Human Rights Case Summaries

Obligation to provide personal information in “Long Form” Census not a breach of the right to privacy

Finley v The Queen, 2013 SKCA 47 (2 May 2013) (Saskatchewan Court of Appeal)

The Court of Appeal for Saskatchewan in Canada has held that the government did not contravene the right to privacy protected under the Canadian Charter of Rights and Freedoms by requesting personal information from individuals through Census questions. A person is compelled to complete the Census, even though they are required to divulge personal information over which they could claim the right to privacy in other, non-regulatory settings.

MichelleBennett2 May 2013Privacy

Courts may stay criminal trials where absence of instructing solicitor likely to cause unfair trial

R v Chaouk [2013] VSCA 99 (2 May 2013)

The Victorian Court of Appeal has unanimously confirmed that a court can stay a criminal trial where the absence of an instructing solicitor on a day to day basis throughout the trial is likely to result in an unfair trial. The decision upholds the first instance finding by Justice Lasry in R v Chaouk [2013] VSC 48 (15 February 2013).

MichelleBennett2 May 2013Human Rights Law & Institutions

Display bans on tobacco products limit freedom of expression, but justifiably so

MichelleBennett1 May 2013

UK High Court of Justice holds 17 year olds should be treated as children in the criminal justice system

The Queen on the Application of HC (a child, by his litigation friend CC) v The Secretary of State for the Home Department and Others [2013] EWHC 982 (Admin) (25 April 2013)

In the United Kingdom, 17 year olds apprehended by police are treated as adults. The High Court of Justice has held that to treat 17 year olds as adults offends the UN Convention on the Rights of the Child, which informs the UK’s obligations under the European Convention on Human Rights and the Human Rights Act 1998 (UK). Accordingly, the UK must adapt its existing practices so that 17 year olds are treated as children. The law should promote the child’s best interests and provide special protections appropriate to their age.

MichelleBennett25 April 2013Child Rights, Human Rights Law & Institutions

ATMs and other banking services must be accessible to persons with disabilities

Nyusti and Takács v Hungary, Un Doc CRPD/C/9/D/1/2010 (23 April 2013)

The UN Committee on the Rights of Persons with Disabilities (Committee) held that member states must establish minimum standards to ensure accessibility to banking services for people with disabilities in order to comply with their obligation to avoid discrimination on the basis of disability.

MichelleBennett23 April 2013Disability & Mental Health, Discrimination & Equality

The Court’s parens patriae jurisdiction allows it to order the deprivation of a child’s liberty for protective purposes where statutory powers are inadequate

Re Beth [2013] VSC 189 (23 April 2013)

The Supreme Court of Victoria has held that a Court’s exercise of parens patriae jurisdiction can allow it to grant orders substantially restricting the liberty of a child where such orders are in a child’s best interests and necessary for the child’s ongoing care and protection. The Court further held that neither the statutes in issue nor the Victorian Human Rights Charter operate to exclude the exercise of parens patriae jurisdiction.

MichelleBennett23 April 2013Human Rights Law & Institutions, Child Rights

Ban on paid political advertising not a violation of the right to freedom of expression

Animal Defenders International v The United Kingdom, [2013] ECHR (Application no. 48876/08) (22 April 2013)

The Grand Chamber of the European Court of Human Rights held, by a majority of nine to eight, that the long-standing ban on paid political advertising on television and radio in the United Kingdom does not contravene the right to freedom of expression in article 10 of the European Convention on Human Rights.

MichelleBennett22 April 2013Democratic Freedoms

Human rights abuses, corporate liability and extraterritorial application of the Alien Tort Statute

Esther Kiobel, Individually and on behalf of her late husband Dr. Barinem Kiobel, et al, Petitioners. v. Royal Dutch Petroleum Co. et al., 569 US (2013) (17 April 2013)

The United States Supreme Court has found that the Alien Tort Statute, used for decades by survivors of human rights abuses to seek redress, has no application to violations committed in other countries unless there is a strong connection with the US. The Court expanded the presumption against extraterritorial application to limit the scope of the Statute. The Justices of the Court agreed that mere presence of a corporation in the US would not of itself demonstrate a strong enough link to bring alleged extraterritorial human rights violations within the Statute’s ambit. However, the Court declined to address the broader question of corporate liability under the Alien Tort Statute.

