merits.
In his Brief, appellant
points out that the first counsel of appellant, Atty. Jose
de Leon, raised the minority of appellant and invoked the
provisions of P.D. No. 603 during the initial hearing conducted
on June 8, 1995 but Judge Alumbres
outrightly denied his request. Atty. de Leon submitted to
the ruling and prosecution witness Russel
was called to the witness stand. There is merit to the complaint
of appellant. Judge Alumbres was
remiss of his duty to ascertain the minority of appellant
at the onset of the proceedings. The records further disclose
that he likewise ignored the letter of Director Milda
S. Alvior of the Department of Social
Welfare and Development (DSWD) filed with his court on January
31, 1996 informing him that appellant at that time was sixteen
years old and alleging that his prolonged stay in the Las
Pinas Jail for one year and one
month at the time, mixed with hundred criminals affected him
physically, intellectually, emotionally and socially.
The Presiding Judge
should be sanctioned for his negligence in the performance
of his duties with respect to accused minor - but these particular
omissions are not sufficient grounds to merit the reversal
of the assailed decision.
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Rule on Juveniles
in Conflict With The Law
Section 1. Applicability of the Rule. This Rule shall apply
to all criminal cases involving juveniles in conflict with the
law.
A juvenile in conflict with the
law is a person who at the time of the commission of the offense
is below eighteen (18) years of age but not less than nine (9)
years of age.
This Rule shall not apply to
an accused who at the time of initial contact as defined in Section
4(p) of this Rule, or at any time thereafter, shall have reached
the age of eighteen (18), in which case the regular rules on criminal
procedure shall apply without prejudice to the rights granted
under Sections 36, 37, 38 and 39 of this Rule. (n)
Sec. 2. Objective. The objective of this Rule is to ensure
that the justice system treats every juvenile in conflict with
the law in a manner that recognizes and upholds his human dignity
and worth, and instills in him respect for the fundamental rights
and freedoms of others. The Rule considers his developmental age
and the desirability of his reintegration into and assumption
of a constructive role in society in accordance with the principle
of restorative justice.
To attain this objective, the
Rule seeks:
a) To provide a procedure in
the adjudication of juveniles in conflict with the law that
takes into account their distinct circumstances and assures
the parties of a fair hearing with their constitutional and
statutory rights recognized and respected;
b) To divert from the justice
system juveniles who can be cared for
or placed under community-based alternative programs of treatment,
training and rehabilitation in conformity with the principle
of restorative justice;
c) To deal with the juvenile
in a family environment whenever possible, separate him from
his parents only when necessary for his welfare
or in the interest of public safety;
d) To remove
from juveniles in conflict with the law the stigma of criminality
and the consequences of criminal behavior; and
e) To provide for the care,
protection and wholesome moral, mental, and physical development
of juveniles in conflict with the law.
Sec. 3. Interpretation. This Rule shall be interpreted
liberally to promote the best interests of the child in conformity
with Philippine laws and the United Nations Convention on the
Rights of the Child.
Sec. 4. Definitions. As used in this Rule,
(a) To be in
conflict with the law means being charged with the commission
of an act defined and punished as a crime or offense under the
law, including violations of traffic laws, rules and regulations,
and ordinances of local government units.
(b) Serious offense refers
to any offense not covered by Section 1, par. B, Criminal Cases,
of the Rule on Summary Procedure, to wit: (1) violations of
traffic laws, rules and regulations; (2) violations of the rental
law; (3) violations of municipal or city ordinances; (4) all
other offenses punished with imprisonment not exceeding six
months, or a fine not exceeding one thousand pesos (P1,000.00),
or both, irrespective of other imposable penalties, accessory
or otherwise, or of the civil liability arising therefrom; provided,
however, that in offenses involving damage to property through
criminal negligence, the imposable fine is not in excess of
ten thousand pesos (P10,000.00).
(c) Youth detention
center refers to a government-owned or operated agency providing
habilitative and rehabilitative facilities
where a juvenile in conflict with the law may be physically restricted
pending court disposition of the charge against him.
