CYIL vol. 7 (2016)

200 / 536

186
VERONIKA BÍLKOVÁ CYIL 7 ȍ2016Ȏ
Social Charter and Article 24 and 25 of the EC Charter of the Fundamental Social
Rights of Workers. Although the comments hasten to add that “of course, participation
in social and cultural life also covers participation in political life”,56 it remains to be
seen how broadly Article 25 will be interpreted by domestic or EU courts. So far,
the Fundamental Rights Agency monitoring the application of the EU Charter lists
no relevant EU or national case-law relating to the provision57 (with the exception of
a minor reference in an Irish case58 ).
The 1996 Revised European Social Charter is another European – this time Council
of Europe’s – instrument referring to older (elderly) persons. Unlike the original 1961
text, which did not contain any similar reference, the Revised Charter enshrines “the
right of elderly person to social protection” (Article 23). The provision first appeared in the
1988 Protocol to the European Social Charter (Article 4), from which it was taken over
during the revision of the Charter in the 1990s. It compels States to enable older persons
to “to remain full members of society for as long as possible, /…/ to choose their life-style freely
and to lead independent lives in their familiar surroundings for as long as they wish and
are able, /…/ and to guarantee elderly persons living in institutions appropriate support /…/
and participation in decisions”. Of the 34 State Parties to the Revised Charter, only 17
have bound themselves by Article 23.59 The European Committee on Social Rights has
repeatedly commented on the provision, mostly when examining reports submitted by
State parties. In one of its first comments, it confirmed that the right granted in Article 23
is “a fundamental right” and recalled that “the novelty of this right, not just in relation to
the Charter but to other existing international instruments, deserves special mention since it
represents the first international norm specifically protecting elderly persons”.60
In this respect, the Revised Charter scores better than the 1950 European
Convention on Human Rights (ECHR). The rights of older persons are in no way
expressly recognized in the ECHR; nor is age included among the prohibited grounds
for discrimination enshrined in Article 14 and in Protocol No. 12. Despite that, the
European Court of Human Rights has quite a rich case-law relating to older (elderly)
persons.61 Most of the relevant cases fall under one of two categories. The first relates to
the (alleged) failure by the State to take into account special needs of older persons and
adopt positive measures to accommodate these needs.62 The second concerns the right
56 FRA, EU Charter of Fundamental Rights, online at
rights-elderly# (retrieved on 4 July 2016).
57 FRA? Online at (retrieved on 4 July 2016).
58 High Court of Ireland, EB, JB, WB, AB and FBK v The Minister for Justice and Equality, [2013] IEHC 246.
59 These are: Andorra, Bosnia and Herzegovina, Denmark, Finland, France, Greece, Ireland, Italy, Malta,
Montenegro, the Netherlands, Portugal, Serbia, Slovakia, Slovenia, Sweden, and Ukraine.
60 Conclusions XIII-3, Statement of Interpretation on Article 23, p. 455, cit. in Council of Europe, Digest
of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 329.
61 ECtHR, Elderly people and the European Convention on Human Rights, Fact Sheet, September 2014.
62 See, for instance, ECtHR, Farbtuhs v. Latvia, Application No. 4672/02, 2 December 2004 (violation
of Article 3); or Jablonská v. Poland, Application No. 60225/00, 9 March 2004 (violation of Article 6).