Philippine minors in Jail: report 6th September 2002

MINORS IN JAIL CASE STUDIES – THE PHILIPPINES

PREDA JAIL MONITOR TEAM
Report: 6th September 2002

CONTENTS:

Introduction

GENERAL COMMENTS- LEGAL VIOLATIONS
Initial Procedures on Arrest and Detention
Minors in Jail- Who is Responsible?
Lack of Diversionary Procedures
Illegal and Arbitrary Detention- Pre-trial
Arbitrary Detention- Post-trial
Denial of Legal Assistance
Denial of Bail
Illegal Detention Conditions

CASE STUDIES
Angeles City District Jail, Pampanga
Masinloc Municipal Jail, Zambales
Zambales Provincial Jail, Iba
Table of Rights of Minors Abused
Conclusions and Recommendations

INTRODUCTION

This study has been made by the Preda Jail Monitor Team after several visits to 1) Angeles District Jail, Pampanga Province, 2) Zambales Provincial Jail, Iba Province, 3) Masinloc District Jail, Iba Province, and 4) Magalang Regional Youth Rehabilitation Center, Pampanga Province, between June 24th and September 1st 2002.

The Jail Monitor Team consists of Preda’s Head Social Worker, Preda’s Paralegal Officer, as well as a guest International Human Rights Lawyer.

This report contains general legal analysis of the circumstances surrounding the detention of children in adult jails in the Philippines, as well as case studies of seventeen minors that the Preda Jail Monitoring Team had direct contact with. The legal failings leading to child detention in prisons in the Philippines are discussed, and recommendations for change are made.

The individual case studies are, as far as possible, compiled from interviews with the minors in detention, prison authorities, court records, as well as the appropriate state assigned legal counsel and social workers.

GENERAL COMMENTS- LEGAL VIOLATIONS

INITIAL PROCEDURES ON ARREST AND DETENTION

All the jails, which the Preda Jail Monitor Team visited, had appropriate juvenile facilities located nearby which could have been used as an alternative place of detention to the adult jails. However, the children were left in adult penal institutions because of inefficiency in processing their legal cases, as well as a general disregard for their legal and human rights.

Nearly all minors in the jails were arrested, according to the prosecutor’s reports, in flagrante delicto, and so arrest warrants were not issued. They were then brought to adult jails where from the very earliest stages, their rights were ignored. Under International Human Rights Law, and Philippine Law, jailing of minors should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases.

Under Presidential Decree 603, of the Philippine Child and Youth Welfare Code, immediately after arrest all minors have certain basic rights. These rights, necessary for the protection of the most vulnerable group in society- children, were as a general rule violated. Aside from the fundamental right not to be detained in adult penal institutions, and to be given immediate competent legal assistance, the children were also denied other basic rights. For example;

-Every minor interviewed was not subject to a physical and mental examination;

-Generally the parents and Department of Social Welfare and Development (DSWD) were not informed about the child’s detention within a reasonable time, and not within the statutory time limit of eight hours;

-Many of the minors were handcuffed upon arrest or during transfer. Some of the minors, including one as young as ten years of age reported serious physical abuse and torture at the hands of the arresting police.
MINORS IN JAIL- WHO IS RESPONSIBLE?

The Philippine Child and Youth Welfare Code requires that in all but the most exceptional circumstances a minor, if unable to furnish bail, should be committed from the time of his arrest to the care of the Department of Social Welfare and Development or other appropriate juvenile center. Unfortunately the legal provisions are vague as to whom is directly responsible for transferring the minor to a juvenile center.

The Prosecutor who initially files the information in court against the minor has no authority to transfer the accused from jail to a juvenile center. The Judge has the authority to transfer the accused, but will rarely see the minor in court for nearly two weeks or more after the minor is arrested and placed in jail. Therefore the arresting officer, and jailing authorities have the responsibility to transfer the accused from the time of arrest to a juvenile center.

Lack of awareness about the law and apathy amongst jailing authorities would seem to play a large part in the failure to transfer minors from jail to juvenile centers. There would also appear to be a general reluctance to transfer minors to juvenile facilities by jail authorities due to alleged fears that the juveniles may easily escape their custody.

The lack of an explicit positive statutory obligation on the arresting officer to detain all minors in a juvenile center, and the lack of punitive measures for failing to do so are major shortcomings in Philippine Law.

LACK OF DIVERSIONARY PROCEDURES

In a number of Barangays or local councils provisions have been made to bring all child prisoners before the Barangay Captain or Chairperson before instituting criminal charges and placing the minor in jail. The Barangay Captain may then, in an informal and child-friendly procedure come to an amicable arrangement for all concerned, including the complainant and the child under arrest. This procedure helps keep the minor out of jail and, as much as possible, the child is protected from the trauma of a lengthy criminal court trial.

Under this procedure the Barangay Captain will attempt to diffuse the situation without recourse to the criminal legal system being necessary. The Captain is able to negotiate a deal between the minor’s family and the complainant as regards compensation. The Barangay Captain is also able, even in the event of criminal charges being made, to secure the minor’s release, upon his recognizance or the family’s, to the custody and care of the family or a juvenile center.

This procedure however has only a vague statutory basis under the Local Government Code, and there are few guidelines or documents defining the procedure that should be used. Therefore, it’s practice and implementation is rare and unreliable.

