CYIL vol. 10 (2019)

ALLA TYMOFEYEVA CYIL 10 ȍ2019Ȏ of their legal capacity. This is a very serious measure, which should be saved for exceptional circumstances. 52 When ensuring access to courts under Article 6 of the ECHR, state authorities should also take into account the fact that many elderly persons are unable to use a computer or have access to modern means of communication. 53 In the case of Farcaş and Others v. Romania the ECtHR observed that the 72-year-old applicant was elderly and “did not use a computer or have access to the Internet”. 54 Therefore, given that he lived more than 100 km away from the county court which delivered the judgment at issue, the fact that the applicant would have had to go to the distant county court regularly for a period of three months, would have put a significant burden on him due to his advanced age. This lack of flexibility rendered the applicant’s right of access to a court illusory; therefore, there had been a violation of Article 6 § 1 of the ECHR. 55 Article 7 (no punishment without law): this provision is rarely infringed by state parties to the ECHR, but there are some cases available. In the case of Bergmann v. Germany, the applicant claimed that the extension of preventive detention beyond the former ten-year maximum duration had violated the prohibition on retroactive punishment. The ECtHR noted that the domestic courts expressly addressed the question whether the applicant, in view of his advanced age (69 years old), could still be considered as a risk to the public because of his sexual deviance. 56 When considering the findings of the psychiatric expert with whom they consulted, it was decided that the applicant’s sexual sadism had not yet been considerably alleviated as a result of his age. The ECtHR concluded that in cases like that of the applicant, where preventive detention is extended with the objective of treating his mental disorder, the punitive element is excluded to such an extent that the measure is not a penalty within the meaning of Article 7 § 1. Therefore, this provision had not been violated. 57 In its judgment in the case of Glien v. Germany concerning retrospective extension of preventive detention from a maximum of 10 years to an unlimited period of time, the ECtHR came to the opposite conclusion. 58 The applicant (64 years of age at that time) claimed that the domestic authorities refused to release him on the grounds that he was suffering from dissocial personality disorder and paedophilia without any consideration of his advanced age and poor state of health. He had been convicted of child sexual abuse and sentenced to imprisonment due to the risk of his reoffending. The ECtHR classified this measure as a “penalty” for the purposes of Article 7 § 1 and ruled that the ECHR was violated. A person of an old age in the case of Van Anraat v. the Netherlands complained that section 8 of the War Crimes Act did not comply with the requirement that criminal acts should be described with sufficient precision ( lex certa ). 59 The ECtHR maintained that at the time when the applicant committed the acts resulting in his conviction, there was nothing unclear about the criminal nature of the use of mustard gas against a civilian population.

52 X and Y v. Croatia , no. 5193/09, § 91, 3 November 2011. 53 Zavodnik v. Slovenia , no. 53723/13, § 79, 21 May 2015. 54 Farcaş and Others v. Romania , no. 30502/05, § 36, 5 June 2018. 55 Farcaş and Others v. Romania , no. 30502/05, §§ 38-40, 5 June 2018. 56 Bergmann v. Germany , no. 23279/14, § 131, 7 January 2016. 57 Bergmann v. Germany , no. 23279/14, § 183, 7 January 2016. 58 Glien v. Germany, no. 7345/12, § 131, 28 November 2013. 59 Van Anraat v. the Netherlands (dec.), no. 65389/09, § 71, Decision of 6 July 2010.

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