CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN THE CASE LAW … assert that the person of this age (72) is elderly in the sense of the examined treaty. Similarly, in the case of Strzelecka v. Poland , the ECtHR noted: “It is undisputed that the applicant is an old person…” 27 She was the age of ninety on the date when the decision in question was issued and age eighty-six when the application was lodged with the ECtHR. But again, there can be no general conclusions with respect to the definition of the subject-matter at this time. It is possible to provide a number of other examples of the cases where the ECtHR applies in its practice the term ‘elderly’ 28 but none of them contain the precise definition of the researched notion specified. The same is true regarding research on other similar expressions such as ‘old person’, 29 ‘senior’ 30 , or ‘aged person’ 31 as none are defined in the text of the ECtHR case law. All of this leads us to the conclusion that notwithstanding the particularly wide practice of the ECtHR on the subject-matter, it does not provide any common definition of older persons. Nonetheless, these practices can still be of assistance in shaping the structures of the concept at issue. It is especially important when defining the rights of elderly under the ECHR. 3. Human rights of older persons under the ECHR The following part of this paper will elaborate on how the ECtHR has dealt with cases concerning the human rights of older persons as set forth in the ECHR. In the text of the treaty, one will not find any limitation of human rights as it relates to the age of a person. Even so, it is absolutely clear that the practical realisation of the rights therein can be impeded for different motives. Analysis of the provisions raised by older persons in their submissions to the ECtHR will help to identify their special needs and concerns. In view of the fact that not all the Protocols to the ECHR have been ratified by all 47 states, the study will be limited to the description of human rights as envisaged in the text of the ECHR of 1950. The research will examine the material provisions of this treaty in a sequential order, starting from Article 2 and ending with Article 14 of the ECHR. Article 2 (right to life): a violation of this right is usually invoked by relatives of a person who is allegedly dead. In the case of Dodov v. Bulgaria the applicant complained about the disappearance of his mother, who suffered from Alzheimer’s disease, from a state-run nursing home for the elderly. 32 The life of his elderly mother had been put at risk through negligence on the part of nursing home staff and deficient state regulations. Additionally, the investigation of the case had not resulted in any sanctions against those responsible for the disappearance. The ECtHR found a violation of Article 2 as it was reasonable to assume that the applicant’s mother had died. The ECtHR determined there was a direct link between the failure to supervise his mother and her disappearance. Additionally, despite the general availability in 27 Strzelecka v. Poland , no. 14217/10, § 51, Decision of 2 December 2014. 28 See, e.g. Milić and Others v. Croatia, no. 38766/15, § 52, 25 January 2018, Sagayeva and Others v. Russia , nos. 22698/09 and 31189/11, § 103, 8 December 2015 and Lemo and Others v. Croatia , nos. 3925/10, 3955/10, 3974/10, 4009/10, 4054/10, 4128/10, 4132/10 and 4133/10, § 60, 10 July 2014.

29 E.g. Moisei v. Moldova , no. 14914/03, § 19, 19 December 2006. 30 E.g., Bakradze v. Georgia, no. 1700/08, § 16, 8 January 2013.

31 See Partly Concurring and Partly Dissenting Opinion of Judge Pavlovschi in the case of Hutten-Czapska v. Poland , no. 35014/97, 22 February 2005: “First of all, I should mention that our applicant is quite an aged

person, who was born in 1931 and is therefore 74 years old”. 32 Dodov v. Bulgaria , no. 59548/00, § 63, 17 January 2008.

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