Supreme Court of Victoria finds Director of Housing failed to consider human rights when deciding to evict mother and son

Burgess & Anor v Director of Housing & Anor [2014] VSC 648 (17 December 2014)

Macaulay J held that in making the decision to apply for a warrant of possession:

  1. The Director of Housing was obliged by law to consider the facts surrounding Ms Burgess’s health and the significance of maintaining the rented premises to her health and wellbeing.  The Director’s failure to do this constituted a jurisdictional error.  
  2. The Director was obliged by law to consider the human rights of Ms Burgess and her son identified in s 17 of the Charter.  Failure to take these rights into account made the Director’s decision unlawful under s 38 of the Charter [243]-[244].

His Honour made a declaration that the decision to apply for the warrant was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter [248]. He invited further submissions as to any further orders that should follow from his findings. 

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MichelleBennettChild Rights, Housing
Individualised consideration, not stereotypes, needed when assessing sexuality-based refugee claims

A, B, C v Staatssecretaris van Veiligheid en Justice (European Court of Justice, C‑148/13 C‑149/13, C‑150/13, 2 December 2014)

The European Court of Justice examined Dutch authorities’ assessment of the credibility of men seeking asylum on the basis of feared persecution because of their declared homosexuality. The Court found that assessment of the credibility of a person’s claim to be homosexual should be sensitive to individual circumstances, not based on stereotypes, and consistent with fundamental human rights.

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MichelleBennettRefugee & Asylum Seeker Rights, LGBTI Rights, Discrimination & Equality
VCAT has jurisdiction to consider claims of Charter breaches

Goode v Common Equity Housing [2014] VSC 585 (21 November 2014)

The Supreme Court has confirmed that a person seeking redress for a breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is able to obtain relief or remedy based on Charter unlawfulness, even where their non-Charter claim is unsuccessful or not determined.

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MichelleBennettDisability & Mental Health, Housing, Human Rights Law & Institutions
High Court upholds Queensland “anti-bikie laws”

Kuczborski v Queensland [2014] HCA 46  (14 November 2014)

The High Court has upheld new offence-creating provisions of the Criminal Code Act 1899 (Qld) and new provisions of the Liquor Act 1992 (Qld), introduced as part of a package of legislation intended to deter criminal gangs and criminal organisations, including criminal motor cycle gangs.

In relation to other provisions enacted, the Court found that the plaintiff, a Hells Angel, did not have standing as he had not been charged with a relevant offence and did not contend that he intended or was likely to commit one. Accordingly, his exposure to increased penalties or bail consequences did not constrain his freedom to act.

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MichelleBennettDemocratic Freedoms
South African Police Service ordered to investigate alleged torture committed in Zimbabwe by and against Zimbabwean nationals

National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another [2015] 1 SA 315 (Constitutional Court) (30 October 2014)

The Constitutional Court of South Africa (‘Court’) has found that the South African Police Service (‘SAPS’) is permitted under international law and has a duty under domestic law to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals, despite none of the suspects being present in South Africa.

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MichelleBennettHuman Rights Law & Institutions
VCAT declares local council breached resident’s Charter rights

Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013)

The Victorian Civil and Administrative Tribunal has declared that a local council breached a resident’s human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) when it banned him from accessing its buildings. The Tribunal’s declaration was part of its orders about the appropriate remedy in a claim of discrimination under the Equal Opportunity Act 2010 (Vic) (‘EOA’).

