CA-3

Punishment and Different forms of Human Rights Violation

Punishment
Is the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the transgression of a law
or command). Punishment may take forms of ranging from capital punishment, flogging, forced labor,
and mutilation of the body to imprisonment and fines. Deferred punishments consist of penalties that
are imposed only if an offense is repeated within a specified time.

In some premodern societies, punishment was largely vindictive or retributive, and its prosecution was
left to the individuals wronged (or to their families). In quantity and equality such punishment bore no
special relation to the character or gravity of the offense.

The Purpose of Punishment

Punishment has five recognized purposes:
1. Deterrence,
2. Incapacitation,
3. Rehabilitation,
4. Retribution,
5. Restitution.

Specific and General Deterrence

Deterrence prevents future crime by frightening the defendant or the public. The two types of
deterrence are specific and general deterrence. Specific deterrence applies to an individual defendant.
When the government punishes an individual defendant, he or she is theoretically less likely to create
another crime because of fear of another similar or worse punishment. General deterrence applies to
the public at large. When the public learns of an individual defendant’s punishment, the public is
theoretically less likely to commit a crime because of fear of the punishment the defendant experienced.
When the public learns, for example, that an individual defendant was severely punished by a sentence
of life in prison or the death penalty, this knowledge can inspire a deep fear criminal prosecution.

Incapacitation
Incapacitation prevents future crime by removing the defendant from society. Examples of
incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.

Rehabilitation
Rehabilitation prevents future crime by altering a defendants behavior. Examples of
rehabilitation includes educational and vocational programs, treatment center placement and
counseling. The court can combine rehabilitation with incarceration or with probation or parole. In some
states, for example, nonviolent drug offenders must participate in rehabilitation in combination with
probation, rather than submitting to incarceration (Ariz. Rev. Stat.,2010). This lighten the loads of jails
and prisons while lowering recidivism, which means reoffending.

Retribution
Retribution prevents future crime by removing the desire personal avengement (in the form of
assault, battery, and criminal homicide, for example) against the defendant. When victims or society
discover that the defendant has been adequately punished for a crime, they achieve a certain
satisfaction that our criminal procedure is working effectively, which enhances faith in law enforcement
and our government.

Restitution
Restitution prevents future crime by punishing the defendant financially. Restitution is when the
court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation
damages award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional
distress. It can also be a fine that covers some of the costs of the criminal prosecution and punishment.
  Specific deterrence prevents crime by frightening an individual defendant with punishment.
General deterrence prevents crime by frightening the public with the punishment of an
individual defendant.
 Incapacitation prevents crime by removing a defendant from society.
 Rehabilitation prevents crime by altering a defendant’s behavior.
 Retribution prevent crime by giving victims or society a feeling of avengement.
 Restitution prevents crime by punishing the defendant financially.

Basic Principles for the Treatment of Prisoners

Adopted and proclaimed by General Assembly Resolution 45/111 of 14 December 1990
1. All prisoners shall be treated with the respect due to their inherent dignity and value as human
beings.
2. There shall be now discrimination on the grounds of race, color, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
3. It is, however, desirable to respect the religious beliefs and cultural precepts of the group to
which prisoners belong whenever local conditions so require.
4. The responsibility of prisons for the custody of prisoners and for the protection of society
against crime shall be discharged in keeping with a State’s other social objectives and its
fundamental responsibilities for promoting the well-being and development of all members of
society.
5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all
prisoners shall retain the human rights and the fundamental freedoms set out in the Universal
Declaration of Human Rights, and, where the State concerned is a party, the International
Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and
Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in
other United Nations covenants.
6. All prisoners shall have the right to take part in cultural activities and education aimed at the full
development of the human personality.
7. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction
of its use, should be undertaken and encouraged.
8. Conditions shall be created enabling prisoners to undertake meaningful remunerated
employment which will facilitate their reintegration into the country’s labor market and permit
them to contribute to their own financial support and to that of their families.
9. Prisoners shall have access to the health services available in the country without discrimination
on the grounds of their legal situation.
10. With the participation and help of the community and social institutions, and with due regard to
the interests of victims, favorable conditions shall be created for the reintegration of the ex-
prisoner into society under the best possible conditions.
11. The above principles shall be applied impartially.

