Kinloch (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2012] UKSC 62 (19 December 2012)
The UK Supreme Court held that an unauthorised police surveillance operation did not breach an individual’s right to respect for their private life under article 8 of the European Convention on Human Rights. This was because the surveillance occurred in public places and the subject of the surveillance had no reasonable expectation of privacy.
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 MoreChagos Islanders v United Kingdom [2012] ECHR, Application no. 35622/04 (11 December 2012)
The European Court of Human Rights rejected, on admissibility grounds, claims by former Chagos Islands inhabitants against the UK. The Court considered the extra-territorial application of the European Convention on Human Rights.
Read MoreA & B v Children’s Court of Victoria & Ors [2012] VSC 589 (5 December 2012)
The plaintiffs were two sisters aged nine and 11 who made an application to the Supreme Court of Victoria seeking to quash orders of the Children’s Court that they lacked maturity to provide instructions to lawyers and denying them leave to be represented by the same legal practitioner. The main issue was the meaning of the expression “maturity to give instructions” under the Children, Youth and Families Act 2005 (Vic).
Read MoreVerlagsruppe News Gmbh and Bobi v Austria [2012] ECHR, Application no 59631/09 (4 December 2012)
The European Court of Human Rights was asked to weigh the right to freedom of expression against the right of individuals to privacy. The Court found that the decision of a domestic Austrian court to restrain publication of a photograph involving a Catholic priest embroiled in a controversy, but not to grant damages for defamation, was a fair balance between articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MoreR v Aucoin, 2012 SCC 66 (30 November 2012)
The Canadian Supreme Court found that, although minor vehicle infractions should not lead to the detention of the driver or the search and seizure of their property, and that those actions are in breach of the driver’s fundamental rights, the particular circumstances of this case are such that the seized substances, in this case cocaine, are admissible as evidence.
Read MoreXY v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012)
The High Court of Justice in Northern Ireland, Queen’s Bench Division, recently considered and granted a sex offender’s application for an interim injunction to force Facebook to remove a page that prima facie constituted unlawful harassment of him.
Read MorePointon v Police [2012] NZHC 3208 (30 November 2012)
The New Zealand High Court dismissed the appellant's offensive conduct conviction for jogging through a public park while naked. The High Court found that the appellant was exercising his right to freedom of expression under section 14 of the Bill of Rights Act 1990 (NZ) , and that the conduct, while "unwelcome", was not sufficiently offensive to amount to a criminal offence.
Read MoreNaidenova et al v Bulgaria, UN Doc CCPR/C/106/D/2073/2011 (27 November 2012)
A Roma community that had lived for over 70 years in an informal settlement on municipal land in Bulgaria was issued with an eviction order on the basis that the buildings were constructed without the proper permits on municipal property. The UN Human Rights Committee considered that, in light of all the circumstances, the execution of the eviction order would violate the right of the Roma community to not be arbitrarily evicted from their homes under article 17 of the International Covenant on Civil and Political Rights unless satisfactory replacement housing was made available to them beforehand.
Read MorePratten v British Columbia (Attorney General) 2012 BCCA 480 (27 November 2012)
The Court of Appeal for British Columbia (Court of Appeal) recently held that the Canadian Charter of Rights and Freedoms (Charter) does not create a positive right for donor conceived individuals to know their biological origins. In this case, the plaintiff argued that by enacting legislation only for the benefit of adoptees, the legislature discriminated against adults conceived from anonymous donors. The plaintiff also argued that the Charter created a positive right for donor offspring to access information about their biological origins. The Court of Appeal rejected these claims, overturning a decision of the Supreme Court of British Columbia (Supreme Court).
Read MoreTelegraaf Media Nederland Landelijke Media BV and Others v The Netherlands [2012] ECHR, Application no. 39315/06 (22 November 2012)
The European Court of Human Rights upheld journalists’ right to protect their sources based on the freedom of expression in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court stressed the importance of weighing up the national interest against the need to protect journalistic sources, finding that an independent review process is of paramount importance in maintaining the right to freedom of expression under the Convention.
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 MoreIrina Fedotova v Russian Federation, UN Doc CCPR/C/106/D/1932/2010, 19 November 2012
The Human Rights Committee found the Russian Federation to have acted in violation of Articles 19 (Freedom of Expression) and 26 (Prohibition of Discrimination) of the ICCPR. The case concerned the treatment of LGBT human rights activist Irina Fedotova, who was arrested by the police and fined by a Russian Administrative Court on grounds that she breached legislation on “public actions aimed at the propaganda of homosexuality among minors” after having displayed posters promoting tolerance towards homosexuality near a local school.
Read MoreIG & Ors v Slovakia [2012] ECHR 1910 (13 November 2012)
The European Court of Human Rights has again declined to rule on whether the forced sterilisation of Roma women in Slovakia constitutes discrimination under article 14 of the European Human Rights Convention. This is the third such forced sterilisation case to come before the Court. The Court held that the sterilisation of two Roma women constituted inhuman and degrading treatment, and that Slovakia had violated the women’s right to respect for private and family life. The Court awarded damages and costs to the applicants. The claim of a third woman was struck out due to her death. The Court denied her children’s standing to continue the application on her behalf.
