Aboushanif v Norway, Communication No 1542/2007, CCPR/C/93/D/1542/2007 (2 September 2008)
The author, Mr Aboushanif, lodged a Communication under the First Optional Protocol to the ICCPR claiming that Norway had violated his rights under art 14(5) of the Covenant. Article 14(5) states that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’
Read MoreR (B Mohamed) v Foreign Secretary [2008] EWHC 2048 (Admin) (21 August 2008)
The England and Wales High Court has held that the UK Government has a positive duty to take steps to ensure that a United Kingdom resident about whom the UK Government had exculpatory material had access to that material for the purpose of defending charges under the US Military Commissions Act of 2006.
Read MoreKalamiotis v Greece, Communication No 1486/2006, CCPR/C/93/D/1486/2006 (5 August 2008)
The Human Rights Committee has found that the State party breached art 2(3) (adequacy of remedy), when read with art 7 (torture and other prohibited treatment), of the ICCPR, by failing to ensure that complaints about mistreatment by police officers were adequately and satisfactorily investigated by competent authorities.
Read MoreVajnai v Hungary [2008] ECHR 33629/06 (8 July 2008)
The European Court of Human Rights held that there was a violation of art 10 of the European Convention on Human Rights when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public.
Read MoreRS (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 839 (18 July 2008)
The Court of Appeal of England and Wales has allowed an appeal by RS, a Zimbabwean national, against a decision of the Immigration Appeal Tribunal to dismiss her appeal against a decision of the Secretary of State for the Home Department to refuse to allow RS to remain in the United Kingdom for medical treatment and health.
Read MoreRaytheon Australia Pty Ltd & Ors v ACT Human Rights Commission [2008] ACTAAT 19 (24 July 2008)
The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation.
Read MoreR(C) v Secretary of State for Justice [2008] EWCA Civ 882 (28 July 2008)
In this case, the England and Wales Court of Appeal held that rules introduced to maintain good order and discipline in children detained in Secure Training Centres (‘STCs’) should be quashed for breach of art 3 of the European Convention on Human Rights, which prohibits torture and other ill-treatment.
Read MoreJT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008)
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no ambiguity in the provision, the court was willing to read in the additional word so that the provision would not offend the separation of powers doctrine and, implicitly, the right to a fair hearing.
Read MoreI v Finland [2008] ECHR 20511/03 (17 July 2008)
The European Court of Human Rights has held that the measures taken by a Finnish hospital to safeguard the right to respect for private life of an HIV-positive patient of the hospital, who was also employed by the hospital from time to time as a nurse, were inadequate and in violation of art 8 (the right to respect for private life) of the European Convention on Human Rights.
Read MoreHertfordshire Police v Van Colle [2008] UKHL 50 (30 July 2008)
In this case, the House of Lords considered the applicability of the leading right to life case, Osman v United Kingdom (1998) 29 EHRR 245, in which the European Court set out the obligations on member states in relation to the right to life.
Read MoreDoherty & Ors v Birmingham City Council [2008] UKHL 57 (30 July 2008)
The UK House of Lords has considered the procedural safeguards against eviction established by the right to respect for privacy and the home under art 8 of the European Convention on Human Rights.
Read MoreZ v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008)
This case involved a dentist who was criminally charged with the indecent assault of three patients. He was acquitted of these charges but was then subjected to professional disciplinary action.
Read More09-003 [2008] VMHRB 1 (8 July 2008)
In this case, concerning the failure of the Mental Health Board to conduct a review of the involuntary treatment of a patient under the Mental Health Act, a number of very significant Charter issues arose.
Read MoreX v Croatia [2008] ECHR 11223/04 (17 July 2008)
The European Court of Human Rights has held that, by allowing an individual to be excluded from participating in their child’s adoption proceedings, Croatia violated its obligation to ensure the right to respect for private and family life under art 8 of the European Convention on Human Rights.
Read MoreWIC Radio Ltd v Simpson, 2008 SCC 40 (27 June 2008)
The Supreme Court of Canada has again emphasised the importance of the common law evolving in a manner that is consistent with Charter values.This was a private law defamation case involving a controversial radio talk show host, ‘M’, and a social activist opposed to any positive portrayal of a gay lifestyle, ‘S’. M publicly likened S to Hitler, the Ku Klux Klan and skinheads and S claimed defamation because she had never advocated violence against homosexuals. The trial judge dismissed the action on the basis that, while statements complained of in the editorial were defamatory, the defence of fair comment applied and provided a complete defence.
