CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN THE CASE LAW … ECHR even though they were not married. Moreover, the case raised an important general question going beyond the person and interests of the initial applicant. As to the merits of the case, it noted that the decision denying the applicant authorisation to get married had been taken by his supervisor after hearing both the applicant and his partner. Furthermore, a psychiatric assessment had found some impairment of his mental faculties, concluding that he was incapable of controlling the consequences of his consent in terms of his property and finances. Articles 13 and 14 of the ECHR do not have a separate application; therefore, in its judgments on the subject-matter the ECtHR normally finds a violation or non-violation of these provisions in conjunction with the other Articles of the ECHR. To comply with the structure of this paper, in the following paragraphs the author will only highlight some basic rules regarding the rights of older persons under these two Articles and will not deal with each and every possible combination of the provisions at issue. Article 13 (right to an effective remedy): this stipulation of the ECHR is often invoked in combination with Article 6 to the ECHR. However, on some occasions the ECtHR examines these two Articles separately. The applicant, an older person, in the case of Zavodnik v. Slovenia complained that the remedies available to him for excessive duration of legal proceedings in Slovenia had been ineffective. 75 The ECtHR agreed with the applicant and found a violation of Article 13 of the ECHR. The case of Popov v. Moldova (no. 1) concerned the claims under Article 6 § 1 and Article 13 of the ECHR in that, being an elderly person, the applicant was not able to bring the authorities to execute the judgment of the domestic court. 76 The ECtHR observed that by failing for years to take the necessary measures to comply with the final judgment in the case, the Moldovan authorities deprived the provisions of Article 6 § 1 of the ECHR of all useful effect. However, it decided not to rule separately on the complaint under Article 13 of the ECHR because Article 6 § 1 is the lex specialis in relation to non-execution. The requirements of Article 13 in this context were absorbed by those of Article 6 § 1 of the ECHR. The opposite logic was applied by the ECtHR in the case of Şimşek and Others v. Turkey . 77 In this case, the applicants were the relatives of seventeen persons killed during demonstrations in Istanbul in 1995, which included elderly persons. 78 The applicants complained solely under Article 6 of the ECHR that they had been deprived of effective access to a court. The ECtHR decided to examine the applicants’ Article 6 complaint in relation to the more general obligation under Article 13 of the ECHR. It reiterated that a violation of Article 2 cannot be remedied exclusively through an award of compensation to the relatives of the victim and concluded that there had been a violation of Article 13. 79 Article 14 (prohibition of discrimination): the enjoyment of rights and freedoms set forth in this ECHR shall be secured without discrimination on any grounds. Although the text of this provision does not explicitly mention age as a reason for discrimination, the case law of the ECtHR demonstrates that it is implied. The case of Michael Matthews v. the United Kingdom concerned an applicant who, at the age of 64, applied at the local post office for an 75 Zavodnik v. Slovenia , no. 53723/13, § 84, 21 May 2015. 76 Popov v. Moldova (no. 1) , no. 74153/01, § 51, 18 January 2005. 77 Şimşek and Others v. Turkey , nos. 35072/97 and 37194/97, 26 July 2005. 78 E.g. Halil Kaya see para. 16 of the case Şimşek . 79 Şimşek and Others v. Turkey, nos. 35072/97 and 37194/97, §§ 129 and 131, 26 July 2005.

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