” Sustainability and Age Inclusiveness

in the urban environment”[2]

Antipelargy[3].
“When the parent stork’s feathers have completely fallen from the wings, as they do when the birds begin to age, the [younger] storks take the parent in their midst and keep it warm with their wings. And they prepare an ample supply of food and they help as much as possible when it is time to fly, raising the parent gently with their wings, sometimes on the left, sometimes on the right. That is well-known, so much so that reciprocal care is known as ‘antipelargy’.

1. Introduction

Our planet’s population is ageing. Official UN statistics show that by 2030 citizens aged over 60 will account for almost 20% of the world’s population (1.4 billion people) while by 2050 the number will have reached 1.6 billion, of which 392 million will be over 80; which is 3 times higher than today. By 2030 Greece will be a nation of older people, with 32.5% of the population aged over 68[4].

How is the international community reacting to these statistics? How is international diplomacy responding? What steps are international organisations taking to address the issue and protect older people?

According to the World Ageing Report 2015[5], the rise in the number of older people is due to two key factors: a reduction in mortality coupled with an increase in life expectancy and falling birth rate. Those two factors lead to a drop in the percentage of children in the population and a rise in the number of adults and older people. Average lifespan in 2000 was 66 years old; by 2050 it will have reached 80.

For many countries old age starts at 65. To a certain degree that figure is arbitrary since in many cases it is associated merely with retirement for pension purposes; the starting age for that can –of course– vary from state to state. It is quite clear that calendar-based determinations and use of biological age as a criterion will often not be a safe method for determining the start of old age. Although there are no fixed points of reference for what old age is, the United Nations has adopted a general definition of old age for individuals aged over 60[6].

It is accepted that the ageing process is a biological reality with its own dynamic that lies beyond man’s control. Having said that, the entire concept of ageing, which concludes with old age, has become imbued with a wide number of social and economic features. One of those is retirement which follows on from cessation or reduction in productive capabilities to such a degree that active involvement is no longer possible or is particularly difficult. However, that measurement, and the categorisation of immense population groups as non-productive, has introduced unfair and arbitrary discrimination using unclear criteria and vague justifications. The concern over how to protect older persons, especially given the clear lack of a commonly accepted definition of old age, can be sketched by looking at the actions and initiatives of the international community. Despite the relative increase in international instruments that safeguard human rights, protection of older persons has not garnered the attention it deserves. This paper is an attempt to comprehensively record the legal framework for such protection, the lacunae that exist, and how the issue has developed over time.

2. The UN’s efforts to protect old age

Promoting and protecting human rights is one of the UN’s key objectives. [7] That objective, coupled with the general principle of non-discrimination, is set out in Articles 1(3) and 55(c) of the  Charter. Taking the principle of non-discrimination first –a principle of particular importance for protecting human rights–, it is integrated into Article 2 of the Universal Declaration of Human Rights (UDHR) [8] so that all human rights and freedoms which the Declaration enshrines can be applied without discrimination. The extent to which it also includes a prohibition on age discrimination is a matter of how one interprets the phrase “or other status” contained in that Article. The first express reference to age, though, comes in Article 25(1) of the UDHR which states that “Everyone has the right to a standard of living … and the right to security in the event of … old age …”.. That provision refers to the minimum thresholds which meet man’s basic needs, such as food, clothing, housing and medical care and necessary social services[9].

There is another reference to old age in Article 24[10] of the 1951 Convention on the Status of Refugees, which indicates that states are obliged to provide refugees with social security in the case of illness, disability or old age. Elderly refugees may face many challenges and be at a double disadvantage due to their status as refugees on the one hand, and to their age on the other.

In the 9 fundamental conventions adopted by the UN’s General Assembly, the International Convention on the Elimination of Racial Discrimination[11], the International Covenant on Civil and Political Rights, (ICCPR)[12], the International Covenant on Economic, Social and Cultural Rights, (ICESCR)[13], the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[14], the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[15], the Convention on the Rights of the Child (CRC)[16], the International Convention for the Protection of the Rights of Migrant Workers and Members of their Families[17], the Convention on the Rights of Persons with Disabilities[18], and the International Convention for the Protection of All Persons from Enforced Disappearance, [19]which are the core of human rights protection worldwide [20], only (a) the International Convention for the Protection of the Rights of Migrant Workers and Members of their Families[21], (b) the Convention on the Rights of Persons with Disabilities[22], and (c) the Convention on the Elimination of All Forms of Discrimination against Women[23] make an express reference to old age.