(d) Intake report is a preliminary
written report containing the personal and other circumstances
of the juvenile in conflict with the law and prepared by the
social worker assigned by the Department of Social Welfare and
Development (DSWD) or local government unit to assist him as
soon as he enters the justice system.
(e) Case study
report is a written report of the result of an investigation conducted
by the social worker designated by the Family Court on the social,
cultural, economic and legal status or condition of the juvenile
in conflict with the law. It includes, among others, his developmental
age; educational attainment; family and social relationships;
the quality of his peer group; the strengths and weaknesses of
his family; parental control over him; his attitude toward the
offense; the harm or damage done to others resulting from the
offense; his record of prior offenses, if any; and the attitude
of his parents towards his responsibility for the offense.
(f) Diversion refers to an
alternative child-appropriate process of determining the responsibility
and treatment of a juvenile in conflict with the law on the
basis of his social, cultural, economic, psychological or educational
background without resorting to formal court adjudication.
(g) Diversion
programs refer to programs that the juvenile in conflict with
the law is required to undergo in lieu of formal court proceedings.
(h) Disposition conference
is a meeting held by the court with the social worker who prepared
the case study report together with the juvenile in conflict
with the law and his parents or guardian ad litem,
for the purpose of determining the disposition measures appropriate
to the personal and peculiar circumstances of the juvenile.
(i)
Recognizance is an undertaking in lieu of a bond assumed by a
parent or custodian who shall be responsible for the appearance
in court by the juvenile in conflict with the law when required.
(j) Probation is a disposition
alternative under which a juvenile in conflict with the law
is released and permitted to remain in his home after conviction
and sentence. The juvenile is subject to conditions imposed
in the sentence and to supervision by the court and a probation
officer who has the duty to return the juvenile to the court
in case of violation of a condition of his probation.
(k) Suspended
sentence is the holding in abeyance of the service of the sentence
imposed by the court upon a finding of guilt of the juvenile in
conflict with the law who will undergo rehabilitation.
(l) Community continuum is
a community-based group therapy process that provides continuous
guidance and support to the juvenile in conflict with the law
upon his release from rehabilitation and his reintegration into
society.
(m) Age of criminal
responsibility is the age when a juvenile who is nine (9) years
or over but under fifteen (15) years commits an offense with discernment.
(n) Discernment
means the mental capacity to understand the difference
between right and wrong and its consequences.
(o) Restorative
Justice is a principle which requires a process of resolving conflicts
with the maximum involvement of the victim, the offender, and
the community. It seeks to obtain reparation for the victim, reconciliation
of the offender, the offended and the community and reassurance
to the offender that he can be reintegrated into society. It also
enhances public safety by activating the offender, the victim
and the community in prevention strategies.
(p) Initial contact is the
apprehension or taking into custody of a juvenile in conflict
with the law by law enforcement officers or private citizens.
It includes the time when the juvenile receives a subpoena under
Section 3 (b) of Rule 112 of the Revised
Rules of Criminal Procedure or summons under Section 6 (a) or
Sec. 9 (b) of the same Rule in cases that do not require preliminary
investigation or where there is no necessity to place the juvenile
under immediate custody.
(q) Corporal
punishment is any kind of physical punishment inflicted on the
body as distinguished from pecuniary punishment or fine.
Sec. 5. Exemption from Criminal Liability. A minor under
nine (9) years of age at the time of the commission of the offense
shall be exempt from criminal liability.
A minor nine (9) years and above
but under fifteen (15) years of age at the time of the commission
of the offense shall be committed to the care of his father or
mother, or nearest relative or family friend, in the sound discretion
of the court and subject to its supervision. However, if the prosecution
proves that he has acted with discernment, he shall be proceeded against in accordance with Sections 24 to 28,
or 36 to 40 of this Rule, as the case may be, and subjected to
a delinquency prevention program as determined by the court.
Exemption from criminal liability
does not include exemption from civil liability which shall be
enforced in accordance with the provisions of Article
221 of the Family Code in relation to Article 101 of the Revised
Penal Code and Rule 111 of the Revised Rules of Criminal Procedure.