Read MoreVM v British Columbia (Director of Child, Family and Community Service) 2008 BCSC 449 (13 June 2008)
The Supreme Court of British Columbia has held that the decisions of a Provincial Courtand a public official to authorise medically-necessary blood transfusions for four infants against the express wishes of their parents did not breach the parents’ rights under the Canadian Charter of Rights and Freedoms.
Read MoreScoppola v Italy [2008] ECHR 50550/06 (10 June 2008)
The European Court of Human Rights held that there had been a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights because the applicant’s conditions of detention were not appropriate to his state of health.
Read MoreR v Kapp, 2008 SCC 41 (27 June 2008)
In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms. In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality.
Read MoreR v Davis [2008] UKHL 36 (18 June 2008)
In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights. Further, the House of Lords held that a conviction should not be based solely, nor to a decisive extent, upon the evidence of anonymous witnesses.
Read MoreR (Weaver) v London and Quadrant Housing Trust [2008] EWHC 1377 (Admin) (24 June 2008)
The UK High Court of Justice has recently considered the meaning of ‘public authority’ under the Human Rights Act 1998 (UK). In this decision, Registered Social Landlords were held to be public authorities for the purposes of the Act.
Read MoreMaslov v Austria [2008] ECHR 1638/03 (23 June 2008)
The Grand Chamber of the European Court of Human Rights has held that the deportation of a youth who had spent the majority of his childhood in Austria constituted a violation of his right to respect for his family and private life.
Read MoreBobrowski v Poland [2008] ECHR 64916/01 (17 June 2008)
The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings. However, the Court held that a denial of legal aid was justified where the applicant had hired his or her own private lawyer, notwithstanding that the lawyer proved to not be competent.
Read MoreBeoku-Betts (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2008] UKHL 39 (25 June 2008)
The House of Lords held that the right to family life should be interpreted broadly, and encompass consideration of the rights of other family members, when determining an appeal against the Secretary of State's refusal of leave to remain under s 65 of the Immigration and Asylum Act 1999 (UK).
Read MoreMM (Guardianship) [2008] VCAT 1282 (26 June 2008)
VCAT has imposed a supervised treatment order on a man with an intellectual disability, requiring him to be kept in detention to ensure his compliance with a treatment plan – despite his willingness to consent to the plan – to reduce the risk that he could cause harm to others. The Tribunal referred to, but undertook scant analysis of, the interpretative provisions of the Charter and the requirement that any limitation on a right be demonstrably justified in a free and democratic society.
Read MoreDirector of Housing v TP (Residential Tenancies) [2008] VCAT 1275 (24 June 2008)
In this case, VCAT considered that the rights to privacy and family, and to protection of children and the family unit, were relevant to determining whether an application for an order of possession by the Director of Housing should be granted as against a single mother of four children.
Read MoreCarwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 (23 June 2008)
This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog. During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions were made that VCAT had failed to abide by the principles of natural justice and the Charter.
Read MorePHS Community Services Society v Attorney-General (Canada) 2008 BCSC 661 (27 May 2008)
The Supreme Court of British Columbia recently declared that laws which made safe self-injecting rooms illegal were unconstitutional and incompatible with the rights to life, liberty and security of the person in the Canadian Charter of Human Rights and Freedoms.
Read MoreCapital Property Projects (ACT) Pty Ltd v ACTPLA [2008] ACTCA 9 (21 May 2008)
The ACT Court of Appeal has held that the obligation under s 30 of the Human Rights Act 2004 (ACT) to interpret laws compatibly with human rights may be engaged even where the words of a statute are clear and there is no ambiguity. In particular, the Court held that a requirement that leave to appeal certain decisions only be granted where ‘substantial injustice’ would otherwise occur was potentially incompatible with the positive right to a fair trial under s 21 of the HRA. The Court considered that it may be necessary to ‘modify’ the reference to ‘substantial injustice’ as ‘something less than a substantial injustice may well result in an unfair trial’.
