Trump v. Hawaii, 585 U.S. ___ (2018) (26 June 2018)
In a 5-4 decision, the Supreme Court has upheld the third iteration of President Trump’s ‘Travel Ban’.
Read MoreNaït-Liman v Switzerland (European Court of Human Rights, Grand Chamber, Application no. 51357/07, 15 March 2018)
The Grand Chamber of the European Court of Human Rights held that a Swiss court’s decision to refuse jurisdiction to hear a claim did not violate rights of access to a court. The claimant, a Swiss national, had sought compensation for torture inflicted by the Tunisian Republic.
Read MoreBayev and Others v. Russia (application nos. 67667/09, 44092/12 and 56717/12) [2017] ECHR
On 20 June 2017, the European Court of Human Rights ruled that Russia's so-called "gay propaganda" laws breached Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention of Human Rights. The challenge was brought by three Russian nationals who are gay rights activists and were fined for allegedly promoting homosexuality while demonstrating in public places.
Read MoreTamiz v the United Kingdom (Application no. 3877/14) [2017] ECHR (12 October 2017)
The European Court of Human Rights has reinforced the importance of the freedom of expression in the European Convention on Human Rights in the context of online forums. The Court found that the English courts had conducted “an appropriate balancing exercise” when determining that ‘vulgar’ comments posted on a blog operated by Google Inc. did not pose enough of a risk to the applicant’s reputation (Article 8) to warrant restricting the freedom of expression of Google Inc. and its users (Article 10).
Read MoreR (on the application of Campaign Against Arms Trade) v The Secretary of State for International Trade and Intervenors [2017] EWHC 1726 (QB)
The English & Wales High Court has found that the UK's Secretary of State decision not to suspend a licence to export arms to the Kingdom of Saudi Arabia was valid. The Campaign Against Arms Trade and a number of intervenors unsuccessfully argued that the export licence should be suspended on the basis that there was a clear risk that the arms could be used in the commission of serious violations of international humanitarian law.
Read MoreTrump v International Refugee Assistance Project, 137 S.Ct 2080 (26 June 2017)
On 26 June 2017 the Supreme Court of the United States temporarily reinstated President Trump's travel ban, but a majority of the Court held that the temporary reinstatement will not apply to people who can show they have a credible claim of a bona fide relationship with a person or organisation already in the United States.
Read MoreAl-Gertani v Bosnia and Herzegovina, Human Rights Committee, Communication No. 1955/2010 (6 November 2013)
An Iraqi asylum-seeker was detained in Bosnia and Herzegovina on the grounds that he was a threat to national security. The United Nations Human Rights Committee found that his prolonged detention was arbitrary in breach of article 9 of the International Covenant on Civil and Political Rights, because the State party did not show it was necessary and proportionate, and because he was not provided with the reasons that he was considered a threat and was therefore unable to effectively challenge the detention.
Read MoreMagaming v The Queen [2013] HCA 40 (11 October 2013)
The High Court has dismissed an appeal regarding a mandatory minimum sentence imposed under the Migration Act 1958 (Cth), highlighting a gap in human rights protection under Australian law.
Read MoreDelfi AS v Estonia [2013] ECHR, Application No. 64569/09 (10 October 2013)
The European Court of Human Rights has held that the imposition of responsibility on a news portal company for news article comments written by non-registered users is a justified and proportionate restriction on its right to freedom of expression.
Read MoreMF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)
The United Kingdom Court of Appeal held that paragraphs 398, 399 and 399A of the Immigration Rules (UK) provide a complete code for establishing when a “foreign criminal” may be deported from the UK in compliance with the right to respect for private and family life under the European Convention on Human Rights.
Read MoreM.I. v Sweden, UN Doc CCPR/C/108/D/2149/2012 (14 August 2013)
The United Nations Human Rights Committee found that the deportation of M.I., a Bangladesh national, by Sweden to Bangladesh would constitute a violation of article 7 of the International Covenant on Civil and Political Rights because of the risk to M.I. of torture and other cruel, inhumane or degrading treatment or punishment if she were returned to Bangladesh.