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MichelleBennettDiscrimination & Equality, Disability & Mental Health
Canadian Supreme Court holds Iran immune from torture charges

Kazemi Estate v Islamic Republic of Iran [2014] 3 SCR 176 (10 October 2014)

On 10 October 2014, the Supreme Court of Canada dismissed proceedings brought by the son of a woman tortured in Iran against the Iranian head of state and two other public officials. The Court held that the Iranian officials were immune from the jurisdiction of Canadian courts by virtue of the State Immunity Act RSC 1985, c. S-18 (‘SIA’). In particular, the operation of the SIA does not deprive a person of a right to a fair hearing in accordance with the principles of fundamental justice, nor does it impinge on the right not to be deprived of life, liberty and security of the person

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MichelleBennettHuman Rights Law & Institutions, Democratic Freedoms
Appeal to Occupy Melbourne decision dismissed

Kerrison v Melbourne City Council [2014] FCAFC 130 (3 October 2014)

The Full Court of the Federal Court has dismissed an appeal against a decision in favour of the City of Melbourne regarding the Occupy Melbourne protests in 2011.

The decision has implications for how the Charter of Human Rights and Responsibilities Act 2006  applies to public authorities as the Court confirmed the primary decision that the Charter’s obligation ‘to act’ compatibly with human rights does not apply to the making of local laws by a council. In relation to the removal of Ms Kerrison’s “tent dress” at the protest, which was not considered in the primary decision, the Court found the council officers did not breach the right to freedom of expression.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
Russian delay for Scientology in breach of religious freedoms protected in European Convention

Church of Scientology of St Petersburg & Others v Russia (European Court of Human Rights, Chamber, Application No 47191/06, 2 October 2014)

The European Court of Human Rights (‘Court’) has held that a failure to allow the Church of Scientology to register in Russia was in breach of the rights to freedom of religion and freedom of association which are protected under the European Convention on Human Rights (‘Convention’). Russian law required religious groups to be present in Russia for 15 years before applying to be registered. The lack of precision and clarity in the legislation, which, in this case, allowed the Russia Government to delay registration for more than 10 years, rendered the interference unlawful. As for the 15 year requirement, the Court, in obiter, held that such a requirement lacked a legitimate aim

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
UK High Court upholds Council's decision to close aged-care home

Karia, R (on the application of) v Leicester City Council [2014] EWHC 3105 (Admin) (30 September 2014)

The UK High Court of Justice has dismissed an application seeking judicial review of a decision made by Leicester City Council to close a Council run aged care home. In reaching this decision, Sir Stephen Silber (sitting as a High Court Judge) confirmed that when determining an alleged infringement of a Convention right the enquiry must be whether rights have been violated rather than if they will or may be violated. His Honour also confirmed that the Public Sector Equality Duty (‘PSED’), contained in the Equality Act 2010 (UK) (‘EA’), 'is not a back door by which challenges to the factual merits of the decision may be made'.

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MichelleBennettDemocratic Freedoms, Housing, Discrimination & Equality, Human Rights Law & Institutions
ECHR Grand Chamber finds deprivation of liberty does not violate EU Convention where carried out in accordance with Geneva Conventions

Hassan v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No 29750/09, 16 September 2014)

In September 2014, the Grand Chamber of the European Court of Human Rights held that the deprivation of liberty in the context of international armed conflict that is consistent with the four Geneva Conventions does not violate article 5 of the EU Convention, which seeks to safeguard liberty and security.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions
High Court invalidates Minister’s decision to grant visa that prevented the granting of a protection visa to asylum seeker

Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34 (11 September 2014)

The High Court unanimously held invalid the grant by the Minister for Immigration and Border Protection of a temporary safe haven visa to the plaintiff – a stateless asylum seeker – which had the effect of precluding the plaintiff from making a valid application for a protection visa, in circumstances where the plaintiff’s detention had been prolonged for the purpose of the Minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice.

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MichelleBennettRefugee & Asylum Seeker Rights
Extradition a violation of the prohibition against inhuman or degrading treatment

Trabelsi v Belgium (European Court of Human Rights, Chamber, Application No 140/10, 4 September 2014)

The European Court of Human Rights (ECHR) has found that the extradition by the Belgian Government of a Tunisian national, Mr Trabelsi, from Belgium to the United States (US), where he was to be prosecuted on charges of terrorist offences and liable to be sentenced to life in prison, was a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Article 3 prohibits inhuman or degrading treatment. His right to individual petition under Article 34 of the Convention was also found to have been breached.