In case the act or omission of
the juvenile involves a quasi-delict,
Article 2180 of the Civil Code shall apply.
Sec. 6. Procedure in Taking a Juvenile into Custody.
Any person taking into custody a juvenile in conflict with the
law shall:
(a) Identify himself and present
proper identification to the juvenile;
(b) Inform the
juvenile of the reason for such custody and advise him of his constitutional rights in
a language or dialect understood by him;
(c) Refrain from using vulgar
or profane words and from sexually harassing or abusing, or
making sexual advances on the juvenile;
(d) Avoid displaying
or using any firearm, weapon, handcuffs or other instruments
of force or restraint, unless absolutely necessary and only after
all other methods of control have been exhausted and have failed;
(e) Refrain from subjecting
the juvenile to greater restraint than is necessary for his
apprehension;
(f) Avoid violence
or unnecessary force;
(g) Notify the parents of the
juvenile or his nearest relative or guardian, if any, and the
local social welfare officer as soon as the apprehension is
made;
(h) Take the
juvenile immediately to an available government medical or health
officer for a physical and mental examination. The examination
results shall be kept confidential unless otherwise ordered by
the Family
Court. Whenever treatment for any physical or mental defect
is necessary, steps shall be immediately taken by the said officer to provide
the juvenile with the necessary and proper treatment; and
(i)
Hold the juvenile in secure quarters separate from that of the
opposite sex and adult offenders.
Sec. 7. Taking Custody of a Juvenile Without a Warrant. A peace officer or a private
person taking into custody a juvenile in conflict with the law
without a warrant shall likewise follow the provisions of Sections
5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure
and shall forthwith deliver him to the nearest police station.
The juvenile shall be proceeded against in accordance with Section
7 of Rule 112.
Sec. 8. Conduct of Initial Investigation by the Police. The police officer conducting
the initial investigation of a juvenile in conflict with the law
shall do so in the presence of either of the parents of the juvenile;
in the absence of both parents, the guardian or the nearest relative,
or a social welfare officer, and the counsel of his own choice.
In their presence, the juvenile shall be informed of his constitutional
rights during custodial investigation.
The right of the juvenile to
privacy shall be protected at all times. All measures necessary
to promote this right shall be taken, including the exclusion of the media.
Sec. 9. Fingerprinting and Photographing of the Juvenile. While under investigation, no juvenile in conflict with the
law shall be fingerprinted or photographed in a humiliating and
degrading manner. The following guidelines
shall be observed when fingerprinting or photographing the juvenile:
(a) His fingerprint and photograph
files shall be kept separate from those of adults and shall be
kept confidential. They may be inspected by law enforcement officers
only when necessary for the discharge of their duties and
upon prior authority of the Family Court;
(b) His fingerprints and photographs
shall be removed from the files and destroyed: (1) if the case
against him is not filed, or is dismissed; or (2) when the juvenile
reaches twenty one (21) years of age and there is no record that
he committed an offense after reaching eighteen (18) years of
age.
Sec. 10. Intake Report by the Social Welfare Officer.
Upon the taking into custody of a juvenile in conflict with the
law, the social welfare officer assigned to him by the DSWD shall
immediately undertake a preliminary background investigation of
the juvenile and submit, prior to arraignment of the juvenile,
a report on his findings to the Family Court in which the case
may be filed.
Sec. 11. Filing of Criminal Action. A criminal action
may be instituted against a juvenile in conflict with the law
by filing a complaint with the prosecutor or the municipal trial
court in cases where a preliminary investigation is required.
In Manila and other chartered cities, if their charters so provide,
the complaint shall be filed with the Office of the Prosecutor.
It may also be filed directly with the Family Court if no preliminary
investigation is required under Section
1 of Rule 112 of the Revised Rules of Criminal Procedure.
All criminal actions commenced
by complaint or information shall be prosecuted under the direction
and control of the public prosecutor assigned to the Family Court.
Sec. 12. Prosecution of Civil Action. When a criminal
action is instituted against a juvenile in conflict with the law,
the action for recovery of civil liability arising from the offense
charged shall be governed by Rule 111 of the Revised Rules of
Criminal Procedure.