Read MoreTaypotat v Taypotat 2013 FCA 192 (13 August 2013)
The Canadian Federal Court of Appeal determined that a minimum education requirement under voting legislation breached the Canadian Charter of Rights and Freedoms by discriminating against the elderly and aboriginal peoples.
Read MoreEzokola v Canada (Citizenship and Immigration) 2013 SCC 40 (19 July 2013)
The Supreme Court of Canada unanimously held that to lawfully exclude a person from the definition of refugee because of their membership of a group suspected of war crimes, crimes against humanity or other international crimes, there must be serious reasons for considering that the person has made a “voluntary, knowing, and significant contribution” to the group’s crime or criminal purpose.
Read MoreHead of Department, Department of Education, Free State Province v Welkom High School and Another Case (CCT 103/12) [2013] ZACC 25 (10 July 2013)
The Constitutional Court of South Africa has ruled that school pregnancy policies that allow the automatic exclusion of pregnant students, violate students' constitutional rights to equality and a basic education and were not in the best interests of the students. The Court ordered that the policies be reviewed.
Read MoreSindacutul 'Pastorul Cel Bun' v. Romania [2013] ECHR 64, (9 July 2013)
The European Court of Human Rights has ruled that preventing priests from forming a trade union in order to protect the autonomy of the Romanian Orthodox Church (Church) is consistent with the European Convention on Human Rights. Although the refusal to allow the priests to form a trade union was an interference with their freedom of association, it was considered to be necessary in a democratic society for the preservation of religious autonomy.
Read MoreVarnas v Luthania, [2013] ECHR, Application no 42615/06 (9 July 2013)
The European Court of Human Rights held that Lithuanian laws concerning the rights of persons on remand to receive conjugal visits were discriminatory when compared to the same right of convicted persons serving a custodial sentence. The Court therefore found a violation of article 14 (prohibition on discrimination), in conjunction with article 8 (right to family life), of the European Convention of Human Rights.
Read MoreVinter v United Kingdom [2013] ECHR, Applications nos. 66069/09, 130/10 and 3896/10 (9 July 2013)
The Grand Chamber of the European Court of Human Rights has held that the imposition of an irreducible sentence of life imprisonment breaches article 3 of the European Convention on Human Rights.
Read MoreUnited States v Windsor, No. 12-307 (US Supreme Court, 26 June 2013
The Supreme Court of the United States has found the Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” as excluding same-sex partners, unconstitutional. The Court held DOMA to be a deprivation of the equal liberty of persons, which is protected by the Fifth Amendment to the United States Constitution.
Read MoreSmith v The Ministry of Defence [2013] UKSC 41 (19 June 2013)
The UK Supreme Court has held that British servicemen who died during service in Iraq were within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Claims that the UK breached article 2 of the Convention by failing to implement a framework for protecting the lives of those servicemen were therefore not struck out by the Court. The Court, instead, required further facts to be examined and saved a determination on the issue for a later date.
Read MoreMayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14 (30 May 2013)
The Constitutional Court of South Africa has ruled that, in polygynous marriages (polygamy in which a man has more than one wife) under customary law, the first wife’s permission must be obtained before a second marriage can be entered into. The court drew on the Constitutional requirement that customary law be developed in line with Constitutional principles. As failure to obtain the first wife’s consent would breach the Constitutional principles of equality and inherent dignity of the person, such a requirement could legitimately be imposed upon customary law in South Africa.
Read MoreEremia v Republic of Moldova [2013] ECHR, Application no. 3564/11 (28 May 2013)
The Republic of Moldova’s failure to adequately protect a woman and her two daughters from her husband’s violent attacks amounted to a breach of the European Convention on Human Rights. The European Court of Human Rights found Moldova’s inaction amounted to a violation of articles 3 (Torture and inhuman treatment), 8 (Private Life) and 14 (Discrimination).
The case is an important development in the ways in which human rights can be used to tackle systemic issues of gender-based violence and gender discrimination.