ILLEGAL AND ARBITRARY DETENTION:
-PRE-TRIAL-

With minors generally not being transferred upon arrest by the arresting officer or jail authorities to juvenile centers as the Child and Youth Welfare Code demands, the earliest opportunity that a minor has to be transferred out of the adult penal institution would be at their first appearance before the proper judicial authorities. At the very least, minors would then only spend a minimum of time in jail. However, the system also fails the minors at this stage.

In every case of child detention encountered by the Preda Jail Monitor Team the basic right not to be illegally or arbitrarily detained was violated, resulting in prolonged stays in adult jail for the minors concerned. Simply put, it can take anywhere from twelve to forty days or more before a minor in detention is given the opportunity to meet with legal counsel and be brought before the proper judicial authorities.

Under the International Convention on Civil and Political Rights (ICCPR), and basic Human Rights Law all detainees must be given the opportunity of questioning the legality of their detention before a judicial authority promptly after arrest. The ICCPR demands that children be brought as speedily as possible before the proper judicial authorities. The problem is not with the Philippine Legal Code which is equally clear, but is completely ignored.

Article 125 of the Philippine Revised Penal Code outlines the penalties that should be imposed on a public officer should they fail to deliver persons in detention to the proper judicial authorities within the stated periods. The most serious crimes allow a public officer to detain a suspect for up to thirty-six (36) hours before bringing them in front of the proper judicial authorities, while 12 to 18 hours would be the usual maximum time limits for minors in detention.

Therefore, a child in detention in the Philippines should never be detained in jail for more than thirty-six hours before being brought before the proper judicial authorities, who have the responsibility to immediately order their transfer to the custody of a juvenile detention center pending investigation and trial. Only in exceptional circumstances where no juvenile facilities exist, or the child is inappropriate for a juvenile center should a minor be kept in an adult jail, and they would still be guaranteed certain minimum rights if placed in jail.

From the court files of the minors it seems that the prosecutor is given the case information, and carries out his Preliminary Investigation under Article 112 of the Philippine Criminal Procedure, usually within forty-eight hours of the arrest of the minor. It would be a mistake to regard this procedure as satisfying the Article 125 time limits for a number of reasons.

Firstly, the Preliminary Investigation does not require the attendance of the accused, or his counsel. In all of our documented case studies the minor was in fact not brought before the Prosecutor for this Preliminary Investigation. The Public Attorney’s Office, who are the legal counsel provided to minors in detention confirmed that they do not receive the case file, or have any knowledge of the case, at the Preliminary Examination stage. Therefore with the Preliminary Investigation procedure the detainee cannot be regarded as having been brought before the proper judicial authorities.

Interestingly, the Preliminary Investigation procedure requires that the accused be given the opportunity to submit controverting evidence. Without the presence of the minor, or their counsel at this stage it is difficult to conclude that they have been given the opportunity to submit controverting evidence.

It must be considered a major failing under Philippine law to vindicate the rights of minors to deny them the opportunity of questioning their detention or asserting their right to be treated as minors until well after the Article 125 time limits. Some of the case studies indicate that it is not unusual, when only minor complications arise, for a minor to wait more than forty (40) days for their first appearance in court and first opportunity to meet with legal counsel; a gross violation of International Human Rights Law and Philippine Law.

One can conclude that the majority of minors are detained illegally and arbitrarily in adult jails for between ten (10) days and two (2) months before their first appearance in court.

ARBITRARY DETENTION- POST TRIAL

In many of the case studies presented below, minors were detained after the appropriate courts had ordered their release. In one case, a minor was detained in jail for forty-nine (49) days after the court had ordered him to be transferred to a juvenile center. In other cases the jail simply didn’t receive or act upon the court order for many days after it was made. Such detention is manifestly illegal and is inexcusable.

Philippine Law provides for adequate protection from such arbitrary detention and lays down punitive measures for public officers responsible. However there is a complete absence of any attempt to enforce the law.

DENIAL OF LEGAL ASSISTANCE

Under Republic Act No. 7438 Section 2. a) every person detained shall at all times be assisted by legal counsel, who shall be provided by the investigating officer, if the accused cannot afford his own. Basic International Human Rights Law requires that all minors in detention be kept informed of their legal rights and status of their case.

As the Public Attorney’s Office, who represents most minors in conflict with the law only appoints legal representation to the minor at the time of the arraignment in front of court, rather than at the questioning or preliminary investigation stage of the proceedings, the minor could hardly be considered to be assisted by legal counsel at all stages of the proceedings.

The very fact that legal counsel is appointed only weeks after the minor’s detention could be considered illegal and arbitrary, and after numerous other rights have been violated is strong evidence that the basic right of a minor to legal counsel is being denied with serious repercussions for the minor.

It is also apparent from a study of these cases that the minors are badly informed of their rights and status of their cases by their PAO counsel. Many minors interviewed were unaware that their case had been suspended, and did not know what court orders had been made. Many of the minors could not even recall the name of the PAO lawyer representing them. None of the minors interviewed had met with their PAO Attorney’s in jail prior to their trial.

It would seem that the rights of an accused under Article 14 of the International Convention on Civil and Political Rights to due process and adequate legal assistance are being denied. Similarly, under the Philippine Constitution everybody detained is entitled to due process and a basic right to liberty. Minors should be given even greater protection than the Convention on Civil and Political Rights provides.