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MichelleBennettPrisoner Rights, Counter-terrorism, Human Rights Law & Institutions
CEDAW Committee rules sexual harassment case inadmissible

M S v Philippines, Communication No. 30/2011, UN Doc. CEDAW/C/58/D/30/2011

A sexual harassment case was recently declared inadmissible by the Committee on the Elimination of Discrimination against Women. The complaint concerned the use of gender stereotypes by the domestic courts in the author’s case, amounting to a breach of Articles 5 and 11 of CEDAW. Despite clear examples of gender stereotypes being considered by the domestic courts, the majority of the Committee held there was no evidence that those stereotypes had negatively impacted the domestic court's decision. The dissenting Committee Member found a breach of CEDAW had been substantiated but that the claim was inadmissible as the author had delayed in bringing the case to the Committee.

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MichelleBennettDiscrimination & Equality
States must take steps to prevent, redress and prosecute acts of violence against women

González Carreño v Spain, Comm. No. 47/2012, UN Doc. CONVENTION/C/58/D/47/2012 (2014)

The Committee on the Elimination of Discrimination Against Women affirmed that, in matters of child custody and visitation, the best interests of the child must be a central concern and that national authorities must take into account the existence of a context of domestic violence when making decisions.  The failure of State parties to exercise due diligence to prevent violations of rights or to investigate and punish acts of violence by a marital party will amount to a breach of the Convention.  It is not sufficient for a State party to rely upon notions of formal equality in making decisions as to parental custody.

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MichelleBennettDiscrimination & Equality
Respecting right to family life and controlling immigration – striking a fair balance

Mugenzi v France (European Court of Human Rights, Chamber, Application No 52701/09, 10 July 2014)
Tanda-Muzinga v France (European Court of Human Rights, Chamber, Application No 2260/10, 10 July 2014)
Senigo Longue and Others v France (European Court of Human Rights, Chamber, Application No 19113/09, 10 July 2014)

In each case, the French authorities refused to issue visas for the applicants’ children. The authorities alleged that there were difficulties in establishing the children’s civil registration status as the birth certificates provided in support of the visa applications were not authentic. The applicants appealed, claiming that the difficulties they encountered in the Family Reunification Procedure constituted a violation of Article 8 (right to respect for private and family life) of the European Convention of Human Rights.

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MichelleBennettRefugee & Asylum Seeker Rights, Child Rights, Discrimination & Equality
Separation of father from wife and children violates right to family life

M.P.E.V v Switzerland (European Court of Human Rights, Second Section, Application No 3910/13, 8 July 2014)

The European Court of Human Rights found that Switzerland’s intended expulsion of an Ecuadorian man who had unsuccessfully claimed asylum would violate his, his second daughter’s and his wife’s right to a family under article 8 of the European Convention on Human Rights, despite the man’s previous criminal convictions and his separation from his wife.

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MichelleBennettChild Rights, Refugee & Asylum Seeker Rights, Disability & Mental Health
Failing to consult patients before imposing a ‘do not resuscitate’ notice can be unlawful

The Queen on the application of David Tracey (personally and on behalf of the estate of Janet Tracey (Deceased)) v Cambridge University Hospitals NHS Foundation Trust and Others [2014] EWCA Civ 82 (17 June 2014)

This case concerns a patient's right to be consulted by clinicians prior to the imposition of a Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) notice on her file. The Court of Appeal accepted that this decision engages the rights contained in article 8 of the European Convention on Human Rights (the Convention). In these circumstances, article 8 creates a presumption that patients will be consulted before a DNACPR decision, unless there is a convincing reason to justify exclusion. The Court made a declaration that in failing to consult the Appellant prior to imposing a DNACPR notice, without an appropriate justification, the Cambridge University Hospitals NHS Foundation Trust (the Trust) breached article 8 of the Convention.

