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Court/Judicial body: Supreme Court of Tonga
Date: September 11, 2006 CRC
Provisions: Article 37: Torture and deprivation of liberty

Case summary

Background: In September 2003, a 13 year old boy named ‘Okusi Fa’aoso was savagely beaten by two police officers over the course of two days after being falsely accused of theft. After being arrested and battered by the officers in public, Fa’aoso was forced to walk to the police station where he was subjected to numerous beatings and locked in a cell overnight. The following day, he sustained a head injury as a result of the officers’ continued abuse, but was not taken to the hospital. Instead, the police officers visited his parents’ home to investigate the alleged theft. The officers spoke with the boy’s father and sibling, but failed to inform them that he was being held in police custody or injured. Fa’aoso was eventually released and taken to the hospital where he received five stitches for a wound on his forehead and given medication for headaches and pain that continued for two weeks following the incident. His father made a personal complaint to the Minister of Police the following day; however no disciplinary action was ever taken against the officers involved. Fa’aoso then brought a claim against the police officers, the Minister of Police and the Kingdom of Tonga seeking money damages. The defendants admitted liability and the Supreme Court of Tonga (the “Court”) held a hearing on the question of money damages owed to Fa’aoso.

Issue and resolution: Juvenile justice; torture; police violence. The Court awarded Fa’aoso $10,000 in total damages (including $5,000 in compensatory and aggravated damages for his pain and suffering, loss of enjoyment of life and wrongful imprisonment and $5,000 in exemplary damages for punitive and deterrence purposes).

Court reasoning: The Court found that a “culture of violence” persists in certain segments of the police force and sought to discourage police officers from extracting confessions through the use of force and violence in the course of their investigations. In reaching its conclusion, the Court considered Tonga’s obligations under Article 37 of the CRC, concluding that the defendants had “flagrantly abused” their obligations not to subject children to torture or to deprive them of their liberty unlawfully or arbitrarily. When determining the amount of damages to award to Fa’aoso, the Court also took into account the value of money, levels of ordinary income and general conditions in Tonga. Exemplary damages of $5,000 were awarded in light of the serious nature of the defendants’ violations because the Court felt that compensatory and aggravated damages of $5,000 were an inadequate punishment, particularly given the previous warnings the Court has issued to police officers in similar cases.
Excerpt citing CRC and other relevant human rights [24] In December 1995 Tonga acceded to the Convention on the Rights of the Child. The convention still has to be properly ratified but, as this Court has noted in other cases recently, the accession indicates a willingness by the nation to be bound by its terms. Article 37 of the Convention, in four paragraphs, sets out the obligations of a State in regards to the apprehension and detention of a child (defined as a person under the age of 18). The opening words of each paragraph are relevant to the present case. They read: “(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment . . . (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily . . . (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 . . . (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance . . . ” In the present case, all of these obligations have been flagrantly abused.

CRIN comments: CRIN believes this decision is consistent with the CRC. Under Article 37, children accused of committing offences should only be detained as a measure of last resort and even then, for the shortest amount of time possible. Moreover, under no circumstances should any child be subjected to any form of violence in the course of a police investigation. Where violations of these rights have occurred, as recognised by this Court, children should also be granted appropriate remedies, including compensation.

Citation:Fa’aoso v. Paongo, Supreme Court of Tonga, [2006] TOSC 37; CV394-2006 (11 Sept. 2006).

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