Insulting Words and Behaviour in Public and the Right to Freedom of Expression

Ferguson v Walkley & Anor [2008] VSC 7 (31 January 2008)

Under ss 17(1)(c) and 17(1)(d) of the Summary Offences Act 1966 (Vic), it is an offence to use insulting words and behave in an insulting manner in a public place.  In this decision, Harper J held that these sections are subject to the decision in Coleman v Power (2004) 220 CLR 1 (that is, ‘whether the impugned behaviour is so deeply or seriously insulting, and therefore so far contrary to contemporary standards of public good order, as to warrant the interference of the criminal law’).  The Court held that, the effect of such an interpretation renders the provisions of the Summary Offences Act consistent with the right to freedom of expression enshrined in s 15 of the Victorian Charter.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
Human Rights and Mental Illness

Savage v South Essex Partnership NHS Foundation Trust [2007] All ER (D) 316 (Dec); [2007] EWCA Civ 1375 (20 December 2007)

The UK Court of Appeal has held that the right to life includes a positive obligation to actively safeguard life and that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient amounted to a violation of that patient’s right to life.

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MichelleBennettDisability & Mental Health
Inadequate Access to Health Care for Prisoner with Mental Illness a Violation of the Prohibition against Torture and Ill-Treatment

Dybeku v Albania [2007] ECHR 41153/06 (18 December 2007)

The European Court has held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention.  The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, a person’s mental health, may amount to a violation of the prohibition on torture and ill-treatment.

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MichelleBennettDisability & Mental Health, Prisoner Rights
Prisoners and the Right to Privacy and Family Life

Dickson v United Kingdom [2007] ECHR 44362/04 (Grand Chamber, 4 December 2007)

On 4 December 2007, the Grand Chamber of the European Court of Human Rights handed down it’s decision in Dickson v The United Kingdom, a case concerning prisoners’ access to artificial insemination facilities.  The applicants complained that the refusal by the Secretary of State to allow the first applicant access to artificial insemination facilities whilst in prison constituted a breach of the applicants’ rights under art 8 (right to private and family life) and art 12 (right to marry and found a family) of the European Convention on Human Rights.  The Grand Chamber held (by a 12:5 majority) that there had been a violation of art 8, but that it was not necessary to examine the complaint under art 12.

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MichelleBennettPrisoner Rights
Imprisoning a Journalist for Refusing to Disclose Confidential Sources in Court a Violation of the Right to Freedom of Expression

Voskuil v The Netherlands [2007] ECHR 64752/01 (22 November 2007)

The European Court of Human Rights recently held that the imprisonment of a journalist for refusing to disclose the identity of a confidential source constituted a violation of the right to freedom of expression under art 10 of the European Convention.

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MichelleBennettDemocratic Freedoms
UK High Court Considers Handcuffing of Prisoners with Medical Conditions

R (on the application of Graham) v Secretary of State for Justice [2007] All ER (D) 383 (Nov) (23 November 2007, Queen's Bench Division,Administrative Court, Mitting J)

The Queen's Bench Division of the UK High Court has considered whether handcuffing two sick prisoners during treatment violated their right to freedom from cruel, inhuman or degrading treatment under art 3 of the European Convention on Human Rights.

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MichelleBennettPrisoner Rights, Health
State Failure to Adequately Protect from Defamation a Violation of the Right to Privacy

Pfeifer v Austria [2007] ECHR 12566/03 (15 November 2007)

In a judgment handed down on 15 November 2007, the European Court of Human Rights held that a state’s failure to adequately protect a person from defamation amounted to a breach of art 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life.  The judgment also considered the balance between the right to private life and reputation, on the one hand, and the right to freedom of expression on the other.

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MichelleBennettOther, Democratic Freedoms
European Court Considers the Right to an Oral Hearing and Permissible Limitations on the Right to a Fair Hearing

Oganova v Georgia [2007] ECHR 25717/03 (13 November 2007)

The European Court of Human Rights in Oganova v Georgia found that, generally, the right to a fair hearing implies the right to an oral hearing but that, in certain special circumstances, it may be permissible for an appellate court to determine a matter by written submissions in the interests of the efficient administration of justice.

