Human Rights Case Summaries

What is the standard of review to determine whether a public authority has acted compatibly with human rights?

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.

MichelleBennett22 March 2012Human Rights Law & Institutions

Decision of a court to grant or refuse an adjournment is a judicial function for the purposes of the Charter of Human Rights

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whether the trial judge erred in not granting an adjournment to Mr Slaveski in circumstances where his lawyers had withdrawn and he alleged that evidence relevant to his trial had been tampered with.

MichelleBennett21 March 2012Human Rights Law & Institutions

Extradition contrary to the European Convention on Human Rights

Wright 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.

MichelleBennett20 March 2012Foreign Policy, Human Rights Law & Institutions

UK national security concerns trump freedom of expression

Lord Carlile and Others and Maryam Rajavi v Secretary of State for the Home Department [2012] EWHC 617 (Admin) (16 March 2012) Summary

In this decision, the High Court of England and Wales considered whether concerns relating to national security justified infringement of the right to freedom of expression. The British Secretary of State for the Home Department refused permission for Iranian dissident Maryam Rajavi to enter the UK to address British parliamentarians at Westminster, allegedly infringing the claimants’ common law and European Convention of Human Rights right to freedom of expression. Although it expressed sympathy with the claimants’ position, the High Court held that the Secretary’s decision to exclude Rajavi was proportionate in light of the Secretary’s concerns for national security and public order.

MichelleBennett16 March 2012Democratic Freedoms

Policing of protests: European Court rules on ‘kettling’ of protesters

Austin & Ors v United Kingdom [2012] ECHR 459 (15 March 2012)

In 2001, in the context of a demonstration in central London, up to 2000 people were contained within a police cordon (a measure known as "kettling") at Oxford Circus in London without access to food, water or toilets.

The Grand Chamber of the European Court of Human Rights held that this did not amount to a deprivation of liberty under Article 5(1) of the European Convention of Human Rights.

MichelleBennett16 March 2012Police, Democratic Freedoms

UK Metropolitan Police assault autistic boy and infringe his human rights

ZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (14 March 2012)

The England and Wales High Court has held that police who applied excessive force to a 16 year old autistic boy infringed several laws, including the European Convention on Human Rights. The Court found that the treatment of the boy by the police amounted to assault and battery, false imprisonment, unlawful disability discrimination, inhuman or degrading treatment, deprivation of liberty, and interference with private life.

MichelleBennett14 March 2012Health, Disability & Mental Health, Police

Right to compensation and redress for breach of the right to life

Reynolds v United Kingdom [2012] ECHR 437 (13 March 2012)

This decision of the European Court of Human Rights considered the availability of compensation for loss of life. The application was brought under Article 34 of the European Convention of Human Rights by the mother of a person who died while at a mental health facility. The Applicant applied for damages in relation to the death of her son and argued that she did not have any civil proceedings available to her under domestic law for this action.

MichelleBennett14 March 2012Disability & Mental Health

When is legal representation necessary to ensure respect for the right to a fair hearing?

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.

MichelleBennett1 March 2012Human Rights Law & Institutions

Forcible ‘push back’ of asylum seeker boats a violation of international human rights law

Hirsi Jamaa and Others v Italy [2012] ECHR Application no. 27765/09 (23 February 2012)

In a landmark decision the Grand Chamber of the European Court of Human Rights held, unanimously, that Italy violated the European Convention of Human Rights by forcibly returning a group of asylum seekers by sea to Libya.

MichelleBennett24 February 2012Refugee & Asylum Seeker Rights, Human Rights Law & Institutions

When is legal representation essential to the right to a fair trial?

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.

MichelleBennett24 February 2012Human Rights Law & Institutions

Court of Appeal finds interference with Occupy London protesters’ rights was 'lawful and justified

The Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors [2012] EWCA Civ 160 (22 February 2012)

In the High Court of England and Wales, Lindblom J made orders in favour of the City of London (the City) against the defendants, part of the Occupy protest movement, for possession ofa highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants had set up a protest camp.

MichelleBennett23 February 2012Democratic Freedoms, Human Rights Law & Institutions

Placing asylum seeker in situation causing death contravenes the Convention against Torture

Sonko v Spain, UN Doc CAT/C/47/D/368/2008 (20 February 2012)

Summary

The UN Committee against Torture has found that Spain violated its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its treatment of Senegalese asylum seeker Mr Sonko, who drowned after being forced out of a Spanish Civil Guard vessel. This decision exemplifies that placing a person in a situation that causes his or her death will constitute cruel, inhuman or degrading treatment in contravention of article 16 of the Convention.