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MichelleBennettHealth
European Court upholds France's burqa ban

S.A.S v France (European Court of Human Rights, Grand Chamber, Application No 43835/11, 1 July 2014)

On 1 July 2014, the European Court of Human Rights held that a French law prohibiting the concealment of one's face in public places does not breach the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whilst it was held that the prohibition impinges on the freedom of thought, conscience and religion, and the right to respect for private and family life, the government was entitled to impose the prohibition on the grounds that the ban protects the rights and freedoms of others.

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MichelleBennettPrivacy, Democratic Freedoms, Human Rights Law & Institutions, Discrimination & Equality
US Supreme Court rules on buffer zone outside reproductive health clinic

McCullen v Coakley, 573 US ___ (2014) (26 June 2014)

The United States Supreme Court has overturned a Massachusetts law creating a 35 foot buffer zone outside reproductive health facilities.  The Supreme Court held that the law violates the first amendment of the US Constitution because, while the buffer zone serves the State’s legitimate interests in maintaining public safety and preserving access to healthcare, it ‘burden[s] substantially more speech than is necessary’.

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MichelleBennettDemocratic Freedoms, Privacy, Health, Women’s Rights
Minister not permitted to cap the granting of protection visas

Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014)
Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25 (20 June 2014)

In two judgments handed down on 20 June 2014, the High Court held that section 85 of the Migration Act 1958 (Cth) does not empower the Minister for Immigration and Border Protection to make a determination limiting the number of protection visas that may be granted during a financial year. Accordingly, the Minister's determination of 4 March 2014 limiting the maximum number of protection visas for the financial year ending on 30 June 2014 to 2,733 was invalid.

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MichelleBennettDemocratic Freedoms, Refugee & Asylum Seeker Rights
Laws requiring disclosure of cautions for minor past offences breach right to private life

R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35 (18 June 2014)

The UK Supreme Court considered the right to privacy in the context of laws requiring the issuance of criminal record certificates that contain references to minor past offences. The Court held that laws requiring the disclosure of data relating to cautions and warnings given for minor offences constituted an interference with the right to respect for private life enshrined in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

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MichelleBennettPrivacy
High Court rejects challenge to offshore processing

Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 (18 June 2014)

The High Court has unanimously rejected a challenge to the constitutional validity of the sections of the Migration Act which give the Immigration Minister the power to designate regional processing countries. The High Court also rejected a challenge to the Minister’s exercise of this power with respect to the decision to designate PNG as a regional processing centre.

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MichelleBennettRefugee & Asylum Seeker Rights
Mandatory registration of young sex offenders fails to give proper consideration to best interests of children

J v National Director of Public Prosecutions and Another (CCT 114/13) [2014] ZACC 13 (6 May 2014)

The Constitutional Court of South Africa has ruled that a law requiring courts to make an order to include the particulars of a sexual offence on a National Register for Sex Offenders (the Register) is unconstitutional when that offender is a child.  The court noted that having particulars of a sexual offence on the Register at a young age could significantly impact on the child's life, including their ability to gain employment.  The Court found that the mandatory nature of the law infringes on the right of child offenders to have their best interests considered as a matter of paramount importance and was therefore contrary to section 28(2) of the South African Constitution (the Constitution).