Read MoreJ (Children) [2013] UKSC 9
The United Kingdom Supreme Court has considered the appropriate balance to be struck between the right of the child to live in a safe and nurturing environment and the right to family life in circumstances where those two rights are said to be in conflict. Although these rights are most often complementary, there are unfortunate cases where a child is at risk of being harmed by a family member and protecting the child (and upholding their human rights) can necessitate an intrusion by the State into a family’s private life. In this judgment, the Court made a weighted legal analysis of when and how such an intrusion can be justified.
Read MoreEl-Masri v the former Yugoslav Republic of Macedonia [2012] ECHR 2067 (13 December 2012)
The European Court of Human Rights held the former Yugoslav Republic of Macedonia responsible for the "extraordinary rendition" of a German citizen, which involved his transfer into the custody of United States authorities, unlawful detention and ill-treatment amounting to torture.
Read MoreChagos Islanders v United Kingdom [2012] ECHR, Application no. 35622/04 (11 December 2012)
The European Court of Human Rights rejected, on admissibility grounds, claims by former Chagos Islands inhabitants against the UK. The Court considered the extra-territorial application of the European Convention on Human Rights.
Read MoreNaidenova et al v Bulgaria, UN Doc CCPR/C/106/D/2073/2011 (27 November 2012)
A Roma community that had lived for over 70 years in an informal settlement on municipal land in Bulgaria was issued with an eviction order on the basis that the buildings were constructed without the proper permits on municipal property. The UN Human Rights Committee considered that, in light of all the circumstances, the execution of the eviction order would violate the right of the Roma community to not be arbitrarily evicted from their homes under article 17 of the International Covenant on Civil and Political Rights unless satisfactory replacement housing was made available to them beforehand.
Read MoreOpitz v Wrzesnewskyj, 2012 SCC 55 (25 October 2012)
A majority of Canada's Supreme Court has found that in a recent election where a number of administrative errors occurred which indicated some voters did not satisfy the identification requirements under the Canada Elections Act, SC 2000, c 9 the election result was nonetheless valid. In reaching its conclusion, the Supreme Court majority favoured a substantive approach that upholds an entitlement to vote based on the right to vote guaranteed under Canada's Charter of Rights and Freedoms, rather than the procedural requirements under the Act.
Read MoreIslamic Republic of Iran v Hashemi, 2012 QCCA 1449 (15 August 2012)
The Court of Appeal in Quebec, Canada considered the tension between state immunity under the State Immunity Act 1985 (RSC), the prohibition against torture and the application of customary international law in relation to a Canadian citizen who had been subject to physical and sexual abuse and torture in Iran.
Read MoreMinister of Home Affairs and Others v Tsebe and Others [2012] ZACC 16 (27 July 2012)
A majority of the Constitutional Court of South Africa has refused to extradite two people to Botswana on the basis that the South African Government cannot surrender a person to a country where he or she faces the death penalty without first seeking an assurance that the death penalty would not be imposed. Aptly summarised by Yacoob ADCJ, “this judgment leaves the government in no doubt that deportation, extradition or any form of removal under these circumstances is wholly unacceptable”.
Read MoreSodupe v Spain, UN Doc CAT/C/48/D/453/2011 (28 June 2012)
The UN Committee Against Torture has found that Spain had failed to ensure that its courts proceeded to a prompt and impartial investigation, where there is reasonable ground to believe that an act of torture has been committed in its jurisdiction, in violation of article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, the Committee found no violation of articles 14 and 15 of the Convention.
Read MoreCanada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012)
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Read MoreCanada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012)
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Read MoreWright v Argentina [2012] EWHC 669 (Admin) (20 March 2012)
The appellant (Wright) appealed her extradition to Argentina under the Extradition Act 2003 (UK) to the High Court of Justice. The appellant contended that her extradition to face drug charges would contravene her rights under articles 3 (inhumane and degrading treatment), 5 (trial within reasonable time) and 8 (respect for private life) of the European Convention on Human Rights.
Justice Silber held that the extradition would contravene the appellant’s rights under article 3 of the Convention, however he confined his decision to the facts. The facts were unique in that: (a) no undertakings were given by the Government of Argentina with respect to the appellant’s treatment in Argentina; and (b) the respondent did not cross-examine the respondent’s expert evidence on article 3.
