Diversion refers to an alternative child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of the child’s social, cultural, economic, psychological or educational background without resorting to formal court proceedings.
WHEN DIVERSION PROGRAM RESORTED TO
Diversion programs refer to programs the child in conflict with the law is required to undergo after the child is found by the appropriate authority responsible for an offense, without resorting to formal court proceedings. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to:
(a) At the level of the Punong Barangay:
- 1. Restitution of property;
- 2. Reparation of the damage caused;
- 3. Indemnification for consequential damages;
- 4. Written or oral apology;
- 5. Care, guidance and supervision orders;
- 6. Counseling for the child in conflict with the law and the child’s family;
- 7. Attendance in trainings, seminars and lectures on: (i) Anger management skills; (ii) Problem solving and/or conflict resolution skills; (iii) Values formation; and (iv) Other skills which will aid the child in dealing with situations which can lead to repetition of the offense;
- 8. Participation in available community-based programs, including community service; or
- 9. Participation in education, vocation and life skills programs.
(b) At the level of the law enforcement officer and the prosecutor:
- 1. Diversion programs specified under paragraphs (a)(1) to (a)(9) above; and
- 2. Confiscation and forfeiture of the proceeds or instruments of the crime.
(c) At the level of the appropriate court:
- 1. Diversion programs specified under paragraphs (a) and (b) above;
- 2. Written or oral reprimand or citation;
- 3. Fine;
- 4. Payment of the cost of the proceedings; or
- 5. Institutional care and custody.
CONTRACT OF DIVERSION
If, during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings.
The diversion program shall be effective and binding if accepted by the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within 45 days.
The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program.
SUSPENSION OF PRESCRIPTION OF ACTION
The diversion proceedings shall be completed within 45 days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed 45 days.
In case a diversion program is approved and implemented, the period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of 2 years.
DETERMINATION BY CLERK OF COURT
(a) The Clerk of Court shall determine whether the offense charged qualifies for diversion, that is, it is punishable by imprisonment of not more than 12 years, regardless of fine, or fine alone regardless of the amount.
(b) If the crime charged is punishable by such imprisonment, immediately assign a temporary case number and raffle off the case to a court so that its Diversion Committee can immediately undertake the appropriate action. [See Referral to Diversion Committee, below]
(c) If the crime charged does not quality for diversion because it is punishable by imprisonment of more than 12 years, the case shall be assigned a regular criminal case docket number raffled off to a court for formal proceedings.
REFERRAL TO DIVERSION COMMITTEE
1. The Office of the Clerk of Court (OCC) refers a case for diversion to the Diversion Committee. Pending determination of diversion by the Diversion Committee, the court shall: (a) release the child on recognizance to the parents, guardian, or nearest relative; or (b) if release on recognizance is not advisable, commit the child to a “Bahay Pag-asa” or youth rehabilitation center, which shall be responsible for the presence of the child during the diversion proceedings.
2. Each court has a Diversion Committee, composed of: (1) its Branch Clerk of Court, as chairperson; (2) the prosecutor; (3) a lawyer of the Public Attorney’s Office assigned to the court; and (4) the social worker assigned by the court to the child. In the absence of a Branch Clerk of Court, the chairperson shall be designated by the judge.
3. The Diversion Committee calls for a conference, with notice to the: (a) child; (b) the mother or father, or guardian, or in their absence, the nearest relative; (c) the child’s counsel; (d) the private complainant, his or her mother or father, or guardian, or in their absence, the nearest relative, if a minor; and (d) counsel of private complainant.
4. The Diversion Committee makes a determination if the child can undergo a diversion program instead of formal court proceedings. If the Diversion Committee finds that diversion is appropriate, it shall design a diversion program for the consideration and approval of the court.
5. The Diversion Committee may recommend to the court that formal criminal proceedings be conducted when: (a) the child objects to the diversion; (b) the Diversion Committee determines that diversion is not proper; or (c) there is failure of the diversion program if undertaken by the child.
6. The diversion proceedings shall be completed within 45 days from the initial diversion conference.
7. The court shall direct the transmittal of the records of the case to the OCC for the assignment of a regular criminal docket number to the case as follows: CICL Crim. Case No._-_( year). The OCC shall thereafter return the case to the court for arraignment and formal proceedings.
FACTORS TO DETERMINE IF DIVERSION IS PROPER
In determining whether diversion is appropriate for the child, the Diversion Committee shall consider the following factors:
- (a) The nature and circumstances of the offense charged;
- (b) The frequency and the severity of the act;
- (c) The circumstances of the child (e.g., age, maturity, intelligence, etc.);
- (d) The influence of the family and environment on the growth of the child;
- (e) The reparation of injury to the victim;
- (f) The weight of the evidence against the child;
- (g) The safety of the community; and
- (h) The best interest of the child.
THE DIVERSION PROGRAM
If the Diversion Committee finds that diversion is proper, it shall design a diversion program taking into consideration the individual characteristics and peculiar circumstances of the child in conflict with the law. The following factors shall be considered in formulating a diversion program for the child:
- (a) The child’s feelings of remorse for the offense he/she committed;
- (b) The parents’ or legal guardian’s ability to guide and supervise the child;
- (c) The victim’s view about the propriety of the measures to be imposed;
- (d) The availability of community-based programs for rehabilitation and reintegration of the child;
- (e) The past records, if any, involving the child in conflict with the law; and
- (f) The likelihood that the child will be an obvious threat to himself/herself and the community.
The diversion program shall include adequate socio-cultural and psychological responses and services for the child. The Diversion Committee shall also include in the program a plan that will secure satisfaction of the civil liability of the child in accordance with Article 2180 of the Civil Code. The parents shall be liable for damages unless they prove, to the satisfaction of the court, that they were exercising reasonable supervision over the child at the time the child committed the offense and exerted reasonable effort and utmost diligence to prevent or discourage the child from committing another offense.
HEARING OF DIVERSION PROGRAM
The court shall set the Diversion Committee’s diversion report and recommendation for hearing with notice to all parties, their counsel and members of the Committee within 10 days from receipt of such report. The court shall act on the recommendation within 5 days from the termination of the hearing.
REPORT OF SOCIAL WORKER
If the diversion program is approved by the court, the court social worker shall conduct regular monthly visits to the child undergoing diversion proceedings and shall submit the corresponding reports about the status of the diverted child to the Diversion Committee.
At any time before or at the end of the diversion period, the Diversion Committee shall file with the court a report recommending termination or extension of diversion, as the case may be. The report and recommendation shall be heard by the court within 15 days from receipt, with notice to the members of the Diversion Committee, the child, the mother or father, or the appropriate guardian or custodian, or in the absence thereof, the nearest relative, the child’s counsel, and the complainant, his or her father or mother, or guardian, or in the absence thereof the nearest relative, if a minor, and his or her counsel.
The court shall thereafter determine whether the diversion program has been fully and satisfactorily complied with.
On the basis of the report and recommendation of the Diversion Committee, the court may:
- 1. Issue a closure order terminating the case if it is convinced that the child has complied satisfactorily with the diversion program; or
- 2. Extend the period of diversion if it is convinced that the child may still be rehabilitated; or
- 3. Order the case to undergo formal court proceedings if it finds that: (a) the child has not complied with the diversion program; (b) the child is incorrigible; or (c) the program is not serving its purpose.
In case of a judicially-approved transfer of residence of the child in conflict with the law, the court to which supervision of the diversion program was transferred shall make the proper finding: (1) if it finds that diversion has been successful, it shall order the closure of the case; or (2) if it determines that diversion has failed, it shall return the case to the original court for formal criminal proceedings.
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