CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN THE CASE LAW … Therefore, the applicant could reasonably have been expected to be aware of the state of the law and to take appropriate legal advice if necessary. Article 8 (right to respect for private and family life): the practice of the ECtHR on the subject is quite extensive. The issues raised by the old age applicants concerned the refusal to pay medical costs incurred in connection with a sex-change operation, 60 reduction by a local authority of the amount allocated for night-time weekly care, 61 complaints of a post-operative male-to-female transsexual about the refusal to pay her a retirement pension at the age applicable to women, 62 inability to obtain a lethal dose of a drug in order to commit suicide, 63 refusal to authorise a DNA test on a deceased person requested by putative son wishing to establish his parentage with certainty, 64 and a stateless migrant’s inability to legalise residence status despite many years of a tolerated stay. 65 The examination of the case law regarding respect for private and family life displays that age is one of the criteria which are taken by the ECtHR into account when deciding on the subject-matter. As an example, in the case of Hoti v. Croatia the ECtHR noted that in view of the special circumstances, especially the applicant’s advanced age and the fact that he had lived in Croatia for almost forty years, it accepted that the uncertainty of his residence status had adverse consequences on his private life. 66 However, it should be noted that old age is only one of the relevant factors and that the ECtHR evaluates each situation as a whole. Usually its conclusions are established on a case by case basis. Article 9 (freedom of thought, conscience and religion): the case law regarding this particular right of older persons is limited, but not absent. One of the most well-known cases on the subject is Pretty v. the United Kingdom . 67 In her submission to the ECtHR, the applicant, a 43-yar-old woman who suffered from motor neurone disease, compared her situation with that of older persons: “It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.” 68 The applicant submitted that Article 9 protects the right to freedom of thought as she believed and supported the notion of assisted suicide for herself. The ECtHR observed that not all opinions or convictions constitute beliefs in the sense of Article 9 § 1 of the ECHR and concluded that this provision had not been breached. In the case of Giorgini v. Italy , 69 the applicant, a 78-year-old woman, complained that her criminal conviction entailed a violation of the freedom of religion under Article 9 of the ECHR as she was the founder of a religious association, which had been classified as a criminal association. The ECtHR declared the claim to be manifestly ill-founded, noting that the applicant had failed to explain with sufficient clarity what were the acts carried out in manifestation of her religion that had been classified as criminal offences. 60 Schlumpf v. Switzerland , no. 29002/06, 8 January 2009.

61 McDonald v. the United Kingdom , no. 4241/12, 20 May 2014. 62 Grant v. the United Kingdom , no. 32570/03, ECHR 2006-VII. 63 Gross v. Switzerland [GC], no. 67810/10, ECHR 2014. 64 Jäggi v. Switzerland , no. 58757/00, ECHR 2006-X. 65 Hoti v. Croatia , no. 63311/14, 26 April 2018. 66 Ibid. , § 126. 67 Pretty v. the United Kingdom , no. 2346/02, ECHR 2002-III. 68 Ibid. § 14. 69 Giorgini v. Italy , no. 20034/11, decision of 1 September 2015.

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