Read MoreAbu Qatada v United Kingdom [2012] ECHR 56 (17 January 2012)
The European Court of Human Rights was asked to consider whether the Applicant's rights under articles 3 (torture), 5 (liberty and security), 6 (fair trial) and 13 (effective remedy) of the European Convention on Human Rights would be breached if he was deported to Jordan where he faced criminal proceedings. The Court held that there would be a violation of article 6 as there was a real risk that evidence obtained by torture would be used in a retrial. This is the first instance in which the Court has found that an expulsion would constitute a violation of article 6.
Read MoreC and Others v Department of Health and Social Development, Gauteng and Others [2012] ZACC 1 (11 January 2012)
South Africa’s Constitutional Court has overturned legislation that enabled state officials to remove children from family care without requiring prompt and automatic judicial review. The majority of the Constitutional Court held that prompt judicial review of decisions to remove children from their families is in the ‘best interests’ of children and is necessary to safeguard the right to access to justice. Therefore, the Children’s Act was held to be inconsistent with section 28 (rights of the child) and section 34 (access to justice) of South Africa’s Bill of Rights.
Read MoreThe Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011)
The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to his mental illness, the High Court of England and Wales held that S's detention amounted to false imprisonment and a violation of Articles 3 and 5 of the European Convention of Human Rights, which prohibit inhuman or degrading treatment and protect an individual's right to liberty and security of the person, respectively.
Read MoreGeorgel and Georgeta Stoicescu v Romania [2011] ECHR 1193 (26 July 2011)
In an important judgment on the scope of article 8 of the European Convention on Human Rights, the European Court of Human Rights held that Romania violated article 8 of the Convention through failing to take sufficient measures to protect the physical and psychological integrity of the applicant, Ms Georgeta Stoicescu. Romania was also found to have breached article 6 of the Convention for denying the applicant an effective right of access to a court.
Read MoreAl-Jedda v United Kingdom [2011] ECHR 1092 (7 July 2011) Al-Skeini & Ors v United Kingdom [2011] ECHR 1093 (7 July 2011)
The European Court of Human Rights (the Court) recently decided two applications brought against the United Kingdom under Article 34 the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Read MoreR (on the application of G) v The Governors of X School [2011] UKSC 30 (29 June 2011)
The UK Supreme Court has held that where one set of proceedings determines an individual’s civil rights or obligations, they may have procedural rights under article 6 of the European Convention on Human Rights (ECHR) both in those proceedings and in earlier proceedings that have a “substantial influence or effect” on those proceedings.
Read MoreSufi and Elmi v The United Kingdom [2011] ECHR 1045 (28 June 2011)
The European Court of Human Rights (the Court) has found that the return of two Somali nationals to Mogadishu, Somalia would amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) because of the situation of general violence there.
Read MoreAbortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 (1 June 2011)
On 1 June 2011 the New Zealand Court of Appeal handed down its decision in the appeal and cross-appeal from the judgment of Justice Miller in the High Court’s 2008 decision in Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 on the rights of the unborn child and the powers of the Abortion Supervisory Committee (ASC) under the Contraception, Sterilisation and Abortion Act 1977 (CSA Act). The majority (2:1) upheld Justice Miller’s finding that an unborn child has no express right to life, but held that his view that there was nevertheless “reason to doubt the lawfulness of many abortions” was inappropriate and had no legal effect. The majority also rejected Justice Miller’s finding that the ASC’s general supervisory role included a statutory obligation to audit the decisions of certifying consultants on the lawfulness of abortions in individual cases.
Read MoreR.R. v Poland [2011] ECHR 828 (26 May 2011)
In this case the European Court of Human Rights (ECHR) delivered judgment in favour of an applicant, Ms R.R., who brought a case againstPoland for a violation of arts 3 and 8 of the European Convention of Human Rights. Article 3 of the Convention protects the right to freedom from inhuman and degrading treatment. Article 8 of the Convention, inter alia, protects an individual’s right to respect for privacy and family life. This case is a significant step forward in the protection of reproductive rights, with third-party comments submitted by the United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, the International Federation of Gynaecology and Obstetrics, and the International Reproductive and Sexual Health Law Programme, University of Toronto, Canada.
