State Sponsored Violence against Children in Philippines

State Sponsored Violence against Children in Philippines
(as presented to the UN Committee on Human Rights)

1. INTRODUCTION

The Philippines signed the International Covenant on Civil and Political Rights (ICCPR) on December 19, 1966, but ratified it only on February 28, 1986. On October 23 of the same year, it submitted the instrument of ratification. In accordance with Article 40 of the ICCPR, the Philippines submitted to the United Nations Human Rights Committee (HRC) the combined Second and Third State Reports of the Philippines’ Implementation of the ICCPR, which are set for review in October 2003. The last time the Philippines had been included in the agenda was in 1989.

After the adoption of the ICCPR, the international community recognized specific provisions pertaining to the rights of the child. The Philippine government had committed itself to undertake all appropriate measures for the implementation of the Covenant. After the United Nations ratified the Convention on the Rights of the Child (UN CRC) on November 20, 1989, the Philippines immediately took measures for its ratification. On July 26, 1990, it became the 31st State to ratify the convention.

Non-government organizations (NGOs) in the Philippines have been playing a significant role in upholding and promoting human rights (HR). The Preda Foundation, Inc., fully agrees with one of the conclusions of the government, that, the country ?has been in the forefront of HR promotion, particularly in terms of legislation but has regrettably fallen short of expectation when it comes to implementation. Hence, despite the legislative groundwork already put in place for children, there is still a very big gap between enactment and enforcement.?

Nominated for the Nobel Peace Prize in 2001, Preda Foundation, Inc., was founded in 1974 in Olongapo City. Its services include a campaign against international pedophile syndicates, a residential healing center for sexually abused children, legal services, youth organizing, child jail rescue and public awareness building on human rights, a theater advocacy group, a trade fair, and community organizing. The Preda Foundation, Inc., is submitting this paper as a supplement to the government report. Any information herein has been sourced from consolidated reports from fact-finding missions, case studies, and documentation of NGO work in specific areas of the Philippines.

2. DISCRIMINATION

When US servicemen withdrew from the Subic Naval Base in November 1992, they left behind an estimated 50,000 Amerasians in the Philippines. Some 5,000 of them are all under 20 years of age and abandoned by their parents. It is noted that while Amerasians from Vietnam, Laos, Cambodia and Thailand were immediately granted US citizenship, Filipino Amerasians received little consideration from the US government.

3. UNLAWFUL KILLINGS

3.1 Legal Framework
The Universal Declaration of Human Rights declares the inherent right of every human being to life. Other international HR instruments reinforce this inherent right. Article 6 of the UN CRC calls upon signatory states to recognize that every child has the inherent right to life, while Article 37 of the ICCPR prohibits the imposition of the death sentence for crimes committed by persons below 18 years of age. Summary execution is the worst form of human rights violation. It is the worst form of violence against any human being. It is a violation of the aforementioned human rights instruments.

3.2 Background

Summary executions in Davao City were first reported during the early 1990s. A strong frustration by the general public with the arduous and ineffective judicial system and a climate of fear have nurtured a mute acceptance of summary executions as the ?practical resort? to the suppression of crime in Davao City. This climate of fear sprung from the general perception of an ?unseen enemy? and, among victims and witnesses, of perpetrators ?with strong back-up and connections.? Summary executions are seen as a cheap price the city has to pay for maintaining peace and order. Davao City and the surrounding region notably possess a strong vigilante tradition, a reaction to the insurgency problem during the 1970s and 1980s.

Since May of 2001, two vigilante groups respectively known as the Davao and Digos Death Squads have killed at least 86 people, including teenagers. Press reports confirm that not one person has been brought to justice or even charged with the killings. Fourteen of the cases occurred in Digos City, with the remainder in Davao City. It is not clear how close the links are, if any, between the Davao and Digos Death Squads. However, the killings committed by both groups are carried out in a similar manner and against suspected drug pushers and petty criminals. The killings remain unpunished and seemingly uninvestigated. It appears from the media reports that the killings are not random attacks carried out by amateurs. The nature of the killings have lead NGOs to believe that they and their perpetrators are well organized and well funded.

The Davao Death Squad (DDS) is believed to have liquidated more 150 people over the last seven years. From 1999 to 2002, a total of 17 cases of summary executions were also reported in the areas near Davao City, with 11 cases in Digos City and Davao del Sur province, five cases in Tagum City, Davao Oriental province, and two in Tacurong City, Sultan Kudarat province. Sometime in June 2000 in Tagum City, unidentified gunmen, believed to be vigilantes, liquidated three suspected drug pushers. This development came after a noted increase of drug abuse, especially among the youth in Tagum City.

Since July 1999, child rights organizations in Davao City have been involved in the uphill campaign against the summary execution of children. The campaign is described as a torturous swim against the strong tide of public opinion tacitly favoring summary executions as a swift and effective method to curb criminality in the city. While many newspaper articles have been written on summary executions in Davao City, few have only been able to establish the trend represented by these incidents. Investigative stories were unable to pinpoint the perpetrators and link them to any group. None of these articles were able to capture the form and substance of the campaign, which has proven to be a baptism of fire for local child rights organizations, particularly those that have limited experience in leading HR campaigns on sensitive issues such as summary executions.

A partner organization based in Davao City contacted the PREDA Foundation Inc. in 1999 after being threatened and intimidated by local authorities for having spoken out against the killing of street children. The partner organization had reported that an unidentified group, usually well-equipped gunmen riding black motorcycles, was summarily executing street children. Such killings went unchecked and the perpetrators unpunished to such an extent that the killers appeared to act with complete impunity. PREDA launched a massive and intensive Internet and publicity campaign to protest against the wanton killings of young people. Then Davao City Mayor Benjamin de Guzman sued PREDA for libel. In their defense, PREDA charged that the libel law ought not be used to stifle and silence the voice that speaks for HR against the killing of innocent people by ?semi-official? death squads. PREDA eventually won the case. Because of the libel case and the ensuing publicity, the killings stopped in the year 2000.

The death squads reappeared after Rodrigo Duterte, who had campaigned on a strong anti-crime and anti-drugs platform, won the mayoralty race in Davao City. Since his election, Mayor Duterte has constantly warned suspected drug dealers and petty criminals to ?leave his city or face his wrath.? PREDA suspects that the renewed killing spree is an official policy aimed to curb street crime in order to garner support from local business people.

3.3 Recent Event and Statistics

While newspapers made no mention of any killings for six months between 05.12. 2001 and 11.02.2002, NGOs in Davao reported that the summary executions continued throughout the same period. NGOs claimed that since 06.12.2001, more than 45 people have been executed by the DDS. According to the press, the police named most of the 45 victims as suspected criminals or drug dealers ? while no proof of any crime has been advanced nor any of the alleged convictions verified. Several of the reports indicated the ages of the victims, many of whom were children and youth. Majority appears to be street dwellers. The reports do not contain any details about exact addresses of the victims and little reference is made about the victims save for their occupations.

Few complaints, if any at all, have been made to police officials due the atmosphere of fear and intimidation in the Davao area. Several NGOs reported to have made complaints to the Davao branch of the Commission on Human Rights. Davao-based NGOs noted that the police and media have incorrectly reported that the many killings in the city were the result of gang rivalries and not the handiwork of the DDS.

