|
||
Links: Home | swarblaw - law discussions |
swarb.co.uk - law indexThese cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases. Â |
|
|
|
Human Rights - From: 1990 To: 1990This page lists 40 cases, and was prepared on 28 July 2015. ÂMalette -v- Shulman Jobes, In re (1990) 67 DLR (4th) 321; (1987) 529 A 2d 434 1990 Robins JA Health, Human Rights "The right to determine what shall be done with one's own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority." 1 Citers   Hector -v- Attorney General of Antigua; PC 1990 - [1990] 2 AC 312; [1990] 2 WLR 606; [1990] 2 All ER 103   S -v- France; ECHR 1990 - [1990] 65 DR 250  Aldrian -v- Austria (1990) 65 DR 337 1990 ECHR Human Rights (Admissibility) "The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6 para 1 of the Convention. They concern neither the determination of 'a criminal charge' nor of 'civil rights and obligations' within the meaning of this provision." European Convention on Human Rights 6 1 Citers  Van Der Leer -v- The Netherlands [1990] ECHR 3; 11509/85; [1990] ECHR 3 21 Feb 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1; Violation of Art. 5-2; Violation of Art. 5-4; Pecuniary damage - financial award; Non-pecuniary damage - claim partially rejected; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Hakansson And Sturesson -v- Sweden (1990) 13 EHRR 1; 11855/85; [1990] ECHR 1 21 Feb 1990 ECHR Human Rights Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the deprivation, bearing in mind the State's margin of appreciation. There are many circumstances where statutes empower the executive or the courts to make orders depriving a person of some of his possessions. The exercise of such powers prima facie engages article 1, irrespective of whether the enabling statute was enacted before or after the property affected by the order was acquired. In this case the law was in place before the property in question was acquired. The law providing for the compulsory resale of the applicants' land within two years existed when they bought the land. European Convention on Human Rights 1 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Handyside -v- The United Kingdom A/171; [1990] ECHR 32 21 Feb 1990 ECHR Human Rights European Convention on Human Rights [ Bailii ]  Powell and Rayner -v- The United Kingdom 9310/81; [1990] 12 EHRR 355; [1990] ECHR 2 21 Feb 1990 ECHR Human Rights The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions. Held: Whether the case was analysed in terms of a positive duty on the state to take reasonable and appropriate measures to secure the applicants’ rights under paragraph (1) of Article 8 or in terms of an "interference by a public authority" to be justified in accordance with paragraph (2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Where an authority carries on an undertaking in the interest of the community as a whole it may have to pay compensation to individuals whose rights are infringed by that undertaking in order to achieve a fair balance between the interests of the individual and the community. European Convention on Human Rights 8(1) 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Jan Kristinsson -v- Iceland [1990] ECHR 4; 12170/86 1 Mar 1990 ECHR Human Rights Hudoc Struck out of the list (friendly settlement) [ Bailii ] - [ ECHR ] - [ Bailii ]  Bui van Thanh -v- United Kingdom 16137/90 12 Mar 1990 ECHR Human Rights The applicant, one of the 'Vietnamese Boat People', complained of the acts of government official in Hong Kong. Held: The UK government had not extended the Convention to Hong Kong and the application failed. 1 Citers  B -v- Austria [1990] ECHR 5; 11968/86; [1990] ECHR 5 28 Mar 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage - claim rejected; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Granger -v- The United Kingdom [1990] ECHR 6; 11932/86; [1990] ECHR 6 28 Mar 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1+6-3-c; Pecuniary damage - claim rejected; Non-pecuniary damage - financial award; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Groppera Radio Ag And Others -v- Switzerland 10890/84; [1990] 12 EHRR 321; [1990] ECHR 7 28 Mar 1990 ECHR Human Rights Hudoc No violation of Art. 10; Not necessary to examine Art. 13 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Thomson Newspapers Ltd -v- Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) [1990] 1 SCR 425 29 Mar 1990 Present: Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ Commonwealth, Human Rights, Criminal Practice SCC (Supreme Court of Canada) Constitutional law -- Charter of Rights -- Fundamental justice - Self-incrimination -- Right to remain silent - Derivative evidence -- Combines investigation -- Corporation suspected of predatory pricing - Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Failure to comply with a s. 17 order subject to legal consequences -- Whether s. 7 of the Canadian Charter of Rights and Freedoms can be invoked -- Whether s. 17 infringes s. 7 of the Charter -- If so, whether s. 17 justifiable under s. 1 of the Charter - Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), 13. Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Combines investigation -- Corporation suspected of predatory pricing -- Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Whether s. 17 infringes s. 8 of the Canadian Charter of Rights and Freedoms -- If so, whether s. 17 justifiable under s. 1 of the Charter. Combines -- Investigation -- Corporation suspected of predatory pricing -- Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Whether s. 17 infringes the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms or the guarantee against unreasonable search and seizure in s. 8 of the Charter. Evidence -- Self-incrimination -- Derivative evidence -- Documentary evidence -- Real evidence -- Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Whether complete immunity against the use of derivative evidence required by the principles of fundamental justice -- Whether protection against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms limited to "testimonial evidence" -- Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17, 20(2) -- Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5. La Forest J held that there was no breach of the principles of fundamental justice because there are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony: "While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused. By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the 'clues' provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been." The fact that the derivative evidence exists independently of the compelled testimony also means that its quality as evidence and its relevance to the issues in the trial do not depend on its past connection with the compelled testimony. 1 Citers [ SCC ]  Huvig -v- France [1990] ECHR 9; 11105/84; (1990) 12 EHRR 528; [1990] ECHR 9 24 Apr 1990 ECHR Human Rights The court recognised the value, in the context of telephone tapping, of regulatory control, including supervision by the courts if need be, even though it was found to be lacking in this case in the absence of legislation or case law. 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Kruslin -v- France [1990] ECHR 10; 11801/85; 7/1989/167/223; [1990] ECHR 10 24 Apr 1990 ECHR Human Rights Hudoc The claimant complained of the interception of her telephone calls. 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Clerc -v- France [1990] ECHR 11; 12393/86; [1990] ECHR 11 26 Apr 1990 ECHR Human Rights Hudoc Struck out of the list (friendly settlement) [ Bailii ] - [ ECHR ] - [ Bailii ]  Autronic Ag -v- Switzerland [1990] ECHR 12; 12726/87; [1990] ECHR 12 22 May 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Costs and expenses award - domestic proceedings; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Weber -v- Switzerland [1990] ECHR 13; 11034/84; [1990] ECHR 13 22 May 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 10; Non-pecuniary damage - financial award; Costs and expenses award - domestic proceedings; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Skarby -v- Sweden 12258/86; [1990] ECHR 16; (1990) 13 EHRR 90 28 Jun 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage - claim rejected; Non-pecuniary damage - financial award; Costs and expenses award - Convention proceedings 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Mats Jacobsson -v- Sweden 11309/84; [1990] ECHR 14 28 Jun 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage - financial award; Pecuniary damage - claim rejected; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Obermeier -v- Austria [1990] ECHR 15; 11761/85; (1991) 13 EHRR 290 28 Jun 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Non-pecuniary damage - financial award; Costs and expenses award - domestic proceedings; Costs and expenses award - Convention proceedings 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  E -v- Norway 11701/85; (1994) 17 EHRR 30; [1990] ECHR 17 29 Aug 1990 ECHR Human Rights, Prisons, Damages The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as result of which he was detained in mental hospitals. The effect of this sentence was to enable the Ministry of Justice to monitor his progress and to release or detain him when this would prove appropriate. It gave the ministry a wide discretion in deciding which of various possible security measures was to be imposed and for how long. The court observed that this system shared a number of features with the Belgian system in regard to recidivists and habitual offenders which was at issue in the Van Droogenbroeck case: "Under such systems the courts cannot at the time of their decisions do more than assess how the person concerned will develop in the future. The authorities, on the other hand, through and with the assistance of their officers, can monitor that development more closely and at frequent intervals." There remained a risk that time the link between the ministry's decision not to release or to re-detain and the initial judgment might be broken with the result that it would be transformed into a deprivation of liberty that was arbitrary. 