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MichelleBennettOther
Proximity or Imminence of Trial Not a ‘Relevant and Sufficient Reason’ Justifying Detention on Remand

Gault v United Kingdom [2007] ECHR 1271/05 (20 November 2007)

In Gault v United Kingdom, the European Court of Human Rights held that the detention of Ms Lesley Gault pending re-trial violated art 5(1)(c) of the European Convention on Human Rights.  The Court held that no separate issue arose under art 8 of the Convention in respect of the applicant’s right to private and family life in relation to her three young children.

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MichelleBennettOther, Prisoner Rights
European Court Considers Scope of Right to Freedom of Assembly and Association

Galstyan v Armenia [2007] ECHR 26986/03 (15 November 2007)

The European Court of Human Rights has recently considered the content and application of the rights to freedom of peaceful assembly and association, holding that ‘the right to freedom of assembly is a fundamental right in a democratic society’ and that any exceptions to the right ‘must be narrowly interpreted and the necessity for any restrictions must be convincingly established’.

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MichelleBennettDemocratic Freedoms
Grand Chamber of European Court Considers Nature and Scope of the Right to Non-Discrimination and Equal Enjoyment of Human Rights

DH and Others v the Czech Republic [2007] ECHR 57325/00 (Grand Chamber) (13 November 2007)

The Grand Chamber of the European Court of Human Rights has held that the education policy in the Czech Republic, which resulted in the majority of Roma children being placed in special schools designed for the mentally handicapped, violated art 14 of the European Convention on Human Rights.  Article 14 of the Convention enshrines the right to non-discrimination and the equal enjoyment of human rights.  The Court held that the education policy indirectly discriminated against the applicants on the basis of their race in relation to their right to education.

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MichelleBennettDisability & Mental Health
Control Orders Held to Constitute a Deprivation of Liberty

Secretary of State for the Home Department v JJ and Ors [2007] UKHL 45 (31 October 2007)

In a judgment handed down on 31 October 2007, the House of Lords held that obligations imposed on six men under control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 (UK) (‘PTA’), deprived those men of their liberty in violation of art 5 of the European Convention on Human Rights.

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MichelleBennettCounter-terrorism, Prisoner Rights
Interference with the Publication of Opinions a Violation of the Right to Freedom of Expression

Flux and Samson v Moldova [2007] ECHR 28700/03 (23 October 2007)

The European Court of Human Rights has held that judicial decisions in defamation proceedings brought against a Moldovan newspaper interfered with its right to freedom of expression, and more specifically its right to disseminate public opinion on a matter of public interest.  The decision addressed the permissible limitations on the right to freedom of expression in the context of a potentially defamatory publication.

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MichelleBennettOther, Democratic Freedoms
Australian Constitution Enshrines Universal Suffrage or the Right to Vote: High Court Delivers Reasons in Prisoner Voting Case

Roach v Australian Electoral Commissioner and the Commonwealth

On 26 September 2007, the High Court published reasons for its orders of 30 August 2007 in the matter of Roach v Australian Electoral Commissioner and the Commonwealth which invalidated amendments to the Electoral Act made in 2006.  The amendments operated such that all prisoners serving a full-time sentence of detention were not entitled to vote at federal elections. By a 4-2 majority, the Court held that the amendments were unconstitutional. 

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MichelleBennettDemocratic Freedoms, Prisoner Rights
Mandatory and Prolonged Detention Violates Prohibition against Arbitrary Detention

Shams & Ors v Australia, HRC, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004 (11 September 2007)

In a decision regarding mandatory immigration detention, the UN Human Rights Committee has elucidated its jurisprudence on the content and application of art 9 of the ICCPR, the right to liberty and security of person and to be free from arbitrary detention.

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MichelleBennettPrisoner Rights, Refugee & Asylum Seeker Rights
European Court Considers Lawfulness of Continued Detention on Remand

Nowak v Poland [2007] ECHR 18390/02; Owczar v Poland [2007] ECHR 34117/02; Michalak v Poland [2007] ECHR 16864/02

Three 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).

