Case of Hode and Abdi v United Kingdom [2012] EHCR, Application no. 22341/09 (6 November 2012)
The European Court of Human Rights has held that the United Kingdom Government’s refusal to allow the family reunion of a refugee and his wife under relevant immigration rules was unlawfully discriminatory against the refugee on the basis of his immigration status.
Read MoreRedfearn v the United Kingdom (Application no. 47335/06, ECHR, 6 November 2012)
The European Court of Human Rights has held that the UK’s failure to protect a bus driver against unfair dismissal based on his racist political activities was an unacceptable infringement of his freedom of association.
Read MoreChun Rong v Australia [2012], CAT/C/49/D/416/2010
The UN Committee against Torture found that Australia was in violation of its non-refoulement obligations under the Convention against Torture because it failed to satisfy procedural obligations under article 3.
Read MoreSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah [2012] UKSC 48 (31 October 2012)
The Supreme Court of the United Kingdom found that the continued detention of a civilian combatant was prima facie unlawful under the Geneva Conventions. The prisoner was initially captured by British forces before being handed over to the US, which transferred him from Iraq to Afghanistan. The habeas corpus application failed because the UK showed that it had no control over the prisoner’s detention.
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 MoreIrene Wilson v The United Kingdom [2012] ECHR, Application no. 10601/09 (23 October 2012)
The European Court of Human Rights found that the Northern Ireland authorities had not failed in their duty to respond to domestic violence perpetrated against the applicant, Ms Irene Wilson, and her complaint was deemed inadmissible.
Read MoreR v Cole 2012 SCC 53 (19 October 2012)
Nude photographs of an underage female student were discovered on a teacher’s work laptop. He was charged with possession of child pornography and unauthorised use of a computer under the Criminal Code R.S.C. 1985, c. C-46. The actions of the police in obtaining possession of the accused’s computer (and files copied from it) raised questions about the accused’s rights to be free from unreasonable state search and seizure under section 8 of the Canadian Charter of Rights and Freedoms.
Read MoreAitken & Ors v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547 (18 October 2012)
In the recent decision of Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development, the Victorian Civil & Administrative Tribunal rejected a claim of direct discrimination made by parents of children at Victorian State primary schools against the Department of Education & Early Childhood Development in relation to its Special Religious Instruction (SRI) program.
Read MoreLund v Boissoin, 2012 ABCA 300 (17 October 2012)
The Court of Appeal of Alberta distinguished between prohibited "hate speech" and speech that may be hurtful and offensive but which is protected by the freedom of expression in its recent decision of Lund v Boissoin, 2012 ABCA 300.
Read MoreSummary On 11 October the secular High Court in Seremban, Negeri Sembilan state, in Malaysia rejected a request to declare unconstitutional a Sharia law that prohibits “wearing women’s attire” or “posing as a woman” in that State. The four applicants are Muslim transgender women who have all been arrested under this law and contend that it violates their fundamental rights enshrined in the Malaysian Constitution, namely the prohibition of discrimination based on gender, freedom of expression, freedom of movement, and the rights to live with dignity, privacy, and to livelihood.
Read MoreX v Turkey [2012] ECHR 24626 (9 October 2012)
Read MoreCoselav v Turkey [2012] ECHR 1789 (9 October 2012)
On 16 December 2005, 16 year old Bilal Çoşelav committed suicide whilst in the custody of Turkish authorities, by hanging himself using a bed sheet and the bars in his jail cell. In recent finding, handed down on 9 October 2012, the European Court of Human Rights unanimously decided that the Turkish government had breached article 2 of the European Convention on Human Rights, relevantly by failing to protect Bilal’s right to life and to carry out an effective investigation in relation to his death
Read MoreSchubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another [2012] ZACC 26 (9 October 2012)
The protection against arbitrary eviction under section 26(3) of the South African Constitution provides that a person cannot be evicted from their home without an order of court made after considering all the relevant circumstances. In a unanimous judgment, the Constitutional Court held that the High Court’s order dismissing an application by residents for immediate re-occupation of their homes after their emergency removal was not a justified order for the purposes of section 26(3). The Constitutional Court set aside the High Court’s orders and ordered that the residents were entitled to occupation of their homes as soon as reasonably possible.