Governmental Programs for the Victims.

Victims Compensation Program
What is the law creating the Board of Claims?
Republic Act No. 7309 is the law creating the Board of Claims under the Department of Justice
granting compensation for victims of unjust imprisonment or detention and victims of violent crimes.

What is the rationale for the enactment of the law?

One of the more vexing problems in the area of justice and human rights is the
implementation of the constitutional provision against the deprivation of life, liberty and property
without due process of law. Persons have been accused and imprisoned for crimes they did not commit,
only to be subsequently acquitted. Government and society have become notably indifferent to victims
of crimes and criminals. A judicial way of filing a claim for compensation may be too long. Congress
opted for an administrative procedure of filing the claims by creating the Board of Claims.
Who may apply for compensation?

A person who was unjustly accused convicted and imprisoned and subsequently released by virtue of
judgment of acquittal;
A person who was unjustly detained and released without being charged;
A person who is a victim of arbitrary detention by the authorities as defined in the Revised Penal Code
under a final judgment of the court; or
A person who is a victim of a violent crime which includes rape and offenses committed with malice
which resulted in death or serious physical and/or psychological injuries, permanent incapacity or
disability, insanity, abortion, serious trauma, or committed with torture, cruelty or barbarity.

When should a claim be filed?

The claim should be filed with the Board by the person entitled to compensation under this
Act within six (6) months after being released from imprisonment or detention or from the date he
suffered damage or injury; otherwise he is deemed to have waived his claim.

How is a claim filed?

A claimant may file a claim with the board filling up an application form provided for the
purpose with the Secretariat of the Board of Claims, Department of Justice. Thereafter, he will be
interviewed and he will be duly notified of the action taken by the Board.

How much is given to a qualified applicant?

1. For the victims of unjust imprisonment, the compensation shall be based on the number of
months of imprisonment and every fraction thereof shall be considered one month, but in no
case shall such compensation exceed ONE THOUSAND PESOS (P1,000.00) per month.
2. In all other cases the maximum for which the Board may approved a claim shall not exceed TEN
THOUSAND PESOS (P10,000.00) or the amount necessary to reimburse the claimant the
expenses incurred for hospitalization, medical treatment, loss of wage, loss of support or other
expenses directly related to injury, whichever is lower to be determined by the Board.

May the decision of the Board of Claims be appealed?

Yes, Section 8 provides that: “Any aggrieved claimant may appeal, within fifteen (15) days from
receipt of the resolution of the Board, to the Secretary of Justice whose decisions shall be final and
executory.”

WHAT IS RESTORATIVE JUSTICE?

Restorative Justice is a process through which remorseful offenders accept responsibility for
their misconduct, particularly to their victims and to the community. It creates obligation to make things
right through proactive involvement of victims, ownership of the offender of the crime and the
community in search for solutions which promote repair, reconciliation and reassurance. Thus, the
restorative justice process is actively participated in by the victim, the offender, and/or any individual or
community member affected by the crime to resolve conflicts resulting from the criminal offense, often
with the help of a fair and impartial third party. Examples of restorative process include mediation,
conferencing, sentencing/support circle and the like. The restorative outcome is the agreement
obtained as a product of a restorative justice process. Examples of restorative outcomes include
restitution, community work service and any other program or response designed to accomplish
reparation of the victim, and the reintegration of the victims and/or offenders.

WHAT ARE THE EFFECTS OF RESTORATIVE JUSTICE AS A REHABILITATION PROGRAM OF PPA?

