CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE RIGHTS OF THE ELDERLY IN THE CASEǧLAW OF THE CONSTITUTIONAL COURT … Introduction This text deals with the area of the rights of the elderly, within which the Constitutional Court of the Czech Republic (hereinafter the Constitutional Court) repeatedly gives its opinion of the topics related to the right to social security in old age, namely the topic of old-age pensions. The rights of the elderly are generally not emphasised in the case-law of the Constitutional Court, but the Constitutional Court repeatedly gives its opinions within the review of the constitutional conformity of laws governing the issue of old-age pensions and the taxation thereof. At first, the right to social security in old age will be defined here as one of the important rights of the elderly; then, the right to social security in old age will be introduced here as one of the social rights guaranteed in the constitutional order of the Czech Republic (hereinafter the CR), including the debate on the justiciability of social rights. The global phenomenon of demographic aging has a great influence on policy decisions in democratic countries with the rule of law, and this phenomenon raises deliberation on the new concept of the rights of the elderly but also puts new light on the traditional instrument of social solidarity towards the elderly, which is the social security in old age and sickness, namely an old-age pension. The right to social security for the elderly is one of the most important rights of the elderly and is usually mentioned together with the following rights: the right to be protected against discrimination on grounds of age, the right to protection against elder abuse, the right not to be subjected to torture or cruel, inhuman and degrading treatment, the right to private life, the right to housing, the right to health care, the right to education, and the right to work in old age. As early as 1952, the International Labour Organization (ILO) set out in the Social Security (Minimum Standards) Convention, 1952 (No. 102) minimum standards for old age social benefits. It is indeed a principle strongly enshrined in human rights law that everyone who finds oneself in circumstances or contingencies in which one cannot satisfy “the economic social and cultural rights indispensable for his dignity and the free development of his personality” should be provided with support by the state. The right to social protection in the event of old age under Articles 22 and 25 of the Universal Declaration of Human Rights (UDHR) of 1948 has been subsequently incorporated in many international treaties. 1 In particular, the right of the elderly to social protection has found recognition in regional human rights instruments, namely the Protocol of San Salvador of 1988, the Andean Charter of 2002, the European Social Charter of 1996, and the African Charter of 1981. According to De Hert and Mantovani “the enforcement of the right to social security allowances indicates that when the right to security in the event of old age is accepted as a part of a community’s obligations of solidarity, individuals demand it as a right in personam… The recognition of the human rights of the elderly should first face the preliminary question of what really are our moral relationships to those who are our least advantaged, less well situated or less empowered.” 2 Although both the 1 For example: Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of Persons with Disabilities (CRPD). 2 De HERT, P., MANTOVANI E. Specific Human Rignts for Older Persons? European Human Rights Law Review , 2011 (4), p. 398 et seq. 1. Right to social security in old age as one of the most important rights of the elderly

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