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MichelleBennettChild Rights
UK Government’s detention regime in Afghanistan breaches human rights

Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) (2 May 2014)

In an important and wide-ranging judgment examining the basis and scope of UK powers to detain in Afghanistan, the UK High Court has ruled that the UK government breached Afghan law and the European Convention on Human Rights (ECHR) by detaining a suspected insurgent for a prolonged period without charge for the purpose of intelligence gathering. The Court found that the UK has no lawful authority to detain suspects beyond 96-hours before handing them over to the Afghan authorities and, in developing a detention regime that permitted individuals to be held indefinitely and without judicial oversight, it had acted in “stark violation” of its human rights obligations.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions
Calling a politician a “cerebral bankrupt” protected by freedom of expression

Mladina D.D. Ljubljana v Slovenia (European Court of Human Rights, Chamber, Application No 20981/10, 17 April 2014)

A Slovenian publisher was successfully sued for defamation for an article criticising a politician for his speech opposing legal recognition of same-sex partnerships. The company claimed that the Slovenian courts’ award of damages against it violated its right to freedom of expression. The European Court of Human Rights found a violation of the right to freedom of expression, as there was a sufficient factual basis for the statements, and in the context of the debate and article as a whole, the criticism could be seen as strong disagreement with the politician’s views, rather than merely an offensive personal insult.

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MichelleBennettDemocratic Freedoms
Christian Youth Camp’s refusal of booking request to same-sex attracted youths was unlawful discrimination

Christian Youth Camps Limited v Cobaw Community Health Service Limited [2014] VSCA 75 (16 April 2014)

The Victorian Court of Appeal has found in favour of a group of young same-sex attracted people in their dispute with a Christian camp provider, in an important test of the religious exemptions under the Equal Opportunity Act 1995 (Vic).

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MichelleBennettLGBTI Rights, Discrimination & Equality, Human Rights Law & Institutions
Indian Supreme Court recognises third gender

National Legal Services Authority v Union of India, Writ Petition No 400 of 2012 with Writ Petition No 604 of 2013, Supreme Court of India (15 April 2014)

The Supreme Court of India has ruled that transgender persons have a right to be legally recognised according to their self-identified gender, including a third gender. Failure to provide such legal recognition amounts to a breach of the right to equality before the law, non-discrimination on the basis of sex and the right to life and liberty with dignity. 

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MichelleBennettLGBTI Rights, Discrimination & Equality
One week of passive smoking not a prisoners’ rights violation

R (Smith) v Secretary of State for Justice [2014] EWCA Civ 380 (1 April 2014)

The England and Wales Court of Appeal has found that exposing a prisoner who is a non-smoker to second hand smoke for seven days by forcing him to share a cell with a smoker did not amount to interference with his rights under either article 8 (the right to privacy) or article 14 (prohibition of discrimination) of the European Convention on Human Rights.

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MichelleBennettPrisoner Rights, Discrimination & Equality, Privacy
Denial of Church membership reveals gap in anti-discrimination legislation

Bakopoulos v Greek Orthodox Parish of Mildura (Human Rights) [2014] VCAT 323 (26 March 2014)

VCAT dismissed a claim of discrimination for the refusal of a parish to grant financial membership to a female congregant. The Tribunal did not address the content of the alleged discrimination because there was no area in the Equal Opportunity Act 2010 (Vic) that applied to the nature of her claim. The case highlights gaps in the drafting of the Equal Opportunity Act 2010 (Vic) that limit the scope of protection against discrimination.

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MichelleBennettDiscrimination & Equality, Women’s Rights
UK Supreme Court provides new test for deprivation of liberty in care arrangements

P v Cheshire West and Chester Council; P and Q (MIG and MEG) v Surrey County Council [2014] UKSC 19 (19 March 2014)

The UK Supreme Court handed down a judgment on the two linked appeals known collectively as the Cheshire West Case. The appeals deal with whether and in what circumstances the care and living arrangements made for a person with a mental impairment will amount to a deprivation of liberty. The Supreme Court found that all three of P, MIG and MEG, in these instances, were deprived of their liberty. The Court allowed appeals in both cases, unanimously in P's and by a majority of 4:3 for MIG and MEG.

