Rules on Inquest with Respect to Children in Conflict with the Law as Defined under Republic Act No. 9344

August 15, 2007

DOJ DEPARTMENT CIRCULAR NO. 039-07

 

In the interest of the service and pursuant to existing laws, Section 3 of the New Rules on Inquest, which provides for the termination of inquest proceedings within the period prescribed in Article 125 of the Revised Penal Code, as amended, shall not be applicable when the persons arrested without the benefit of a warrant of arrest issued by the court are children, as defined under Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006" who shall be treated as follows:

1. In cases of warrantless arrest involving a child in conflict with the law (CICL) who is above fifteen (15) but below eighteen (18) years of age, and within eight (8) hours from such arrest, the law enforcement officer concerned shall turn over custody of the child to the Local Social Welfare Development Officer (LSWDO) for the determination by the latter of the presence or absence of discernment of the child (Rule 25, 1st Par., IRR of RA 9344).

2. The policy behind the juvenile justice system is, as much as possible, to prevent the CICL from being brought within the ambit of the judicial system; a fact which is entirely opposite to the policy underlying Article 125 of the Revised Penal Code, as amended.

2.1. Hence, the turning over of the custody of the child to the LSWDO and the latter's custody of the said child, shall not be considered a detention; for which reason, in all cases of warrantless arrest involving CICL, Article 125 of the Revised Penal Code shall not be applicable. TaCSAD

3. Cases erroneously filed by the law enforcement officer directly with the prosecution for inquest investigation shall be dismissed without prejudice for the refiling of the same, if so warranted:

a. Where the offense charged is punishable by imprisonment of not more than six (6) years, the prosecutor shall direct the law enforcement officer to turn over the custody of the CICL to the LSWDO for the required diversion or intervention proceedings, as the case may be.

a.1. Pending diversion proceedings, the LSWDO shall release the child to his/her parents, or in the latter's absence, to the persons or agencies authorized by law to take custody of the child.

a.2. However, where diversion is inappropriate, or no diversion agreed is agreed upon, or where there is a violation of such contract by the child or by his/her parents, the complaint may be refiled, but shall undergo the regular preliminary investigation.

b. Where the offense charged is punishable by imprisonment of more than six (6) years, but the records of the case do not show any document from the LSWDO certifying that the child acted with discernment, the prosecutor shall direct the law enforcement officer to turn over custody of the CICL to the LSWDO for the latter to determine whether or not the CICL acted with discernment.

b.1 The case may be revived for inquest proceeding should the child be found to have acted with discernment. aCATSI

4. Within twenty four (24) hours from receipt of the LSWDO's finding of discernment, the law enforcement officer concerned shall bring the child to the prosecutor for inquest proceedings. The LSWDO shall accompany the child to provide the needed assistance to him/her.

5. The CICL subject of the inquest proceedings may avail of his right to a formal preliminary investigation, duly assisted by counsel, or in the latter's absence, by his/her parent, or guardian, or the LSWDO or representative from the Barangay Council for the Protection of Children, or any other government agency or non-government organization having custody of the child for and in behalf of the LSWDO.

6. Where the child acted without discernment, the LSWDO shall notify the law enforcement officer and the offended party or the complainant (in case of victimless crimes), of such finding. The LSWDO shall release or cause the release of the child from custody, if within five (5) days from such notice, the offended party or the complainant does not contest the finding of absence of discernment of the child. Upon the filing by the offended party or complainant with the LSWDO of the notice to contest the latter's finding, the child shall continue to be under the custody of the LSWDO or any other authorized agency in whose custody the child has been delivered.

7. Within fifteen (15) days from receipt of the finding of absence of discernment, the offended party or complainant may file an action or appeal with the prosecutor questioning the finding of the LSWDO. However, in cases punishable by reclusion perpetua, life imprisonment or death, the finding by the LSWDO of lack of discernment shall be the subject of an automatic appeal to the investigating prosecutor and it shall be the duty of the law enforcers to forward/transmit the records of the case to the investigating prosecutor. IcSEAH

8. In cases where automatic appeal does not apply, and the LSWDO's finding of absence of discernment is not contested within the fifteen (15) day period, the law enforcement officer shall dismiss the case, and the LSWDO shall release or cause the release of the child from custody, but shall subject the child to an intervention program.

9. Upon receipt of the offended party's or the complainant's appeal from the LSWDO's finding of absence of discernment of the child, the prosecutor shall conduct his/her own assessment on the child's discernment or absence, thereof.

9.1 For purposes of such assessment, the prosecutor shall require the law enforcement officer to forward the records of the case to him/her; and conduct clarificatory hearing so the latter could personally examine the CICL.

9.2 If the prosecutor deems it necessary, he/she may, at his/her own discretion, and to aid him/her in his/her assessment, require the LSWDO to forward to him/her a copy of the case study on the child, if any or the records of the LSWDO's examination on the child, supporting its finding of absence of discernment of the child.

9.3 If the child acted without discernment, the prosecutor shall dismiss the case and order the release of the child and the conduct of the intervention by the LSWDO.

9.4 If the child acted with discernment, the prosecutor shall conduct the inquest proceedings without prejudice to the child's right to a preliminary investigation.

This circular takes effect immediately.

For strict compliance. EcHTDI

(SGD.) RAUL M. GONZALEZSecretary