WHY IT IS ILLEGAL AND A VIOLATION OF HUMAN RIGHTS TO JAIL CHILDREN

RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW UNDER INTERNATIONAL LAWS:
(where the Philippines is a signatory)

Article 37, 39 & 40 of the UN Convention on the Rights of the Child

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment, or sentenced to capital punishment or life imprisonment without release

No child shall be unlawfully or arbitrarily deprived of liberty; detention shall only be a last resort and for the shortest possible time

A child deprived of Liberty shall be treated with humanity and respect, taking into account the child’s age; the child shall be detained separately from adults

A child deprived of liberty shall have the right to legal assistance and to challenge the legality of his or her detention

UN Optional Protocol to the Conventionn Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

UN Second Optional Protocol to the International Convention on Civil and Political Rights (ICCPR)

UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, 1985)

UN Guidelines for the Prevention of Juvenile Delinquincy (The Riyadh Guidelines, 1990)

UN Rules for the Protection of Juveniles Deprived of Their Liberty (also known as JDL, 1990)

UN Standard Minimum Rules on Non-Custodial Measures (The Tokyo Rules, 1990)

Under Philippine Law

1.Presidential Decree No. 603 – Child & Youth Welfare Code

Article 190. Physical and Mental Examination

It shall be the duty of the law-enforcement agency concerned to take the youthful offender, immediately after his apprehension, to any available government medical or health officer for a physical and mental examination.

Article 191. Care of Youthful Offender Held for Examination or Trial

A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required.

That in the absence of any such center or agency within a reasonable distance from a venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees.

2. Rules and Regulations on the Apprehension, Investigation, Prosecution and Rehabilitation of Youth Offenders

Section 4. Apprehension of Youth

Whenever a youth is taken into custody for an alleged act of delinquency, the arresting police officer shall immediately inform the youth of the reason for his apprehension and advise the youth of his legal rights in a language that is understood.

Special Protection of Children Against Child Abuse Act R.A.7610 Article XI, Section 28.

The DSWD are the only public body immune from civil, or criminal prosecution for arbitrary/illegal detention proceedings for the taking of minors into custody in the course of their implementation of Child Abuse code 7610. (All arrested minors should therefore be placed in the custody of the DSWD by the arresting officer as soon as is possible to avoid any criminal, or civil liability on the arresting officer, jail warden, public authorities etc.)

REPUBLIC ACT NO. 7438

Section 2. Rights of Person Arrested, Detained, or under Custodial Investigation; Duties of Public Officers

a) Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

b) Every detainee must be informed by the arresting officer of his rights. Accused must be provided with competent and independent counsel by the investigating officer if he cannot afford his own.

SEC. 4. Penalty Clause.- a) Any arresting public officer or employee, or any investigating officer, who fails to fulfill either (a) or (b) above shall suffer a fine of six thousand pesos and/or a penalty of imprisonment of not less than eight years. (NOTE: Leaving a minor in an adult jail for weeks before their first appearance in court, and first opportunity to meet legal counsel could leave public officer liable to prosecution under this section.)

CHILD AND YOUTH WELFARE CODE (PD 603 as amended)

Art. 189. A youthful offender is a suspect, who is over nine years but under eighteen years of age, at the time of the commission of the alleged offense.

Art. 190. Physical and Mental Examination.- Every minor immediately after arrest must be subject to a physical and mental examination.

Art. 191. Care of Youthful Offender Held for Examination or Trial.- Any minor held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center.

Art. 192. Suspension of Sentence and Commitment of Youthful Offender.- If found guilty, every minor has the right to have his sentence suspended and be submitted to the custody of the Department of Social Services and Development.

RULES AND REGULATIONS ON THE APPREHENSION, INVESTIGATION, PROSECUTION AND REHABILITATION OF YOUTH OFFENDERS (Per Presidential Decree 603, Article 209)

SEC. 4. APPREHENSION OF YOUTH-
The police officer shall notify the DSWD and the parents or guardian of the youth of the cause or reason of apprehension within eight hours of arrest.

SEC. 5. MANNER OF APPREHENSION OF YOUTH.
The arresting police officer shall not employ unnecessary force in arresting or searching the youth. Unless absolutely necessary, handcuffs or other instruments of restraint shall not be used on the child.

SEC. 9. REFERRAL OF CASE TO PROSECUTOR
The youth shall be brought by the arresting officer to the proper authorities within the periods prescribed in Article 125 of the Revised Penal Code.

TITLE TWO REVISED PENAL CODE CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE
CH1.Arbitrary Detention or Expulsion,
ART. 124. Arbitrary detention.- Any public officer or employee who, without legal grounds, detains a person, can be punished with 6 months imprisonment for illegal detention of up to three days, and up to 12 years imprisonment for illegal detention up to six months.

ART. 125. Delay in the delivery of detained persons. -The same penalties shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of : twelve (12) hours, for minor crimes, eighteen (18) hours for serious crimes, and thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.

ART. 126. Delaying Release.-The penalties provided for in article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or undue delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person.

CHAPTER 6
OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

ART. 235. Maltreatment of prisoners.- The penalty of imprisonment up to six years, in addition to his liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention prisoner under his charge, by the imposition of punishment not authorized by the regulations, or by inflicting such punishment in a cruel and humiliating manner.

(Note: A public officer can be prosecuted under this Article, not only for imposing a sentence not authorized by the regulations, but also for not affording to every minor his rights, previously mentioned, under Philippine Law.)