Section 18 of the HR Act states that everyone has the right to liberty and security of person.
The right to security requires the ACT to provide reasonable measures to protect a person’s physical security through the work of the police and emergency service for example.
Some relevant considerations for victims when considering the concept of the right to the security of the person during the investigation stage would include:
Some relevant considerations for victims when considering the concept of the right to security of the person during the court stage would include:
Example: A victim’s right to security may sometimes conflict with an accused’s right to liberty. If there are no less restrictive means to ensure a victim or witness’ security that included giving the accused his or her liberty, then a human rights approach would provide for the accused’s liberty to be curtailed.
A person has the right to security under the HR Act.
Case example (right to life, prevention from degrading treatment or punishment, right to freedom from discrimination based on gender)
The applicant and her mother were victims of domestic violence perpetrated by the applicant’s partner over a number of years, including numerous death threats. Despite a number of complaints being made to police, the behaviour continued, ultimately resulting in the murder of the applicant’s mother by the applicant’s partner.
The European Court of Human Rights found that the violence in this case was foreseeable. It ruled that the right to life extended in appropriate circumstances to a positive obligation on authorities to take preventative measures to protect an individual whose life is at risk from the criminal acts of another individual.
For a positive obligation to be present the authorities must have known, or ought to have known, at the relevant time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party. An authority is in breach of this obligation if they have failed to take measures within the scope of their powers which might have been expected to avoid that risk.
Source: Opuz v Turkey (Application no. 33401/02) European Court of Human Rights (Date of decision: 9 June 2009).