Sec.
13. Preliminary Investigation.
As far as consistent with this Rule, the preliminary investigation
of a juvenile in conflict with the law shall be governed by Section
3 of Rule 112 of the Revised Rules of Criminal Procedure. If clarificatory
questions become necessary, the Rule
on Examination of a Child Witness shall apply.
If a preliminary investigation
is required before the filing of a complaint or information, the
same shall be conducted by the judge of the Municipal Trial Court
or the public prosecutor in accordance
with the pertinent provisions of Rule 112 of the Revised Rules
of Criminal Procedure.
If the investigating prosecutor finds probable cause to hold the juvenile for trial,
he shall prepare the corresponding resolution and information
for approval by the provincial or city prosecutor, as the case
may be. The juvenile, his parents/nearest relative/guardian and
his counsel shall be furnished forthwith a copy of the approved
resolution.
Sec. 14. Venue. Subject to the provisions of Section 15,
Rule 110 of the Revised Rules of Criminal Procedure, any criminal
or civil action involving a juvenile in conflict with the law
shall be instituted and tried in the Family Court of or nearest
the place where the offense was committed or where any of its
essential elements occurred.
Sec. 15. Recognizance. Before final conviction, all juveniles
charged with offenses falling under the Revised Rule on Summary
Procedure shall be released on recognizance to the custody of
their parents or other suitable person who shall be responsible
for the juveniles appearance in court whenever required.
Sec. 16. When Bail a Matter of Right. All juveniles in conflict with the law shall
be admitted to bail as a matter of right before final conviction
of an offense not punishable by death, reclusion perpetua
or life imprisonment.
In the event the juvenile cannot
post bail for lack of financial resources, the Family Court shall
commit the juvenile pursuant to Section 18 of this Rule.
However, where the juvenile does
not pose a threat to public safety, the Family Court may, motu
proprio or upon motion and recommendation of the DSWD, release
the juvenile on recognizance to the custody of his parents or
other responsible person.
Sec. 17. When Bail Not A Matter of Right. No juvenile
charged with an offense punishable by death, reclusion perpetua or life imprisonment shall be admitted to bail when
evidence of guilt is strong.
Sec. 18. Care of Juveniles in Conflict with the Law. The juvenile charged with
having committed a delinquent act, held for trial or while the
case is pending appeal, if unable to furnish bail or is denied
bail, shall, from the time of his being taken into custody, be
committed by the Family Court to the care of the DSWD, a youth
detention center, or a local rehabilitation center recognized
by the government in the province, city or municipality within
the jurisdiction of the said court. The center or agency concerned
shall be responsible for the juvenile’s appearance in court whenever
required. In the absence of any such center or agency within a
reasonable distance from the venue of the trial, the juvenile
shall be detained in the provincial, city or municipal jail which
shall provide adequate quarters for the juvenile separate from
adult detainees and detainees of the opposite sex.
Sec.
19. Case Study Report.
After the institution of the criminal action, the social worker
of the Family Court shall immediately undertake a case study of
the juvenile and his family, his environment and such other matters
relevant to the proper disposition of the case. His report shall
be submitted within the period fixed by
the Family Court, preferably before arraignment, to aid it in
the proper disposition of the case.
Sec. 20. Diversion Proceedings Before Arraignment. Where the
maximum penalty imposed by law for the offense with which the
juvenile in conflict with the law is charged is imprisonment of
not more than six (6) months, regardless of fine or fine alone
regardless of amount, and the corresponding complaint or information
is filed with the Family Court, the case shall not be set for
arraignment; instead, it shall forthwith be referred to the Diversion
Committee which shall determine whether the juvenile can be diverted
and referred to alternative measures or services offered by non-court
institutions. Pending determination by the Committee, the court
shall deliver the juvenile on recognizance to the custody of his
parents or legal guardian who shall be responsible for the presence
of the juvenile during the diversion proceedings.
Sec. 21. Diversion Committee. In each Family Court, there shall be a Diversion
Committee to be composed of its branch clerk of court as chairperson,
and the prosecutor, a lawyer of the Public Attorney’s Office and
the social worker assigned to the said Family Court as members.