DENIAL OF BAIL

In several of the case studies presented below, bail was set at an inordinate and unreasonable amount that the children could never be expected to pay. Under International Human Rights Law it is not legal for persons awaiting trial to be detained in custody as a general rule, and denied the right to bail except in the most serious cases.

Under Rule 114, Section 4 of the Philippine Criminal Code all persons shall be admitted to bail as a matter of right. Similarly under S.13 of the Philippine Constitution, “Excessive bail shall not be required.”

In one of our given examples a poor ten-year-old child had bail set at the equivalent of U.S Dollars $2,000. This amount would be impossible for the average middle-income earner to pay in the Philippines, let alone an impoverished child.

ILLEGAL DETENTION CONDITIONS

The children in detention were treated almost identical to convicted adult offenders in the jails under review. In Angeles City District Jail the minors were detained in a separate cell from the adults but this was the only preferential treatment the minors received. Convicted adult prisoners mix freely with the detained minors in all the jails visited.

The right of minors in detention to be treated in a way conducive towards their rehabilitation was denied in all cases. None of the children were provided with adequate physical stimulation while no attempt was made to provide the children with any mental stimulation or rehabilitation.

The United Nations “Beijing Rules” setting minimum standards for the treatment of children in detention describe the well-being of the juvenile as the paramount concern in their treatment while in detention. Any positive treatment of juveniles in jail in the Philippines is rare and largely incidental.

The Preda Jail Monitoring Team concluded that actual physical and mental conditions in the jails visited may have amounted to torture, cruel and inhuman or degrading treatment of the minors. In all cases the jails were overcrowded and dietary provisions were basic, as were sanitary conditions.

CASE STUDIES

As of 2nd September 2002 (names of minors have been changed)

ANGELES DISTRICT JAIL, PAMPANGA PROVINCE

GENERAL CONDITIONS FOR MINORS

– Minors in Angeles Jail are detained in a small (3 meters by 7 meters approx) unventilated concrete cell. There is no window in the cell, and the minors have no access to an electric fan which many of the adult cells have and which is necessary in the constant oppressive heat.

– The minor’s cell is in a block containing over a hundred convicted adult prisoners. During the day there is free access for all prisoners (including the minors) to mix freely throughout the block.

– The same cell is always used to house male minors regardless of the number in the jail. Reports from adult inmates indicate that the same cell was used for up to 15 minors at a time. The maximum the Preda Jail Monitoring Team has seen in the cell is eight minors.

– There is no bedding or basic sanitary items supplied by the jail. There is a separated concrete cubicle in the corner of the cell with a toilet. The children are not given any change of clothes, and commonly wear rags.

– Recently there have been reports of a Hepatitis and TB epidemic in the Jail.

– The children have a maximum one-hour a day of exercise. They have to request this each day. They can then have access to a small basketball hoop in the yard. The minors are allowed five hours a day to walk freely around the adult block, and mingle freely with the convicted adult detainees.

– There is no mental stimuli of any kind provided for the children.

– The food budget per child/per day is 30 Pesos (equivalent to US .55 Cents a day). The children Preda talked to reported being underfed and hungry.

– There is little effort made to rehabilitate the minors who report visits from a social worker on average less than once a month.

– Conditions in the jail may amount to torture, inhuman, degrading treatment of the minors.
ANGELES JAIL CASE STUDIES

1. Junjun

Age: 10/13- unconfirmed
Place of Detention: Angeles City District Jail, Pampanga, in adult cellblock.
First Interviewed by Preda: 24th June 2002
Arrested: 31st May 2002
Manner of Arrest: No arrest warrant. No handcuffs or unnecessary force used. Philippine Government reports he was arrested in flagrante delicto.
Charges: Violation of PD 1619, Section 2 for Possession and Use of a Volatile substance, and Vagrancy (Article 202-Revised Penal Code).
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: No
Visit from Social Worker: Yes. One visit.
First Appearance in Court/Access to a lawyer: 14th June 2002 (21 days after initial detention) when Junjun pleaded guilty to Vagrancy and was ordered to be placed in a juvenile detention center/placed in custody of parents
Transferred to Juvenile Center: 5th July 2002 (21 days after court order).
Total period of detention in adult jail: 36 days.

SUMMARY:

Junjun did not remember being brought before a judge, or having any access to a lawyer in the month since his detention began. He had no knowledge of any bail being set for him. He did remember a social worker paying a visit to the prison and talking to him, but was unsure what she was doing to help him. Junjun did not believe that his parents had been told of his detention, and he had not been visited by any relative since his detention began.

Junjun’s Attorney confirmed in a meeting with Preda Staff that his first opportunity to help Junjun and Mandy (see below) was at the arraignment at the 14th June 2002. He confirmed that defense counsel is given no opportunity to be present at the Preliminary Investigation by the Prosecutor. Therefore, the first judicial authorities that Junjun was brought in front of was on the 14th June 2002, 15 days after his arrest and not within the time limits specified by Article 125 of the Philippines Revised Penal Code. Therefore, we believe that Junjun’s initial pre-trial detention was illegal.

Preda’s jail rescue team discovered that Junjun had pleaded guilty to the offense of vagrancy before the Regional Family Court on the 14th June 2002 at his arraignment, and on the same day was ordered released to the Bahay Bata (NGO) Rehabilitation Center, or the custody of his parents.

