Bugmy v The Queen [2013] HCA 27 (2 October 2013)
After considering the impact of Aboriginality on sentencing for the first time in 30 years, the High Court found that the fact that Aboriginal Australians “as a group are subject to social and economic disadvantage measured across a range of indices” says “nothing about a particular Aboriginal offender” but held that a background of social deprivation remains a relevant consideration for repeat offenders.
Read MoreCase of Soyler v Turkey, [2013] ECHR, Application No. 29411/07 (17 September 2013)
The European Court of Human Rights has held that Turkish laws which disenfranchise those convicted of intentional crimes are automatic and indiscriminate and thus a violation of article 3 of the European Convention on Human Rights.
Read MoreHer Majesty The Queen v Stephanie Mok, 2014 ONSC 64 (2 August 2013)
The Ontario Superior Court of Justice held that videotaping a detainee using the toilet in a police cell was a breach of her right to be free from unreasonable search and seizure. However, this breach of her privacy did not warrant a stay of the criminal proceedings against her.
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 MoreAnchugov and Gladkov v Russia [2013] ECHR, Application Nos 11157/04 and 15162/05 (4 July 2013)
The European Court of Human Rights unanimously held that the Russian Federation’s laws denying prisoners the right to vote violated article 3 of Protocol 1 (right to free elections) of the European Convention on Human Rights.
Read MoreState of NSW v Kable [2013] HCA 26 (5 June 2013)
The High Court has found that the State had detained Mr Kable with lawful authority, notwithstanding that the source of that lawful authority was subsequently struck down on constitutional grounds. As a result Mr Kable had no remedy in tort for unlawful detention, despite his detention subsequently being held to be unlawful.
Read MoreSalakhov 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.
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 MoreDudley Lee v Minister of Correctional Services [2012] ZACC 30 (11 December 2012)
The Constitutional Court of South Africa affirms that domestic law must provide an effective remedy for breach of rights contained in the South African Bill of Rights and that failure to minimise the risk of contracting a tuberculosis infection in prison breaches the right to humane conditions in detention.
Read MoreOakes and Others v R [2012] EWCACrim 2434 (21 November 2012)
The England and Wales Court of Appeal has held that the discretionary imposition of life sentences with no possibility of parole does not necessarily violate the European Convention on Human Rights’ prohibition on inhuman and degrading treatment or punishment. The decision comes a week before the Grand Chamber of the European Court of Human Rights hears a case addressing similar questions.
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 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 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 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 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 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 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 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 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 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 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.
Read MoreM.S. v United Kingdom [2012] ECHR 804 (3 May 2012)
The European Court of Human Rights has found that a delay in securing appropriate psychiatric treatment for a man who was detained by police constituted “degrading treatment” in breach of article 3 of the European Convention, notwithstanding that the police officers and medical staff involved did not intend to debase or humiliate the man.
Read MoreBabar Ahmad & Ors v United Kingdom [2012] ECHR 609 (10 April 2012)
The European Court of Human Rights was required to consider applications by six men facing extradition from the United Kingdom to the United States on terrorism related charges. The decision of the Court in the case of Babar Ahmad and Others v The United Kingdom indicates the approach the court is taking to the interpretation of article 3 rights under the European Convention on Human Rights. In this case, the Court confirmed that extradition to the US was not a breach of the suspects’ human rights.
Read MoreForrest v Attorney-General [2012] NZCA 125 (2 April 2012)
The New Zealand Court of Appeal has awarded $600 in compensation to a prisoner who experienced two unlawful strip searches in the same day.
Read MoreKing & Ors, R (on the application of) v Secretary of State for Justice [2012] EWCA Civ 376 (27 March 2012)
This case concerned three separate appeals challenging the legality of cellular confinement and segregation procedures, imposed on prisoners who were serving custodial sentences.
Read MoreSonko 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.
Read MoreEremiasova 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.
Read MoreVinter & 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.
Read MoreStanev 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.
Read MoreThe 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.
Read MoreThe Secretary of State for Justice v RB & Anor [2011] EWCA Civ 1608 (20 December 2011)
In this case the UK Court of Appeal considered whether the power to detain a convicted mental health patient continued to apply when the patient was "conditionally discharged" from detainment in hospital to another institution. The Court concluded that it constituted an unlawful continued deprivation of his liberty because of the wording of the Mental Health Act 1983. The decision is important because it upholds the fundamental nature of right to liberty, emphasises the high threshold for its deprivation, and maintains compatibility between the MHA and the European Convention on Human Rights.