The chairperson of the Committee
shall call for a conference with notice to the juvenile, his parents/legal
guardian and his counsel, and the private complainant and his
counsel, and recommend to the Family Court whether the juvenile
should be diverted to a diversion program or undergo formal court
proceedings. In making its recommendation, the Committee shall
consider the following factors:
a) The record
of the juvenile on his conflict with the law;
b) Whether the imposable maximum
penalty of the offense is more than six (6) months, regardless
of fine; or only a fine, regardless of amount;
c) Whether the
juvenile is an obvious threat to himself and/or the community;
d) Whether the juvenile is
unrepentant;
e) Whether the
juvenile or his parents are indifferent or hostile; and
f) Whether the juvenile’s relationships
with his peers increase the possibility of delinquent behavior.
If the Committee recommends diversion,
it shall submit the diversion program for the juvenile for the
consideration and approval of the court.
The Committee cannot recommend
diversion should the juvenile or the private complainant object
thereto. If no diversion program is recommended, the court shall
include the case in its calendar for formal proceedings.
Consent to diversion by the juvenile
or payment by him of civil indemnity shall not in any way be construed
as admission of guilt and used as evidence against him in the
event that his case is included in the court calendar for formal
proceedings.
Sec. 22. Diversion Programs. The diversion program designed
by the Committee shall be distinct to each juvenile in conflict
with the law limited for a specific period. It
may include any or a combination of the following:
a) Written or
oral reprimand or citation;
c) Payment of
the damage caused;
d) Written or oral apology;
e) Guidance
and supervision orders;
f) Counseling for the juvenile
and his family;
g) Training,
seminars and lectures on (i) anger management
skills; (ii) problem-solving and/or conflict resolution skills; (iii)
values formation; and (iv) other skills that will aid the juvenile
to properly deal with situations that can lead to a repetition
of the offense;
h) Participation in available
community-based programs;
i) Institutional care and custody; or
j) Work-detail program in the
community.
Sec.
23. Hearing of Diversion
Program. The Family Court shall set the
recommendation and diversion program for hearing within ten (10)
days from receipt thereof.
Sec. 24. Undertaking. In all cases where a juvenile in
conflict with the law is given the benefit of a diversion program,
an undertaking describing the program shall be signed by him,
his parents or legal guardian and the complainant, and approved
by the Family Court. The program, which shall be enforced under
the supervision and control of the Family Court, shall contain
the following terms and conditions:
a) The juvenile
shall present himself to the social worker of the Family Court
that approved the diversion program at least once a month for
evaluation of its effectiveness. Whenever the juvenile is permitted
to reside in a place under the jurisdiction
of another Family Court, control and supervision over him shall
be transferred to the Family Court of that place, and in such
case, a copy of the undertaking, the intake and case study reports
and other pertinent records shall be furnished the said court.Thereafter,
the Family Court to which jurisdiction over the juvenile is transferred
shall have the power with respect to the latter that was previously
possessed by the Family Court that approved the diversion and
such other conditions as the Committee may deem just and proper
under the circumstances.
b) The juvenile shall faithfully
comply with the terms and conditions in the undertaking. His
non-compliance shall be referred by the Committee to the Family
Court where the case has been transferred for a show-cause hearing
with notice to the juvenile and private complainant. The court
shall determine whether the juvenile should continue with the
diversion program or his case returned to the original court
for formal proceedings.
The Family Court shall exert
its best efforts to secure satisfaction of the civil liability
of the juvenile and his parents or guardian. However, inability
to pay the said liability shall not by itself
be a ground to discontinue the diversion program of the
juvenile.
Sec. 25. Closure Order. The juvenile subject of diversion
proceedings shall be visited periodically by the Family Court
social worker who shall submit to the Committee his reports thereon.
At any time before or at the end of the diversion period, a report
recommending closure or extension of diversion, as the case may
be, shall be filed by the Committee with the Family Court. The
report and recommendation shall be heard by the Family Court within
fifteen (15) days from its receipt thereof, with notice to the
members of the Committee, the juvenile and his parents or legal
guardian and counsel and the complainant to determine whether
the undertaking has been fully and satisfactorily complied with.