MichelleBennett20 February 2012Refugee & Asylum Seeker Rights, Prisoner Rights

Freedom of religion not infringed by mandatory ethics and religion class

S.L. v. Commission scolaire des Chênes 2012 SCC 7 (17 February 2012)

The Supreme Court of Canada has upheld the Quebec Superior Court's decision that a state-organised, multi-faith, ethics and religious class did not infringe the right to freedom of conscience and religion. The Court held that determining whether a person's right to religion was infringed required a subjective understanding of the belief alleged to be infringed and objective determination of whether an infringement occurred.

MichelleBennett18 February 2012Democratic Freedoms, Discrimination & Equality

Increase in university tuition fees not a breach of human rights

The Queen on the Application of Hurley and Moore v Secretary of Sate for Business Innovation and Skills [2012] EWHC 201 (17 February 2012)

The England and Wales High Court has ruled that a decision to raise university tuition fees did not breach the right to education under the European Convention on Human Rights (Article 2 of Protocol 1), even when read in conjunction with the right to non-discrimination (Article 14).

MichelleBennett18 February 2012Business & Human Rights

State has a positive obligation to protect those in custody from harm and fully and independently investigate deaths in custody

Eremiasova and Pechova v The Czech Republic [2012] ECHR Application No 23944/04 (16 February 2012)

In this case the European Court held that the Czech Republic had violated Article 2 (right to life) of the European Convention on Human Rights. The Court clarified the positive duty of States to take active measures to protect those in their custody from harm, including self-harm, and reiterated the importance of providing an adequate, impartial and independent investigation into deaths in custody. It also commented upon the admissibility requirement that all domestic remedies be exhausted, noting that applicants will not be required to pursue domestic remedies which can only result in compensation when the efficiency of an investigation into a death possibly caused by the State is brought into question. The Court held that the State should pay compensation to the applicants.

MichelleBennett17 February 2012Prisoner Rights, Human Rights Law & Institutions

European Court considers environmental safety risks and the right to respect for family life and the home

Hardy and Maile v United Kingdom [2012] ECHR 261 (14 February 2012)

The applicants challenged planning permits granted for the operation of liquefied natural gas (“LNG”) terminals in the UK, alleging that the marine risk of a possible collision in the harbour leading to the escape of LNG had not been properly assessed. The European Court of Human Rights found that there was a “coherent and comprehensive legislative and regulatory framework governing the activities in question” and that “extensive reports and studies” had been carried out in relation to the terminals. This was sufficient to fulfil the UK’s obligation to secure the applicants’ right to respect for their private lives and homes under Article 8 of the European Convention of Human Rights.

MichelleBennett15 February 2012Human Rights Law & Institutions, Privacy, Housing

Civil partners succeed in discrimination claim against religious hoteliers who refused double bed

Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012) Summary

The England and Wales Court of Appeal held that a hotel policy of providing double rooms only to married persons constituted unlawful direct discrimination on the grounds of sexual orientation against persons in a civil partnership. The hoteliers submitted that the policy, a manifestation of their genuinely held religious beliefs, was protected by articles 8 and 9 of the European Convention on Human Rights. The Court held that, to the extent that anti-discrimination regulations limit such manifestation, the limitations were necessary in a democratic society for the protection of the rights and freedoms of same-sex couples.

MichelleBennett11 February 2012Discrimination & Equality, LGBTI Rights, Democratic Freedoms

Discrimination and hate speech on the basis of sexual orientation: is it protected by freedom of expression?

Vejdeland & Ors v Sweden [2012] ECHR 242 (9 February 2012)

The European Court of Human Rights has rejected an application brought by four Swedish nationals who were convicted under Swedish domestic law for making offensive and prejudicial comments against homosexuals. The applicants sought an order from the Court that the convictions violated their freedom of expression as protected under Article 10 of the European Convention of Human Rights. The decision constitutes the first time the Court has applied principles relating to hate speech to comments made against homosexuals.

MichelleBennett10 February 2012Discrimination & Equality, Democratic Freedoms, LGBTI Rights

‘Operational duty’ to protect voluntary psychiatric patient from suicide

Rabone & Anor v Pennine Care NHS Foundation Trust [2012] UKSC 2 (8 February 2012)

The United Kingdom Supreme Court has extended the obligations that the right to life places on the state by holding that a hospital breached its duty to protect a voluntary psychiatric patient from the risk of suicide.