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MichelleBennettDisability & Mental Health
Church ban on public worship in languages other than English is not unlawful discrimination

Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 (19 March 2014)

The Church of Jesus Christ of Latter-Day Saints in Queensland undertook a restructure which abolished wards containing predominantly Samoan congregations who conducted services in the Samoan language. The members of those congregations were welcome to attend other congregations, but the services were to be conducted in English and attendees were no longer allowed to use a language other than English in public worship. The Full Court of the Federal Court unanimously held that the Church had not unlawfully discriminated against the Samoan members, contrary to section 9 of the Racial Discrimination Act 1975 (Cth) (RDA), because their rights to freedom of religious expression (and other human rights) were not infringed.

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MichelleBennettDiscrimination & Equality, Democratic Freedoms, Human Rights Law & Institutions
High Court provides greater clarity regarding “inconsistency” and native title rights

Western Australia v Brown [2014] HCA 8 (12 March 2014)

The High Court has upheld a native title claim by the Ngarla People, in a case that involved consideration of common law extinguishment. The Court unanimously found that the rights under the two mineral leases were not inconsistent with the claimed native title rights and interests. Importantly, the case clarifies the concept of “inconsistency” in the context of native title rights.

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MichelleBennettAboriginal & Torres Strait Islander Peoples' Rights
UK police have a human rights obligation to prevent rape through effective investigation and punishment

DSD and NBV v Commissioner of Police of the Metropolis [2014] EWHC 463 (28 February 2014)

The UK High Court has found that systemic failures by police during a criminal investigation may amount to torture, inhuman or degrading treatment under article 3 of the European Convention on Human Rights. The Court held that in cases of particularly severe violent acts, such as rape, the police have a duty to conduct an investigation in a timely and efficient manner. Operational failures by the police meant that a rapist was not apprehended as early as he could have been, leaving him at large to continue to rape a significant number of women. The manner in which the police behaved towards the victims of such crimes was also found to amount to a breach of article 3.

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MichelleBennettPolice, Women’s Rights
Court power to remedy a human rights breach does not need to be expressly included in human rights legislation

LM v Childrens Court of The Australian Capital Territory and The Director of Public Prosecutions for the ACT [2014] ACTSC 26 (24 February 2014)

The ACT Supreme Court has confirmed that the ACT Children’s Court has the power to stay proceedings in cases where the Public Prosecutor has breached the Human Rights Act 2004 (ACT). While this case did not merit the grant of a permanent stay of proceedings, such a remedy is available within the existing powers of the Children’s Court in certain circumstances, including where abuse of process is proved.

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MichelleBennettChild Rights, Human Rights Law & Institutions
Discriminatory cap on social benefits found to be lawful

SG & Ors (Previously JS & Ors), R (On the Application Of) v The Secretary of State for Work And Pensions [2014] EWCA Civ 156 (21 February 2014) 

The UK Court of Appeal has held that a cap on housing benefits does not breach the rights of the child, the family or the right to freedom from discrimination. The cap was found to have a discriminatory impact upon women, particularly single mothers and mothers escaping domestic violence. The Court of Appeal considered the cap was justified in light of the legitimate aim of ensuring people return to work.

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MichelleBennettDiscrimination & Equality, Child Rights, Women’s Rights
Airport stop and search of stolen NSA data did not breach freedom of expression

Miranda v Secretary of State for the Home Department & Ors [2014] EWHC 255 (Admin) (19 February 2014)

Police stopped David Miranda at Heathrow airport and confiscated encrypted National Security Agency material that had originally been stolen by Edward Snowden. Mr Miranda was carrying the data to assist a Guardian journalist. The High Court of Justice of England and Wales rejected Mr Miranda’s arguments that the stop and search had interfered with his right to freedom of expression under English common law and the European Convention on Human Rights. The Court held that it was a proportionate measure in the circumstances, and was a permissible restriction prescribed by law in the interests of national security and safety.