MichelleBennett17 April 2013Human Rights Law & Institutions

European court rejects extradition request on basis of acute mental illness

Aswat v The United Kingdom, ECHR 2013 (Application no. 17299/12) (16 April 2013)

The European Court of Human Rights has unanimously held that the extradition of the applicant from the UK to the US would violate article 3 of the European Convention on Human Rights because of the severity of the applicant's mental illness.

MichelleBennett16 April 2013Disability & Mental Health, Counter-terrorism

No right to an effective investigation of cruel, inhuman or degrading treatment under the Victorian Charter

Bare v Small [2013] VSC 129 (Unreported, 25 March 2013)

The Supreme Court of Victoria dismissed an application seeking judicial review of two decisions by the Office of Police Integrity not to investigate a complaint of cruel, inhuman or degrading treatment by an officer of Victoria Police.

MichelleBennett25 March 2013Police

Where the exercise of a right to speak freely crosses a red line

Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) (22 March 2013)

The English High Court of Justice held that Transport for London's decision to prevent the Core Issues Trust from advertising a confrontational message against lesbians, gay men, bisexual and transgender individuals on London's bus network did not contravene Transport for London's duty to act compatibly with the European Convention on Human Rights.

MichelleBennett22 March 2013LGBTI Rights, Discrimination & Equality, Democratic Freedoms

Police retention of personal information may breach privacy, even when information is publicly available or legally obtained

Catt v ACPO and Ors; T v Commissioner of Police of the Metropolis and Anor [2013] EWCA Civ 192 (14 March 2013)

The English Court of Appeal upheld two appeals from the Divisional Court regarding the right to respect to private life under article 8(1) of the European Convention of Human Rights and the retention of information by the police. The Court found that, even in cases where the collection of information did not breach the right to privacy or the information was publicly available, systematic collation and retention of such information may amount to an unjustifiable infringement of the right to privacy.

MichelleBennett14 March 2013Police, Privacy

Lack of access to adequate medical treatment for prisoners can be considered cruel, inhuman or degrading treatment or torture

Salakhov and Islyamova v Ukraine [2013] ECHR, Application No. 28005/08

The European Court of Human Rights has reaffirmed the principle of international human rights law that prisoners should not be subjected to hardship or constraint other than that which necessarily results from their deprivation of liberty. Prisoners must be treated with humanity and dignity, and their detention should not prevent them from accessing health care in conditions comparable to those enjoyed by patients in the outside community.

MichelleBennett14 March 2013Health, Prisoner Rights

European court rejects double standard for freedom of expression in France

Eon v France, ECHR 2013 (Application No. 26118/10)

The European Court of Human Rights has upheld a French activist’s appeal against a fine for offending the French President when he held a placard with the French equivalent of “get lost, you prick” while the President was at a public event.

MichelleBennett13 March 2013Democratic Freedoms

Magistrates must inquire before imprisoning people with special circumstances for unpaid fines

Victoria Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37

The Court of Appeal held that there is a duty on Magistrates to inquire into whether infringement offenders have disabilities such as mental illness or intellectual disability, or other special circumstances, before making an imprisonment order in respect of unpaid fines. This duty is a consequence of a proper construction of the relevant statutory provision, section 160 of the Infringements Act 2006 Vic. This construction is supported by section 32 of the Charter, as it is more compatible with the rights to equality, liberty and a fair hearing.

