CYIL Vol. 7, 2016
VERONIKA BÍLKOVÁ CYIL 7 ȍ2016Ȏ Social Charter and Article 24 and 25 of the EC Charter of the Fundamental Social Rights of Workers. Although the comments hasten to add that “of course, participation in social and cultural life also covers participation in political life”, 56 it remains to be seen how broadly Article 25 will be interpreted by domestic or EU courts. So far, the Fundamental Rights Agency monitoring the application of the EU Charter lists no relevant EU or national case-law relating to the provision 57 (with the exception of a minor reference in an Irish case 58 ). The 1996 Revised European Social Charter is another European – this time Council of Europe’s – instrument referring to older (elderly) persons. Unlike the original 1961 text, which did not contain any similar reference, the Revised Charter enshrines “the right of elderly person to social protection” (Article 23). The provision first appeared in the 1988 Protocol to the European Social Charter (Article 4), from which it was taken over during the revision of the Charter in the 1990s. It compels States to enable older persons to “to remain full members of society for as long as possible, /…/ to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, /…/ and to guarantee elderly persons living in institutions appropriate support /…/ and participation in decisions”. Of the 34 State Parties to the Revised Charter, only 17 have bound themselves by Article 23. 59 The European Committee on Social Rights has repeatedly commented on the provision, mostly when examining reports submitted by State parties. In one of its first comments, it confirmed that the right granted in Article 23 is “a fundamental right” and recalled that “the novelty of this right, not just in relation to the Charter but to other existing international instruments, deserves special mention since it represents the first international norm specifically protecting elderly persons”. 60 In this respect, the Revised Charter scores better than the 1950 European Convention on Human Rights (ECHR). The rights of older persons are in no way expressly recognized in the ECHR; nor is age included among the prohibited grounds for discrimination enshrined in Article 14 and in Protocol No. 12. Despite that, the European Court of Human Rights has quite a rich case-law relating to older (elderly) persons. 61 Most of the relevant cases fall under one of two categories. The first relates to the (alleged) failure by the State to take into account special needs of older persons and adopt positive measures to accommodate these needs. 62 The second concerns the right 56 FRA, EU Charter of Fundamental Rights, online at http://fra.europa.eu/en/charterpedia/article/25- rights-elderly# (retrieved on 4 July 2016). 57 FRA? Online at http://fra.europa.eu/en/charterpedia/article/25-rights-elderly (retrieved on 4 July 2016). 58 High Court of Ireland, EB, JB, WB, AB and FBK v The Minister for Justice and Equality,  IEHC 246. 59 These are: Andorra, Bosnia and Herzegovina, Denmark, Finland, France, Greece, Ireland, Italy, Malta, Montenegro, the Netherlands, Portugal, Serbia, Slovakia, Slovenia, Sweden, and Ukraine. 60 Conclusions XIII-3, Statement of Interpretation on Article 23, p. 455, cit. in Council of Europe, Digest of the Case Law of the European Committee of Social Rights , 1 September 2008, p. 329. 61 ECtHR, Elderly people and the European Convention on Human Rights, Fact Sheet, September 2014. 62 See, for instance, ECtHR, Farbtuhs v. Latvia, Application No. 4672/02, 2 December 2004 (violation of Article 3); or Jablonská v. Poland , Application No. 60225/00, 9 March 2004 (violation of Article 6).
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