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Mccallum -v- The United Kingdom [1990] ECHR 19; 9511/81; [1990] ECHR 19 30 Aug 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Fox, Campbell and Hartley -v- The United Kingdom 12244/86; 12245/86; (1990) 13 EHRR 157; [1990] ECHR 18; 12383/86 30 Aug 1990 ECHR Human Rights, Police, Torts - Other The court considered the required basis for a reasonable suspicion to found an arrest without a warrant: "The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5(1)(c). The court agrees with the Commission and the government that having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances." As to the duty to inform a suspect about the reason and purpose of hs arrest: "Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This protection is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed 'promptly' (in French: 'dans le plus court délai'), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features." ECHR Judgment (Merits) - Violation of Art. 5-1; No violation of Art. 5-2; Violation of Art. 5-5; Not necessary to examine Art. 5-4 and 13; Just satisfaction reserved. European Convention on Human Rights 5(2) 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Nyberg -v- Sweden 12574/86; [1990] ECHR 20; [1990] ECHR 20 31 Aug 1990 ECHR Human Rights [ Bailii ] - [ ECHR ] - [ Bailii ]  Cossey -v- The United Kingdom 10843/84; (1990) 13 EHRR 622; The Guardian 2 October 1990; [1990] ECHR 21; [1991] Fam Law 362; [1990] ECHR 21 27 Sep 1990 ECHR Human Rights A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary Assembly of the Council of Europe on 29th September 1989 - both of which sought the encourage the harmonisation of laws and practices in this field - there remained the same diversity of practice as obtained at the time of the Rees judgment. Accordingly there was still little common ground between the Contracting States in an area in which they enjoyed a wide margin of appreciation. The application of the Corbett criteria, and consequent non-recognition of change of gender by post-operative transsexual persons, did not constitute a violation of article 8 (right to respect for private life) or article 12 (right to marry). 1 Cites 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Wassink -v- The Netherlands 12535/86; [1990] ECHR 22; [1990] ECHR 22 27 Sep 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings [ Bailii ] - [ ECHR ] - [ Bailii ]  Windisch -v- Austria [1990] ECHR 23; [1993] ECHR 31; 12489/86; (1990) 13 EHRR 281; [1993] ECHR 31; [1990] ECHR 23 27 Sep 1990 ECHR Human Rights, Criminal Evidence cs W was convicted of burglary on the evidence of a mother and daughter, who gave statements without their identity being revealed. Held: The court recited various principles in the following terms:- "All the evidence must in principle be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the pre-trial stage is not always inconsistent with paragraph (3)(d)(i) of Article 6, provided the right to the defence had been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making a statement or at a later stage of the proceedings." However:- "Being unaware of their identity, the defence was confronted with an almost insurmountable handicap: it was deprived of the necessary information permitting it to test the witnesses' reliability or cast doubt on their credibility." The court recognised the interests of the two women and the interests and importance of the collaboration of the public in the police's struggle against crime, but referred to the right to the fair administration of justice holding "so prominent a place in a democratic society that it cannot be sacrificed." The court stressed that the identification made by the two anonymous witnesses was "the only evidence indicating the applicant's presence on the scene of the crime." In the result the court held that the trial court relied "to a large extent" on this evidence. It held there had been a breach of Article 6. 1 Citers [ Bailii ] - [ Bailii ] - [ ECHR ] - [ ECHR ] - [ Bailii ] - [ Bailii ]  D.E. V Germany 1126/05; [2007] ECHR 1075; [2009] ECHR 1134 8 Oct 1990 ECHR Human Rights European Convention on Human Rights [ Bailii ] - [ Bailii ]  Darby -v- Sweden 11581/85; [1990] ECHR 24; [1990] ECHR 24 23 Oct 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Pecuniary damage - financial award; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings A, a Finnish citizen, working in Sweden but only temporarily resident there, was liable for full municipal tax including a special tax payable to the Church of Sweden, for a two year period. If he had been formally registered as resident in Sweden, as a non-member of that Church, A would have been liable for only 30% of the special tax. Held: Having found the distinction in treatment by reference to residence unlawful the court found A entitled to repayment of the excess tax paid (70% of the special tax) together with interest. 