NGOs expressed extreme concern over the route Philippine law enforcement may take after Mayor Duterte, the newly appointed anti-crime consultant, had made alarming statements at a national anti-crime summit in Manila on 09.07.2003, which was attended by President Gloria Macapagal-Arroyo, Interior and Local Government Secretary Joey Lina and Philippine National Police Chief Hermogenes Ebdane. To loud applause, Duterte was quoted as saying, ?The intention of the criminals is to instill fear in their victims and kill them. What should we do, but kill them also.” He also recommended the government to pursue a policy of “an eye for an eye, a tooth for a tooth” against suspected criminals.

All of the killings appear to be carried out on the streets during broad daylight by armed men on unmarked motorcycles. Generally, there are two gunmen, usually wearing either black clothing or military fatigues, on each motorcycle. While no witnesses have ever surfaced out of fear, investigations and interviews with people witnessing the attacks, as well as newspaper accounts confirm that the assailants are organized and well informed about their targets. Many street children in the area have reported being stopped by men on motorcycles and shown lists of names of people, whose whereabouts and descriptions were asked.

Thirty-eight percent (38%) of the victims were suspected to be involved in theft-related incidents, while twenty-nine percent (29%) were involved in drug-related crimes. While no clear motives were given for eighteen percent (18%) of the cases, fourteen percent (14%) of the victims were suspected members of street gangs. Eighty-four percent (84%) of the victims were gunned down. The .45 caliber pistol was the preferred weapon of assault, although .38 caliber or 9mm pistols were also used. Fourteen percent (14%) of the victims were stabbed dead, while the method of execution in two percent (2%) was not indicated.

Seventy-six percent (76%) of the victims were adults, but nonetheless, a grim sixteen percent (16%) of the victims were children aged 13 to 17. The age of the victims in eight percent (8%) of the cases was unidentified, although one was positively identified as a teenager. Majority of the victims were male at ninety-three percent (93%). All of the child victims were boys. All of the female victims were adults.

3.4 The Death Squads and Alleged State and Police Involvement

Before acquiring the name Davao Death Squad, the group of gunmen who purposely kill ?police or criminal characters? suspected of involvement in the drug trade or cellular phone snatching syndicates in the Davao area, was euphemistically known as Suluguon sa Katawhan or ?Servants of the People?. Within a couple of years after making its first mark in 1993, the DDS, also known as the Dunggab Death Squad or Los Pepes, sporadically made its presence seriously felt. By mid-1997, the local press already attributed to the DDS more than 60 unsolved murders, mostly of people believed or confirmed by authorities to be involved in the drug trade. It has been observed that the DDS adopted the urban warfare tactics used in the 1980s by the so-called Sparrow Units of the New People’s Army (NPA) during the height of the revolutionary movement. One source revealed in 1997, that the DDS had at least 10 members, mostly surrenderees or former members of the NPA.

In October 2001, the Region XI Commission on Human Rights (CHR) Director Iinked the increase of incidents of summary executions to a bounty system catered by wealthy patrons. He said that summary executions have become a lucrative business, with the patron paying at most PhP 35,000 for each victim killed. At least PhP 15,000 of the bounty reportedly goes to the triggerman, while the remainder is allegedly given to police officers said to be in cahoots with the vigilante groups. The regional director also pointed out that it was close to impossible for the police and military not to know the identities of the members of these groups given the huge budget allocated for intelligence work.

On the other hand, the PNP has not charged anybody in relation to the murders and does not appear any close to doing so. This is despite a Special Task Force, which was set up by PNP Chief Supt. Eduardo Matillano in October 2001, to investigate the murders. However, since its inception, Task Force Vigilance has not charged one person with the murders. Officially and consistently, the city police and Mayor Duterte deny any link or knowledge of the activities of the DDS. Meanwhile, the press made claims that there are former military and PNP officers in the DDS ranks. In 2001, some witnesses linked three police officers to the DDS. It was noted that the officers were, at one time or another, near the crime scene. They were suspected of either being the gunmen or having served as the contacts. The witnesses however were reluctant to provide written statements. Regardless of who is actually pulling the triggers, it is clear that the State has made no real attempt to investigate the killings and prosecute the perpetrators. As such, the killers appear to be allowed to act with complete impunity. Thirty percent (30%) of the cases transpired within the jurisdiction of the Sta. Ana Police Station in downtown Davao City. Twenty-six percent (26%) occurred in the jurisdiction of the San Pedro Police Station, with fifteen percent (15%) at the Talomo Police Station. Ten percent of the killings occurred in areas under the jurisdiction of the Buhangin Police Station, while six percent (6%) transpired in the area under the Sasa Police Station.

According to a report by a local paper dated 21.11.2001, Chief Matillano admitted that some police officers were involved in the vigilante killings. The same report quotes Matillano as saying that the vigilante killings have almost halved the crime rate in the city. In addition, an unnamed ranking police officer in the report says it is highly possible that Matillano had knowledge of the composition, plans and operations of the Davao Death Squad.

Very important local figures, such as local Counselor Angela Labrado, Human Rights Commissioner Dominador Calamba II, local priests, the Free Legal Assistance Group and the Integrated Bar of the Philippines have all condemned the police for their complete failure to investigate the killings or prevent them. They have demanded the police to implement their obligations under national and international law and investigate the murders. Human Rights Commissioner Calamba II, on the Philippines Government Information Agency website said on 05.03.2002, that the failure by the police and local executives to stop the vigilante killings was a blatant human rights violation. He indicated that local executives and the police knew the criminals but were, ?seemingly tolerating them.?

The press has meanwhile closely linked Mayor Duterte to the killings by the DDS. It is a widely held belief that the mayor is linked to the killings. The Dow Jones Reuters report dated 29.10.2001 indicates the apparent rationale behind the killings. The report cites businessmen of the area who claimed that the investment climate in the city improved significantly, after the security situation stabilized during Duterte’s term in the mid-1990s, the same period the DDS began their campaigns. After Duterte was re-elected as a result of strong support from the business community for his ?firm resolve? in solving criminality in Davao, the media reported the almost immediate intensification of incidences of summary executions. Reuters reported on 05.27.2002 that, “In the past, the DDS (Davao Death Squad) was linked to Mr. Duterte who seems to favour a heavy-handed law enforcement style for this city.? On his weekly television show, Duterte has been repeatedly naming suspected criminals and drug dealers. Reuters reported of Duterte’s admission that many of the people he had named were killed a day after broadcast. On 01.14.2002, Reuters reported that the mayor had threatened alleged kidnappers operating in Davao whom he also names in his television program. After telling them that he is ready to kill or be killed, Duterte said, ?I know who your relatives are and where they live.”

Duterte has consistently denied involvement with the DDS, and has even denied the existence of the DDS. The Davao Sunstar however, in a report dated 04.09.2002, quoted the mayor as saying, ?I would rather see criminals dead, than innocent victims die, being killed senselessly.? The statistics show that sixty-five percent (65%) of the documented cases of summary executions transpired during the current term of Mayor Rodrigo Duterte, while the remainder took place during the term of Benjamin de Guzman.

3.5 Conclusions and Recommendations

NGO’s strongly urge the Filipino people, especially the government leaders to protect the children and people of cities of Davao and Digos by issuing an urgent appeal addressed to the Davao City Mayor to immediately act to stop arbitrary killings and bring those responsible to justice. The NGOs also strongly recommend authorities to carry out an investigation and instigate substantial action against those to be found responsible, with consistent updates on the progress of the investigation. It should also be ensured that the families of the victims of the DDS are provided adequate compensation and protection from future attacks.