Read MorePlaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46 (5 October 2012)
In this case the full bench of the High Court of Australia considered the lawfulness of the indefinite detention of the plaintiff, a refugee who has been held in detention in Australia without a visa for three years. He had been assessed as a refugee but his application for a visa had been denied on the basis of an adverse security assessment conducted by the Australian Security and Intelligence Organisation.
Read MorePrint Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22 (28 September 2012)
The South African Constitutional Court has enforced the constitutional right to freedom of expression in the recent decision of Print Media South Africa and Another v Minister of Home Affairs and Another. The Court found that recently amended provisions of the Films and Publications Act (No 65 of 1996) infringed the right to freedom of expression found in section 16 of the South African Constitution.
Read MoreAllatt & ACT Government Health Directorate (Administrative Review) [2012] ACAT 67 (28 September 2012)
In this case, the ACT Civil and Administrative Tribunal reviewed decisions made by the ACT Health Directorate refusing applications for access to documents under the Freedom of Information Act 1989 (ACT) and granted the applicant access to the relevant information on the basis that it was not “sensitive information” and not subject to FOI Act exemptions. The Tribunal provided a noteworthy detailed consideration of the methodology of interpretation under the Human Rights Act 2004 (ACT).
Read MoreEH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) (27 September 2012)
The UK High Court has recently considered the lawfulness of the detention of a mentally ill person.
Read MoreCaripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012)
The Victorian Civil and Administrative Tribunal has ruled that a protestor’s right to privacy was not violated by the Victoria Police’s retention of photographs and video footage taken during a protest. The Tribunal accepted that the records were still needed by Victoria Police for legitimate purposes including planning and briefing for further protests and therefore their retention did not violate Victorian privacy laws.
Read MoreFedorchenko and Lozenko v Ukraine [2012] ECHR 1721 (20 September 2012)
In this decision, the European Court of Human Rights considered the procedural obligations of the right to life. It held that States have a duty to conduct an independent and effective investigation into all deaths, and in particular deaths associated with State agents
Read MoreBuckland v United Kingdom [2012] ECHR 1710 (18 September 2012)
The European Court of Human Rights has held that a UK Court of Appeal decision to uphold a possession order against an applicant constituted an unjustified breach of the applicant’s right to respect for her home in violation of article 8 of the European Convention on Human Rights which concerns the right to respect for private and family life. The European Court awarded damages and costs to the applicant, ordering the UK Government to reimburse the applicant if a costs order made against her in the UK Court of Appeal is enforced.
Read MoreJames, Wells and Lee v United Kingdom [2012] ECHR 1706 (18 September 2012)
The European Court of Human Rights' decision in James, Wells and Lee v United Kingdom demonstrates the tension between indefinite detention in breach of article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the lawful indeterminate detention of "dangerous prisoners" for public protection. Ultimately, the Court found that, in situations where prisoners serving indefinite sentences have no reasonable access to appropriate rehabilitative courses that would enable them to demonstrate they no longer constitute a danger to the public, their detention is arbitrary and therefore unlawful within the meaning of article 5(1) of the Convention.
Read MoreNada v Switzerland [2012] ECHR 1691 (12 September 2012)
This is a decision of the Grand Chamber of the European Court of Human Rights regarding how states should approach divergent international law obligations.
Read MoreR(NM) v Secretary of State for Justice [2012] EWCA Civ 1182 (12 September 2012)
The English Court of Appeal in R(NM) v Secretary of State for Justice has recently ruled that a State prison was not in breach of its investigative obligation under article 3 of the European Convention on Human Rights (the right to freedom from torture and cruel, inhumane and degrading treatment) as it conducted an investigation in proportion to the seriousness of an incident.
Read MoreMagee v Delaney [2012] VSC 407 (11 September 2012)
The Supreme Court of Victoria has recently ruled on the scope of the right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic). In this case, Justice Kyrou held that the right to freedom of expression under the Charter is not engaged where the expression involves property damage, or threats of property damage.
Read MoreThompson v Police [2012] NZHC 2234 (31 August 2012)
The New Zealand High Court dismissed the appellant's appeal against convictions for disorderly behaviour on the ground that the appellant's conduct did not involve an exercise of her right of freedom of expression pursuant to section 14 of the Bill of Rights Act 1990 (NZ). The High Court found that the appellant’s conduct (“calling for stray cats”) had caused a disturbance which the public could not reasonably be expected to endure.
