Guneser v Magistrates' Court of Victoria & Anor [2008] VSC 57 (5 March 2008)
In a recent decision of the Supreme Court of Victoria, Habersberger J considered the extent to which the rights protected under the Victorian Charter apply to the acts and decisions of public authorities that are connected with a judicial proceeding.
Read MoreKafkaris v Cyprus [2008] ECHR 21906/04 (12 February 2008)
The Grand Chamber of the European Court of Human Rights has recently considered the scope and application of art 7 of the European Convention on Human Rights, which provides that no person shall be subject to a ‘heavier penalty than the one that was applicable at the time the criminal offence was committed’.
Read MoreCommonwealth v Davis Samuel Pty Ltd [No 3] [2008] ACTSC 76
The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation.
Read MoreBrooke & Ors, R (on the application of) v The Parole Board & Anor [2008] EWCA Civ 29 (1 February 2008)
The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights. This decision 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’.
Read MoreSeachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 1479
The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member. The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants in person.
Read MoreOccupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg CCT 24/07 [2008] ZACC 1 (19 February 2008)
‘Human beings are required to be treated as human beings.’
Read MorePankiewicz v Poland [2008] ECHR 34151/4 (12 February 2008)
In this case, the European Court of Human Rights considered the legality of:
Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39 (5 February 2008)
In this decision, the UK Court of Appeal held that a claim in negligence against the police for failing to protect life should have regard to the duties imposed and standards required by art 2 of the European Convention on Human Rights.
Read MoreTrinity Mirror & Ors, R (on the application of) v Croydon Crown Court [2008] EWCA Crim 50 (1 February 2008)
The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy.
Read MoreSecretary of State for Justice v Walker [2008] EWCA Civ 30 (1 February 2008)
In this decision, the UK Court of Appeal found that there may be a breach of arts 5(4) and 5(1)(a) of the European Convention on Human Rights where a prisoner is detained for longer than is necessary for the protection of the public. These provisions may also be infringed where a prisoner is detained for a lengthy period without a meaningful review of the risk that they pose to the public.
Read MoreEB v France [2008] ECHR 43546/02 (22 January 2008)
The Grand Chamber of European Court of Human Rights in E.B. v France held that the refusal to authorise an adoption application by a woman in a same-sex relationship, on the basis of her sexuality, amounted to a violation of arts 14 and 8 of the European Convention on Human Rights.
Read MoreRagg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1 (24 January 2008)
In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing. While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into force of the operative provisions of the Charter), Bell J’s discussion of the right to a fair hearing under art 14 of the ICCPR is likely to be highly relevant to any subsequent judicial consideration of s 24 of the Charter, which is closely modelled on art 14.
Read MoreGray v DPP [2008] VSC 4 (16 January 2008)
In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused on bail or, alternatively, a permanent stay of proceedings.
Read MoreFerguson 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.
Read MoreThe 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.
Read MoreThe 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.
Read MoreOn 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.
Read MoreThe 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.
Read MoreThe 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.
Read MoreIn 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.
Read MoreThe 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.
Read MoreIn 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.
Read MoreThe 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’.
Read MoreThe 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.
Read MoreThis decision considered the extent to which it is permissible for a state to limit the right to freedom of peaceful assembly and association in the context of a public demonstration.
Read MoreIn sentencing a young offender found guilty of murder, Bell J of the Supreme Court of Victoria had regard to international human rights principles, including the rights of the child under the Convention on the Rights of the Child, in the exercise of his sentencing discretion.
Read MoreThe European Court of Human Rights has held that the eviction of a woman from public housing in circumstances where the public authority had not ensured that she had adequate alternative housing constituted a violation of the right to respect for private life and the home.
Read MoreIn 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.
Read MoreTo what extent is it acceptable to limit the right to freedom of expression to protect a person's reputation? A recent decision of the Grand Chamber of the European Court of Human Rights, Lindon v France, considers the question.
Read MoreFlux 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.
Read MoreOn 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.
Read MoreShams & 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.
Read MoreThe 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.
Read MoreNowak 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).
Read MoreThe 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.
Read MoreA 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’.
Read MoreIn 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.
Read MoreIn 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.
Read MoreThe 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.
Read MoreThe 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.
Read MoreThis 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’.
Read MoreThe 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.
Read MoreThe 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).
Read MoreMelnikova 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.
Read MoreCiorap 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.
Read MoreFrerot 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.
Read MoreBakan 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.
Read MoreBoehringer 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).
Read MoreYL (by her litigation friend the Official Solicitor) v Birmingham City Council & Ors [2007] UKHL 27 (20 June 2007)
The UK House of Lords has delivered a much anticipated judgment regarding the meaning of ‘functions of a public nature’ and ‘public authority’ under the Human Rights Act 1998 (UK).
Read MoreYilmaz 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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