4. TORTURE/JUVENILE JUSTICE/CHILDREN IN CONFLICT WITH THE LAW (CICL)

4.1 Legal Framework

4.2 Practice/Lack of Compliance with International Juvenile Justice Standards

Unfortunately, the amalgam of laws (mentioned in Section 4.1) designed for the protection of people in conflict with the law is largely disjointed, often contradictory, and misapplied in practice. While these laws grant CICL a high level of protection, in practice this is not the case. As highlighted by the following comments on implementation of the laws, there is an overwhelming need for reform in this area. Any reform should be aimed at clarifying the law, clearly setting the exact procedures to be followed starting from the time a child initially comes into conflict with the law. Such reforms should also provide for enforceable penalties for any breaches committed.

4. Arrest

4.2.1.1Arrest with a Warrant

Since the apprehension of a person suspected to have committed a criminal offense involves the deprivation of liberty ? albeit temporarily ? the Philippine Constitution requires that arrest should be made only by a virtue of a warrant and unless the circumstances in which the person is arrested falls within the exceptions provided by law. An arrest warrant is issued following the conduct of a preliminary investigation by a prosecutor, judge or other authorized official, and the filing of a criminal case in court. Under Section 4 of the Revised Rules of Criminal Procedure, the pre-arrest preliminary procedure should provide the accused adequate opportunity to submit controverting evidence to refute the complaint prior to facing the risk of imprisonment and the filing of criminal charges in court.

There is no effective provision under Philippine law for legal representation to be provided at the preliminary investigation stage to an accused unable to afford legal counsel, who can nonetheless be provided legal assistance by the Public Attorney’s Office (PAO). In the majority of cases, a child will not have legal assistance at this stage and in practice, very few CICL are arrested pursuant to the issuance of an arrest warrant. Only two of the 69 minors interviewed in jail were detained on the foot of an arrest warrant issued after the conduct of a preliminary investigation. These two minors reported receiving a subpoena attached to an affidavit of complaint. Without legal assistance however, they were unable to understand the consequences. They ignored the documents and failed to submit any controverting evidence to the investigating prosecutor. The first real opportunity for these minors to submit evidence with the benefit of legal assistance came weeks or months at the arraignment stage of criminal proceedings and after their incarceration in an adult jail.

Recommendations:

That the officer conducting the preliminary examination ensures that the appropriate contact details of the PAO are sent to the accused together with the subpoena and affidavit of complain in the event the child’s family cannot afford private legal representation.

That the officer conducting the preliminary examination ensures that the contact details of the accused, including his place of detention, are sent to the PAO together with the subpoena and affidavit of complaint in the event the accused child cannot afford private legal representation.

4.2.1.2Arrest without a Warrant

Of the children interviewed, the majority was taken into custody without an arrest warrant, allegedly while committing the offense or in flagrante delicto. This does not constitute any violations of the law if done in accordance with Section 5 of Rule 113 of the Rules of Criminal Procedure. Meanwhile, under Article 125 of the RPC, all persons who are arrested must be brought before the prosecutor, municipal court judge or duly assigned officer for an inquest investigation with specific time frames, within 36 hours at the most, depending on the classification of the alleged crime. It would seem that in practice this only applies to cases of arrests without a warrant.

4.2.1.3 Inquiry as to Age

Under Philippine laws, there is no explicit requirement for an arresting officer to inquire as to the age of an accused immediately upon arrest. Under PD 603, a child is supposed to be treated differently to an adult from the moment of arrest. It would seem to be an obvious requirement for the arresting officer to make all due effort to ascertain the age of those who appear to be minors as soon as is practicable after arrest. The same rules should apply, whether a child is arrested with or without a warrant. It is often the case that the arresting officer’s report will not contain details of the age of the accused. As a result, the case is mistakenly filed in a court other than the Family Court. The officer, usually the prosecutor conducting the initial inquest investigation ? in practice ? rarely meets the accused at this stage, making it impossible for him to visually identify him as a minor.

The filing of the case in a court other than the appropriate Family court generally means that the child will have his arraignment and trial delayed by months before the case is eventually transferred to the appropriate court. Such delays can pose serious consequences for the physical and psychosocial welfare of the children. More worryingly, the child will be unable to avail of his rights under PD 603 including the right to be held in a YDH as opposed to an adult jail.

Despite their youthful appearance, many of the children interviewed were treated as adults until such time they were able to prove their age with the production of a birth certificate. As many CICL come from very poor backgrounds, were abandoned by their parents or are homeless, asking them to supply their birth certificates is often impossible. The accused bears the burden of proving his age before being treated appropriately as children who have come in conflict with the law.

Recommendations:

That where an accused claims to be a child and objectively has the appearance of a child, the burden of proving the age of the accused should shift to the State. Such an accused should be treated appropriately as children who have come into conflict with the law from the time of his apprehension until the State has so proved.

That any efforts made to establish the age of an arrested person be noted in the custodial investigation report of the arresting officer in order to provide clear evidence that due effort to ascertain the age of the accused was made.

4.2.1.4 Use of Handcuffs or Other Force

Section 5 of the Implementing Rules states that handcuffs and other instruments of restraint should only be used on children when absolutely necessary. Unfortunately, the law does not demand that the police report on the children arrested for the commission of an alleged crime contain any details about the manner the arrest had been carried out. Approximately 50% of the children interviewed report that they had been handcuffed on arrest and often during their transfer to and from court. As there is no obligation on the arresting officer to record details on the use of handcuffs and other instruments of restrain, there is no way to confirm or refute these allegations.

Recommendation:

That the arresting officer be required to record in the child’s custodial investigation report whether handcuffs or other instruments of restraint were used, and the if so, the reasons for their use.

4.2.2 Police Custody

4.2.2.1 Duty to Inform Parents/Guardians and the Department of Social Welfare and Development (DSWD)

Under Section 4 of the Implementing Rules, the arresting police officer is obliged to notify the Department of Social Welfare and Development (DSWD) and the parents or guardian of the arrest of child within eight hours. The officer is also obliged to explain to them the cause and reason for the arrest. Unfortunately, this rule is not applied consistently. In some jails, it seems that the child’s parents and the DSWD had been informed of the child’s detention almost immediately. In others, little or no effort had been made to contact either the child’s parents or the DSWD. Had efforts been made to contact both parties and had these been recorded, it would go some way towards proving that the arresting officer diligently enforced the rights of the accused, even if the parents or guardians were not contactable.

Recommendation:

That the arresting officer be required to record in the custodial investigation report any efforts had been made to contact both the parents or guardians of the child and the DSWD.

4.2.2.2 Physical Examination of the Child

Under Article 190 of PD No. 603, an arresting officer is obliged to take the arrested child to any available government medical or health officer in the area for a physical and medical examination. This provision is intended to act as a deterrent to the use of unnecessary force during and after arrest. Only a small number of the children interviewed report to have had such an examination. Several of the children reported the use of unnecessary force against them by police officers during and after arrest and a physical examination would help confirm or disprove these allegations of abuse.

Recommendations:

9. That the arresting officer be required to record in an arrested minor’s custodial investigation report precise details of the physical and medical examination.

10. That the relevant police officer be required to record the reason for failure to submit an arrested minor for a physical and mental examination in the minor’s custodial investigation report.

4.2.2.3 Right to be Informed Immediately for the Reason for their Arrest

Under Section 4 of PD No. 603, the arresting officer is obliged to immediately inform the youth of the reason for his arrest, and to advise him of his legal rights in a familiar language. In practice, this rarely happens. Almost all of the children interviewed reported a failure on the part of the arresting officers to adequately inform them of their rights.