Read MoreUN Human Rights Committee, Korneenko v Belarus, UN Doc CCPR/C/105/D/1226/2003 (29 August 2012)
Viktor Korneenko resides in Gomel, Belarus, where he was the chairperson of the Gomel regional association of Civil Initiatives. This NGO was involved in election monitoring in Belarus. Civil Initiatives was dissolved by court order after Belarusian authorities fined Korneenko and confiscated the organisation’s computer equipment on the basis that Koreenko had violated a temporary presidential decree banning the use of computer equipment, received as “untied foreign aid”, from being used for political purposes.
Read MoreChiti v Zambia, UN Doc CCPR/C/105/D/1303/2004 (28 August 2012)
The UN Human Rights Committee considered an application against the State of Zambia lodged by the applicant, a Zambian national, on behalf of her children and her deceased husband, a former officer with the Zambian military. The Committee found that there had been a violation of articles 2, 7, 14, 17 and 23 of the International Covenant on Civil and Political Rights.
Read MoreIsatou Jallow v Bulgaria, UN Doc CEDAW/C/52/D/32/2011 (28 August 2012)
The CEDAW Committee found that Bulgaria violated several articles of the Convention on the Elimination of All Forms of Discrimination against Women by failing to investigate domestic violence allegations, failing to take domestic violence into account in making court orders and failing to provide the complainant with information regarding the whereabouts of her child.
Read MoreRussell v Pangallo [2012] ACTMC 4 (24 August 2012)
In the ACT Magistrates Court, a Magistrate held that a six year delay between the filing of a summons for a drink driving offence and the first court date for that offence did not constitute unreasonable delay giving rise to a breach of the ACT Human Rights Act 2004.
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 MoreDavies v State of Victoria [2012] VSC 343 (15 August 2012)
In a landmark decision, Justice Williams of the Supreme Court found that the conduct of a disability support worker in dragging a person with an intellectual disability across a carpeted hallway such as to cause a burn or abrasion constituted “cruel, inhuman or degrading treatment” contrary to section 10(b) of the Charter of Human Rights and Responsibilities.
Read MoreR v Bellusci, 2012 SCC 44 (3 August 2012) Summary
The full bench of Canada's Supreme Court has upheld a trial judge's decision to permanently stay proceedings against a prisoner who was found guilty of threatening to rape a prison guard's wife and children. Because the prisoner was assaulted during the incident, his rights were found to be infringed under the constitutional Canadian Charter of Rights and Freedoms, and a discretionary remedy available under section 24(1) was awarded on this basis.
Read MoreWBM v Chief Commissioner of Police [2012] VSCA 159 (30 July 2012)
In this decision, the Court of Appeal upheld a Supreme Court trial division decision that the Sex Offenders Registration Act 2004 (Vic) applied to a particular offender. Although the Court made the decision without reliance on the Charter, the Court expressed the view that the legislation was compatible with the right to privacy under the Victorian Charter. The decision also considered the definition of the section 13 right to privacy, the role of comparative international human rights jurisprudence under the Charter and the scope of rights protected by the common law principle of legality.
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 MoreRT (Zimbabwe) & Ors (Respondents) v Secretary of State for the Home Department
(Appellant); KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38 (25 July 2012)
The Supreme Court of the United Kingdom considered whether an individual who has no political views, and therefore does not support the persecutory regime in his or her home country, is entitled to a claim for asylum where the alternative is to lie and feign loyalty to that regime in order to avoid persecution.
Read MoreÐordević v Croatia [2012] ECHR 1640 (24 July 2012)
The European Court of Human Rights considered an application against the Republic of Croatia lodged by the first applicant, a physically and mentally disabled Croatian national, and the second applicant, his mother and full-time carer. The Court found that there had been a violation of articles 3, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of both the first and second applicants through the Croatian authorities’ failure to take all reasonable measures to prevent the ongoing abuse of the first applicant by a group of schoolchildren.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates' Court of Victoria (23 July 2012)
In the Magistrates' Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner's chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates’ Court of Victoria (23 July 2012)
In the Magistrates’ Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner’s chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreKetreb v France [2012] ECHR 1626 (19 July 2012)
In this case, Ketreb v France, the European Court of Human Rights held that there had been a violation of article 2 (right to life) of the European Convention on Human Rights and a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention. The case concerned the suicide in prison of a drug addict convicted of armed assault. The Court found that the State had failed in its duty to show particular vigilance to prevent a vulnerable prisoner from committing suicide.