Junjun, however, was only released on recognizance to the Bahay Bata NGO on July 5th 2002 . We believe that after the court ordered Junjun’s release on the 14th June 2002, his continued detention until July 5th 2002 was illegal and arbitrary, and in conditions which amounted to torture degrading, and inhuman treatment.

2. Mandy (Male)

Age: 12
Place of Detention: Angeles City District Jail, Pampanga, in adult cellblock
First Interviewed by Preda: 24th June 2002
Arrested: 31st May 2002
Manner of Arrest: No arrest warrant. No handcuffs or unnecessary force used. Philippine Government reports he was arrested in flagrante delicto.
Charges: Violation of PD 1619, Section 2 for Possession and Use of a Volatile substance, and Vagrancy (Article 202-Revised Penal Code).
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Mandy believed not.
Visit from Social Worker: Yes. One visit.
First Appearance in Court/Access to a lawyer: 14th June 2002 (21 days after initial detention) when Mandy pleaded guilty to Vagrancy and was ordered to be placed in a juvenile detention center/placed in custody of parents.
Transferred to Parent’s Custody: 24th June 2002 (10 days after court order).
Total period of detention in adult jail: 25 days

SUMMARY:

Mandy was twelve (12) years of age. Like Junjun he had been in the prison for nearly one month at the time of Preda’s first visit, picked up by the local police for vagrancy and rugby sniffing. Like Junjun he thought he had never been brought before a judge or any other judicial authority. He had no memory of any lawyer assisting him, and was oblivious to the court order ordering his release. Mandy had no sandals to wear on his feet.

According to the Family Court Judge, Mandy appeared alongside Junjun on the 14th June 2002, and after pleading guilty to Vagrancy was ordered to be released to his parents or the custody of Bahay Bata NGO. Therefore, Mandy was arbitrarily detained for 15 days in Angeles Jail until his release to his mother on the 24th June 2002, as there was manifestly no legal basis for his detention. Again, like Junjun, this is regardless of whether his pre-trial detention (21 days) in Angeles Jail was legal.

3. Hadji

Age: 17
Place of Detention: Angeles City District Jail, Pampanga, in adult cellblock.
First Interviewed by Preda: 24th June 2002
Arrested: 15th March 2002
Manner of Arrest: No arrest warrant. No handcuffs or unnecessary force used. Philippine Government reports he was arrested in flagrante delicto.
Charges: Violation of PD 1619, S. 2 for Possession and Use of a Volatile Substance.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Yes
Visit from Social Worker: Yes. One visit.
First Appearance in Court/Access to a lawyer: 3rd April 2002 ( 16 days after initial detention). Court finally ordered his transfer to Central Luzon Drug Rehabilitation Center on 17th May 2002.
Transferred to Rehabilitation Center: 5th July 2002 (49 days after court order).
Total period of detention in adult jail: 112 days

Summary:

Hadji was seventeen years old (17) when he was arrested and brought to Angeles Jail in March 2002. He believed he had been sentenced to six months and one day in prison for sniffing rugby at Angeles Market. That was as much as this minor could recall about his criminal case. He did not know that his conviction had been suspended.

According to court documents, Hadji pleaded guilty to the Offense of Violation of Section 2, PD 1619 (Dug Offense) on the 3rd April 2002, and on the same day he was ordered to be placed under the custody of the Central Luzon Drug Rehabilitation Center. After resolving some other issues, the court made a final order for his transfer to the Rehabilitation Center on 17th May 2002.

Hadji, was only moved to the Central Luzon Rehabilitation Center (Government ran) on July 5th, 2002. Like Mandy and Junjun, we feel that Hadji, regardless of the legality of his pre-trial detention in Angeles Jail, was illegally detained as it is manifestly clear that there was no legal basis for his continued detention after the 17th May 2002.

4. Michael

Age: 17- 19. Michael alleges his birthday is November 9th 1984, however this cannot be proven. The law is treating him as an adult until he can prove that he is a minor.
Place of Detention: Angeles City District Jail, Pampanga, in adult cellblock.
First Interviewed by Preda: 24th June 2002
Arrested: 21st April 2002
Manner of Arrest: Michael reports no handcuffs or unnecessary force was used. Philippine Government reports he was arrested in flagrante delicto.
Charges: Attempted Robbery
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Michael didn’t believe so.
Visit from Social Worker: No
First Appearance in Court/Access to a lawyer: May 2nd 2002 ( 12 days after initial detention). Counsel was only appointed on this day. Case ongoing.
Total period of detention in adult jail: As of 1st September 2002 -132 Days and continuing.

SUMMARY:

Michael reported he was seventeen years of age (17). He had been in the prison for two months, when we visited on 24th June 2002. He told us he had been charged with attempted robbery, and he had had four (4) court hearings already. His next hearing was scheduled for October, by which time he would have served six (6) months in Angeles Prison.

Our second jail visit to Angeles Jail took place on Friday the 5th of July 2002 at 4.00 pm. Unfortunately Michael remained in prison. We had earlier been misled to believe that he had been released. His birthday was, according to him on November 9th 1984, making him seventeen. However, as he has not been able to produce a birth certificate the court would not order his release or transfer to a juvenile detention center. We have been unable to locate his birth certificate.

Article 3.3 of the United Nations “Beijing Rules” recommends that all efforts should be taken to treat young adult offenders with the same benefits as minors. Particularly in cases where the age of the youth is in doubt, we feel that the authorities must give the benefit of the doubt to Michael and treat him as a minor.