Section 2(b) of RA No. 7438 similarly demands that any public officer who arrests, detains or investigates any person shall inform the latter, in a language understood by him of his rights. RA No. 7438 also requires the arresting officer to reduce his custodial investigation report to writing. Section 2(c) of the same Act demands that the arresting officer must ensure that all accused persons have the contents of the custodial investigation report explained to them by their assisting counsel, who the arresting officer must appoint if the child cannot afford his own. Otherwise the custodial investigation report is null and void.

As none of the children interviewed had any legal counsel present at this stage, any custodial investigation report, whether signed by the minor or not, should be considered null and void. Consequently, there is no written evidence that any minor interviewed was ever informed of his constitutional rights. It seems that the police largely ignores RA No. 7438. Despite the penalties set out, many breaches go unpunished.

Recommendations:

11. That the police be required to include in an arrested minor’s custodial investigation report a statement that they adequately informed an accused of his rights upon arrest.

12. That any such statement be witnessed by an attorney or a social worker acting on behalf of the minor.

4.2.2.4 Right to Legal Counsel

After arrest, it is usual for the CICL to be brought to and questioned at the appropriate police station. It is clear from the Bill of Rights of the Philippine Constitution and other laws and rules governing CICL that a child alleged to have committed any offense has a right to legal counsel effective from the time of his arrest. However Section 1 of Rule 115 of the Revised Rules of Criminal Procedure states that in all criminal prosecutions, the accused shall be entitled to be present and defended in person by counsel at every stage of the proceedings, from arraignment to promulgation of judgment. This particular provision confuses the issue. It is not unclear whether the accused has a right to counsel immediately from the time of his arrest or merely at the time of his arraignment in court before a judge. In practice, this provision is relied upon to justify the absence of counsel during the post-arrest investigation and preliminary/inquest investigation of the accused.

In cases where the law is ambiguous or contradictory, it is a well-established legal principle that the provision that most favors the accused should be applied. Unfortunately, this principle does not apply in the Philippines where adherence to minimum requirements is the general principle. In all of the cases of children interviewed, there was no legal counsel present during the post-arrest interviews conducted by the police. Only rarely did the children have the benefit of the presence of their parents or guardians or a social worker. Many of the children reported that they have signed various unexplained documents under such circumstances. The law needs to clarify a child’s rights during post-arrest investigations, with questioning disallowed in the absence of a social worker or legal counsel. This would remove all confusion if a child later asserts that his legal rights were not respected at the custodial investigation stage.

Recommendations:

13. That all post-arrest interviews take place in the presence of either a qualified social worker or legal counsel.

14. That the investigating police officer be required to record on custodial investigation report the names of those persons in attendance at the post-arrest interview and all other relevant circumstances.

15. That all statements signed by the child at his post-arrest interview be witnessed in writing by the social worker or legal counsel in attendance.

4.2.2.5 Delivery to the Proper Judicial Authorities

In accordance with Article 125 of the RPC , the investigating police officer must forward the case of a child accused to have committed a crime to the appropriate official for the conduct of an inquest investigation within a maximum of 36 hours. This would seem to apply to CICL arrested without a warrant. While the limits in Article 125 are generally stretched, it is usual for a child to have his inquest investigation performed within 48 hours of arrest. The article however makes no distinction between persons who are arrested by virtue of a warrant and those who were not. In practice, it is not considered necessary to bring to the inquest investigation those who had been arrested with a warrant. It is presumed that they were afforded their rights to submit controverting evidence at the preliminary investigation stage, however these presumptions are often unfounded.

Article 125 of the RPC requires the delivery of an accused to the ?proper judicial authorities? within the required time limits. However, most of the child respondents had no recollection of attending any inquest investigation or interview with any prosecutor or judge after their arrest. The information filed by the prosecutor in court is not signed by the accused and there is no proof that the child was actually brought before the judicial authorities. Many of the police officers interviewed informally stated that they would often only bring the papers for signature by the prosecutor, who will conduct the inquest investigation without seeing the accused. They merely view this investigation as a procedural formality, during which the arresting officer is not even questioned about the circumstances of the case. Article 125 requires that the accused, and not only just his legal file, be brought before the proper judicial authorities.

Furthermore, the child will not have legal representation if he is unable to afford his own at this stage of the proceedings. Without legal advice of any kind, the child’s right to submit controverting evidence cannot be realistically vindicated. It is also difficult to consider that the authorized officer conducting the inquest investigation is really fulfilling a judicial function. He or she is merely fulfilling an administrative formality. While the authorized officer has the power to file the case in court or to drop the charges, there are several preliminary orders outside his realm of authority. For example is the authority to have the child released on recognizance or bail, or transferred to a YDH or youth detention center (YDC). It would take between two weeks to several months for a minor to be arraigned in court, during which time he is detained in an adult jail. Without legal counsel, the child has little or no opportunity to assert his legal rights to due process and fairness even at the early stage of the proceedings.

Recommendations:

16. That the minor be afforded the opportunity to appear at the inquest investigation, to submit controverting evidence and to question the legality of his detention

17. That the minor be afforded legal representation at the inquest investigation where he cannot provide his own

18. That the authorized officer who conducts the inquest investigation be given the authority to make the following preliminary orders on completion of the investigation:

(a) Order to release the minor on recognizance to his parents or other suitable person.

(b) Order to release the minor on bail.

(c) Order to transfer the minor to an appropriate juvenile institution pending trial.

19. That, where possible, a judge be required to preside over the inquest investigations stage when a minor is accused of an offense.

4.2.2.6 Waiver of Preliminary Investigation

If a child signs a waiver of preliminary investigation, he is entitled to the more thorough preliminary investigation, although it will no longer be necessary to conduct same within the prescribed time limits. From the case files of many of the minors interviewed, it is clear that the authorized officer uses the absence of a signed waiver as evidence that the accused minor has declined his right to a preliminary investigation. In reality, it is very rare that a minor will be presented with such a waiver. Section 7 does not place a positive obligation on the authorized officer to inform a child of his right to a preliminary investigation: a child who does not sign a waiver is not necessarily waiving his right to a preliminary investigation. A legitimate and understandable reason for the failure of the accused to request a preliminary investigation is the lack of awareness of his rights. This is clearly due to the absence of any legal assistance at the inquest investigation stage. The authorized officer however uses such failure to imply that the accused is waiving his right to preliminary investigation.

Recommendations:

20. That before deciding whether or not to sign any waiver under Section 7 of Rule 112 of the Revised Rules of Criminal Procedure, the accused minor be explained the contents thereof by his legal counsel.

21. That any waiver under Section 7 of Rule 112 of the Revised Rules of Criminal Procedure, whether signed by the minor or not, be witnessed by the minor’s legal counsel.

4.3 Pre-trial Detention

4.3.1 Delay Before the Court

Majority of the children in the case studies reported that the arraignment was their first opportunity to appear before the relevant court. It was also their first opportunity to meet with their legal counsel. As shown by the case studies, weeks or even months may lapse before the arraignment takes place. In one of the cases, a child was arraigned within a week of his detention. In the case of another, it took more than 18 months.

In practice, the arraignment is the first opportunity for the children to meet with his legal counsel, who often comes from the PAO as most are unable to afford private legal counsel. Itis a violation of Philippine Law and international human rights law to deny a minor legal advice for such inordinate periods of time after their initial detention. In all of the cases documented by PREDA, there is evidence of serious delays and breaches of the laws. Delays of months between hearings remain as the rule rather than the exception, and these delays may have serious repercussions on the penalties imposable under law for CICL. Delays and constant postponements seem to be accepted as inherent and unavoidable by those involved the justice system.