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MichelleBennettCounter-terrorism, Privacy, Democratic Freedoms
UK Supreme Court finds asylum seekers’ risk of experiencing torture and inhumane treatment should be measured on an individual basis, not on evidence of systemic breaches in destination country

R (on the application of EM (Eritrea)) v Secretary of State for the Home Department; R (on the application of EM (Eritrea)) (EH) v Secretary of State for the Home Department; R (on the application of EM (Eritrea)) (MA) v Secretary of State for the Home Department; R (on the application of EM (Eritrea)) (AE) v Secretary of State for the Home Department [2014] UKSC 12 (19 February 2014)

The UK Supreme Court has held that returning an asylum seeker to the country whether they first claimed asylum is prohibited, if it can be established that there is a real risk that the person transferred will suffer inhumane or degrading treatment – which is prohibited by article 3 of the European Convention on Human Rights. The Supreme Court overturned the UK Court Appeal’s decision that there needs to be systemic deficiencies in the asylum procedures of the receiving state before a transfer of an asylum seeker should be prevented under the Dublin Regulation.

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MichelleBennettRefugee & Asylum Seeker Rights
Failure to provide minimum standard of maternity leave unlawful

Elisabeth de Blok et al. v. the Netherlands Communication No. 36/2012, UN Doc CEDAW/C/57/D/36/2012 (17 February 2014)

The UN Committee on the Elimination of Discrimination against Women found that the Netherlands’ temporary failure to provide an adequate maternity leave scheme between 2004 and 2008 involved a breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

The case raises interesting questions about the minimum standard of maternity leave required at international law; the ability of a state to meet its human rights obligations through the private sector; and the relationship between maternity leave and gender discrimination laws.

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MichelleBennettDiscrimination & Equality
Use of pepper spray and restraints on a prisoner amounts to inhuman and degrading treatment

Tali v Estonia (European Court of Human Rights, Chamber, Application No 66393/10, 13 February 2014)

The European Court of Human Rights has held that the use of restraints and pepper spray on a prisoner in Estonia amounted to inhuman and degrading treatment, in violation of the European Convention on Human Rights. Pepper spray should never be used in confined spaces or against prisoners who have already been brought under control. Restraints can only be justified to avoid self harm or serious danger to other individuals or prison security.

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MichelleBennettPrisoner Rights
Failure to adequately investigate claim of excessive police force a violation of ECHR

Gramada v Romania (European Court of Human Rights, Chamber, Application No 1497/09, 11 February 2014)

The European Court of Human Rights has found that the failure by Romanian authorities to adequately investigate whether a police officer who shot Mr Gramada in the thigh had used excessive force was violation of the prohibition on torture, inhuman or degrading treatment (article 3, European Convention on Human Rights).

The Romanian authorities and courts had concluded that the police officer was justified in using force in the circumstances, even though his actions were disproportionate to the threat he faced, because he thought he was being threatened by armed men, and was scared and confused. However, the ECtHR noted that this conclusion was based on acceptance of the police officer’s testimony despite its inconsistency with other evidence, and highlighted serious flaws in the investigation, including the failure to obtain a ballistics report, and the failure to reconstruct the events on-site, which was normally standard procedure in these kind of cases. In these circumstances, the criminal investigation that had been conducted did not provide sufficient redress for the violation of Mr Gramada’s rights under article 3. 

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MichelleBennettPolice, Human Rights Law & Institutions
Failure to protect from sexual abuse constitutes violation of freedom from inhuman and degrading treatment

O'Keeffe v Ireland (European Court of Human Rights, Grand Chamber, Application No 35810/09, 28 January 2014) 

The Grand Chamber of the European Court of Human Rights found that the State of Ireland failed in its obligation to protect the applicant from sexual abuse she suffered as a child in an Irish National School and therefore violated her rights under article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). This case is not concerned with the responsibility of the perpetrator, but rather with the responsibility of the State, and whether the State ought to have been aware of the risk of sexual abuse of minors in Irish National Schools at the relevant time and whether adequate legislative protection was in place.

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MichelleBennettChild Rights, Human Rights Law & Institutions