Read MoreFerla v Poland [2008] ECHR 55470/00 (20 May 2008)
The European Court of Human Rights has held that a Polish prisoner’s right to respect for his family life was violated by onerous visitation restrictions, which substantially prevented him from seeing his wife and son. The applicant was awaiting a final determination on a serious assault charge. Although his wife had previously made a statement to police about the alleged crime, the risk of prejudicing her willingness to testify at trial was considered insufficient reason for interfering with the right to family life.
Read MoreR v DB [2008] SCC 25 (16 May 2008)
The Supreme Court of Canada recently considered the validity of a rebuttable presumption that minors committing serious offences should be sentenced as adults. A majority of the Court concluded that the presumption offended against the right not to be deprived of liberty otherwise than in accordance with principles of fundamental justice under s 7 of the Canadian Charter of Rights and Freedoms.
Read MoreIn the Matter of an Adoption of D [2008] ACTSC 44 (15 May 2008)
A decision of the ACT Supreme Court has considered the scope of the right to family life and protection in the context of adoption proceedings.
Read MoreMcCann v United Kingdom [2008] ECHR 19009/04 (13 May 2008)
The European Court of Human Rights has found that the United Kingdom violated art 8 of the European Convention on Human Rights by failing to provide adequate procedural safeguards to protect the right to respect of a person’s home in the context of public housing.
Read MoreSwain v Department of Infrastructure (General) [2008] VCAT 848 (9 May 2008)
The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter. However, on the facts, the applicant was nevertheless found to be entitled to such a licence.
Read MoreMH6 v Mental Health Review Board (General) [2008] VCAT 846 (7 May 2008)
In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
Read MoreMurray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 (07 May 2008)
The England and Wales Court of Appeal has considered that scope of a child’s right to privacy in a case in which photographs of the child of a celebrity were taken and published without consent.
Read MoreGuss v Aldy Corporation Pty Ltd & Anor (Civil Claims) [2008] VCAT 912 (1 May 2008)
In this recent decision of the Victorian Civil and Administrative Tribunal, s 32(1) of the Charter was used to reject the previous interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Read MoreAbrahamian v Austria [2008] ECHR 35354/04 (10 April 2008)
The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances.
Read MoreGentle, R (on the application of) & Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008)
In a judgment handed down on 9 April 2008, the UK House of Lords held that the right to life protections under art 2 of the European Convention on Human Rights did not impose a duty on the UK Government to hold an independent inquiry into the legality and decision-making process behind the 2003 invasion of Iraq.
Read MoreKortel v Mirik and Mirik [2008] VSC 103 (4 April 2008)
In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’. Part 2 of the Charter enshrines a body of civil and political rights largely derived from the ICCPR. The issue arose in the context of the obligations of the Court to ensure a fair hearing to unrepresented litigants. The Court also considered the scope of the power of the Victorian Equal Opportunity and Human Rights Commission to intervene in a proceeding pursuant to s 40(1) of the Charter.
Read MoreR v DA [2008] ACTSC 26 (31 Mar 2008)
In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial.
Read MoreShtukaturov v Russia [2008] ECHR 44009/05 (27 March 2008)
In this case, the European Court of Human Rights considered human rights issues arising from involuntary admission and treatment on the ground of mental illness.
Read MoreFägerskiöld v Sweden [2008] ECHR 37664/04 (25 March 2008)
The European Court of Human Rights has considered a case of nuisance caused by a wind turbine, based on the right to respect for private and family life (art 8) and the right to protection of property (art 1 of Protocol No 1) of the European Convention on Human Rights.
Read MoreR v Benbrika & Ors (Ruling No 20) [2008] VSC 80 (20 March 2008)
The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code.They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them.
Read MoreBudayeva v Russia [2008] ECHR 15339/02 & Ors (20 March 2008)
The European Court of Human Rights held that the Russian Federation violated its positive obligation to protect the right to life under art 2 of the European Convention on Human Rights by failing to:
Animal Defenders International, R (On The Application of) v Secretary of State For Culture, Media and Sport [2008] UKHL 15 (12 March 2008)
In this decision, the UK Court of Appeal held that a ban on political advertising can be compatible with art 10 of the European Convention on Human Rights.
Read MoreZealand v Minister for Justice and Constitutional Development and Another [2008] ZACC 3 (11 March 2008)
This decision of the South African Constitutional Court concerns whether the imprisonment of a remand prisoner in maximum security custody deprived him of liberty arbitrarily or without just cause.
Read MoreGuneser 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.
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