Delays in the administration of justice result in a ludicrous situation where pre-trial detention is the punishment for an offense that has yet to be tried, yet alone proved, in court. Children accused of having committed a crime, like everyone else, are supposed to enjoy the presumption of innocence yet many find themselves languishing in jail prior to their trial for lengthy periods of time. Of the 69 children located in the various jails, not one is actually serving a sentence after trial and conviction in court. All of them are awaiting the disposition of their cases. In practice, it seems that prosecutors, complainants and even judges view the pre-judgment period ? which can amount to years in some cases – as adequate punishment for the crime that was allegedly committed. Knowledge of the delays inherent in the justice system means that a complainant can satisfy himself with the notion that a supposed crime against him does not go unpunished.

From interviews with DSWD staff operating YRCs in Luzon, it is evident that children who are detained in adult jails for long periods of time before being transferred to the appropriate centers are less likely to respond positively to the various rehabilitation programmes provided.

Recommendation:

That in the case of children detained in custody, a fast-track procedure shall be introduced to ensure that their arraignment and trial is disposed of expeditiously and within the exact time limits prescribed by law and only with limited exceptions.

4.3.2 Persons who Reach the Age of Majority While Awaiting Trial

Philippine law defines children as persons below 18 years of age. Some of the youth that were interviewed no longer qualify as children, although they were under-18 years of age at the time of arrest. If the accused was a child at the time the crime had been committed, but not over 18 at the time of conviction, the penalties prescribed by the RPC are still applicable. He does not receive the full penalty that an adult offender would receive. The law recognizes that the age of the accused at the time the offense was committed as a mitigating circumstance.

However, unlike Article 68, the relevant provisions of PD 603 do not apply to children who turn 18 before conviction. They only apply to those who are sentenced before they turn 18. Article 192 of PD 603 states that if the court finds that the child has committed the acts charged against him, the prescribed penalties would be imposed. However, if the court ? as a matter of upholding the best interest of the public and the child in question ? to suspend all further proceedings and commit the child, who has not yet reached 18 years of age, to the custody of the DSWD or other appropriate institution for his rehabilitation until he reaches the age of 21 or for a shorter period as the court may deem proper.

This suspension of sentence mechanism is very favorable to CICL as it gives them the opportunity to undergo rehabilitation. PD 603 also provides an opportunity for such youths to be released early from said YRCs once the court is satisfied that they have been successfully rehabilitated. A child who is arrested, tried and convicted before he turns 18 is afforded an opportunity to undergo rehabilitation and may benefit from an early release. On the other hand, a person who was a child at the time of arrest and trial but has reached 18 at the period of sentencing can only benefit from the reduction by one degree of his sentence if aged between 15 and 17 and two degrees if aged between 9 and 15. The case of Marko illustrates this anomalous situation. At age 16, he was arrested for theft, but 18 months later, at age 18, he has yet to be arraigned. This means that he will not have the opportunity to benefit from the suspension of sentence provisions of PD 603 despite the fact that he was a child at the time of arrest. This also means that if found guilty, Marko is liable to a sentence of reclusion temporal minimum (12 years and 1 day) which is the penalty one degree lower than that prescribed for adult convicts. Instead of being able to avail of his right to a suspended sentence and rehabilitation, Marko might face a lengthy prison sentence as a result of the inexcusable delay on the part of the prosecution. Judging from Marko’s case, serious delays in the processing of the criminal cases against children are primarily responsible for causing unjust situations. In practice, it means that the speed at which the trial of an accused occurs will determine the extent of punishment.

Recommendation:

That if the convicted person was a child at the time he committed the offense, he is to be entitled to avail of the suspension of sentence provisions of PD 603 provided that he is still under the age of 21 when he is convicted.

4.4 Imprisonment

4.4.1 Minors in Jail Pending Judgment

Despite their respective mandates to establish detention and rehabilitation centers in the cities and provinces throughout the Philippines, the DSWD, the DILG, and local government units (LGUs) have only satisfactorily implemented their obligations to establish such centers. As a result, many areas of the country are left without these centers, and children awaiting trial are detained in jails along with adult prisoners

Even in the rare cases of the existence of appropriate centers for children, the legal provisions remain vague as to who is directly responsible for transferring the minor to such centers. The prosecutor who initially files the Information in court against the child has no authority to transfer the accused from jail to a rehabilitation or detention center. While the judge has the sole authority to transfer the accused, he will rarely see the child in court until weeks after the minor had been arrested and placed in jail.

In practice, YRCs do not take minors into their custody without a valid court order for fear that arbitrary detention proceedings will be brought against them. Many arresting officers as well as YDHs and YRCs do not wish to transfer or receive minors because they think that, interpreting Section 8 of RA No. 8369, a judge, having many responsibilities in relation to YDHs, should first issue the authorization of such a transfer.

On the other hand, Section 8 of RA No. 8369 does not require the issuance of a court order by a Family Court judge authorizing a child transfer to a YDH or YRC. Such a legal requirement would create an unworkable situation since Family Courts ? and hence Family Court judges ? are non-existent in many judicial regions of the Philippines. This may be taken to mean that in cities and provinces where Family Courts are inexistent, the authority to transfer would not be vested in any particular person and the child would be left to await trial in limbo.

Lack of awareness about the laws concerning CICL and apathy among jail authorities appear to play a large role in the failure to bring children arrested for crimes immediately to the DSWD. Jail authorities generally appear reluctant in transferring children to the YDHs or YRCs for alleged fears that the children might escape from custody.

Plain disregard on the part of jail officers and public defendants also explains how children have ended up in jail. Overworked public defendants often advise the children to plead guilty to hasten the process. The case of Junjun, charged with rape, demonstrates utter disregard for the law and the child’s welfare and best interest. He was brought to a juvenile detention center but was turned away because it was full. Without any words, his escorts simply dropped him off at the Bilibid National Penitentiary. No one is pursuing his case, no one is filing an appeal on his behalf.

Despite a circular issued by the Supreme Court on the conduct of regular dialogues and periodic visitations to jails by trial judges, none of the children who were interviewed reported of any visits from judges. However, it is also acknowledged that Family Courts are burdened with a massive caseload. As discussed in the previous sections, PAO, prosecutors, and private attorneys who represent accused persons all have obligations to expedite the conduct of trials.

Recommendation:

22. That there be a positive statutory obligation on an arresting officer and/or the jail authorities to commit all minors to the care of the appropriate YRC/YDH from the time of arrest.

23. That representatives of Family Court Judges be appointed to assume the duties of the former in relation to jail visits in accordance with the Supreme Court Circular on the Special Treatment of Minor Detainees and Jail Decongestion, and to report their findings to the Family Court Judge who shall take the appropriate action.

24. That in provinces or cities where no Family Courts have been established, representatives of the local Regional Trial Court be appointed to assume the same duties as the representatives in recommendation 2 above, and to report their findings to an appointed judge in that territorial jurisdiction.