5. Bernard

Birthday: April 24th, 1985
Arrested: 9th July 2002
Arrest Warrant: No, allegedly caught in flagrante delicto .
Charges: Theft of T-Shirt worth 550 Pesos.
Manner of Arrest: Handcuffs were used upon arrest according to Bernard.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Not known
Visit from Social Worker: No
Court Orders:
July 11th 2002- Court Social Worker directed to conduct case study on Bernard and submit to court within 5 days. No case study on file by 2nd September 2002
First Appearance in Court/Access to a lawyer: August 21st 2002- Bernard arraigned after 42 days in detention. Pleaded not guilty. Pre-Trial set for September 8th 2002.
Total period of detention in adult jail: As of 1st September 2002 -53 Days and continuing.

Summary:

Reason given verbally by the presiding judge on 27th August 2002 for Bernard’s continued detention in adult jail is the delay in Court Social Worker submitting case study. Case study has taken more than 7 weeks to be produced.

6. Allen

Birthday: June 8th 1987
Arrested: 10th August 2002, brought to Balibago District/Brgay Jail for 3 days after initial arrest before being transferred to Angeles Jail (without any court order/appearance).
Arrest Warrant: No, allegedly caught in flagrante delicto.
Charges: Theft, total amounting to P1,400.00.
Manner of Arrest: Handcuffs were used upon arrest according to Allen. Allen claimed the arresting police were very rough on him.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Arnel didn’t believe so
Visit from Social Worker: No
Court Orders:
August 19th 2002- Court directs Social Worker to provide court with Case Study within five days. No report filed by 27th August 2002.
August 29th: Latest Information indicates Court Ordered his transfer to Magalang on this day.
First Appearance in Court/Access to a lawyer: August 29th 2002- Allen appears to have been arraigned (after 19 days in detention). Case Status not known.
Transferred to Juvenile Center: August 29th 2002
Total period of detention in adult jail: 19 days

7. Lito

Birthday: November 8th 1984
Arrested: 20th July 2002
Arrest Warrant: No, allegedly caught in flagrante delicto.
Charges: Stealing cell phone worth P2,500
Manner of Arrest: Handcuffs were used upon arrest according to Lito.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Lito didn’t believe so
Visit from Social Worker: No
Court Orders:
1st August 2002, after being informed he was a minor Court RTC Branch 3 , Judge Aida E. Layag ordered his case be referred back to City Prosecutor’s Office for disposition to Br 60 Family Court.
First Appearance in Court/Access to a lawyer: As of 27th August 2002 Lito has still to be arraigned, and has yet to be assigned counsel, after 38 days in detention.
Total period of detention in adult jail: As of 1st September 2002- 42 Days and continuing

Note:
Lito’s case seems to have been stalled by the City Prosecutor’s Office.

8. Binoy

Birthday: November 2nd 1986
Arrested: 8th July 2002
Arrest Warrant: No, allegedly caught in flagrante delicto
Charges: Marijuana use, charged along with Emon (below) and other minor.
Manner of Arrest: Handcuffs were used upon arrest according to Binoy.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Binoy didn’t believe so.
Visit from Social Worker: Yes, once.
Court Orders:
July 11th 2002, Court Social Worker ordered to submit report within 5 days by Judge Pinto RTC BR. 60. Report received by court August 5th 2002 recommending Binoy be released on recognizance to his family.
August 21st 2002- Arraignment with counsel Atty. Yao. Pleaded guilty. Sentenced to min. 4 months 1day, and max. 2 years 4 months. Sentence Suspended and ordered committed to Magalang Regional Youth Rehabilitation Center.
First Appearance in Court/Access to a lawyer: August 19th 2002 after 42 days in detention.
Released to custody of parents: August 30th (9 days after court order) released to parents rather than detention center. Reason unknown.
Total period of detention in adult jail: 53 days

Note: The reason for the delay in Binoy’s release after the court order seems to be the fact that it took 9 days for the court order to reach the prison (3 miles away).

9. Emon

Birthday: August 1st 1984
Arrested: 8th July 2002
Arrest Warrant: No, allegedly caught in flagrante delicto.
Charges: Marijuana use
Manner of Arrest: Handcuffs were used upon arrest according to Emon.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Emon didn’t believe so.
Visit from Social Worker: Yes, once.
Court Orders:
July 11th 2002, Court Social Worker ordered to submit report within 5 days by Judge Pinto RTC BR. 60.
August 21st 2002- Arraignment adjourned, as jail failed to bring Emon before court.
August 28th 2002: Arraigned by J. Pinto RTC Branch 60. We believe that Emon pleaded not guilty at his arraignment. The judge could not order his transfer to juvenile detention center as youth is no longer a minor. No knowledge yet if a PAO lawyer has been assigned.
First Appearance in Court/Access to a lawyer: August 19th 2002 after 42 days in detention.
Total period of detention in adult jail: As of 1st September 2002- 54 days and continuing.

Comment:
After being arrested on July 8th 2002 and having the Information filed against him on the 9th July 2002, under Rule 116, Section 1 (E) of the Philippines Rules of Criminal Procedure, he should have been arraigned within a maximum of 13 days (from filing of information). Therefore, Emon should have been arraigned on the 21st July 2002, when he was still a minor. He could then have pleaded guilty to the offense and been able to avail of his right to apply for his sentence to be suspended under Article 192 of the Child and Youth Welfare Code. Due to the delay Emon, just turned eighteen (18) may face a long prison sentence of up to eight years.

