CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ

HUMAN RIGHTS OF OLDER PERSONS IN THE CASE LAW …

5. Conclusion or is there a need for special protection of older persons by means of a new CoE treaty? The research conducted on the definition of the term ‘older persons’ indicates that neither the text of the ECHR nor the practice of the ECtHR provides for the required concept. The judgments and decisions of the ECtHR, when using different expressions such as ‘elderly’, ‘pensioners’, or ‘old lady/man’ to describe third-age persons, may serve as an indication of certain characteristics that the concept at issue possesses. This, however, does not make any general conclusions in respect to the subject-matter. The study of the ECtHR demonstrates that older persons filed complaints under all the existing material provisions of the ECHR, starting from Article 2 and ending with Article 14 of this treaty. Some of the breaches complained of by them were identical to the ones of any other applicant and did not depend on their age. For instance, a retrospective punishment, 100 a refusal to pay medical costs incurred in connection with a sex-change operation, 101 or the inability to conclude marriage. 102 The others are, on the contrary, closely related to the persons’ old age. These were cases concerning labour in prison, which resulted in non-affiliation of old-age pension, 103 the refusal to pay a post-operative male-to-female a retirement pension at the age applicable to women, 104 or the requirement for a prisoner to work beyond the retirement age. 105 In certain cases, the age was a circumstance that had to be considered when examining their personal situation. For example, this was the case of a legally grounded deprivation of liberty of a 67-year-old woman travelling without a valid ticket, which resulted in the old lady collapsing and being hospitalised. 106 The judgments and decisions of the Strasbourg court confirm that elderly persons may be seen as vulnerable in particular situations. Nonetheless, age is only one of the criteria that have to be evaluated when deciding on the personal situation of a particular older person. Regarding the main question of the research on whether the current international legal framework that is applicable to older persons in the context of the case law of the ECtHR is sufficient for the purposes of the protection of their human rights, an unequivocal response cannot be given. The pallet of the human rights envisaged in the ECHR, considering their evolutive interpretation, is undoubtedly extensive. Nonetheless, even it cannot cover the whole variety of breaches, which can appear in different real-life situations. The Steering Committee for Human Rights (CDDH) in its Report of 2018 on the promotion of human rights of older persons came to conclusions that, although the majority of the CoE member states reflect the position of older persons, several aspects of elderly rights deserve further improvement. Among these are the need to appoint a special authority to implement Recommendation CM/Rec(2014)2, wide dissemination and translation, focus on older persons as a specific category, and the requirement to consider the obstacles to implementation. 107 The general message of the report is to support the principle of subsidiarity

100 Bergmann v. Germany , no. 23279/14, 7 January 2016. 101 Schlumpf v. Switzerland , no. 29002/06, 8 January 2009. 102 Delecolle v. France , no. 37646/13, 25 October 2018. 103 Stummer v. Austria [GC], no. 37452/02, § 112, ECHR 2011. 104 Grant v. the United Kingdom , no. 32570/03, ECHR 2006-VII. 105 Meier v. Switzerland , no. 10109/14, § 33, 9 February 2016. 106 Vasileva v. Denmark , no. 52792/99, 25 September 2003. 107 Paras. 34-39 of the CDDH Report of 2018.

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