4.4.2 Lack of YDHs and YRCs

A major problem with the current juvenile justice system is the lack of YDHs and YRCs throughout the Philippines. There is presently only a very small number of YDHs in the Philippines and there is not a much greater amount of YRCs. As a result, many courts will order the transfer of minors on trial to the custody of YRCs, which are centers for a child under rehabilitation who has received a suspended sentence in line with the provisions of PD 603, and not for a minor who is awaiting/undergoing trial. This has the effect of placing a child accused of having committed a crime in a center intended for children who have received sentencing. Furthermore, the very few YRCs in the country are unable to provide proper rehabilitation services to the children in their custody, with overcrowding one of the major problems

Recommendation:

25. That LGUs be required to immediately implement their legal obligations and establish YDHs in every province and city in the Philippines.

26. That the DSWD be required to implement its obligations to establish YRCs in every Region in the Philippines.

4.4.3 Lack of Diversionary Procedures

Diversionary procedures, known as the Katarungang Pambarangay are established as a method of keeping CICL out of the justice system. They are aimed at settling the problem in a child-friendly way. Rules dealing with the Katarungang Pambarangay have been issued by the Department of Justice. Ideally, the barangay captain or the local council chairperson can negotiate a deal regarding compensation between the complainant and the family of the child accused of having broken the law. This measure is to prevent the pressing of charges. While the barangay can legally dispose of a criminal case ? in particularly those wherein the penalty does not exceed an imprisonment term of one year or a fine of PhP 5,000. However, in most of the cases documented by PREDA, the barangay was unable to dispose of the charges because of the absence of a private injured party. Many of the cases involved crimes against persons or personal property and the penalties involved exceeded the ceiling as required in the Katarungang Pambarangay.

Recommendation:

That the use and applicability of the Katarungang Pambarangay be expanded to include cases where there is no private complainant and cases involving offenses punishable by less than six years imprisonment and fines up to PhP 30,000.

4.4.4 Arbitrary Detention: Pre-trial

The inquest or preliminary examination procedure covers the majority of cases where no warrant of arrest had been issued. The legality of detention based on this procedure is questionable, with such a detention considered to constitute illegal and arbitrary detention and a breach of Article 125 of the RPC. While RA no. 7309 provides for a Board of Claims under the DOJ for victims of unjust imprisonment and detention, in practice, a child accused of having broken the law ? with little or no legal assistance – will never be informed of his right to compensation for any illegal detention he may suffered.

Evidence of illegal detention is difficult to show, since custodial reports and case files rarely include the necessary details. Due to the heavy workload of PAO lawyers, it is impractical for them to raise procedural issues of illegal or arbitrary detention. A child’s right to be compensated for suffering illegal and arbitrary detention may prove illusory and unenforceable in all but the most exceptional circumstances.

4.4.5 Arbitrary Detention: Post-trial

Many of the children in the case studies indicated that they were detained for long periods in jails along with adult prisoners even after the appropriate court had ordered their release, or transfer to a YRC or YDH. In one of the cases, a child was detained in jail for 49 days after the court had ordered for his transfer to a drugs rehabilitation center. In many of the cases, the jail officials simply did not receive or act upon the court order days after it was made. Such detentions are deemed to be manifestly illegal and inexcusable and a breach of fundamental human rights under international HR laws.

While Philippine law also provides for adequate protection from such arbitrary detention and lays down punitive measures for erring public officers, there is no attempt to implement and enforce the law.

Recommendation:

That any court order which relates to a minor in jail, particularly an order for the release or transfer of a minor, be given directly to the jail officer present in court for immediate enforcement.

4.4.6 Denial of Bail

In several of the case studies documented by PREDA, bail had been set at an inordinate and unreasonable amount that the children or their parents/guardian could never be expected to pay. In one of the cases, the bail for a ten-year old child accused of theft was set at the equivalent of USD 2,000. This amount would be impossible for the average middle-income earner to pay in the Philippines, let alone an impoverished child. Under international human rights law and except in the most serious of cases, it is illegal for persons awaiting trial to be denied the right to bail while detained in custody.

Prosecutors conducting preliminary/inquest investigations have been given guidelines from the Office of the Public Prosecutor setting out the appropriate bail amounts having regard to the seriousness of the offenses charged. However, there are no separate guidelines for minors who are guaranteed special protection under the law.

Recommendation:

That separate guidelines taking into account the age and circumstances of the child should be introduced for the setting of bail for CICL.

4.4.7 Conditions While in Detention

Despite international guidelines setting the minimum standards for the treatment of children in detention and recent rulings by the Supreme Court of the Philippines, such as the Rule on Juveniles in Conflict with the Law, any positive treatment of children in Philippine jails is rare and often provided by NGOs rather than the State. While in detention, the children are treated almost identically treated as adult inmates. In some of the jails visited by PREDA, the children were detained in separate cells from the adult prisoners. In the others, they were crammed into small cells along with convicted adult prisoners. In all of the jails, PREDA documented that the children mixed freely with convicted adult prisoners.

In the Philippines, children as young as nine years old could be tried as adults, and subsequently sent to adult jails. Although Philippine law stipulates that children with pending cases should be brought to the YDCs, in most cases, this has not been possible since only a dozen of these centers exist in the entire country, and they are usually full. According to conservative estimates, the number of children in jails has grown to more than 20,000, or 10 percent of total prison population.

In many of the jails, the children were made to perform massages on police officers and adult inmates in exchange for small amount of money or food. The right of the children to be treated in a manner conducive to their rehabilitation is denied in all cases. None of the children were provided with adequate exercise, and no attempt has been made to provide them healthy mental stimulation or rehabilitation.

Sanitary conditions vary from jail to jail. In some, like the Tarlac Provincial Jail, conditions appeared acceptable, while at the Angeles City District Jail and the San Fernando City Jail, both in Pampanga Province, the conditions posed a serious health risk to prisoners, including the child detainees, and detention in these two facilities amount to cruel, inhuman and degrading treatment. In many of the jails visited by PREDA, the children were made to provide their own bedclothes, clothing and sanitary items. In some of the jails, the children were made to sleep on the bare concrete floors or on very uncomfortable benches. In most of the cases documented, the children were initially detained at police stations and were forced to provide for their own food often for weeks before their eventual transfer to a jail facility.

The following paragraph further gives a description of the general conditions in three of the city and provincial jails visited by PREDA:

Angeles City District Jail: The children are detained in a small, unventilated, concrete cell measuring approximately 3×7 meters. The cell lacks a window and the children have only been recently been given access to an electric fan. There is a concrete cubicle/toilet in the corner of the cell. The cell is located in a block containing over a hundred convicted adult prisoners. Prisoners of all ages mix freely throughout the block. The same cell is always used to house male children. Reports from adult inmates indicate that the cell was used to contain up to 15 children. The jail does not supply any bedding or basic sanitary items. The children are not given any change of clothes and commonly wear rags. There have been recent reports of a Hepatitis and Tuberculosis epidemic in the jail. The children have only a maximum of a single hour of exercise a day, which they still have to request. They can have access to a small basketball hoop in the yard. Nonetheless, the children are allowed five hours a day to walk freely around the block and mix with the adult detainees. There are no mental stimuli of any kind provided to the children, who report being underfed. The daily food budget per child is PhP 30 or roughly US 0.55 cents.