At this juncture it is vital to make a clarification so that there is no confusion about the scope of protection. The scope of protection is clearly not limited to express references and no Convention sets out a restrictive list of the individuals to which it is addressed. Consequently, the normative scope of application is left deliberately large. Protection, simply put, relates to non- discrimination against other people on grounds of race, age, gender, origin, sexual preference, religious beliefs or any other characteristic. The enjoyment of rights is not an issue arising from a broad interpretation, but is a legal reality incorporated into the texts. Notwithstanding that, the issue which arises from the absence of an express reference is that a two-sided problem is created. One aspect has to do with the periodic reports from states parties to these instruments. States are obliged to submit reports to the relevant Committee established under each Convention, in order to verify to what extent the level of protection in national law –in legal and real terms– is in line with the rules and standards laid down in each Convention or Treaty. It is frequently the case that States attempt to conceal data or try to give the provisions of Conventions a very narrow meaning in order to reduce the obligations they are under. This is a dramatic situation, reflected too in the fact that of 124 of the States which submitted reports to the Human Rights Committee under the International Covenant on Civil and Political Rights[24] in the period 2000-2008 did not make any reference to old people at all[25]. On the other hand, the absence of an express reference to age as a basis for discrimination, although included in the indicative phrase “or any other status” has not motivated States to report national initiatives on older people to the relevant Committees. This fact has been repeatedly criticised by the Committee on the Elimination of Discrimination against Women (CEDAW)[26], since States Parties either deliberately or involuntarily fail to present data about elderly women. It would no exaggeration for one to say that in the present global legal regime, older people are by definition victims of an all-pervasive legal uncertainty.

However, in recent years one can see a turn in multilateral diplomacy towards the rights of older people, since the issue is increasingly on the agenda of international organisations. The reason is, of course, clear and is confirmed by the statistics. It is a fact that until recently the issue only concerned a few Western states, but that situation has changed due to the rise in the numbers of older people, meaning that states now wish to put in place a framework of action for the challenges they face.

2.1. The UN’s initiatives on old age

2.1.1. At institutional level

2.1.1.1. The General Assembly

 The first attempt to adopt a text protecting older people was at the General Assembly’s 3rd Session when Argentina submitted a Draft Declaration of Old Age Rights, a few days before the draft of the UDHR was submitted[27]. That draft, comprised of 10 Articles, focused on the key needs of older people and highlighted the necessity of respecting their rights, and was sent to the Economic and Social Council for further examination. Nothing was ever done though[28].

Years later, the 1st World Assembly on Ageing held in the early 1980s led to the adoption of a Plan of Action on Ageing which was also supported by the UN General Assembly[29]. That plan recommended that States Parties introduce legal reforms to ameliorate the discrimination faced by older people in relation to recruitment, pay, social benefits and social security, working conditions, as well as hygiene conditions in the workplace, and suggested that older people be protected from being recruited to positions which were dangerous and harmful to their health[30].

The General Assembly took certain initiatives in the early 1990s when it adopted Resolution 45/106[31] which designated October 1st as International Day of Older Persons, and Resolution 46/91[32] which laid down the United Nations Principles for Older Persons. That Resolution was divided into 5 key priorities each containing separate provisions. These priorities were: Independence, Participation, Care, Self-fulfilment/Self-determination and Dignity and corresponded to the rights in the International Covenant on Civil and Political Rights (ICCPR). That same year the General Assembly went one step further and resolved to mark 1999 as the International Year of Older Persons[33] in its effort to send a clear message to the international community.

That was followed by the 2nd World Assembly on Ageing in 2002 which adopted the Madrid International Plan of Action on Ageing[34]) to address the needs and challenges of an older population and promote the development of a discrimination-free society for all ages. In preparing for that Assembly, the UN Secretary General at that time, Kofi Annan, filed a report on Abuse of Older Persons to the UN Economic and Social Council[35]. According to the Secretary General abuse can take many forms, such as neglect, sexual/economic/psychological abuse as well as social abuse. Fully safeguarding the rights of older persons is a solution to eliminating cases of abuse, because without rights older persons are in a vulnerable position and consequently become potential victims[36].

