CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN THE CASE LAW … therefore constitute “forced or compulsory labour” within the meaning of Article 4 § 2 of the ECHR. 46 Article 5 (right to liberty and security): unlawful detention of older persons was a subject of the ECtHR examination under this Article of the ECHR. The case of Vasileva v. Denmark concerned a detention of a 67-year-old woman who was travelling without a valid ticket, which had been conducted in breach of Article 5 § 1 of the ECHR. 47 It lasted only 25 hours but immediately after the release the applicant collapsed and was hospitalised with high blood pressure. The ECtHR observed that the detention was in accordance with law and secured a legitimate obligation. Nonetheless, given the age and a state of health of the detainee, the fair balance between securing the immediate fulfilment of the obligation in question and the importance of the right to liberty was not met. The ECtHR observed from the police reports that they had estimated the applicant to be about sixty years old but noted this did not justify the fact that the applicant had not been attended by a doctor due to her advanced age during the detention period. In the case of H.M. v. Switzerland, the ECtHR held that the placing of an elderly person (an 84-year-old) in a foster home to ensure the necessary medical care had not amounted to a deprivation of liberty. 48 The applicant who was legally capable of expressing a view at the time, was undecided as to whether or not she wanted to stay in the nursing home. The ECtHR thus drew the conclusion that she did not object. Article 6 (right to a fair trial): this provision is the one most frequently raised in the submissions filed to the ECHR and the complaints of older persons are not an exception. One of the key issues is the excessive length of proceedings. The ECtHR established in its case law 49 that a person’s old age is one of the circumstances which requires the states to handle the proceedings with particular diligence and in compliance with “reasonable time” requirements. Even so, the ECHR does not impose an absolute duty to deal with this type of cases as a matter of very great urgency. 50 Swiftness should depend on the type of the proceedings. Equally, as with all applicants, the ECtHR applies its classical test to the cases of elderly persons: “The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the complexity of the case, the conduct of the parties and of the authorities, and the importance of what is at stake for the applicant in the litigation.” 51 Regarding the fairness of proceedings concerning divesting of the legal capacity of older persons, the ECHR recognises that the domestic courts should enjoy a certain margin of appreciation and can make the relevant procedural arrangements in order to secure the good administration of justice. However, such measures should not affect the very essence of the applicant’s right to a fair hearing as guaranteed by Article 6. In order to ensure that elderly persons are properly cared for, state authorities have other means than divesting such persons

46 Stummer v. Austria [GC], no. 37452/02, § 133, ECHR 2011. 47 Vasileva v. Denmark , no. 52792/99, §21, 25 September 2003. 48 H.M. v. Switzerland , no. 39187/98, § 49, ECHR 2002-II. 49 Jablonská v. Poland , no. 60225/00, § 43, 9 March 2004. 50 Süßmann v. Germany , 16 September 1996, § 61, Reports of Judgments and Decisions 1996-IV. 51 Ibid ., § 48.

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