Read MoreVan Colle v United Kingdom [2012] ECHR, Application No 7678/09 (13 November 2012)
This decision of the European Court of Human Rights considered the scope of a state's obligation to protect life, which is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Court re-stated that authorities have a positive obligation to take action where they know, or ought to know, that there is a “real and immediate risk” to the life of an identified individual from the criminal acts of another. However, in this case, the Court found that the circumstances did not establish such an obligation.
Read MoreCN v United Kingdom [2012] ECHR 1911 (13 November 2012)
The European Court of Human Rights found against the Government of the United Kingdom where authorities failed to adequately investigate allegations of forced domestic servitude because at the time of the offence there was a lacuna in the law.
Read More
MM v United Kingdom [2012] ECHR 1906 (13 November 2012)
In this case, the European Court of Human Rights considered the collection, retention and use of data in regards to the scope of the right to privacy.
Read MoreMoore v British Columbia (Education), 2012 SCC 61 (9 November 2012)
The Supreme Court of Canada has held that the School Act creates a statutory commitment to the education of all children in British Columbia, making the provision of special education a statutory commitment and not a dispensable luxury.
Read MoreCase of Hode and Abdi v United Kingdom [2012] EHCR, Application no. 22341/09 (6 November 2012)
The European Court of Human Rights has held that the United Kingdom Government’s refusal to allow the family reunion of a refugee and his wife under relevant immigration rules was unlawfully discriminatory against the refugee on the basis of his immigration status.
Read MoreRedfearn v the United Kingdom (Application no. 47335/06, ECHR, 6 November 2012)
The European Court of Human Rights has held that the UK’s failure to protect a bus driver against unfair dismissal based on his racist political activities was an unacceptable infringement of his freedom of association.
Read MoreChun Rong v Australia [2012], CAT/C/49/D/416/2010
The UN Committee against Torture found that Australia was in violation of its non-refoulement obligations under the Convention against Torture because it failed to satisfy procedural obligations under article 3.
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 MoreOpitz v Wrzesnewskyj, 2012 SCC 55 (25 October 2012)
A majority of Canada's Supreme Court has found that in a recent election where a number of administrative errors occurred which indicated some voters did not satisfy the identification requirements under the Canada Elections Act, SC 2000, c 9 the election result was nonetheless valid. In reaching its conclusion, the Supreme Court majority favoured a substantive approach that upholds an entitlement to vote based on the right to vote guaranteed under Canada's Charter of Rights and Freedoms, rather than the procedural requirements under the Act.
Read MoreIrene Wilson v The United Kingdom [2012] ECHR, Application no. 10601/09 (23 October 2012)
The European Court of Human Rights found that the Northern Ireland authorities had not failed in their duty to respond to domestic violence perpetrated against the applicant, Ms Irene Wilson, and her complaint was deemed inadmissible.
Read MoreR v Cole 2012 SCC 53 (19 October 2012)
Nude photographs of an underage female student were discovered on a teacher’s work laptop. He was charged with possession of child pornography and unauthorised use of a computer under the Criminal Code R.S.C. 1985, c. C-46. The actions of the police in obtaining possession of the accused’s computer (and files copied from it) raised questions about the accused’s rights to be free from unreasonable state search and seizure under section 8 of the Canadian Charter of Rights and Freedoms.
Read MoreAitken & Ors v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547 (18 October 2012)
In the recent decision of Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development, the Victorian Civil & Administrative Tribunal rejected a claim of direct discrimination made by parents of children at Victorian State primary schools against the Department of Education & Early Childhood Development in relation to its Special Religious Instruction (SRI) program.
Read MoreLund v Boissoin, 2012 ABCA 300 (17 October 2012)
The Court of Appeal of Alberta distinguished between prohibited "hate speech" and speech that may be hurtful and offensive but which is protected by the freedom of expression in its recent decision of Lund v Boissoin, 2012 ABCA 300.
Read MoreSummary On 11 October the secular High Court in Seremban, Negeri Sembilan state, in Malaysia rejected a request to declare unconstitutional a Sharia law that prohibits “wearing women’s attire” or “posing as a woman” in that State. The four applicants are Muslim transgender women who have all been arrested under this law and contend that it violates their fundamental rights enshrined in the Malaysian Constitution, namely the prohibition of discrimination based on gender, freedom of expression, freedom of movement, and the rights to live with dignity, privacy, and to livelihood.
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 MoreSchubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another [2012] ZACC 26 (9 October 2012)
The protection against arbitrary eviction under section 26(3) of the South African Constitution provides that a person cannot be evicted from their home without an order of court made after considering all the relevant circumstances. In a unanimous judgment, the Constitutional Court held that the High Court’s order dismissing an application by residents for immediate re-occupation of their homes after their emergency removal was not a justified order for the purposes of section 26(3). The Constitutional Court set aside the High Court’s orders and ordered that the residents were entitled to occupation of their homes as soon as reasonably possible.