Read MoreQhinga and Others v S (CCT 50/10) [2011] ZACC 18 (25 May 2011)
The Constitutional Court in South Africa recently considered an application for leave to appeal against a dismissal by the Supreme Court of Appeal of a petition filed by the applicants on the basis that relevant portions of the record of the proceeding in the High Court were not properly considered in the applicants’ petition. It was held that the applicants did not have the benefit of a right of appeal or review by a higher court as envisioned in s 35(3)(o) of the Constitution and thus the order made by the Supreme Court of Appeal was dismissed, the petition was set aside and the matter remitted to the Supreme Court of Appeal for reconsideration.
Read MoreBrown v Plata, 563 US 2011 (23 May 2011)
On 23 May 2011 the Supreme Court of the United States upheld a lower court's decision finding that the conditions in California's overcrowded prisons violated prisoners' Eighth Amendment right not be subjected to cruel and unusual punishment. As a result of the overcrowding, adequate medical care could not be provided to prisoners. The Court reaffirmed US authority that denial of basic sustenance, including adequate medical care, violates the Eighth Amendment. What is perhaps more notable is the remedy it upheld, a cap on the prison population. The Court could have ordered the State to provide adequate medical care in its prisons, and accepted the State's plans for achieving that result. The Court instead found that only if the prison population decreased would it be possible for adequate medical care to be provided.
Read MoreLMR v Argentina, UN Doc CCPR/C/101/D/1608/2007 (28 April 2011)
In May 2007, VDA, an Argentine national, submitted a communication to the UN Human Rights Committee on behalf of her daughter, LMR, who has a permanent mental impairment. The communication claimed violations by Argentina of a number of articles under the International Covenant on Civil and Political Rights, including the right to freedom from torture or other cruel, inhuman or degrading treatment, and the right to privacy, arising out of a denial of access to legal abortion.
Read MoreGoverning Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13 (11 April 2011)
In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the rights to education and children’s rights when considering the rights of a private property owner to evict a school which was operating on its premises.
Read MoreGiuliani and Gaggio v Italy [2011] ECHR 513 (24 March 2011)
The Grand Chamber of the European Court found no violation of the European Convention of Human Rights arose out of the killing of a demonstrator by Italian armed forces during the G8 summitNotably, however, there were divergent views regarding the State's obligations (both substantive and procedural) to protect life, including in relation to making specific provisions governing the use of firearms during police operations, issuing non-lethal weapons, and whether there is a higher level of responsibility where large-scale, high risk demonstrations are planned.
Read MoreHugh Glenister v President of the Republic of South Africa & Ors (CCT 48/10) [2011] ZACC 6 (17 March 2011)
The Constitutional Court of South Africa declared legislation which disbanded and replaced an anti-corruption body constitutionally invalid. Through a joint judgment by Moseneke DCJ and Cameron J, the majority of the Court gave Parliament 18 months to amend the legislation.
Read MoreDaniel and Another v The Attorney General and Others (A 430/2009) [2011] NAHC 66 (10 March 2011)
The Namibian High Court recently considered whether mandatory minimum sentences for stock theft under the Stock Theft Act violated the prohibition of cruel, inhuman or degrading punishment under the Namibian Constitution. The constitutionality of the Act was challenged by two men who were sentenced for a combined 50 years for the theft of one cow and nine goats.
Read MoreAhmed & Anor v The Queen [2011] EWCA Crim 184 (25 February 2011)
The applicant claimed that his prosecution for terrorism offences would amount to an abuse of process, on the grounds that British authorities were complicit in his torture committed abroad by Pakistani authorities. The UK Court of Appeal refused to extend the law of abuse of process to situations where the defendant’s torture does not impact on the trial. The prosecution will only be an abuse of process if the product of torture (for example, a statement) is being used in court to make a case against the defendant.
Read MoreAydin v Germany [2011] ECHR 141 (27 January 2011)
The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights (the ‘ECHR’). The applicant alleged that her criminal conviction for breaching a ban on the activities of the Workers’ Party of Kurdistan (‘PKK’) violated her right to freedom of expression.
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