If the juvenile has complied with his undertaking, the Family
Court shall issue the corresponding closure order terminating
the diversion program. It may, however, extend the period of diversion
to give the juvenile a further chance to be rehabilitated. In
the event the court finds that the diversion program will no longer
serve its purpose, it shall include the case of the juvenile in
its calendar for formal proceedings.
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile.
In all criminal proceedings in the Family Court, the judge shall
ensure the protection of the following rights of the juvenile
in conflict with the law:
a) To be presumed
innocent until the contrary is proved beyond reasonable doubt;
b) To be informed promptly
and directly of the nature and cause of the charge against him,
and if appropriate, through his parents or legal guardian;
c) To be present
at every stage of the proceedings, from arraignment to promulgation
of judgment. The juvenile may, however, waive his presence at
the trial pursuant to the stipulations set forth in his bail,
unless his presence at the trial is specifically ordered by the
court for purposes of identification. The absence of the juvenile
without justifiable cause at the trial of which he had notice
shall be considered a waiver of his right to be present thereat.
When the juvenile under custody escapes, he shall be deemed to
have waived his right to be present in all subsequent hearings
until custody over him is regained;
d) To have legal and other
appropriate assistance in the preparation and presentation of
his defense;
e) To testify
as a witness in his own behalf and subject to cross-examination
only on matters covered by direct examination, provided that the
Rule on the Examination of a Child Witness shall be observed whenever
convenient and practicable.
The juvenile
shall not be compelled to be a witness against himself and his
silence shall not in any manner prejudice him;
f) To confront and cross-examine
the witnesses against him;
g) To have compulsory
process issued to secure the attendance of witnesses and production
of other evidence in his behalf;
h) To have speedy and impartial
trial, with legal or other appropriate assistance and preferably
in the presence of his parents or legal guardian, unless such
presence is considered not to be in the best interests of the
juvenile taking into account his age or other peculiar circumstances;
i) To appeal in all cases allowed and in the manner prescribed
by law;
j) To be accorded all the rights
under the Rule on Examination of a Child Witness; and
k) To have his
privacy fully respected in all stages
of the proceedings.
Sec. 27. Arraignment and Plea. The provisions of Rules
116 and 117 of the Revised Rules of Criminal Procedure shall apply
to the arraignment of the juvenile in conflict with the law. The
arraignment shall be scheduled within seven (7) days from the
date of the filing of the complaint or information with the Family
Court, unless a shorter period is provided for by law.
Arraignment shall be held in
chambers and conducted by the judge by furnishing the juvenile
a copy of the complaint or information, reading the same in a
language or dialect known to and understood by him, explaining
the nature and consequences of a plea of guilty or not guilty
and asking him what his plea is.
Sec. 28. Pre-trial. The provisions of Rule 118 of the
Revised Rules of Criminal Procedure shall govern the pre-trial
of the juvenile in conflict with the law. Agreements or admissions
made during the pre-trial conference shall be in writing and signed
by the juvenile, his parents or guardian and his counsel; otherwise,
they cannot be used against him.
Whenever possible and practicable,
the Family Court shall explore all possibilities of settlement
of the case, except its criminal aspect. Plea bargaining shall
be resorted to only as a last measure when it will serve the best
interests of the juvenile and the demands of restorative justice.
Sec. 29. Trial. All hearings shall be conducted in a manner
conducive to the best interests of the juvenile and in an environment
that will allow him to participate fully and freely in accordance
with the Rule
on Examination of a Child Witness.
Sec. 30. Guiding Principles in Judging the Juvenile. Subject
to the provisions of the Revised Penal Code, as amended, and other
special laws, the judgment against a juvenile in conflict with
the law shall be guided by the following principles:
1. It shall
be in proportion to the gravity of the
offense, and shall consider the circumstances and the best interests
of the juvenile, the rights of the victim, the needs of society
in line with the demands of restorative justice.
