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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. Detailed case note.
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, [...]
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 [...]
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 on Human Rights. Detailed case note.
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. Detailed case note.
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 [...]
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 [...]
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. Relevantly, the Court held that, pursuant to art 5(1)(c), the proximity or imminence of a trial does not justify pre-trial detention that would not [...]
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 [...]
The Grand Chamber of the European Court of Human Rights has considered the nature and scope of art 14 of the European Convention on Human Rights, which enshrines the right to non-discrimination and the equal enjoyment of human rights. The Grand Chamber held that the education policy in the Czech Republic, which resulted in the [...]
This 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. Detailed case note.
In 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. Detailed case note. Full text decision: www.austlii.edu.au/au/cases/vic/VSC/2007/489.html
The 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. Detailed case note.
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 [...]
To 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. Detailed case note.
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 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. Detailed case note.
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). Detailed case note.
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). Detailed case note.
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). Detailed case note.
In this case, the applicant, a man with chronic schizophrenia, was subjected to the practices of restraint and seclusion while detained. The applicant successfully complained to the European Court of Human Rights of violations of art 3 (prohibition on cruel, inhuman or degrading treatment or punishment) and art 5 (right to liberty and security of [...]
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. Detailed case note.
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 [...]
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 [...]
In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australia in violation of art 14(1) of the International Covenant on Civil and Political Rights. Detailed case note.
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 [...]
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 [...]
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 [...]
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 [...]
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. Detailed case note.
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 [...]
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. Detailed case note.
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 [...]
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 [...]
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. Detailed case note.
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). The case concerns the issue as to whether a private care home is providing functions of a public nature, with a majority of the House [...]
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 [...]
This decision of the England and Wales High Court concerned an application for judicial review – on the basis of interference with the right to private and family life - of a compulsory acquisition order made by the London Development Authority, and confirmed by the Secretary of State for Trade and Industry, for the purpose of [...]
The UK Court of Appeal has held that a delay in determining eligibility for parole may amount to arbitrary and unlawful detention. Detailed case note.
The Supreme Court of New Zealand has recently considered the extent to which privacy limits freedom of expression in the context of the Bill of Rights Act 1990 (NZ). Detailed case note.
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. Detailed case note.
The incarceration in prison of a person with a severe psychiatric illness may amount to a violation of the Victorian Charter of Human Rights, according to Bongiorno J of the Supreme Court of Victoria. Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/142.html.
The UK Court of Appeal has held that the right to life imposes a positive obligation on responsible authorities to take reasonable steps to safeguard the lives of those in their jurisdiction as against known and immediate risks. Detailed case note.
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 [...]
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 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. Detailed case note.
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 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. Detailed case note on the cases of Andrey [...]
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 [...]
Supreme Court of Victoria Considers Right to Legal Counsel under Charter of Human Rights – ss 6, 7, 4, 25, 49(2). Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/2.html.
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