 Reintegration of the offenders to the social mainstream and encouraging them to assume
active responsibility for the injuries inflicted to the victims; Proactive involvement of the community to
support and assist in the rehabilitation of victims and offenders. Attention to the needs of the victims,
survivors and other persons affected by the crime as participating stakeholders in the criminal justice
system, rather than mere objects or passive recipients of services of intervention that may be
unwanted, inappropriate or ineffective; Healing the effects of the crime or wrongdoings suffered by the
respective stakeholders; and Prevention of further commission of crime and delinquency.

HOW IS RESTORATIVE JUSTICE IMPLEMENTED IN PPA?

A. During the Investigation Stage
Information such as victims’ version of the offense, effect of victimization to their lives,
families, future, and plans, and victims’ appreciation on how the damage/harm inflicted by the
crime can be repaired and healed are gathered to serve as input in the post-sentence
investigation (PSI) or pre-parole/executive clemency investigation (PPI) reports prepared by the
investigating officer to be submitted to the Court and the Board of Pardons and Parole
respectively. These data are vital in the conduct of restorative justice processes during the
supervision phase. Soliciting stakeholders’ interest for their introduction to the restorative
process commences during this stage.
B. During the Supervision Stage
Restorative Justice Program is a part of the rehabilitation of the client which is
incorporated in the client’s Supervision Treatment Plan (STP). In applying the various restorative
justice processes for the client’s rehabilitation, the supervising officer observes the following
points:
The parties are brought within the program out of their own volition. Parties have the
right to seek legal advice before and after the restorative justice process; Before agreeing to
participate in the restorative justice process, the parties are fully informed of their rights, the
nature of the process, and the possible consequences of their decision; Neither the victim nor
the offender is induced by unfair means to participate in restorative justice processes or
outcomes; Discussion in restorative justice processes should be highly confidential and should
not be disclosed subsequently, except with the consent of the parties, and should not be used
against the parties involved; Where no agreement can be made between the parties, the case is
withdrawn from the restorative justice process; and in the event agreement is reached by
parties. It is put in writing to give substance/essence to the agreement. The failure to implement
any provision of the agreement made in the course of the restorative justice process is a basis
for the withdrawal of the case from the program.

WHAT ARE THE ROLES OF THE PROBATION AND PAROLE OFFICERS IN THE IMPLEMENTATION
OF RESTORATIVE JUSTICE?
A Probation and Parole Officer assigned to handle investigation and supervision caseloads acts as
restorative justice planner. As such, he/she undertakes the following responsibilities:

1. Identifies and recommends to the Chief Probation and Parole Officer (CPPO) potential case for
Peacemaking Encounter;
2. Conduct dialogue to explore the possibility of restorative justice process;
3. Coordinates/collaborates with responsible members and leaders of community for their
participation in the conference;
4. Serves as facilitator-strength in the conference;
5. Assists in healing process of stakeholders based on the Supervision Treatment Plan; and
6. Prepare case-notes reflective of restorative justice values and utilizing the following points:
 Impact of crime and effect of victimization
 Victim inputs and involvement opportunities
 Offender opportunity to take direct responsibility for the harm inflicted on the victim
and/or the community.
A CPPO engages in the following responsibilities:
1. Approves cases for Peace Encounter Conference and issues office orders; and
2. Implements and monitors plants and agreements achieved during the conference and sets
direction to realize success of the process.

WHAT ARE THE RESTORATIVE JUSTICE MODELS THAT CAN BE APPLIED IN PPA?
Peacemaking Encounter
Peacemaking Encounter is a community-based gathering that brings the victim, the victimized
community, and the offender together. It supports the healing process of the victims by providing a safe
and controlled setting for them to meet and speak with the offender on a confidential and strictly
voluntary basis. It also allows the offender to learn about the impact of the crime to the victim and
his/her family, and to take direct responsibility for his/her behavior. Likewise, it provides a chance for
the victim and the offender to forge a mutually acceptable plant that addresses the harm caused by the
crime.

