Tone v. Police
Supreme Court of Tonga
28 June 2004
Article 37: Torture and deprivation of liberty
This is an appeal by four children who were charged with housebreaking and theft at the ages of 13, 14, 15 and 16 respectively. They had pled guilty to the offences but appealed their convictions on procedural grounds on the basis that summons were serviced late, that magistrate had failed to advise them of their legal rights and prevented them from obtaining legal representation and subsequently failed to consider a request for adjournment. The appellants were also treated as adults without any consideration for their age.
The defendant - the police - conceded that the treatment of the children breached Article 37 of the Convention on the Rights of the Child (CRC), which Tonga has ratified. Article 37 states that no child shall be deprived of liberty unless it is a measure of last resort, and for the shortest time possible. A child deprived of liberty shall have the right to maintain contact with his or her family and have prompt access to legal and other appropriate assistance. However, the police argued in court that since there was no domestic legislation enacted to recognise this obligation, they were acting lawfully.
Issue and resolution:
Juvenile justice. The Supreme Court allowed the appeal against convictions and remitted the case to the Magistrates Court with a direction that the case be re-tried afresh by another magistrate.
The Court decided that, even in the absence of domestic legislation, courts are entitled to apply the terms of any convention to which Tonga has acceded as a guide to what is acceptable. In addition, the court also have discretion to allow an appeal if there are circumstances which leave the court with serious doubt as to whether the appellant understood the procedures under which he was tried. Such a decision should not be taken lightly and the court will only act where there is clear evidence of the circumstances which give rise to the concern. In this case, there was no dispute that the appellants were not afforded their procedural rights.
Finally, the Court ruled that the sentences of the children were also grossly inappropriate, considering their young age and lack of previous convictions, and said that such sentences were unjust and so far out of line with the proper range of sentences that they bring the court system into disrepute.
Excerpts citing CRC and other relevant human rights instruments:
Article 37 of that Convention provides:
"(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action"…
However, whilst the accession by a State to a convention indicates its willingness to be bound by the terms of the convention, it will only be enforced by the enactment of necessary domestic legislation.
It is a matter of regret that, despite an apparent time limit of 2 years for compliance imposed by the convention, Tonga appears to have taken no steps to enact any of the provisions. It can only be hoped that Government will recognise its obligations and enact legislation to bring Tonga into line with international standards of fair and humane treatment of young persons.
The need for the Convention on the Rights of the Child arose from the widely accepted realisation that children need to be treated in a different manner to adults in relation to police and court proceedings. Even in the absence of legislation, the court is entitled to use the terms of any convention to which Tonga has acceded or become a signatory as a guide to what is acceptable. Failure to conform with those terms may result in the court excluding evidence or reversing a decision on appeal.
CRIN believes this decision is consistent with the CRC. States must ensure that the CRC is directly enforceable in domestic law, meaning that plaintiffs can rely on articles of the Convention in court even where no equivalent provisions exist in domestic legislation.
 TOSC 36; AM 022-025 2004
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.