The International Plan of Action consisted of two parts. The first includes a Political Declaration under which governments committed to adopt suitable legislation to eliminate age discrimination. States declared that they would incorporate an age element into all social security, healthcare benefits and social care policies. The second part included the International Plan of Action which consisted of the following priority directions. The first related to older persons and development, addressing issues such as urbanisation, regional development and job opportunities. The second priority direction was health and older persons, addressing issues such as improving healthcare structures, disability and accessibility as a corollary of that, and the need for investments in the health sector. The third priority direction was ensuring supportive environments, which includes transport, the issue of lack of infrastructure suitable for individuals with reduced mobility, and so on[37].

That same year the General Assembly adopted Resolution 65/182 to evaluate the progress achieved in protecting older persons since the 2nd World Assembly on Ageing in 2002[38]. That Resolution renewed the political commitment to the possibility of employing older persons and ensuring protection for them, proposed specific international collaborative measures and recommended that a focus on older persons be included in the procedure for implementing the Millennium Development Goals. It also proposed that an Open-Ended Working Group (OEWG)[39] be set up on the rights of older persons charged in the words of the Resolution with exploring potential ways of strengthening the protection of
the human rights of older persons by considering the existing international
framework on the human rights of older persons and identifying possible gaps and
how best to address them.

Another two General Assembly Resolutions adopted in 2012 are also relevant here, namely Resolution 67/139[40], and Resolution 67/143 entitled “Towards a comprehensive and integral international legal instrument to promote and protect the rights and dignity of older persons”[41]. In those Resolutions, the General Assembly attempted to strengthen and bolster the Open-Ended Working Group and to charge it will collecting and preparing specific proposals for an international legal instruments on protection of the rights of older person to be submitted to the General Assembly in due course. The group was charged with collecting proposals from various institutions and committees within the UN system including UN Women, the High Commissioner for Human Rights, and so on. However, so far no proposals have been submitted. In December 2016 the Open-Ended Working Group completed its 7th Session[42], and concluded that demographic trends are irreversible and that prognoses about the decades to come are based on confirmed statistics. It concluded that existing legal instruments cannot effectively safeguard the full enjoyment of civil, political, economic, social and cultural rights, because they are either being implemented in piecemeal fashion or there are gaps in the regulatory content of the instruments which do not effectively address concepts such as ill-treatment, exclusion, stigma and discrimination. The Group also observed that in 2010 the General Assembly’s 65th Session strengthened its existing structures to achieve protection of older persons whereas two years later the 67th Session took a more daring stance and amended the group’s mandate, so that it could receive and examine proposals for a legally binding instrument on the protection of older person, which it was asked to present the General Assembly as soon as possible. It concluded that the six sessions held since it began operations in 2011 were not sufficient for it to be able to identify all key points that would need to be included in a potential treaty and that it was not in a position to submit recommendations to the General Assembly. The question of what any such Treaty might contain is not clear-cut, and the only thing that is certain at present is that a diagnosis had been obtained and the issue is now squarely in the entire international community’s court[43].

2.1.1.1.1. The Human Rights Council

In parallel with the above, the UN’s Human Rights Council[44] also addressed the issue and adopted the Chung Report which was submitted by the Advisory Committee in early 2010 and bears the name of the reporter Μs Chiusung Chung. The Report highlights (a) population ageing and (b) the large number of violations of older persons’ rights, and also includes a list of rights drafted by the Yale Law School[45]. It also devised a new special procedure to implement existing instruments that protect the human rights of older persons to raise awareness in society about the need to respect the rights of older persons and to disseminate information among older persons about their rights[46]. Moreover, in May 2014 the Chilean Ms Rosa Kornfeld-Matte was appointed for 2 years as the first independent expert on the rights of older persons[47]. This mandate from a UN institution, which is the first of its kind for the rights of older persons, includes visits to states parties, recording good practices, problems and lacunae in the legislation on protection of older persons, and attendance at conferences, seminars, etc. In an announcement from her, Ms. Matte stressed that an ageing population is one of the most important demographic problems of the 21st century and asked states parties to prepare annual reports on the rights of older persons, stressing that human rights –whether civil and political, or economic, social and cultural rights, or enshrined in international conventions or in soft law– should be taken into consideration overall[48].