10. Jocel

Birthday: April 26th 1985
Arrested: 9th July 2002
Arrest Warrant: No, allegedly caught in flagrante delicto.
Charges: Possession of 66 Grams of Shabu
Manner of Arrest: Handcuffs were used upon arrest according to Jocel.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: No
Visit from Social Worker: No
Court Orders:
August 23rd 2002: Arraignment of Jocel before court which has no jurisdiction to try minors. Petition for bail filed by his Attorney who wasn’t present in court due to illness. As Jocel had no counsel present in court no application was made to have his case transferred to the Family Court or for him to be considered a minor.
Motion for Bail, as well as Motion for Re-Investigation set for Sept. 19th 2002.
First Appearance in Court/Access to a lawyer: August 23rd 2002 (after 45 days in detention), but accused still hasn’t met his counsel.
Total period of detention in adult jail: As of 1st September 2002- 52 days and continuing.

Comment:
Jocel’s case is still in a court which has no jurisdiction to hear the trial of a minor. Motion must be filed to prove he is a minor with birth certificate which is located at jail. Motion must be made to transfer case to Family Court, and then a Motion made to have him released/transferred as he is a minor.

MASINLOC MUNICIPAL JAIL, ZAMBALES

Preda Jail Monitoring Team visited Masinloc Municipal Jail on the 15th August 2002. Several minors we have talked to in jails, and in juvenile detention centers report having spent time in the jail.

– No minors to report as of 15th July 2002. However Jail conditions are subhuman, and detention there for a minor for more than a few hours could amount to torture under the ICCPR, CRC, “Beijing Rules” etc.

– There is no running water, and the only toilet facility, which is just a hole in the ground, is within the cell which is barely 9 square feet. There is a very bad smell in the cell. There is no bedding provided within the cell so inmates sleep on the concrete floor.

– According to Dan, George and John (all minors-see below) who were kept there for two weeks , apparently sometime around March 2001, their families had to provide food for them and they were never left out of the small cell for the entire two weeks. They were not mixed with adult prisoners as there were no adults committed during that time.
DETAILS OF 3 MINORS WHO HAD BEEN JAILED IN MASINLOC

11. Jorge

Age: 15
Place of initial detention: Masinloc Municipal Jail
First Interviewed by Preda: 19th July 2002
Arrested: 18th January 2001
Charges: Theft committed with violence against the person. Stolen goods amounting to total of Philippine Pesos 23,000 (Equivalent to US Dollars $460).
Manner of Arrest: No arrest warrant. On arrest Jorge reports he was handcuffed and brought to a cemetery along with the other two suspects (see below). In the cemetery the complainant identified them as the thieves, and apparently requested the police to beat them. The police beat the children. The complainant was also given the opportunity to beat them. Jorge narrates that he was kicked several times, and then tied to a tricycle and beaten further. Apparently, around fifteen policemen were present during the episode in the cemetery. They were then brought to Masinloc Jail.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Yes.
Visit from Social Worker: No
First Appearance in Court/Access to a lawyer: 6th March 2001 (after 19 days in Masinloc Jail). No Attorney present. They were then ordered to be transferred to Juvenile Detention Center pending arraignment and trial.
Arraignment: March 13th 2001. Represented by PAO Attorney. Bail was set at 100,000 Philippine Pesos each (equivalent to 2,000$ US).

12. Dan

Age: 11 (age 10 at time of arrest)
Address: Masinloc
Other Details: Same as Jiffel (above)
COMMENT:

In a separate interview from Jorge, Dan narrated a similar story about their arrest, treatment and initial detention. 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.

Dan knows that his trial is ongoing, but has little idea about the actual proceedings. He does not know his lawyers name. He also felt scared to report any police abuse against him to the court or his lawyer. However he did inform the Social Workers at RYRC at Magalang after his transfer there. This was confirmed by the Head Social Worker. The report of police abuse was not taken any further by the Social Workers.

While in detention in the Juvenile Detention Center Dan had escaped in mid February 2002, and was recaptured in April 2002. In late July 2002 Dan escaped and currently his whereabouts and condition are unknown.

13. John

Age: 16
Unavailable for interview. Social Worker at Magalang Juvenile Detention Center confirms that John was treated in a like manner to Jorge and Dan.

ZAMBALES PROVINCIAL JAIL, IBA

GENERAL CONDITIONS:

– There are no separate cells for minors in Zambales Jail. Minors sleep on fold-up beds in cells which they share with up to 25 convicted adult male prisoners at a time.

– The cells are open during the day and prisoners are free to roam around the jail block at their own will. There is no separate place for minors to stay.

– Three minors interviewed in Zambales Jail reported no physical abuse at the hands of the adult detainees or the prison guards. They all reported that the convicted adult prisoners gave them lots of advice, and talked to them often.

– All of the minors reported that the food supplied at the jail was not sufficient. Jail Warden reports that the food budget per prisoner is 6 Pesos (equivalent to 10 US Cents) per meal, three times a day.

– Minors are allowed out of the jail block every day for exercise.

– There are no educational or mental stimuli provided to minors within the jail. They are given bible studies one day a week.