Read MorePlaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46 (5 October 2012)
In this case the full bench of the High Court of Australia considered the lawfulness of the indefinite detention of the plaintiff, a refugee who has been held in detention in Australia without a visa for three years. He had been assessed as a refugee but his application for a visa had been denied on the basis of an adverse security assessment conducted by the Australian Security and Intelligence Organisation.
Read MorePrint Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22 (28 September 2012)
The South African Constitutional Court has enforced the constitutional right to freedom of expression in the recent decision of Print Media South Africa and Another v Minister of Home Affairs and Another. The Court found that recently amended provisions of the Films and Publications Act (No 65 of 1996) infringed the right to freedom of expression found in section 16 of the South African Constitution.
Read MoreAllatt & ACT Government Health Directorate (Administrative Review) [2012] ACAT 67 (28 September 2012)
In this case, the ACT Civil and Administrative Tribunal reviewed decisions made by the ACT Health Directorate refusing applications for access to documents under the Freedom of Information Act 1989 (ACT) and granted the applicant access to the relevant information on the basis that it was not “sensitive information” and not subject to FOI Act exemptions. The Tribunal provided a noteworthy detailed consideration of the methodology of interpretation under the Human Rights Act 2004 (ACT).
Read MoreEH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) (27 September 2012)
The UK High Court has recently considered the lawfulness of the detention of a mentally ill person.
Read MoreCaripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012)
The Victorian Civil and Administrative Tribunal has ruled that a protestor’s right to privacy was not violated by the Victoria Police’s retention of photographs and video footage taken during a protest. The Tribunal accepted that the records were still needed by Victoria Police for legitimate purposes including planning and briefing for further protests and therefore their retention did not violate Victorian privacy laws.
Read MoreFedorchenko and Lozenko v Ukraine [2012] ECHR 1721 (20 September 2012)
In this decision, the European Court of Human Rights considered the procedural obligations of the right to life. It held that States have a duty to conduct an independent and effective investigation into all deaths, and in particular deaths associated with State agents
Read MoreBuckland v United Kingdom [2012] ECHR 1710 (18 September 2012)
The European Court of Human Rights has held that a UK Court of Appeal decision to uphold a possession order against an applicant constituted an unjustified breach of the applicant’s right to respect for her home in violation of article 8 of the European Convention on Human Rights which concerns the right to respect for private and family life. The European Court awarded damages and costs to the applicant, ordering the UK Government to reimburse the applicant if a costs order made against her in the UK Court of Appeal is enforced.
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 MoreNada v Switzerland [2012] ECHR 1691 (12 September 2012)
This is a decision of the Grand Chamber of the European Court of Human Rights regarding how states should approach divergent international law obligations.
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 MoreMagee v Delaney [2012] VSC 407 (11 September 2012)
The Supreme Court of Victoria has recently ruled on the scope of the right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic). In this case, Justice Kyrou held that the right to freedom of expression under the Charter is not engaged where the expression involves property damage, or threats of property damage.
Read MoreThompson v Police [2012] NZHC 2234 (31 August 2012)
The New Zealand High Court dismissed the appellant's appeal against convictions for disorderly behaviour on the ground that the appellant's conduct did not involve an exercise of her right of freedom of expression pursuant to section 14 of the Bill of Rights Act 1990 (NZ). The High Court found that the appellant’s conduct (“calling for stray cats”) had caused a disturbance which the public could not reasonably be expected to endure.
Read MoreUN Human Rights Committee, Korneenko v Belarus, UN Doc CCPR/C/105/D/1226/2003 (29 August 2012)
Viktor Korneenko resides in Gomel, Belarus, where he was the chairperson of the Gomel regional association of Civil Initiatives. This NGO was involved in election monitoring in Belarus. Civil Initiatives was dissolved by court order after Belarusian authorities fined Korneenko and confiscated the organisation’s computer equipment on the basis that Koreenko had violated a temporary presidential decree banning the use of computer equipment, received as “untied foreign aid”, from being used for political purposes.
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 MoreIsatou Jallow v Bulgaria, UN Doc CEDAW/C/52/D/32/2011 (28 August 2012)
The CEDAW Committee found that Bulgaria violated several articles of the Convention on the Elimination of All Forms of Discrimination against Women by failing to investigate domestic violence allegations, failing to take domestic violence into account in making court orders and failing to provide the complainant with information regarding the whereabouts of her child.
Read MoreRussell v Pangallo [2012] ACTMC 4 (24 August 2012)
In the ACT Magistrates Court, a Magistrate held that a six year delay between the filing of a summons for a drink driving offence and the first court date for that offence did not constitute unreasonable delay giving rise to a breach of the ACT Human Rights Act 2004.
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 More