As a community-based decision model, the Agency Peacemaking Encounter is being

implemented through the following processes:
1. Victim/Offender Mediation—a process that provides an interested victim an opportunity to
meet face-to-face his/her offender in a secured and structured setting or atmosphere with the
help of a trained mediator, and engage in a discussion of the past offense and its impact to
his/her life. Its goals is to support the healing process of the victim and allow offender to learn
the impact of his/her offense on the victim’s physical, emotional and financial existence, and
take direct responsibility for his/her behavior by mutually developing a Restorative Justice plan
that addresses the harm caused by the said offense.
2. Conferencing—a process which involves community of people most affected by the crime—the
victim and the offender and their families, the affected community members and trained
facilitators and community strength in a restorative discussion of issues and problems arising
from an offense or coincidence which affects community relationship and tranquility. Facilitated
by a trained facilitator, the above parties are gathered at their own volition to discuss how they
and others have been harmed by the offense or conflict, and how that harm may be repaired
and broken relationship may be restored.
3. Circle of Support—a community directed process organized by the field office and participated
in by the clients, the Volunteer Probation Aides (VPAs) and selected members of the community
in the discussion of the offense and its impact. Within the circle, people freely speak from the
heart in a shared search for understanding the incident, and together identify the steps
necessary to assist in the reconciliation and healing of all affected parties and prevent future
crime or conflict.
In the Agency, the circle of support is facilitated by trained Probation and Parole Officers,
Volunteer Probation Aides or selected community leaders who offered their services free of
charge to serve as facilitator or keeper.

In implementing this process, the probation and parole officer should be the facilitator
who is sensitive to the needs of the victim. Likewise, the probation and parole officer should
exert effort to protect the safety and interest of the victim.

WHAT ARE THE OUTCOMES OR INTERVENTIONS WHICH CAN BE AGREED UPON

DURING THE RESTORATIVE JUSTICE PROCESS?

As a result of the restorative justice process, the following outcomes or interventions may
be agreed upon by parties in a Restorative Justice discussion, such as, but not limited to:
 A. Restitution
Restitution is a process upon which the offender accepts accountability for the financial
and/or non-financial losses he/she may have caused to the victim. Restitution is a “core”
victim’s right which is very crucial in assisting the redirection of the victim’s life. Part of the
conditions of probation as imposed by the Court is the payment of civil liability to indemnify
the victim of the offender, and to inculcate to the offender a sense of responsibility and
obligation towards the community.

Consequently, the probation and parole officer should see to it that the offender complies with
this condition.

B. Community Work Service

Community Word Service, whether imposed as a condition of offender’s conditional
liberty or integral part of his treatment plan, should be purposely motivated to make the
offender realize that he/she incurred an obligation to make things right. In its application,
the offender can be subjected to perform work service measures, including, but not limited
to any of the following:

Mentoring and Intergenerational Service—offenders will develop their nurturing needs

thru caring for other people; example: with senior citizens, with orphanages, or with street
children.
Economic Development—to link directly with the business project; examples: cleaning
downtown area, tree planting, maintenance of business zones, housing restoration, garbage
and waste management, cleaning of esteros, recycling, construction, repair of streets, and
the like.
Citizenship and Civic participation-experiential activities which involve solving community
problems; examples: puppet shows that showcase values, street dramas, peer counseling.
Helping the Disadvantaged—this will enhance offender’s self-esteem; examples: assist
handicapped, assist in soup kitchen, tutor peers, visit the aged in jail and hospitals.
Crime Prevention Project—examples: Brgy. Ronda, giving testimony to the youth.

