Freedom of Expression and Restrictions on Political Advertising

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TV Vest AS & Rogaland Pensjonisparti v Norway [2008] ECHR 21132/05 (11 December 2008)

In this case, the European Court of Human Rights considered the right to freedom of expression in the context of political advertising in the media.  This judgment again shows that there must be a reasonable relationship of proportionality between the legitimate aim pursued by a statutory prohibition and the means deployed to achieve that aim.

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Court of Appeal Considers Obligation to Interpret Legislation Compatibly with Human Rights under Charter

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RJE v Secretary to the Department of Justice [2008] VSCA 131 (18 December 2008)

In this case, Nettle J of the Victorian Court of Appeal considered the scope and operation of s 32(1) of the Victorian Charter of Human Rights, which provides that ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.

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Right to Life and Positive Obligation to Protect the Lives of Hospital Patients

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Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (10 December 2008)

The House of Lords has held that, pursuant to the right to life, health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’.  This obligation includes a duty to ensure that staff are highly trained, professional and competent and that the policies, procedures and systems in place at the hospital adequately safeguard life.

In addition to this ‘general obligation’, hospitals are under an ‘operational obligation’ to take all reasonable steps and measures to prevent the suicide of any patient that the hospital knows or ought to have known presents a ‘real and immediate’ risk of suicide.

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Are Mandatory Life Sentences without Parole Cruel, Inhuman and Degrading?

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Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)

The House of Lords has held that a mandatory sentence of life imprisonment without parole does not necessarily constitute inhuman or degrading treatment or punishment under art 3 of the European Convention on Human Rights.

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Right to Adequate Health Care in Detention and the Obligation of the State to Conduct an Effective Investigation

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Dzieciak v Poland [2008] ECHR 77761/01 (9 December 2008)

The case concerns the applicant’s complaint about the excessive length of his pre-trial detention and inadequacy of the medical care he had received during that time.  After the applicant’s death, the applicant’s wife alleged that the authorities contributed to her husband’s death by failing to take the appropriate measures to protect his health and life.

The applicant’s wife relied on arts 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 5 (right to liberty and security) of the European Convention.  This case is informative to the interpretation of corresponding provisions in the Charter, being ss 9, 10 and 21 respectively.

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DNA Testing, Right to Private and Family Life and Limitations on Rights

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S and Marper v United Kingdom [2008] ECHR 30562/04 [Grand Chamber] (4 December 2008)

The case of S and Marper v United Kingdom considered whether the retention of DNA and fingerprints from innocent people is consistent with human rights law.

This case will be particularly informative for the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Victorian Charter.

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Right to a Fair Hearing and Pre-Trial Access to Legal Assistance

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Salduz v Turkey [2008] ECHR 36391/02 [Grand Chamber] (27 November 2008)

The Grand Chamber of the European Court of Human Rights has overruled a lower chamber decision, finding that the right to a fair trial (prescribed in art 6 of European Convention on Human Rights) includes access to legal assistance during the investigation stage of a suspect by the police.

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Right to Life and Investigation of Near Deaths in State Custody or Care

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R (on the application of JL) v Secretary of State for Justice [2008] UKHL 68 (26 November 2008)

The House of Lords has recently unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody.

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Protection of Children and Vulnerability to Ill-Treatment

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E (a child), Re (Northern Ireland) [2008] UKHL 66 (12 November 2008)

In this case, the House of Lords decided that a police response to sectarian unrest in Northern Ireland did not constitute a breach by the State of its positive obligation to prevent the infliction of inhuman and degrading treatment upon its citizens under art 3 of the European Convention on Human Rights.

Baroness Hale discussed how the special vulnerability of children impacted upon the State’s obligations under article 3.

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Does the Right to a Fair Hearing Extend to Persons being Investigated for a Criminal Offence where Charges are Imminent?

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Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629 (25 November 2008)

In this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence.

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