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MichelleBennettPrisoner Rights
Inadequate Treatment and Restraint of Person with Schizophrenia a Violation of Prohibition on Torture

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.

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Case Notes, Case Notes 13- Prison/Conditions of Detention, Case Notes 2007, Case Notes European Court of Human Rights, Case Notes InternationalMichelleBennettDisability & Mental Health
Independence of Parole Board Insufficient to Comply with Human Rights

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’.

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MichelleBennettOther
Supreme Court of Victoria Considers and Applies ICCPR in the Context of the Right to a Fair Trial and the Obligations of a Court to Self-Represented Litigants

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.

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MichelleBennettHuman Rights Law & Institutions, Other
Access to Medical Treatment in Detention

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.

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MichelleBennettPrisoner Rights, Health
The State Must Facilitate and Enable Freedom of Peaceful Assembly

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.

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MichelleBennettDemocratic Freedoms
Attempted Suicide in Custody: UK Court of Appeal Discusses Positive, Negative and Procedural Obligations arising from the Right to Life

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’.

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MichelleBennettHealth, Other
The State Must Facilitate and Enable Freedom of Peaceful Assembly

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.

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Case Notes, Case Notes 15- Protest, Case Notes 2007, Case Notes European Court of Human Rights, Case Notes InternationalMichelleBennettDemocratic Freedoms
The Right to Freedom of Expression in a Commercial Context

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).

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MichelleBennettDemocratic Freedoms
European Court Considers Access to a Court and Legal Aid as Elements of the Right to a Fair Hearing

Ciorap v Moldova [2007] ECHR Application No 12066/02 (19 June 2007) Bakan v Turkey [2007] ECHR Application No 50939/99 (12 June 2007)

Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts.

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MichelleBennettPrisoner Rights
Strip Searching may Constitute Torture or other Cruel, Inhuman or Degrading Treatment or Punishment

Frerot v France [2007] ECHR Application No 70204/01 (12 June 2007)

In a judgment handed down on 12 June 2007, the European Court of Human Rights held that particular strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’).  Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected by art 8 of the ECHR.

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Case Notes, Case Notes 13- Prison/Conditions of DetentionMichelleBennettPrisoner Rights, Human Rights Law & Institutions
European Court Considers Access to a Court and Legal Aid as Elements of the Right to a Fair Hearing

Bakan v Turkey [2007] ECHR Application No 50939/99 (12 June 2007) Ciorap v Moldova [2007] ECHR Application No 12066/02 (19 June 2007)

Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts.

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MichelleBennettDemocratic Freedoms, Prisoner Rights
The Right to Freedom of Expression in a Commercial Context

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).

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Case Notes, Case Notes 08- Freedom of ExpressionMichelleBennettDemocratic Freedoms, Business & Human Rights
Complaints of Ill-Treatment in Custody Must be Promptly Investigated and Plausibly Explained

Yilmaz v Turkey [2007] ECHR 17721/02 (5 June 2007)

The European Court of Human Rights has held that serious allegations of torture or other cruel, inhuman or degrading treatment or punishment must be the subject of expeditious, effective and independent investigation. It has further held that evidence of ill-treatment, particularly of persons in custody, will give rise to a rebuttable presumption that the ill-treatment occurred and shift the burden to the state to provide a ‘plausible explanation’ as to the injuries.

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Case Notes, Case Notes 2007, Case Notes European Court of Human Rights, Focus Area - PoliceMichelleBennettPrisoner Rights
UK High Court Considers Relevance of Right to Private Life to Planning, Development and Land Acquisition for London Olympics

Sole v Secretary of State for Trade and Industry & Ors [2007] EWHC 1527 (Admin) (30 May 2007)

This recent decision of the England and Wales High Court concerned an application for judicial review of a compulsory acquisition order (‘CPO’) made by the London Development Authority, and confirmed by the Secretary of State for Trade and Industry, for the purpose of development for the London Olympics and a further development, known as The Legacy.