2. Restrictions on the personal
liberty of the juvenile shall be limited to the minimum. Where
discretion is given by law to the judge to determine whether
the penalty to be imposed is fine or imprisonment, the imposition
of the former should be preferred as the more appropriate penalty.
3. No corporal
punishment shall be imposed.
Sec. 31. Promulgation of Sentence. If after trial the Family Court should find
the juvenile in conflict with the law guilty, it shall impose
the proper penalty, including any civil liability which the juvenile
may have incurred, and promulgate the sentence in accordance with
Section 6, Rule 120 of the Revised Rules of Criminal Procedure.
Sec. 32. Automatic Suspension of Sentence and Disposition Orders.
The sentence shall be suspended without need of application by
the juvenile in conflict with the law. The court shall set the
case for disposition conference within fifteen (15) days from
the promulgation of sentence which shall be attended by the social
worker of the Family Court, the juvenile, and his parents or guardian
ad litem. It shall proceed to issue
any or a combination of the following disposition measures best
suited to the rehabilitation and welfare of the juvenile:
1. Care, guidance,
and supervision orders;
2. Community service orders;
3. Drug and alcohol treatment;
4. Participation in group counseling
and similar activities;
5. Commitment
to the Youth Rehabilitation Center of the DSWD or other centers for juveniles in conflict with the law authorized
by the Secretary of the DSWD.
The Social Services and Counseling
Division (SSCD) of the DSWD shall monitor the compliance by the
juvenile in conflict with the law with the disposition measure
and shall submit regularly to the Family Court a status and progress
report on the matter. The Family Court may set a conference for
the evaluation of such report in the presence, if practicable,
of the juvenile, his parents or guardian, and other persons whose
presence may be deemed necessary.
The benefits of suspended sentence
shall not apply to a juvenile in conflict with the law who has
once enjoyed suspension of sentence, or to one who is convicted
of an offense punishable by death, reclusion perpetua
or life imprisonment, or when at the time of promulgation of judgment
the juvenile is already eighteen (18) years of age or over.
Sec. 33. Discharge of Juvenile Subject of Disposition Measure. Upon the recommendation
of the SSCD and a duly authorized officer of the DSWD, the head
of an appropriate center or the duly accredited child-caring agency
which has custody over the juvenile, the Family Court shall, after
due notice to all parties and hearing, dismiss the case against
the juvenile who has been issued disposition measures, even before
he has reached eighteen (18) years of age, and order a final discharge
if it finds that the juvenile has behaved properly and has shown
the capability to be a useful member of the community.
If the Family Court, however,
finds that the juvenile has not behaved properly, has been incorrigible,
has not shown the capability of becoming a useful member of society,
has willfully failed to comply with the conditions of his disposition
or rehabilitation program, or should his continued stay in the
training institution where he has been assigned be not in his
best interests, he shall be brought before the court for execution
of his judgment.
If the juvenile in conflict with
the law has reached the age of eighteen (18) years while in commitment,
the Family Court shall determine whether to dismiss the case in
accordance with the first paragraph of this Section or to execute
the judgment of conviction. In the latter
case, unless the juvenile has already availed of probation under
Presidential Decree No. 603 or other similar laws, he may apply
for probation if qualified under the provisions of the Probation
Law.
The final release of the juvenile
shall not extinguish his civil liability. The parents and other
persons exercising parental authority over the juvenile shall
be civilly liable for the injuries and damages caused by the acts
or omissions of the juvenile living in their company and under
their parental authority subject to the appropriate defenses provided
by law.
Sec. 34. Probation as an Alternative to Imprisonment.
After promulgation of sentence and upon application at any time
by the juvenile in conflict with the law within the period to
appeal, the Family Court may place the juvenile on probation,
if he is qualified under the Probation Law.
Sec. 35. Credit in Service of Sentence. The juvenile in
conflict with the law who has undergone preventive imprisonment
shall be credited in the service of his sentence consisting of
deprivation of liberty, with the full time during which he has
undergone preventive imprisonment, if he agrees voluntarily in
writing to abide by the same or similar disciplinary rules imposed
upon convicted prisoners, except in any of the following cases:
1. When the
juvenile is a recidivist or has been convicted previously twice or more times
of any crime; or
2. When upon being summoned
for execution of sentence, he failed to surrender voluntarily.