MichelleBennett8 February 2012Disability & Mental Health, Health

Freedom of press: Balancing the right of expression and the right to privacy

Axel Springer AG v Germany [2012] ECHR 227 (7 February 2012)

The European Court of Human Rights has allowed an appeal by a newspaper publisher against an injunction preventing it from reporting details of criminal proceedings brought against a television actor. The Grand Chamber of the Court found that the injunction constituted an unjustifiable interference with the right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

MichelleBennett7 February 2012Democratic Freedoms, Privacy

Princess Caroline of Monaco fails in ECHR bid to protect privacy

Von Hannover v Germany (No. 2) [2012] ECHR 228 (7 February 2012)

This case is an application to the European Court of Human Rights by Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover, following the refusal by German courts to prohibit further publication of photos taken of them while on holiday. The Court’s task was to determine whether the manner in which the relevant domestic laws were applied to the applicants infringed their right to respect for their private and family life (guaranteed under article 8 of the Convention). This required an examination of the balance struck between the right to privacy and the right to freedom of expression (guaranteed under article 10).

MichelleBennett7 February 2012Democratic Freedoms, Privacy

Limitations on the rights of freedom of speech and association: Lawful and justified?

City of London v Samede & Ors [2012] EWHC 34 (QB) (18 January 2012)

The England and Wales High Court upheld claims brought by the City of London Corporation for possession of highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants, part of the Occupy protest movement, had set up a protest camp. Lindblom J held that this was a "lawful and justified" interference with the defendants' rights of freedom of expression and association under articles 10 and 11 of the European Convention on Human Rights.

MichelleBennett18 January 2012Democratic Freedoms

Do whole life sentences amount to torture, inhuman or degrading treatment or punishment?

Vinter & Ors v United Kingdom [2012] ECHR 61 (17 January 2012)

The applicants, Douglas Vinter, Jeremy Bamber and Peter Moore, are currently serving life sentences for murder in the United Kingdom. Each has received a whole life order meaning that they will never be released from prison, other than at the discretion of the Secretary of State on compassionate grounds (such as terminal illness or serious disability). The three appealed their sentences to the European Court of Human Rights alleging violations of articles 3 (prohibition on torture, inhuman and degrading treatment and punishment), 5(4) (the right to speedy court proceedings to determine the lawfulness of detention), 6 (the right to a fair trial) and 7 (the prohibition of retrospective criminalisation) of the Convention for the Protection of Human rights and Fundamental Freedoms. The Court rejected each of these claims.

MichelleBennett17 January 2012Prisoner Rights

Deportation to states that practice torture

Abu 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.

MichelleBennett17 January 2012Foreign Policy, Counter-terrorism

Incapacity, inhuman or degrading treatment, and the right of mentally ill persons to access the courts

Stanev v Bulgaria [2012] ECHR 46 (17 January 2012)

The Grand Chamber of the European Court of Human Rights held that a man who had been declared partially incapacitated and placed in a dilapidated psychiatric home had suffered a number of violations of his human rights. The Grand Chamber emphasised that detention other than in accordance with domestic law is a violation of the right to liberty. Moreover, an aggregate of factors such as inadequate living conditions and lengthy detention can amount to inhuman or degrading treatment. Finally, incapacitated persons must have access to the courts for judicial review of both their living conditions and their legal status.

MichelleBennett17 January 2012Prisoner Rights, Disability & Mental Health, Human Rights Law & Institutions

The use of restraints against young people in Secure Training Centres

The Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin) (11 January 2012)

This decision of the England and Wales High Court held that whilst certain measures had been unlawfully perpetrated against young people in secure training centres, the Court had no jurisdiction to grant an order that the victims be identified and informed of their legal rights.

MichelleBennett11 January 2012Prisoner Rights, Child Rights

Journalistic access to prisons and the right to freedom of expression and information

British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad [2012] EWHC 13 (Admin) (11 January 2012)

In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently detained in prison without charge and whose extradition has been sought by the USA. The BBC also wished to broadcast parts of the interview in a programme looking at the treatment of detainees like Mr Ahmad and extradition arrangements with the USA. The Secretary of State refused this permission. The High Court of England subsequently held this decision was incompatible with the right to freedom of expression and as such was unlawful.

MichelleBennett11 January 2012Democratic Freedoms

Removal of children without automatic judicial review held to be a breach of children’s rights

C 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.

MichelleBennett11 January 2012Child Rights, Foreign Policy