Opuz v Turkey [2009] ECHR 33401/02 (9 June 2009) In June 2009, the European Court of Human Rights found Turkey in violation of its obligations, under arts 2, 3 and 14 of the European Convention on Human Rights, to protect the applicant and her mother from domestic violence.  In the landmark decision, the Court held that domestic violence is a form of discrimination that states are required to eliminate and remedy.  The case brings the Court’s jurisprudence in line with international human rights law, which has long recognised such violence as a form of discrimination.

R v Godin, 2009 SCC 26 (CanLII) (4 June 2009)The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial.  The Court held that the accused’s right to be tried within a reasonable time under the Canadian Charter of Rights and Freedoms had been violated.

Trustees for the time being of the Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (3 June 2009) The Constitutional Court of South Africa has confirmed that the general rule for an award of costs in constitutional litigation between a private party and the state is that if the private party is successful, it should have its costs paid by the state, and if unsuccessful, each party should pay its own costs.The litigation must raise a genuine constitutional issue and any perceived ‘misconduct’ on the part of the applicant would need to be of such a compelling kind to justify a departure from the general rule.  The Court held that the over-arching principle is not to discourage the pursuit of constitutional claims.

Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009)The European Court of Human Rights has held that it is a disproportionate interference with an individual's right to privacy to monitor their confidential medical correspondence with their specialist.  The prison governor had directed that the applicant's correspondence with his specialist be opened and inspected by the prison medical officer to ensure that there were no illicit enclosures.  The applicant had sought to correspond confidentially with his specialist to ensure that he was receiving appropriate care and supervision with respect to his potentially life-threatening condition.  The applicant, who had lost before the UK Court of Appeal, successfully argued that, by analogy with legal correspondence, the risk of his abusing the confidentiality of his correspondence for illicit purposes was outweighed by the likelihood that inspecting his correspondence would inhibit what he conveyed to the specialist, thereby harming the quality of advice that he received.

Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009) The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual's right to privacy under art 8(1) of the European Convention on Human Rights, which states that every person has the right to respect for their private and family life, their home and his correspondence.

Kay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009) In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair hearing under s 24 of the Victorian Charter.  The Court held that while the right to a fair hearing subsumes a right to access the courts and, in certain cases, a right to legal aid, these rights are not absolute and may be subject to reasonable limitations.  In the circumstances, the Court considered the vexatious litigant order to be a reasonable limitation.

Kulikowski v Poland [2009] ECHR 18353/03 (19 May 2009) The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining expert evidence will not justify extended pre-trial detention, and that prohibition of contact with family members who are witnesses may be a permissible limitation on the right to family.

Secretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441 (18 May 2009) The Court of Appeal of England and Wales held that a soldier in the British Army serving in Iraq was within the jurisdiction of the United Kingdom for the purposes of the Human Rights Act 1998 (UK).  The United Kingdom is therefore obliged to extend protection under the Act to its soldiers serving overseas even when they are not on military bases.

De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009) For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the Charter.  The referred question is whether VCAT's implied statutory power to stay a civil proceeding (in particular, the McMahon v Gould guidelines applicable to that power) should be revised in light of ss 24 and 25 of the Charter, and if so, how.

Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009)This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits.  The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding.  In light of this security risk, the use of handcuffs did not constitute degrading treatment.  Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.

Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009) The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer.  This case was the first application made under amendments to the Human Rights Act 2004 (ACT) creating a new cause of action for breach of human rights, which came into force on 1 January 2009.

Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009) The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary for public protection or for a lengthy period without a meaningful review of the risk they pose to the public.