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MichelleBennettHousing, Business & Human Rights
European Court of Human Rights Considers Obligation to Facilitate Peaceful Assembly, Association and Expression

Baczkowski & Ors v Poland [2007] ECHR 1543/06 (3 May 2007)

The European Court of Human Rights has found that Poland violated its obligations to protect the right to freedom of assembly as a result of a failure to facilitate and accommodate a protest regarding discrimination against minority groups.

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MichelleBennettDemocratic Freedoms, Discrimination & Equality, LGBTI Rights
European Court of Human Rights Considers the Right to a Fair Hearing in Civil Proceedings

Vilho Eskelinen & Ors v Finland [2007] ECHR [GC] 63235/00 (19 April 2007)

In a judgment handed down on 19 April 2007, the Grand Chamber of European Court of Human Rights considered the scope of the right to a fair hearing in the context of civil proceedings, with particular reference to the acceptable length of proceedings and the necessity of an oral hearing.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
Requirement that Patient comply with Mental Health Treatment does not Necessarily Interfere with Right to Privacy and Respect for Family Life

R (on the application of H) v Mental Health Review Tribunal [2007] All ER (D) 29 (Apr)

The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant's position and subsequently ordered the claimant's discharge under s 73 of the Act on the condition that, amongst other things, the claimant 'shall comply' with medication prescribed by a specified doctor.  The claimant applied for revocation of this and other conditions and sought an order for absolute discharge on the basis that it interfered with his right under art 8 of the European Convention on Human Rights which provides that '[e]veryone has the right to respect for his private and family life, his home and his correspondence'.

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MichelleBennettDisability & Mental Health, Privacy, Democratic Freedoms
UK High Court Considers Scope of Duty to Investigate and Provide Legal Representation in Response to Unnatural Death

Main(R) v Minister for Legal Aid [2007] EWHC 742 (2 April 2007)

The UK High Court of Justice has quashed a decision by the Minister for Legal Aid to refuse the family of two people killed in a train crash funding to be legally represented at the coroner's inquest.  Central to the decision was the finding that funding was necessary to carry out an effective investigation into the accident pursuant to art 2 of the European Convention on Human Rights.

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MichelleBennettHuman Rights Law & Institutions
Collection and Monitoring of Employees’ Communications may Violate Right to Privacy

Copland v United Kingdom [2007] ECHR 62617/00 (3 April 2007)

The European Court of Human Rights has held that a public college which monitored an employee’s telephone, email and internet usage without her knowledge engaged in conduct amounting to an interference with her right to respect for private life and correspondence within the meaning of art 8 of the European Convention.

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MichelleBennettPrivacy
UK Court of Appeal considers Presumption of Innocence and Principle that Legislation be Interpreted Consistently with Human Rights

Keogh v R [2007] EWCA Crim 528

The UK Court of Appeal has held that the requirement under the Human Rights Act 1998 (UK) that, so far as it is possible to do so, legislation be interpreted and applied compatibly with human rights required that legislation which, on its natural meaning imposed a burden on defendants to establish their innocence, be read in such a way as to impose this substantive obligation on the prosecution.

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MichelleBennettHuman Rights Law & Institutions
European Court Considers Circumstances in which Prison Conditions Violate Right to Freedom from Cruel Treatment or Punishment

Andrey Frolov v Russia [2007] ECHR 205/02 (29 March 2007)  

In a series of recent cases, the European Court of Human Rights has found conditions of detention in prisons to be incompatible with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined in art 3 of the European Convention on Human Rights. A number of principles can be ascertained from the cases of Andrey Frolov v Russia (Application No 205/02, 29 March 2007), Istratii and others v Moldova (Application No 8721/05, 27 March 2007) and Todor Todorov v Bulgaria (Application No 50765/99, 5 April 2007).

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MichelleBennettPrisoner Rights
Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9

Immigration and Refugee Protection Act 2001 (Can)

On 23 February 2007, the Supreme Court of Canada overturned provisions of the Immigration and Refugee Protection Act 2001 (Can) relating to the detention of permanent residents and foreign nationals on the basis that the provisions contravened the Canadian Charter of Rights and Freedoms.  The Canadian Parliament was given one year to rewrite the IRPA in accordance with the Charter.

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MichelleBennettRefugee & Asylum Seeker Rights, Counter-terrorism