If the juvenile
does not agree to abide by the same disciplinary rules
imposed upon convicted prisoners, he shall be credited in
the service of his sentence with four-fifths of the time during
which he has undergone preventive imprisonment.
Whenever the juvenile has undergone
preventive imprisonment for a period equal to or more than the
possible maximum imprisonment of the offense charged to which
he may be sentenced and his case is not yet terminated, he shall
be released immediately without prejudice to the continuation
of the trial thereof or the proceeding on appeal, if the same
is under review. In case the maximum penalty to which the juvenile
may be sentenced is destierro, he shall
be released after thirty (30) days of preventive imprisonment.
Any form of physical restraint
imposed on the juvenile in conflict with the law, including community
service and commitment to a rehabilitation center, shall be considered
preventive imprisonment.
Sec. 36. Confidentiality of Proceedings and Records. All
proceedings and records involving juveniles in conflict with the
law from initial contact until final disposition of the case by
the Family Court shall be considered privileged and confidential.
The public may be excluded from the proceedings and, pursuant
to the provisions of Section
31 of the Rule on Examination of a Child Witness, the records
shall not be disclosed directly or indirectly to anyone by any
of the parties or the participants in the proceedings for any
purpose whatsoever, except to determine if the juvenile may have
his sentence suspended under Section 25 of this Rule or if he
may be granted probation under the Probation Law, or to enforce
the civil liability imposed in the criminal action.
The Family Court shall take other
measures to protect this confidentiality of proceedings including
non-disclosure of records to the media, the maintenance of a separate
police blotter for cases involving juveniles in conflict with
the law and the adoption of a system
of coding to conceal material information, which will lead to
the juvenile’s identity. Records of juveniles in conflict with
the law shall not be used in subsequent proceedings or cases involving
the same offender as an adult.
Sec. 37. Non-liability for perjury or concealment or misrepresentation. Any person
who has been in conflict with the law as a juvenile shall not
be held guilty of perjury or of concealment or misrepresentation
by reason of his failure to acknowledge the case or recite any
fact related thereto in response to any inquiry made to him for
any purpose.
Sec. 38. Sealing of Records. The Family Court motu proprio, or on application of
a person who has been adjudged a juvenile in conflict with the
law, or if still a minor, on motion of his parents or legal guardian,
shall, upon notice to the prosecution and after hearing, order
the sealing of the records of the case if it finds that two (2)
years have elapsed since the final discharge of the juvenile after
suspension of sentence or probation, or from the date of the closure
order and he has no pending case of an offense or a crime involving
moral turpitude.
Upon entry of the order, the
case shall be treated as if it never occurred. All index references
shall be deleted and in case of inquiry, the Family Court, prosecution,
law enforcement officers and all other offices and agencies that
dealt with the case shall reply that no record exists with respect
to the juvenile concerned. Copies of the order shall be sent to
these officials and agencies named in the order. Inspection of
the sealed records thereafter may be permitted only by order of the Family Court upon petition of the juvenile
who is the subject of the records or of other proper parties.
This procedure shall be without
prejudice to the rule on destruction of video or audio tapes under
Section 31 of the Rule on the Examination of a Child Witness.
Sec. 39. Prohibition Against Labeling. In the conduct of proceedings from initial
contact with the juvenile in conflict with the law to the final
disposition of the case, there shall be no branding or labeling
of the latter as a young criminal, juvenile delinquent, prostitute,
vagrant, or attaching to him in any manner any derogatory name.
Likewise, no discriminatory remarks and
practices shall be allowed, particularly with respect to the juvenile’s
social or economic status, physical disability or ethnic origin.
Sec. 40. Contempt Powers. A person who directly or indirectly disobeys any order of
the Family Court or obstructs or interferes with its proceedings
or the enforcement of its orders issued under this Rule shall
be liable for contempt of court.
Sec. 41.Effectivity. This rule
shall take effect on April 15, 2002 after its publication
in a newspaper of general circulation not later than March 15,
2002.
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