CYIL vol. 10 (2019)

ALLA TYMOFEYEVA CYIL 10 ȍ2019Ȏ Article 10 (freedom of expression): this legal norm also entails the protection of speech regarding the position of older persons. In its judgment in the case of Heinisch v. Germany, the ECtHR stressed that the information disclosed by the applicant about shortcomings in the provision of institutional care for the elderly by a state-owned company was undeniably of public interest. 70 Given that the disclosure of this information led to the dismissal of the applicant, a geriatric nurse, the ECtHR concluded that interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not “necessary in a democratic society” and Article 10 of the ECHR accordingly had been infringed. The case of Tešić v. Serbia 71 concerned the dispute of a pensioner with his lawyer when the former was found guilty of defamation. The domestic courts ordered him to pay his lawyer an enormous amount of compensation. He had to pay the amount at issue for more than five years and the enforcement order required withdrawal of more than 60 percent of the applicant’s monthly pension. The ECtHR held that there had been a breach of Article 10 of the ECHR because the national courts’ decisions caused a tremendous amount of grief for an elderly person suffering from a number of serious illnesses. Article 11 (freedom of assembly and association): this right is often realised in a collective. For instance, the case of Islam-Ittihad Association and Others v. Azerbaijan raised the issue of the forced dissolution of the association whose aim was to provide material and moral aid to, inter alia , elderly people. 72 The domestic courts ordered its dissolution because the applicant association had engaged in religious activities despite the fact that it had the status of a non-governmental organisation. The ECtHR noted that the national legislation lacked any definition of the term “religious activity”, which made it impossible for the applicants to carry out their activities in line with domestic law. In view of this, a violation of Article 11 of the ECHR was declared. The applicants in the case of Ackermann and Fuhrmann v. Germany 73 complained that their obligatory affiliation to the old-age pension scheme amounted to a violation of their right to freedom of association under Article 11 of the ECHR. In response, the ECtHR reiterated that institutions of a public-law character do not constitute associations within the meaning of Article 11 and the old-age pension scheme had been introduced by the legislature as a public law institution. Under these circumstances, the ECtHR held that the scheme cannot be considered as an association within the meaning of ECHR. Accordingly, this complaint was declared manifestly ill-founded. Article 12 (right to marry): love knows no age and older persons possess the human right to marry as well. However, it has certain limitations. The case of Delecolle v. France 74 concerned an elderly person placed under protective supervision who wished to marry without authorisation. The ECtHR held that there had been no violation of Article 12 of the ECHR as the limitation on the applicant’s right to get married had not been arbitrary or disproportionate. The interesting point in this case is a question of locus standi . The initial applicant had died, and the applicant’s partner expressed the wish to maintain the application before the ECtHR. It held that the couple constituted a “family” for the purposes of the

70 Heinisch v. Germany , no. 28274/08, § 71, ECHR 2011 (extracts). 71 Tešić v. Serbia , nos. 4678/07 and 50591/12, 11 February 2014.

72 Islam-Ittihad Association and Others v. Azerbaijan, no. 5548/05, § 8, 13 November 2014. 73 Ackermann and Fuhrmann v. Germany, no. 71477/01, decision of 8 September 2005. 74 Delecolle v. France , no. 37646/13, 25 October 2018.

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