Read MoreGrant v Ministry of Justice [2011] EWHC 3379 (QB) (19 December 2011)
In Grant v Ministry of Justice, the High Court of England and Wales dismissed claims by two prisoners that the prison sanitation regime at HMP Albany breached their right under article 3 of the European Convention on Human Rights not to be subjected to degrading treatment or punishment. Hickinbottom J’s judgement provides useful guidance on what must be established for treatment to be considered degrading in the context of imprisonment.
Read MoreTaha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011)
The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – such as intellectual disability or mental illness – before imprisoning that person in lieu of payment of unpaid fines. This duty arises under section 160 of the Infringements Act when read in conjunction with the right to liberty, the right to a fair hearing and the right to equality before the law under the Victorian Charter.
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Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor [2011] EWCA Civ 1540 (14 December 2011)
On 14 December 2011, the England and Wales Court of Appeal overturned a decision of the High Court and issued a writ of habeas corpus requiring the UK Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to make a request to the US Government for the release of Mr Yunus Rahmatullah from the Bagram Air Base in Afghanistan. The Court at first instance described Bagram as “a place said to be notorious for human rights abuses”. Mr Rahmatullah, a Pakistani national who had been captured by the British, had been held at Bagram since June 2004.
Read MoreR, Mousa v Secretary of State for Defence & Anor [2011] EWCA Civ 1334 (22 November 2011)
The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context of an inquiry established by the UK Government to investigate allegations of mistreatment of Iraqis by British troops. The Court found the inquiry did not possess requisite independence because the investigating body was staffed with members of a branch of the military which had been involved in the detention and internment of suspected persons in Iraq during the period under investigation.
Read MoreMandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011)
In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic overcrowding, can amount to inhuman and degrading treatment in breach of article 3 of the European Convention of Human Rights. If a prison does not meet certain minimum standards, the threshold of severity necessary to amount to a breach of article 3 may be crossed even in the absence of a positive intention to humiliate or debase prisoners.
Read MoreSessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor [2011] EWHC 2617 (QB) (13 October 2011)
The High Court of England and Wales considered the circumstances in which the compulsory admission to hospital of non-compliant incapacitated patients under the Mental Health Act 1983 (MHA) may constitute a deprivation of liberty in contravention of article 5 the European Convention of Human Rights (ECHR).
Read MoreEquality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) (3 October 2011)
The High Court of England and Wales has partially upheld claims by the Equality & Human Rights Commision and Mr Al Bazzouni (a former detainee) that Government guidance regarding what British intelligence officers should do if they suspect detainees being interviewed overseas are at risk of torture or cruel, inhuman or degrading treatment is unlawful.
Read MoreMahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011)
The High Court of England and Wales has upheld the right of people under arrest to be given adequate factual and legal reasons for arrest in a timely manner and in a language they understand, in line with article 5(2) of the European Convention on Human Rights. Justice Nicol of the High Court emphasised that “[r]ights under the common law and the Convention are intended to be real rights and confer real benefits. The Claimant was entitled to know, at least in the broadest terms, why he was being arrested.”
Read MoreInga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (29 August 2011)
The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.
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 MoreLM v Latvia [2011] ECHR (Application No 26000/02, 19 July 2011)
In LM v Latvia, the European Court of Human Rights affirmed the importance of ensuring that domestic law provides adequate legal protections to persons with mental illness who are involuntarily detained and treated.
The decision is an important guide as to what may constitute “fair and proper procedures” which ultimately safeguard individuals against the arbitrary deprivation of their liberty in psychiatric institutions.
Read MoreZhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011)
In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State assumes responsibility for a person that it takes into custody, and that, where that person's rights are violated, the State must properly investigate and prosecute those responsible to remedy the violation. The Committee's decision is relevant in a Victorian context because deaths in custody have been and remain an important issue in the Australian political landscape.
Read MoreGubacsi v Hungary [2011] ECHR 1044 (28 June 2011)
In this case, the European Court of Human Rights (the Court) confirmed that ill-treatment of persons in custody by police, if sufficiently serious, may 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). In circumstances where a person enters police custody in good health, and is injured when released, the State bears the onus to provide a plausible explanation of how the injuries were caused.
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 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 MoreFaulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2011] EWCA Civ 349 (29 March 2011)
The Court of Appeal of England and Wales decided Mr Daniel Faulkner was entitled to damages pursuant to section 8(1) of the Human Rights Act 1998 (UK) (HRA) in the sum of £10,000 as a result of being unlawfully detained in breach of Article 5(4) of the European Convention on Human Rights (‘the Convention’).
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.
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