Kijewska v Poland [2007] ECHR Application No 73002/01 (6 September 2007)The European Court of Human Rights has held that the right to a fair hearing subsumes a right of access to a court and that a requirement to pay substantial court fees to file or proceed with a claim may constitute a violation of that right.

Nowak v Poland [2007] ECHR 18390/02; Owczar v Poland [2007] ECHR 34117/02; Michalak v Poland [2007] ECHR 16864/02Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful.  This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Kucheruk v Ukraine [2007] ECHR Application No 2570/04 (6 September 2007)The applicant, a man with chronic schizophrenia, was convicted of theft and hooliganism.  The Ukraine Court suspended the criminal proceedings against him committing him first for psychiatric treatment.  He was subsequently detained in the medical wing of a pre-trial detention centre for a month before being transferred to a specialised facility.  While detained, he was subjected to the practices of restraint and seclusion.

Brooke & Anor, R (on the application of) v Parole Board & Anor [2007] EWHC 2036 (7 September 2007)A recent decision of the England and Wales High Court considered whether the Parole Board had the necessary independence required by art 5(4) of the European Convention on Human Rights and may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.

Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007)In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to self-represented litigants.

Dudko v Australia, HRC, UN Doc CCPR/C/90/D/1347/2005 (29 August 2007)In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australiain violation of art 14(1) of the International Covenant on Civil and Political Rights.

Paladi v Moldova [2007] ECHR Application No 39806/05 (10 July 2007)The European Court of Human Rights has held that the medical treatment of a prisoner within a remand centre and prison hospital was inadequate and that failure to treat him as an inpatient at a hospital where he could receive the necessary neurological and hyperbaric oxygen treatment amounted to a violation of the prohibition on torture and other cruel, inhuman or degrading treatment.

Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007)The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights.  That right is protected by s 16(1) of the Victorian Charter.  In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.

JL, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 767 (24 July 2007)This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual whilst in custody.  In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test of ‘arguability’.

Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007)The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights.  That right is protected by s 16(1) of the Victorian Charter.  In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.

Boehringer Ingelheim Limited & Ors v Vetplus Limited [2007] EWCA Civ 583 (20 June 2007) Canada (Attorney General) v JTI-Macdonald Corp 2007 SCC 30 (28 June 2007)The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada.  While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial matters and, moreover, that the public have a prima facie right to ‘hear’ the expression (as opposed to a corporation having a right to ‘express’ the information).  It is clear from both cases, however, that freedom of expression about commercial matters will be afforded a lower threshold of protection than expression about socio-political matters (see also the Statement of Compatibility issued under the Victorian Charter of Human Rights and Responsibilities in relation to the Major Events (Aerial Advertising) Bill 2007).

Melnikova v Russia [2007] ECHR Application No 24552/02 (21 June 2007)The European Court of Human Rights has held that pre-trial custody will only be lawful if there are ‘relevant and sufficient’ grounds for detaining a person.  Prolonged pre-trial detention must be regularly reviewed and will only be justifiable in exceptional circumstances.