Tarlac Provincial Jail: Has the highest standards in all of the jails visited by the PREDA team. It is a big, open-spaced prison. There is a large basketball court and open area surrounded by jail cells. It is clean, and quite cool. There is a constant supply of fresh water. The dining area has bench seating and is clean. The food is reported to be of a high standard, with meat like pork served regularly. However, similarly to other jails, the food budget is PhP 30 per prisoner per day. Health and sanitary conditions at the jail are reported by the minors to be high. All sick inmates are segregated from the others. Hence there are no reports of any epidemics, skin problems etc. Children in the jail share the same cell, which measures approximately 6 square meters. At the time of the visit, there were 4 boys in the jail, sharing the same cell. Each had their own bed. However, the Team was informed that at one time there were 13 minors in the same cell, meaning that some of the minors were forced to sleep on the floor. Bedding is supplied to the minors by the jail authorities. There is a CR facility in the corner of the minors’ cell. It is not of a very high standard, but was found to be clean on inspection, with no insects or apparent foul odor. There is no educational stimulus provided to the children apart from weekly Bible studies. The children are confined to their cells only in the evening. During the day, they are free to mix with the adult prisoners and also to play sport.

Baguio City Jail: From outside appearances, the jail is quite small. Due to the use of basement cells, the jail is still large, with approximately 160 prisoners detained therein. The jail is dilapidated and in great need of repair. There is a small basketball court in a square in the middle of the jail. The cells for are located in the basement, in a dank and unventilated area. Apparently the basement cells were previously used as a solitary confinement area for adult prisoners. The steps down to the cell resemble steps to a dark dungeon. The lighting below is poor. Adjacent to the cells containing the children is another for convicted adults, with the children sleeping within 5 yards of them. Only bars separate them. The space provided for the children is minimal. While most of them have bunk beds, the younger ones are forced to sleep on a large table, without any bedclothes or mattress provided. The children reported that apart from weekly bible studies, there is no mental stimulus provided by the jail authorities. An NGO does provide limited amounts of education to the minors for two hours per day, three days a week. The minors do get 4 hours each day for exercise. They reported that they spend time playing cards, and gambling with adult prisoners, however they do not admit to being given alcohol. The children are fed twice a day with lunch and dinner. In general, they did not complain about the food. Sanitary conditions are reported to be passable. Toilet facilities are located outside the cells of the minors, and are basic but relatively clean and without a foul odor. There is a constant supply of fresh water. However, the dankness of the cells would suggest that virus and bacteria could spread easily and constitute a grave health risk. As Baguio is quite cool even in the summer, the children said that their cell rarely became unbearably hot.

4.5 Sample Case Studies Documented by PREDA

The individual case studies featured in this section are part of a study conducted by PREDA. They are, as far as possible, compiled from court records, and interviews with the children in detention, prison authorities, and the relevant State-appointed legal counsel and social workers. The names of all children have been altered in order to protect their identity.

Name: Clark (as of 20.11.2002) Age: 15
Number of Visits by Parents: 1
Arrested: 10.08.2002
Arrest Warrant: None
Manner of Arrest: Handcuffs were used. Upon arrest, Clark reports that the complainant, in the presence of the police, hit him using a wooden stick measuring 2 inches wide and 2 inches thick.
Rights Explained Upon Arrest: No
Charges: Theft
Physical and Medical Examination Upon Arrest: No
Parents Informed of Detention (Within 8 Hours): No
Visit from Social Worker: No
Duration of Stay Under Police Custody: One and half months in Station A, Olongapo City
Memory of Inquest Investigation: Yes, 2 days post-arrest at the Fiscal’s Office, DOJ
Previous Convictions: Previous charges for theft were dismissed
First Appearance in Court/Access to a Lawyer: 27.09.2002, arraignment conducted 6 weeks after time of arrest
Court Orders: Pre-trial, 29.10.2002, next hearing set for 01.10.2003
Total Period of Detention in Adult Jail: 3 months, 10 days and counting

NOTE: Clark also reports suffering physical abuse at the hands of the Olongapo Police during his arrest. He has had no opportunity to complain about this abuse. It took six weeks for Clark to be arraigned although without any reason for delay/ Although his parents are willing to take custody pending trial, no efforts have been made.

Name: Noel (as of 20.11.2002) Age: 17
Address: Homeless
Arrested: 23.02.2002
Arrest Warrant: Originally arrested in flagrante delicto. However he was released on recognizance to his mother on 02.04.2002. After which, he failed to turn up to court hearings so he was arrested by warrant issued on 01.10.2002.
Manner of Arrest: Handcuffs were used upon his initial arrest. He also reports being beaten with a cane by police. He also claims that he was electrocuted by police using a live wire under his arm, to force a confession in Station A, Olongapo City where he was kept for two weeks after his initial apprehension.
Rights Explained upon Arrest: No.
Charges: Trespass/Burglary.
Physical and Medical Examination Upon Arrest: No.
Parents informed of detention (within 8 hours): Yes, but not within 8 hours.
Visit from Social Worker: No
Duration of stay in police custody: 2 weeks
Memory of Inquest Investigation: At OPP in Olongapo City
Previous Convictions: No, but there are 2 cases currently against him.
First Appearance in Court/Access to a lawyer: No record in court file of an arraignment.
Court Orders: 15.11. 2002, pre-trial terminated and set for initial hearing for 02.04.2003.
Total period of detention in adult jail: Almost 8 months and continuing.

NOTE: It is not clear from said minor’s court file when, or even if the accused was arraigned. Noel reports serious physical abuse at the hands of the police during and after his arrest, including electrocution. He has had no opportunity to complain about this treatment.

Name: Dan (as of 15.08.2002) Age: 11 (age 10 at time of arrest).
Arrested: Mid-February 2001.
Charges: Theft committed with violence against the person. Stolen goods amounting to total of PhP 23,000 (Equivalent to US Dollars $460).
Manner of Arrest: No arrest warrant. On arrest Dan reports he was handcuffed and brought to a cemetery along with another 2 minors. In the cemetery the complainant identified them as the thieves, and apparently requested the police to beat them. The police beat the children. The complainant was also given the opportunity to beat them. Dan says that in the cemetery he had his hands tied to a wooden post above his head while he was beaten. He claims he was punched and kicked on his behind, and also had cigarettes stubbed out on his legs. There is a faded scar on his leg which Dan says is a result of the cigarette burns. Apparently, around fifteen policemen were present during the episode in the cemetery. They were then brought to Masinloc jail.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Yes.
Visit from Social Worker: No
First Appearance in Court/Access to a lawyer: 06.03. 2001 (after 19 days in Masinloc jail). No Attorney present. They were then ordered to be transferred to a YRC pending arraignment and trial.
Arraignment: 13.03. 2001. Represented by PAO Attorney. Bail was set at PhP 100,000 each (equivalent to US $ 2,000).
Total Period of Detention in Adult Jail: 19 days.

NOTE: Dan knew that his trial was ongoing, but had little idea about the actual proceedings. He did not know his lawyer’s name. He also felt scared to report any abuses done by the police, although he did inform the social worker at the Regional Youth Rehabilitation Center in Magalang after he had been transferred. While the social worker confirmed the instances of abuse, no further action was taken by the social workers. Dan’s bail was set at the equivalent of USD 2,000 ? despite the fact that he was only ten years of age at the time. Such an amount must be viewed as a breach of Dan’s constitutional right to bail and his right to the presumption of innocence.

