CYIL vol. 10 (2019)

ALLA TYMOFEYEVA CYIL 10 ȍ2019Ȏ of health is also an extremely important criterion. When we are full of energy, we wish to do more. When we do not feel good, any demanding activity is difficult for us and we prefer to rest. All of this shows that it is almost impossible to give a precise definition of an ‘old person’. Nevertheless, for the purposes of the law and for providing a particular group with certain benefits or special protection, it is absolutely necessary to provide at least minimum framework for the issue in question. Given the principal research intent of the current paper, further analysis will focus on how the European Court of Human Rights understands the term ‘old person’. The study will explore whether the notion of the elderly for the purposes of the ECHR is associated with a biological age, vulnerability of a person, or is based on other criteria. This is also related to another interesting point, which is whether or not the naming of persons as ‘old’ by the ECtHR automatically attests as to their vulnerability and the requirement to consider their needs as is done for children and persons with disabilities. Or should there be additional factors such as a bad state of health or conditions of detention? The text of the European Convention on Human Rights does not contain any reference to the notions of ‘older persons’, ‘elderly’, ‘seniors’, ‘pensioners’, ‘advanced age persons’ etc. It rather employs the terms ‘everyone’, ‘no one’, or ‘every natural person’, which implies definitely also the persons of the so-called ‘third age’. This means that all the material provisions of the ECHR are applicable to the elderly. Although the reference to ‘older persons’ is absent in the text of the ECHR as such, one may find it in the case law of the European Court of Human Right, which is the body responsible for the application and the interpretation of this treaty. The term ‘older persons’ currently can be found in seven judgments and decisions of the ECtHR, 24 but only in relation to the background of the case or the party submissions. In none of these seven documents was the term at issue articulated by the ECtHR and no definition of the notion was given. The term ‘elderly’ can be found in the case law of the ECtHR on a much more frequent basis. The ECtHR Human Rights Documentation (HUDOC-ECHR) database in February 2019 revealed about 600 results with this key word. If one limits the results to only the judgments, we still have more than 300 documents. Here, the reference to the term can also be found in pronouncements made by the ECtHR itself. In the case of Khamtokhu and Aksenchik v. Russia the ECtHR used the word “elderly” in the context of the alleged discrimination in respect to life imprisonment: “Reducibility of a life sentence carries even greater weight for elderly offenders…” 25 The case of Farcaş and Others v. Roman only contains the phrase: “the first applicant was elderly at that time”. 26 Mr. Ioan Farcaș, “the first applicant”, was born in 1935 and the proceedings in question took place in 2007–2008, when he was 72 years old. By applying the grammatical method, we can 24 As of 4 February 2019, the HUDOC database shows in the results of the search the following cases: Carson and Others v. the United Kingdom , no. 42184/05, §§ 63-64, 4 November 2008; Tanli v. Turkey , no. 26129/95, § 90, Judgment of 10 April 2001; B. and L. v. the United Kingdom , no. 36536/02, § 17, 13 September 2005; B. and L. v. the United Kingdom , no. 36536/02, Decision of 29 June 2004; Ajdarić v. Croatia , no. 20883/09, § 12, 13 December 2011; Harkins and Edwards v. the United Kingdom , nos. 9146/07 and 32650/07, § 103, 17 January 2012; Sutherland v. the United Kingdom , no. 25186/94, Decision of 21 May 1996. 25 Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 81, 24 January 2017. 26 Farcaş and Others v. Romania , no. 30502/05, § 38, 5 June 2018.

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