Article 59Act No. 3815, Sec./Art. 59

Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible.-When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

REVISED PENAL CODE TEXT AND SPECIAL PENAL LAWS

unless

absolutely necessary and only after all other

methods of control have been exhausted and have failed;

(f) Refrain from subjecting the child in conflict with the

law to greater restraint than is necessary for his/her

apprehension;

(g) Avoid violence or unnecessary force;

(h) Determine the age of the child pursuant to Section 7

of this Act;

(i) Immediately but not later than eight (8) hours after

apprehension, turn over custody of the child to the Social

Welfare and Development Office or other accredited

NGOs, and notify the child's apprehension. The social

welfare and development officer shall explain to the child

and the child's parents/guardians the consequences of

the child's act with a view towards counseling and

rehabilitation, diversion from the criminal justice system,

and reparation, if appropriate;

(j) Take the child immediately to the proper medical and

health

officer

for

a

thorough

physical

and

mental

examination.

The

examination

results

shall

be

kept

confidential unless otherwise ordered by the Family

Court. Whenever the medical treatment is required, steps

shall be immediately undertaken to provide the same;

(k) Ensure that should detention of the child in conflict

with the law be necessary, the child shall be secured in

quarters separate from that of the opposite sex and adult

offenders;

(l) Record the following in the initial investigation:

1. Whether handcuffs or other instruments of restraint

were used, and if so, the reason for such;

2. That the parents or guardian of a child, the DSWD, and

the PA0 have been informed of the apprehension and the

details thereof; and

3. The exhaustion of measures to determine the age of a

child and the precise details of the physical and medical

examination or the failure to submit a child to such

examination; and

(m) Ensure that all statements signed by the child during

investigation shall be witnessed by the child's parents or

guardian, social worker, or legal counsel in attendance

who shall affix his/her signature to the said statement.

A child in conflict with the law shall only be searched by a

law enforcement officer of the same gender and shall not

be locked up in a detention cell.

SEC. 22. Duties During Initial Investigation. - The law

enforcement

officer

shall,

in

his/her

investigation,

determine where the case involving the child in conflict

with the law should be referred.

The

taking

of

the

statement

of

the child shall be

conducted in the presence of the following: (1) child’s

counsel of choice or in the absence thereof, a lawyer from

the

Public

Attorney’s

Office;

(2)

the child’s parents,

guardian, or nearest relative, as the case may be; and (3)

the local social welfare and development officer. In the

absence

of the child’s parents, guardian, or nearest

relative, and the local social welfare and development

officer,

the

investigation

shall

be

conducted in the

presence of a representative of an NGO, religious group,

or member of the BCPC.

The social worker shall conduct an initial assessment to

determine the appropriate interventions and whether the

child acted with discernment, using the discernment

assessment tools developed by the DSWD. The initial

assessment shall be without prejudice to the preparation

of a more comprehensive case study report. The local

social worker shall do either of the following:

(a) Proceed in accordance with Section 20 if the child is

fifteen (15) years or below or above fifteen (15) but below

eighteen (18) years old, who acted without discernment;

and

(b) If the child is above fifteen (15) years old but below

eighteen (18) and who acted with discernment, proceed

to diversion under the following chapter. (as amended

by RA No 10630)

CHAPTER 2 DIVERSION

SEC. 23. System of Diversion. - Children in conflict with

the

law

shall

undergo

diversion

programs

without

undergoing court proceedings subject to the conditions

herein provided:

(a) Where the imposable penalty for the crime committee

is not more than six (6) years imprisonment, the law

enforcement

officer

or

Punong

Barangay

with

the

assistance of the local social welfare and development

officer or other members of the LCPC shall conduct

mediation,

family

conferencing and conciliation and,

where appropriate, adopt indigenous modes of conflict

resolution in accordance with the best interest of the

child with a view to accomplishing the objectives of

restorative justice and the formulation of a diversion

program. The child and his/her family shall be present in

these activities.

(b) In victimless crimes where the imposable penalty is

not more than six (6) years imprisonment, the local social

welfare and development officer shall meet with the child

and his/her parents or guardians for the development of

the appropriate diversion and rehabilitation program, in

coordination with the BCPC;

(c) Where the imposable penalty for the crime committed

exceeds six (6) years imprisonment, diversion measures

may be resorted to only by the court.

SEC. 24. Stages Where Diversion May be Conducted. -

Diversion

may

be

conducted

at

the

Katarungang

Pambarangay, the police investigation or the inquest or

preliminary investigation stage and at all levels and

phases of the proceedings including judicial level.

SEC. 25. Conferencing, Mediation and Conciliation. - A

child in conflict with law may undergo conferencing,

mediation or conciliation outside the criminal justice

system or prior to his entry into said system. A contract of

diversion may be entered into during such conferencing,

mediation or conciliation proceedings.

SEC.

26.

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

as

determined

under

Section

30.

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 forty-five (45)

days. The period of prescription of the offense shall be

suspended

until

the

completion

of

the

diversion

proceedings but not to exceed forty-five (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.

Failure to comply with the terms and conditions of the

contract of diversion, as certified by the local social

welfare and development officer, shall give the offended

party the option to institute the appropriate legal action.

The

period

of

prescription

of

the

offense

shall

be

suspended

during

the

effectivity

of

the

diversion

program, but not exceeding a period of two (2) years.

SEC. 27. Duty of the Punong Barangay When There is

No Diversion. - If the offense does not fall under Section

23(a) and (b), or if the child, his/her parents or guardian

does not consent to a diversion, the Punong Barangay

handling

the case shall, within three (3) days from

determination of the absence of jurisdiction over the case

© Compiled By RGL

59 of 201