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Huber -v- Switzerland [1990] ECHR 25; 12794/87; [1990] ECHR 25 23 Oct 1990 ECHR Human Rights It was a breach of Article 5 where the judicial power was exercised by a District Attorney whose impartiality was "capable of appearing open to doubt" by reason of his entitlement to intervene in the subsequent criminal proceedings as a representative of the prosecuting authority. Judge Matscher (dissenting) took the view that at the time of taking the relevant decision the District Attorney was acting as a fully independent and impartial organ. He observed that it could perhaps be argued that at a later stage, since he had previously played a role in the investigation, the District Attorney would no longer be an independent and impartial representative of the prosecuting authority, but that "no provision of the Convention entitles the accused to have as 'opponent' an independent and impartial prosecutor". European Convention on Human Rights 5(1) 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  Moreira De Azevedo -v- Portugal [1990] ECHR 26; 11296/84; (1990) 13 EHRR 721 23 Oct 1990 ECHR Human Rights Hudoc Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Just satisfaction reserved European Convention on Human Rights 1 Citers [ Bailii ] - [ Bailii ]   Koendjbiharie -v- The Netherlands; ECHR 25-Oct-1990 - 11487/85; [1990] ECHR 28; (1991) 13 EHRR 820  Keus -v- The Netherlands [1990] ECHR 27; 12228/86; [1990] ECHR 27 25 Oct 1990 ECHR Human Rights Hudoc No violation of Art. 5-2; No violation of Art. 5-4; Not necessary to examine Art. 6-1; Not necessary to examine Art. 6-3 [ Bailii ] - [ ECHR ] - [ Bailii ]  Thynne, Wilson and Gunnell -v- The United Kingdom 11787/85; 11978/86; (1990) 13 EHRR 666; 12009/86; [1990] ECHR 29; (1991) 13 EHRR 666 25 Oct 1990 ECHR Mr R. Ryssdal, P Human Rights, Criminal Sentencing The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment. Held: A discretionary life sentence in English law was composed of a punitive element followed by a security element giving the Secretary of State the responsibility for determining when the public interest permits the prisoner's release. In these cases the punitive period had expired and the applicants were entitled to judicial control as guaranteed by Article 5(4). The detention of the applicants after the expiry of the punitive periods of their sentences was compared to the VAN DROOGENBROECK and WEEKS cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may arise in the course of detention. It follows that at this phase in the execution of their sentences, the applicants are entitled under Article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court. ECHR Judgment (Merits and Just Satisfaction) - Violation of Art. 5-4; Violation of Art. 5-5; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings. European Convention on Human Rights 5(4) - European Convention on Human Rights 1 Cites 1 Citers [ Worldlii ] - [ Bailii ]  Atkinson and Crook and The Independent -v- United Kingdom 133666/87; (1990) 67 DR 244 3 Dec 1990 ECHR Human Rights, Media (European Commission of Human Rights) The Commission answered a question as to admissibility, namely whether the sentencing of a convicted criminal defendant in private infringed article 10. The complainants were two freelance journalists. Held: The Commission considered that the principle established in cases such as Leander paragraph 74, "may not apply with the same force in the context of court proceedings", in the light of the need to have regard to article 6 and "the important role played by the press in the administration of justice". Even if article 10 was engaged, there was a "pressing social need" for the sentencing in that particular case being conducted in private. "The Commission considers however that the general principles stated by the Court may not apply with the same force in the context of court proceedings . . In order that the media may perform their function of imparting information there is a need that they should be accurately informed . . Assuming that the decision of the court to hold part of the proceedings in camera constituted an interference with the applicants' right to receive and impart information as guaranteed by article 10 para 1 of the Convention, the Commission must consider whether this interference was prescribed by law and whether it was necessary in a democratic society for one or more of the purposes set out in article 10 para 2 of the Convention." European Convention on Human Rights 10 1 Cites 1 Citers  Crook, Atkinson And The Independent -v- The United Kingdom 13366/87; [1990] ECHR 33 3 Dec 1990 ECHR Human Rights European Convention on Human Rights [ Bailii ]   P -v- United Kingdom; ECHR 12-Dec-1990 - 14751/89  Delta -v- France [1990] ECHR 30; 11444/85; (1990) 16 EHRR 574 19 Dec 1990 ECHR Human Rights Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1+6-3-d; Damage - financial award; Costs and expenses - claim rejected 1 Citers [ Bailii ] - [ ECHR ] - [ Bailii ]  |
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG. |