Read MoreAir Canada Pilots Association v Kelly and Others, 2012 FCA 209 (17 July 2012)
A full bench of Canada’s Federal Court has found that mandatory age-based retirement schemes are not unlawful under the constitutional Charter of Rights and Freedoms, despite limiting the right to equality. In reaching this conclusion the Court applied earlier precedent which says that mandatory retirement is a justifiable limit on human rights.
Read MoreAli & Anor, R (on the application of) v Minister for the Cabinet Office the Statistics Board [2012] EWHC 1943 (Admin) (13 July 2012)
This decision of the English and Wales High Court considered the right to respect for private and family life and the exceptions to this right. In particular, the High Court considered whether the Statistics Board’s ability to disclose personal information provided to it in the census for the purposes of a criminal investigation or proceedings was incompatible with a person’s Convention right to privacy.
Read MoreMouvement Raelien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012)
This is a decision of the Grand Chamber of the European Court of Human Rights regarding the scope of the right to freedom of expression.
It involves an allegation by the Mouvement Raelien Suisse (Association) that the refusal by the Swiss authorities of the request for the Association to publish its posters in the Neuchatel municipality breached its rights to freedom of religion and freedom of expression, as protected by articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MoreThe England and Wales High Court has held that a discretion held by prison governors to levy deductions from a prisoner’s earnings where the prisoner is working for a private employer on a release scheme outside prison is not incompatible with their human rights having regard to the margin of appreciation afforded to States.
Read MoreDS v Aboriginal Housing Victoria (Unreported, Victorian Civil and Administrative Tribunal, Residential Tenancies List, Member Warren, 3 July 2012)
In a recent decision, the Victorian Civil and Administrative Tribunal considered the Charter rights of an applicant for the creation of a tenancy agreement. The Tribunal found that the application engaged the applicant’s right under sections 13 and 17 of the Victorian Charter, and ultimately ordered the respondent landlord (a social housing provider) to enter a tenancy agreement with the applicant.
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 MoreR (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis [2012] EHWC 1681 (22 June 2012)
In the recent case of R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis and Others (RMC and FJ), the High Court of England and Wales held that the indefinite retention of photographs of persons who are arrested, but not subsequently prosecuted, breaches the right to private life protected in article 8 of the European Convention on Human Rights. The case applies and extends the earlier European Court of Human Rights decision of S v United Kingdom (2009) 48 EHRR 50, which concerned the retention of DNA samples and fingerprints.
Read MoreA & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012)
In this case, brothers aged 16 and 14 took action under the Human Rights Act 1998 (UK) in relation to their treatment while in the care of the Lancashire County Council. The England and Wales High Court declared that the Council and one of its employees, an Independent Reporting Officer, had acted incompatibly with the boys’ right to respect for private and family life, their right to a fair trial and the prohibition of torture.
Read MoreSullivan v The Government of the United States of America & Anor [2012] EWHC 1680 (20 June 2012)
The appellant appealed to the England and Wales High Court against orders for his extradition to the United States to be prosecuted for sexual offences. Lord Justice Moses held that the extradition would expose the appellant to a real risk of detainment under the Minnesota “civil commitment” program, which would amount to a flagrant denial of his rights under article 5.1 (deprivation of liberty) of the European Convention on Human Rights.
Read MoreAtasoy and Sarkut v Turkey, UN Doc CCPR/C/104/D/1853-1854/2008 (19 June 2012)
The UN Human Right Committee recently decided that Turkey’s actions in response to Atasoy and Sarkut’s refusal to be drafted for compulsory military service on grounds of conscientious objection was incompatible with article 18 of the International Covenant on Civil and Political Rights.
Read MoreG v Germany [2012] ECHR 956 (7 June 2012)
The European Court of Human Rights has unanimously held that Germany violated the prohibition under article 7(1) of the European Convention on Human Rights on imposing a penalty heavier than that which existed at the time of the offence, by imposing a period of retrospective preventive detention.
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