September 05, 2011
After a long time of neglect, there is an increasing awareness and recognition of the human rights of older persons within the international human rights community. Several stakeholders have issued a call for a ‘UN Convention on the Rights of Older Persons’. In a recent article in the Human Rights Law Review, entitled ‘The Human Rights of Older Persons: A Growing Challenge’, Frédéric Mégret does an excellent job assessing these developments. Mégret shows that the rights of older persons should be approached through a human rights framework and that this is an issue which human rights lawyers cannot afford to ignore any longer.
So far, the European Court of Human Rights has not exactly produced a rich case law on the human rights of older persons. Perhaps this is not surprising, given that the European Convention and its Protocols are silent on the issue of rights for the elderly (in contrast to the European Social Charter (see article 23) and the Charter on Fundamental Rights of the European Union (article 21 and 25)). However, this might be changing. There is definitely potential in the Court’s legal analysis to mainstream the rights of older persons. This blog post focuses on that potential through the lens of two cases that were handed down in July: Heinisch v. Germany and Georgel and Georgeta Stoicescu v. Romania.
Heinisch v. Germany: recognition of vulnerability
At first sight, Heinisch v. Germany is not about protection of the elderly. The case concerns a whistle-blower’s right to freedom of expression (article 10). However, this whistle-blower, Ms Heinisch, was a nurse at a home for elderly patients who needed special assistance. After complaining several times to her employer about the (work-)conditions at the nursing home, she filed a criminal complaint alleging, amongst other things, that her employer failed in the care that it promised and that the patients were put at risk. When Ms Heinisch also distributed a leaflet recording her grievances, she was dismissed without notice.
The Strasbourg Court’s judgment is interesting, and not just from a freedom of expression angle. When the Court assesses the proportionality of the infringement on the applicant’s freedom of expression, it turns to the public interest involved in the disclosed information. It is in this context that the Court remarks: “In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the care rendered on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse.” (par 71)
As far as I can see, this is the first time that the Court explicitly recognizes the particular vulnerability of certain elderly people – in this case elderly people living in nursing homes. In other cases concerning elderly people in nursing homes, notably Watts v UK (declared inadmissible), the Court afforded no such recognition of their predicament. That means that Heinisch v. Germany represents a significant development in the Court’s approach to the human rights protection of older people, the more so because vulnerability is increasingly gaining traction as a heuristic device in the Court’s reasoning. The point in emphasizing vulnerability is that it effectively explains the need for a higher level of human rights protection for those who need it the most. After the Roma (see D.H. and Others v Czech Republic), people with a mental disability (see my post on Alajos Kiss v Hungary), people living with HIV (see my post on Kiyutin v. Russia) and asylum seekers (see Lourdes’ post on M.S.S. v. Belgium and Greece), might the elderly be next in line to be recognized as being in need of special protection? I hope so.
Georgel and Georgeta Stoicescu v. Romania: positive obligations and damages
The other case that came out in July and that is interesting from an older persons’ rights perspective, is Georgel and Georgeta Stoicescu v. Romania. Mrs. Stoicescu was 71-years old when she was attacked by a pack of about 7 stray dogs in front of her house in October 2000. She was badly hurt and required hospitalization for a few days. After coming home, she continued to be in pain and suffered anxiety; she did not dare leave the house again and quickly became completely immobile. Both she and her husband were retired and lived on a monthly pension of around 80euros, which was not enough to cover her medical bills. Mrs. Stoicescu has since died and her husband continued the proceedings.
Stray dogs were (and still are) a recognized problem in Romania. Around 2000, it was estimated that 200.000 stray dogs roamed the streets of Bucharest. In that same year, 22.000 people received medical care upon being attacked by stray dogs. The authorities did take action to combat the problem, but up till today the problems with stray dogs persist. Mrs. Stoicescu complained to the Strasbourg Court that the attack constituted a breach of her physical integrity (article 8 of the Convention). She alleged that this was due to the authorities, who failed to undertake adequate measures to safeguard the health and security of the population. The Court upholds her plea and finds that Romania breached its positive obligations under article 8.
For supporters of older people’s human rights, the outcome of this case is more significant than the Court’s reasoning regarding positive obligations. Even though the Court refers to information indicating that children and the elderly are especially vulnerable to attacks by stray dogs (par. 34), this fact seems to carry but little weight in the Court’s analysis of article 8. I think there is room for improvement: in assessing the extent to which positive obligations lie on the State, the applicant’s vulnerability is one of the factors that the Court should take into account. On the bright side, the Court does take the applicant’s age into account when rewarding damages (article 41). The Court holds that in assessing the applicant’s suffering “regard must also be had to her dire financial situation, her advanced age and deteriorating state of health and to the fact that she was unable to benefit from free medical assistance and medicines until two and a half years after the incident.” (par 80).
Thomas Hammerberg, the Council of Europe Commissioner for Human Rights, observes that “[i]t is time for a more constructive debate on how human rights for the older generation can be ensured.” (Human Rights in Europe: No grounds for Complacency, p. 200) The Strasbourg Court could play a significant role in shaping that debate. Recognition and the obligation to protect are two important legal tools in safeguarding the human rights of the elderly. The Court signals in Heinisch v. Germany and Georgel and Georgeta Stoicescu v. Romania that it might start the important project of mainstreaming the human rights of older persons.