Name: Marko (as of 25.11.2002) Age: 18.
Date of Arrest: 22.05. 2001 (when he was aged 16).
Charges: Qualified Theft (2 Counts).
Manner of Arrest: No arrest Warrant. Handcuffs were used.
Informed of Legal and Constitutional Rights: On arrest he was informed of the reason why, however he was never informed of his right to counsel, right to silence etc.
Other details: At his post-arrest interview, he had neither his legal counsel nor his parents present. He claims that he was never asked to sign a custodial investigation report. His parents first visited him after 2 weeks (it is not confirmed when they were informed of his arrest). First social worker visit after 1 month.
Physical and Mental Examination: No.
First Appearance in Court: Marko was set to be arraigned on 12.11.2002, nearly 18 months after his arrest. The case was being transferred to another court at the last minute and his arraignment was postponed. Marko denies ever having been present at any inquest investigation or preliminary investigation after his arrest. Marko has therefore yet to receive the opportunity to question the legality of his detention. It also appears from his case file that the complainant expressed her wish more than a year ago to drop the charges as she is not willing to present evidence against him and has left the country to live in America.
Total Period of Detention in Adult Jail: 1 year, 6 months and continuing. a

NOTE: Marko’s predicament is an example of excessive delay. The delay appears to be the fault of the Office of the City Prosecutor, which appears to have let the case lie dormant for a year. The Prosecutor’s Office pressed charges against Marko on 30.08.2002, more than a year after he was placed in jail. The prosecutor stated that the delay was caused by her massive workload. Marko’s rights under Article 125 of the RPC have been breached. It also seemed that he was not provided the opportunity to submit any evidence during the preliminary investigation. As Marko is now 18, he is no longer avail of the rights under PD No. 603 afforded to children who have come into conflict with the law.

Name: Tonton (as of 15.07.2002)
Age: 16. Date of Arrest: 13.04.2000 (age 14).
Charges: Theft. Manner of Arrest: Tonton does not remember an arrest warrant being used. Handcuffs were used during his arrest.
Initial Detention: Initially held in a military camp for 2 days. Subsequently transferred to Iba Provincial jail after 2 days without any court order or court appearance.
Medical and Physical Examination: No. Parents informed of detention: Yes.
Visits from Social Worker: Yes. 03.05.2000 National DSWD conducted a report into Tonton’s case and recommended his transfer to a juvenile detention center. Apparently, local DSWD blocked the transfer as the complainant (Tonton’s aunt) worked there.
First appearance before judicial authorities/meeting with lawyer: Tonton could not remember exact date but felt it was more than a month after initial detention. Bail was set at 20,000 Pesos (equivalent to US Dollars $400).
Number of Subsequent Court Hearings: According to Tonton only 3 court hearings in 2 and a half years in Regional Trial Court, Iba, Zambales. Trial adjourned for various reasons on all 3 occasions.
Released to custody of Mother: 09.08.2002 Case ongoing.
Total time spent in adult Jail: 2 years, and 4 months.
PREDA Action: DSWD contacted and asked for immediate explanation. PAO and judge also contacted. DSWD finally took action towards having Tonton released.

NOTE: Tonton remembers signing a confession admitting his guilt for the crime. He reported that the confession was signed in the absence of a legal counsel or a social worker. It is apparent that Tonton spent nearly 2 years and a half in jail among convicted adults without any regard to his right to a speedy trial or due process. The delay in the case was a result of the complainant’s ability to influence the administration of justice through her post as a DSWD social worker. Tonton’s transfer to an appropriate center was prevented.

4.6 Table of Documented Cases

4.7 Secret Cells for Children: Documented Case of Abuses in a Government Center

Established in 1998, the Olongapo Center for Assistance, Rehabilitation and Empowerment (OCARE) was a project of Richard and Kate Gordon. Olongapo City won the award for the most-child friendly city of the Philippines in 2000 and 2002. This documentation is based on the reports given by Swedish student researchers who visited OCARE in February 2003 and interviewed 18 street children in Olongapo City. The street children who participated in the research composed of 13 boys, ages eight to fifteen, and five girls, ages nine to fifteen. There are hundreds more children roaming the streets of Olongapo City. They are incarcerated from time to time when caught for vagrancy, failing to drop-in into the OCARE, sniffing glue, sleeping in doorways and hanging out on the streets.

The study reported that there are secret cells where the children are locked up and mistreated. Children and minors from 8 to 15 are found frequently imprisoned in the cells but not everyday. The cells are small claustrophobic, they measure a mere 1.5 meters to three meters. There are no beds, furniture, faucet, hand basin or toilet. The air is full of the stench from the feces in the blocked toilet hole. There is insufficient air and light. Only a small slit high on the wall. Sometime there are as many as 14 children in the four cells at one time. The children are sometimes mixed with mentally disturbed adult women. All windows, doors and ceiling are barred as in a prison.

A hole in the floor is a toilet that is blocked and overflowing with feces. Insects, cockroaches, ants, mosquitoes endanger the health of the children. They are bitten, have skin rashes, sores, malnourished and bruised from the beatings and kicks they receive in the OCARE center. The food is inadequate and they go hungry. They are beaten, punched, kicked, hit with wood, padlocks, bamboo, and the handles of brooms. They are doused with water day and night, and are forced to sleep on the concrete floor even when it is wet. They get no exercise, stimulation, education, proper hygiene and sanitation, no visitors, no parental contact, no legal rights.

Photographs of the conditions of the secret cells were very difficult to get as the children are sealed off from visitors. Nevertheless, the researchers were able to take photographs of women and children behind bars. The testimony of the children, as young as 8 years, indicate that jailing is a common practice as well as the barbaric treatment expected of a concentrated camp.

When there are visitors, the children are taken out and washed and fed as seen by the Swedish students. All 18 children have experienced being arrested, beaten and put in the cells. The abuses are listed below. The children are identified for the proper authorities in this report.

Acts of Abuse Reported by the Children in OCARE

The following is a list of abuses reported individually by the children during the secret interviews conducted secretly with the children detained inside OCARE :

Imprisoned in the cells alone With the mentally disturbed women
With other children, as many as 14 at one time.
Beaten up in the OCARE center
Punched in the stomach
Hit with a padlock on the head in the cell
The social worker throws water on them at night
4 days to one month in cells
14 at one time in the cells together
Girls in the cells of OCARE
Given leftover food Food left outside the iron bars on the floor (like animals, they eat through the iron bars)
Kicked by a male staff
Jailed up to 4 days
Cells infested by mosquitoes and ants
Kicked by a staff wearing heavy boots
Beaten with a broom
Left hungry without food
Caught and roughed up by police and thrown in the back of the truck
Kicked by staff when child is sleeping on the cell floor
Beaten with a bamboo
Beaten with a piece of wood on the head by social worker
No sleep because of the stench of the feces in the blocked toilet Bitten by the ants.
Sleeping on concrete floor
Sleeping on the wet floor when the staff throw water on them
Deprived of food, eat once a day, guard banging the bars, hit the minor
Not allowed go to the toilet Beaten and kicked in the center
Deprived of showers
All punished and jailed if one escapes
The solvent glue is rubbed into their hair
They are made to work by cleaning the cells
They are hidden away if visitors arrive
Deprived of water
Slapped on the face
Kicked in the face

4.8 Children on Death Row

Despite a constitutional prohibition on the execution of person below 18 years of age, children have ended up on death row. The problem stems from the assumption by the police, court and social workers that most teens are over 18. Moreover, the concerned authorities rarely take the time to track down the birth certificates of impoverished children who are convicted of capital offenses like murder and rape. Five children are awaiting execution while the State is disputing their ages. A human rights group saved a child on death row, Jelly Rodique Lipa, at the last minute after his birth certificate had been found, the result of a six-month search. Jelly was under 18. Court spokesman Ismail Khan meanwhile said that the fault did not lie with the government. He said that judges did not have the responsibility to look into the cases and simply acted on the presented evidence.