Human Rights Case Summaries

Dawas v Denmark, UN Doc CERD/C/80/D/46/2009 (2 April 2012) 

The UN Committee on the Elimination of Racial Discrimination was asked to consider whether the Applicants’ rights under articles 2 (prevention of racial discrimination) and 6 (effective preventions and remedies) of the Convention on the Elimination of All Forms of Racial Discrimination had been breached by Denmark’s failure to investigate the racist character of an attack on the Applicants and to prosecute the attackers on the basis that their alleged crimes had a racist character. The Committee held that various deficiencies in Denmark’s investigation of the attack and its prosecution of the attackers gave rise to contraventions of articles 2 and 6.

R v Dennis Michael Nona [2012] ACTSC 41 (23 March 2012)

In R v Nona the ACT Supreme Court considered the right to a fair trial without unreasonable delay in the context of whether or not to stay criminal proceedings. The key issues related to a breach of a statutory human right and the appropriate remedy for that breach. While the court found that the right to a trial without unreasonable delay had been breached, it considered that a declaration would be an appropriate remedy rather than a permanent stay. This decision is important because it discusses the relevance of section 30 (interpretation of laws and human rights) of the Human Rights Act 2004 (ACT) (HRA) when interpreting ACT legislation, and the common law and statutory principles of undue delay.

Doré v Barreau du Québec, 2012 SCC 12 (22 March 2012)

The Supreme Court of Canada has delivered a key decision clarifying the standard of review to be applied in considering whether administrative decision-makers have exercised their discretion compatibly with the Canadian Charter. The Court held that, rather than using the test in R v Oakes [1986] 1 SCR 103, which is used to determine whether legislation is Charter compatible, a more flexible reasonableness test should be used, drawing on administrative law concepts and providing greater deference to administrative decision-makers.

Slaveski v The Queen (on the application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48 (20 March 2012)

The applicant, Mr Slaveski, appealed against conviction and sentence for contempt of court.The Victorian Equal Opportunity & Human Rights Commission intervened in the proceeding regarding the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the Supreme Court. The Commission’s submissions concerned, among other things, whether the trial judge erred in not granting an adjournment to Mr Slaveski in circumstances where his lawyers had withdrawn and he alleged that evidence relevant to his trial had been tampered with.

Slaveski v Smith & Anor [2012] VSCA 25 (29 February 2012)

This decision of the Victorian Court of Appeal clarifies the content of aspects of the right to a fair hearing (section 24) and rights in criminal proceedings (section 25) in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The decision also indicates the approach the Court is taking to the interpretation provision (section 32) after the High Court decision in Momcilovic.

R v Fleischman, 2012 ONCJ 120 (24 February 2012) 

This was a Canadian case in the provincial division of the Ontario court system. The applicant was charged with impaired driving and driving with greater than 80mg of alcohol in 100ml of blood (“over 80”). He brought an application pursuant to sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms for the proceedings against him to be conditionally stayed until state-funded counsel was provided for his trial. The judge found that counsel was essential to the applicant’s right to a fair trial and that the applicant was unable to afford to obtain counsel, and on that basis stayed the proceedings until state funding could be provided.

Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011)

The Grand Chamber of the European Court of Human Rights recently considered the admissibility of statements made by an absent witness and the application of the 'sole or decisive test' in the context of the right to a fair trial. It held by majority that convictions based solely or decisively on such statements will not automatically constitute a breach of the right to a fair trial contained in article 6 of the European Convention on Human Rights.

The European Court of Human Rights has clarified the scope of a State party’s obligation to investigate a death in circumstances involving a potential breach of the right to life.

In Pearson v United Kingdom [2011] ECHR 2319, the Court clarified that, where government employees or agents are implicated in a death, the State is bound to adequately investigate the death to establish the relevant facts and to hold persons accountable, as appropriate. Those obligations may be met by, or shared between, several different processes and authorities. There is no requirement for a single body, such as a coroner’s court, to deal with all aspects of an investigation.