CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN THE CASE LAW … It is well known that elderly people are often considered to be vulnerable for reasons of limited physical mobility, decreased information-processing and problem-solving skills that are often related to declining memory capacity and weakened evaluation skills. 87 Consequently, they are presumed to be in need of special legal protection. The question is, whether with regard to them, similarly as in the case of some other vulnerable groups such as children or the disabled, the Strasbourg court requires from the states parties to the ECHR, a certain prescribed behaviour. But before answering this question, it is first necessary to confirm that the ECtHR considers elderly people to be vulnerable. In the case of Khlaifia and Others v. Italy , 88 the ECtHR cited Article 15 titled ‘Vulnerable persons’ of the “Draft articles on the expulsion of aliens” 89 , which clearly demonstrated that older persons belong to the category of the vulnerable. 90 The situation of asylum seekers of older age was also examined by the ECtHR in the case of Mahamed Jama v. Malta . 91 Here, it was mention that “ vulnerable persons, including … elderly persons , and disabled persons were not subject to detention more than would be necessary …”. 92 More expanded deliberation on the vulnerability and the need of special protection of older persons can be found in the Concurring Opinion of Judge Pinto De Albuquerque in the previously mentioned case of Valentin Câmpeanu v. Romania, where the judge noted: “…in stressing the “exceptional” character of the case, the majority regrettably close the door to any future extension of the present finding, concerning the situation of a mentally disabled person, to cover other victims of human rights violations, such as elderly people …”. 93 By this, Judge Pinto De Albuquerque suggests that de-facto representation should also be available to older people. He further continues: “… Extreme vulnerability of a person is a broad concept that should include, for the above purposes, people of tender age, or elderly …”. 94 Given the further practice of the ECtHR, 95 one may presume that the finding in respect of de facto representation is not necessarily limited to the Câmpeanu case and may also be interpreted in a wider context including elderly persons’ rights. A further question arises; in order to receive special protection and/or to become a subject to procedural exceptions from the Rules of the ECtHR, is it necessary to satisfy a number this case the ECtHR accepted an application from a victim’s representative without a power of attorney and introduced a new category of ‘the applicants’ titled ‘ de facto representative’. 87 SEATZU, Francesco. Reshaping EU old age law in the light of the normative standards in international human rights law in relation to older persons In: Protecting vulnerable groups: the European human rights framework / edited by Francesca Ippolito and Sara Iglesias Sánchez. Oxford; London; Portland, Or.: Hart, 2017, p. 49. 88 Khlaifia and Others v. Italy [GC], no. 16483/12, § 46, 15 December 2016. 89 Draft articles on the expulsion of aliens, International Law Commission (ILC), Resolution A/RES/69/119 of 10 December 2014. 90 See, Article 15, Vulnerable persons, that envisages: “1. Children, older persons, persons with disabilities, pregnant women and other vulnerable persons who are subject to expulsion shall be considered as such and treated and protected with due regard for their vulnerabilities.” 91 Mahamed Jama v. Malta , no. 10290/13, 26 November 2015. 92 Ibid., § 133. 93 Concurring Opinion of Judge Pinto De Albuquerque in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 7, ECHR 2014. 94 Concurring Opinion of Judge Pinto De Albuquerque in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 11, ECHR 2014. 95 See e.g. Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v. Romania , no. 2959/11, 24 March 2015.

279