– Toilet and washroom facilities are located in a separate room from the cells. The Preda Jail Monitor Team examined the C.R facilities and found them to be relatively clean and well maintained.
14. Tonton

Date of Birth: May 27th 1985
Date of initial arrest: April 13th 2000 (age 14)
Charges: Robbery (of total amounting to 340,000 Pesos- equivalent to US Dollars $6,800) with adult accomplice.
Manner of Arrest: Tonton does not remember an arrest warrant being used. Handcuffs were used during his arrest.
Initial Detention: In Camp Conrado D. Yap (Military Jail) for two days. Subsequently transferred to Zambales Provincial Jail after two days without any court order or court appearance.
Medical and Physical Examination: No
Parents informed of detention: Yes
Visits from social worker: Yes. May 3rd 2000 National Department of Social Welfare and Development 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 couldn’t 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 two and a half years in Regional Trial Court, Branch 70, Iba, Zambales. Trial adjourned for various reasons on all three occasions.
Released to custody of Mother: 9th August 2002. Case ongoing.
Total time spent in adult jail: Two years, and four months.

COMMENT:

Tonton remembers signing a confession admitting his guilt for the crime. After signing the confession Tonton’s case should have been dealt with in weeks, as he would have been able to apply for a suspension of his sentence as a minor and be sent to a juvenile detention center. Apparently the family nature of this case has been the delaying factor.

15. Rey

Age: 14
Date of Initial Arrest: 1st July 2002. Both Rey and Alfred (below) were initially brought to San Narciso Municipal Jail and detained there for 1 week before being transferred to Zambales Provincial Jail. They were transferred upon a court order from the San Narciso Municipal Court Judge. Neither minor had representation upon this transfer order being made.
Manner of arrest: No arrest warrant shown. Handcuffs were used upon the transfer of Rey and Alfred from San Narciso to Zambales Jail.
Medical or Physical Examination: No
Parents Informed of Arrest: Yes
Visits from social worker: Yes. On the 29th July 2002 DSWD recommended Rey be released to the custody of his parents. Not ordered by court until 7th August 2002.
First Appearance before judicial authorities/ first meeting with legal counsel: July 22nd 2002 (22 days after initial detention). Next appearance was July 29th 2002. Both appearances were Preliminary Investigations.
Court Order: On the 7th August 2002 Judge Alinea of San Narciso Court ordered that Ray be released to the custody of his parents upon a motion filed by PAO Attorney. We do not know how his case has proceeded since, but we believe his case will be dismissed.
Released to custody of parents: 7th August 2002 (after 38 days in adult jail).

16. Alfred

Age: 16
Date of Initial Arrest: 1st July 2002. Both Alfred and Rey (above) were initially brought to San Narciso Municipal Jail and detained there for 1 week before being transferred to Zambales Provincial Jail. They were transferred upon a court order from San Narciso Municipal Court Judge. Neither minor had representation upon this transfer order being made.
Manner of arrest: No arrest warrant shown. Handcuffs were also used upon the transfer of Rey and Alfred from San Narciso to Zambales Jail.
Medical or Physical Examination: No
Parents Informed of Arrest: No. Alfred is an orphan.
Visits from social worker: Yes. 29th July DSWD submitted report recommending that Alfred be transferred to Magalang Regional Rehabilitation Center.
First Appearance before judicial authorities/ first meeting with legal counsel: July 22nd 2002 (22 days after initial detention). Next appearance was July 29th 2002. Both appearances were Preliminary Investigations.
Court Order: On the 7th August 2002 Judge Alinea of San Narciso Court ordered that Alfred be released to the custody of Magalang Regional Youth Rehabilitation Center upon a motion filed by the PAO Attorney. We do not know how his case has proceeded since, but we believe his case will be dismissed.
However, as of the 28th August 2002 we believe that Alfred had still to be transferred, due to application by jail warden to adopt Alfred. It is believed that since 7th August 2002 Alfred has been residing with the jail warden. Jail warden has the same surname as Alfred and has apparently taken a liking to him.
Released from Adult Jail: August 7th 2002 (after 38 days in adult jail).

17. Jojo

Date of Birth: Dec 28th 1985
Arrested: 6th August 2002. Initially brought to local military jail (name unknown for four hours), then to Camp Conrado D. Yap (Military Jail) for two days before being transferred to Zambales Provincial Jail.
Arrest Warrant shown: No
Handcuffs or Unnecessary Force used: Yes, and strong physical force used upon arrest, according to the minor. Handcuffs also used in transfer between jails. He also says he was forced (no physical pressure applied, only mental) to sign a confession in the Army Camp under questioning, without presence of a lawyer.
Physical and Mental Examination: No
Parents Informed: Yes
Visit of Social Worker: Yes
First met with lawyer: Within a week (exact date not remembered) Jojo met with his lawyer, a private human rights Attorney.
First brought before judicial authorities: According to his Attorney, on the 26th August 2002. No arraignment. Motion made to have minor transferred to Magalang Juvenile Detention Center. Pending decision as of 2nd September 2002.
Charges: Possession of a deadly weapon. Membership with an illegal organization. Exact Charges must be confirmed.
Period of Detention in Adult Jail: As of 2nd September 2002- 27 days.