MichelleBennett4 March 2013Human Rights Law & Institutions

Provision penalising offensive postal communications not an unconstitutional burden on political communication

Monis v The Queen; Droudis v The Queen [2013] HCA 4 (27 February 2013)

The High Court of Australia has split 3:3 on whether a provision of the Criminal Code (Cth) making it an offence for a person to use a postal or similar service in an offensive way is invalid as an impermissible burden on the freedom of communication about government or political matters implied in the Australian Constitution (“implied freedom”). French CJ, Hayne and Heydon JJ separately answered the question in the affirmative, while Crennan, Kiefel and Bell JJ jointly answered in the negative. Pursuant to section 23(2)(a) of the Judiciary Act 1903 (Cth), which deals with equally divided opinions of the Court, the decision appealed from — that of the NSW Court of Criminal Appeal that the provision is valid — was affirmed.

MichelleBennett27 February 2013Human Rights Law & Institutions

Street preacher case confirms limits on freedom of political communication

Attorney-General for South Australia v Corporation of the City of Adelaide and Ors [2013] HCA 3

This High Court decision concerns the scope of the implied freedom of political communication under the Australian Constitution. Specifically, it considered the second part of the test from Lange v Australian Broadcasting Corporation 189 CLR 520 – whether a by-law was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative democracy as the constitutionally prescribed system of government.

MichelleBennett27 February 2013Democratic Freedoms

Balancing of the right to family life against the protection of the child

J (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.

MichelleBennett20 February 2013Child Rights, Privacy, Foreign Policy

Examining discrimination in second-parent adoption

X v Austria [2013] ECHR 057

The Grand Chamber of the European Court of Human Rights has found that where second-parent adoption is available for unmarried different-sex couples, the impossibility of second-parent adoption by same sex couples is discriminatory and violates articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

MichelleBennett19 February 2013Discrimination & Equality, LGBTI Rights

Urban renewal program held to be eviction “through the back door”

Motswagae and Others v Rustenburg Local Municipality and Another [2013] ZACC 1

The Constitutional Court of South Africa held that excavation work in close proximity to the applicants’ homes was tantamount to eviction, and that section 26(3) of the Constitution protects the undisturbed occupation of home unless there is a court order.

MichelleBennett7 February 2013Housing

Discriminatory inheritance laws violate rights of illegitimate children

Fabris v France [2013] ECHR, Application no.16574/08

The European Court of Human Rights recently handed down a decision which identified a violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms where an individual “born of adultery” was denied the right – due to the operation of legislation in France – to inherit an equal share of his mother's estate.

MichelleBennett7 February 2013Discrimination & Equality, Child Rights

France’s prohibition on wearing religious symbols in state schools breached ICCPR

Bikramjit Singh v France, UN Doc CCPR/C/106/D/1852/2008

The United Nations Human Rights Committee has found that France's restrictions on the wearing of religious symbols or clothing in state schools breached a student's right to religious freedom under the International Covenant on Civil and Political Rights.

MichelleBennett4 February 2013Democratic Freedoms

Overrepresentation of ethnic minority children in remedial schools reveals racially discriminatory practices

Case of Horvath and Kiss v Hungary [2013], ECHR Application no. 11146/11

The European Court of Human Rights (ECHR) has found that Hungary’s procedures for placing children in schools for children with mental disabilities resulted in discrimination against the Roma, curtailing their enjoyment of the right to education. This is the most recent in a series of ECHR cases addressing the segregation of Roma children within European state education systems.

MichelleBennett29 January 2013Disability & Mental Health, Discrimination & Equality, Child Rights

Criminal record checks breach the right to privacy

R (on the application of T) v Greater Manchester Chief Constable & Ors [2013] EWCA Civ 25 (29 January 2013)

The UK Court of Appeal recently held that disclosure of a person’s convictions or police cautions can breach their right to privacy under the European Convention on Human Rights.

MichelleBennett29 January 2013Privacy

Balancing the freedom of religious expression with the protection against discrimination

Case of Eweida and Others v The United Kingdom [2013] ECHR, Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 (15 January 2013)

In four different applications, the European Court of Human Rights considered the balance the state party had purported to strike between religious freedom and the protection against discrimination. In so doing, the Court afforded a significant “margin of appreciation” to the state party.

MichelleBennett15 January 2013Democratic Freedoms