The probation and parole officer should ensure the adoption of these community work
services to facilitate the reintegration of the offender in the community.
C. Counseling (whether individual, group or family)
It will enhance client’s interpersonal relationship and it will help him/her become more
aware of his/her shortcomings/weaknesses. This will also help him/her overcome painful
experiences that drove him/her to commit a crime/offense.
D. Attendance to trainings, seminars and lectures
E. Participation in education, vocation or life skills program
F. Group Therapy Session
An intervention which provides recovering drug dependents or those with serious
behavioral problems an opportunity to discuss their problems.
G. Spiritual development session/faith-based session
H. Submission to psychological/psychiatric assessment
I. Submission to drug test/drug dependency examination
J. Attendance to skills training/livelihood assistance program
K. Marital enhancement program
L. Written or oral apology

M. Submission to family therapy session

This session aims to develop healthy personal relationship within the family and to establish
open positive communication between family and to establish open positive communication
 between family members and significant others. Family members should be oriented in their
individual responsibilities and roles.
N. Confinement in Drug Treatment Rehabilitation Center Including Aftercare

Republic Act No. 8505

February 13, 1998
AN ACT PROVIDING ASSISTANCE AND PROTECTION FOR RAPE VICTIMS, ESTABLISHING FOR
THE PURPOSE A RAPE CRISIS CENTER IN EVERY PROVINCE AND CITY, AUTHORIZING THE
APPROPRIATION OF FUNDS THEREFOR, AND FOR OTHER PURPOSES
Section 1. Title. - This act shall be known as the “Rape Victim Assistance and Protection Act of 1998.”

Section 2. Declaration of Policy. - It is hereby declared the policy of the State to provide necessary
assistance and protection for rape victims. Towards this end, the government shall coordinate its various
agencies and non-government organizations to work hand in hand for the establishment and operation
of a rape crisis center in every province and city that shall assist and protect rape victims in the litigation
of their cases and their recovery.

Section 3. Rape Crisis Center. - The Department of Social Welfare and Development (DSWD), the
Department of Health (DOH), the Department of the Interior and Local Government (DILG), the
Department of Justice (DOJ), and a lead non-government organization (NGO) with proven track record
or experience in handling sexual abuse cases, shall establish in every province and city a rape crisis
center located in a government hospital or health clinic or in any suitable place for the purpose of:

(a) Providing rape victims with psychological counselling, medical and health services, including
their medico-legal examination;
(b) Securing free legal assistance or service, when necessary, for rape victims;
(c) Assisting rape victims in the investigation to hasten the arrest of offenders and the filing of cases
in court;
(d) Ensuring the privacy and safety of rape victims;
(e) Providing psychological counselling and medical services whenever necessary for the family of
rape victims;
(f) Developing and undertaking a training program for law enforcement officers, public
prosecutors, lawyers, medico-legal officers, social workers, and barangay officials on human
rights and responsibilities; gender sensitivity and legal management of rape cases;
(g) Adopting and implementing programs for the recovery of rape victims.

The DSWD shall be the lead agency in the establishment and operation of the Rape Crisis Center.

Section 4. Duty of the Police Officer. – Upon receipt by the police of the complaint for rape, it shall be
the duty of the police officers to:

(a) Immediately refer the case to the prosecutor for inquest/investigation if the accused is
detained; otherwise, the rules of the court shall apply;
(b) Arrange for counselling and medical services for the offended party; and
(c) Immediately make a report on the action taken.

It shall be the duty of the police officer or the examining physician, who must be of the same gender as
the offended party, to ensure that only one person expressly authorized by the offended party shall be
allowed inside the room where the investigation or medical or physical examination is being conducted.

For this purpose, a women’s desk must be established in every police precinct throughout the country to
provide a police woman to conduct investigation of complaints of women rape victims. In the same
manner, the preliminary investigation proper or inquest of women rape victims must be assigned to
female prosecutor or prosecutors after the police shall have endorsed all the pertinent papers thereof to
the same office.
Section 5. Protective Measures. - At any stage of the investigation, prosecution and trial of a complaint
for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the
complaint shall recognize the right to privacy of the offended party and the accused. Towards this end,
the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever
necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best
interest of the parties, order a closed-door investigation, prosecution or trial and that the name and
personal circumstances of the offended party and/or the accused, or any other information tending to
establish their identities, and such circumstances or information on the complaint shall not be disclosed
to the public.

The investigating officer or prosecutor shall inform the parties that the proceedings can be conducted in
a language or dialect known or familiar to them.