Summary:

On Tuesday the 6th August Jojo claims he was in Sitio Perez, Santo Rosario, Masinloc. He claims that he was in the forest collecting bamboo when a gunfight opened up. He took cover and hid. When the gunshots stopped he came out of hiding but found himself surrounded by government soldiers.

The government soldiers with guns pointed, forced him to lie with his face on the ground. He alleges that they placed a grenade in his hands and then took photographs of him. The soldiers alleged that he was part of the New People’s Army (NPA- military wing of Communist Party of the Philippines).

CONCLUSIONS AND RECOMMENDATIONS

Without any doubt the rights of the child under the Convention on the Rights of the Child, the International Convention on Civil and Political Rights as well as Philippine Law are being systematically breached in the Philippines. The rights not be illegally or arbitrarily detained, in adult penal institutions without adequate legal assistance, in conditions amounting to torture were denied to every child in our case studies.

As has been shown the problem does not lie directly with the provisions of the Philippine legal code, even if some improvements can be made. In accordance with their obligations under various treaties like the Convention on the Rights of the Child the Philippine government has promulgated several well-intentioned, and well-drafted pieces of child protection legislation. There are numerous government produced handbooks and guideline documents describing detailed and adequate protection given by Philippine law to minors in detention in the Philippines.

The problem is the complete absence of monitoring mechanisms and effective punitive measures to ensure the enforcement of the child-protection law. Many of these mechanisms and punitive provisions exist on paper, and sometimes even in the working rules of various committees and councils. However, where it really matters, on the life of a defenseless child locked in an adult jail, these mechanisms are almost completely illusory.

Whether the failure to implement these mechanisms and procedures is because of a lack of funding or due to bureaucracy, or both, or other reasons, is of little consolation to the abused children. The following recommendations for reform are all largely a matter of practice and could, without undue expenditure, help ensure the rights of children in detention in the Philippines receive the respect they need. Previous juvenile justice reform in the Philippines has largely taken the form of the creation of Family Courts, Councils and Committees or Officers with various powers to help juveniles in conflict with the law. The creation of all of these positions and offices requires large expenditure, and has been inadequately implemented.

The following recommendations are not meant to be a detailed or complete guide of the rights of a child in detention in the Philippines. They are based upon the aforementioned legal and human rights breaches. It is hoped that they could be easily and cheaply implemented, as they mostly involve the streamlining and improvement of procedures that already exist, or procedures that require a change of attitude than investments of large amounts of money.

RIGHTS UPON INITIAL DETENTION

Every child in the Philippines must have their legal rights enforced immediately upon arrest.

– The arresting officer must inform the parents of the minor, and the Department of Social Welfare and Development (DSWD) as soon as is possible after arrest of the reasons for the child’s apprehension. Present practice generally involves informing the parents and DSWD of the child’s detention but not within reasonable time limits;

– Every minor must be given a physical and mental examination upon arrest according to law. All prisons are already supposed to have a Medical Doctor or Nurse available on call;

– Minors must not be handcuffed upon arrest or during transfer. This is a simple question of practice, and training, without any cost involved.

ACTION TO PREVENT ILLEGAL DETENTION

– Philippine Law must be clearly redefined to place a positive obligation on the arresting police officers to place minors in the custody and care of the Department of Social Welfare and Development or other juvenile center immediately after arrest. The practice of dumping minors in jail is due to pure laziness and ignorance of the law, and is not a matter of cost. All the jails examined in this case study had appropriate juvenile facilities available nearby;

– The Philippine government should be urged to codify and fully implement useful diversionary procedures like that mentioned previously of the Barangay Captains. Such procedures can be used to avoid the expense of jailing a minor and carrying out a full criminal trial, while at the same time contributing towards the immediate rehabilitation of minor’s accused of crimes. The use of other practices to avoid jailing and prosecuting minors should be examined closely;

– Minors in detention must be brought before a judge within the time limits set down by Article 125 of the Philippine Revised Penal Code. Otherwise the Prosecutor who carries out the Preliminary Investigation must be given the authority to order the release or transfer to a juvenile center of all minors in detention. In this regard all minors must be allowed to be present at the Preliminary Investigation stage with the presence of their counsel, and be given the chance to submit controverting evidence as Article 112 of the Criminal Code of Procedure lays down. Again, this is a matter of practice, and streamlining existing procedures without a huge cost involved;

– All court orders in releasing or transferring children in detention must be delivered to the jailing authorities and enforced immediately. The failure to deliver orders to jails immediately is simply due to administrative bureaucracy. Simply placing the order in the hands of the minor or his counsel before he is brought out of court would give the jailing authorities no excuse but to implement the order without delay;

– All children who may have been illegally or arbitrarily detained must be informed by their lawyer of their rights to seek compensation for such and be given adequate assistance in obtaining it;

– Courts must be made aware of their obligations to set bail at an amount that is reasonable in all the circumstances of the case. This is simply a matter of practice without any cost involved apart from simple improvements in training given to judges.

CONDITIONS IN JAIL

If minors are detained in adult prisons they must have their basic rights under Philippine and International Human Rights Law respected. The provision of basic sanitary and appropriate physical conditions cannot be regarded as too costly.

– All minors in detention should be kept separated at all times from adult prisoners;

– All minors in detention should be provided with adequate food, and sanitation facilities to ensure their physical well being;

– All minors in detention should be provided with basic educational materials, and opportunity for physical exercise.

END OF REPORT