2.1.1.2. Economic and Social Council

The relatively recent adoption of Sustainable Development Goals[49] in September 2015, which include 17 new priorities over a 15-year horizon are of major importance for older persons. Emphasis is placed on older person in goals 2, 3, 9 and 11 which relate to combating hunger, improving health and prosperity for all ages, accessibility to the urban environment and infrastructure.

2.1.1.3. The Secretary General

The Secretary General has also begun addressing the issues of old age. [50]The slogan of the International Day of Older Persons (1 October 2015) “Sustainability and Age Inclusiveness in the Urban Environment’’[51] is no coincidence. The Secretary General stresses that it is vital to find ways to ensure that our social structures respond to all ages without discrimination. He also added that by 2020 there will be 900 million older persons living in cities and that by 2050 they will account for 1/4 of the urban population and will be a major priority for society, and their role may prove decisive in global development[52]. Older populations are also expected to congregate in less developed areas, which –if proven true– will generate even greater issues to be resolved, and it is also likely that chronic diseases and disabilities will appear among older persons.

In his report,[53] he also referred to these challenges of an ageing population by tying the issues of older persons into problems such as: age discrimination; poverty which is now the most demanding challenge of old age and is frequently accompanied by a lack of accommodation, malnutrition, chronic medical conditions, lack of or no access to potable water and toilets, complete lack of Medicare, etc.; violence towards and abuse of the elderly -physical, emotional or even sexual abuse by people in a position of trust occurs worldwide; as well as lack of relevant measures and services to address increasing demand, particularly specialised services such as rehabilitation or residential centres, or home care programmes vital to safeguard the rights of older persons.

The Secretary General stressed that States’ international obligations to safeguard the rights of older persons derive, as one might expect, from the entire system that safeguards human rights, but despite that there is no specific –never mind detailed– reference in any of the international legally binding instruments and the issue is complicated further if one considers that older persons are not a homogenous group because ageing impacts men and women differently and there are major differences in how the over 60s experience age compared to the over 80s.

It is a fact that certain governments have already begun to grasp the need for express, compelling legislative reform and have taken steps to improve short-term social structures for older persons and to bolster anti-discrimination legislation, but despite that the international community’s collective effort is somewhat lacklustre, with the result that there is a negative balance. The effort is thus lacking an institutional and legal backdrop to support it, and so is inadequate and inconsistent.

Moreover the Secretary General sketched the actions required to (a) strengthen the protection regime for the rights of older persons worldwide; (b) combat violence against older persons and against women in particular: those phenomena are closely associated with discrimination against older persons, who cannot or do not want to report them; (c) combat economic exploitation: older people continue to face fraud on a daily basis, arbitrary removal of their assets, theft, etc. specially from relatives; (d) improve health: in the health sector older persons are not normally seen as a priority and most programmes and way in which resources are allocated do not take proper account of them. There are a few examples of well-designed policies aimed at prevention, rehabilitation and care for the terminally ill. The same also holds true for long-term care, which worldwide is considered to be inadequate due to the lack of staff or the low quality of services provided; (e) help older persons engage in political life and policymaking: providing information directly to older persons about policy directions is vital for integrating older persons since they are normally not taken into account and are manipulated extensively, especially during elections; (f) improve the situation with work: a major sector in which older people are quite literally helpless. It is worth noting that a few countries have introduced legislation to combat age-based discrimination in recruitment[54].

2.1.2. Implementation of international human rights protection instruments

The UN has adopted tens of international human rights instruments, including two Covenants (the International Covenant on Civil and Political Rights / ICCPR and the International Covenant on Economic, Social and Cultural Rights / ICESCR) which along with the Universal Declaration on Human Rights (UDHR) are considered to be the “bible of human rights worldwide”.

2.1.2.1. The International Covenant on Economic, Social and Cultural Rights

Neither the ICESCR nor the ICCPR contain any provisions referring to age. They are limited to a general prohibition on discrimination for “any other status”[55]. However, it is interesting to look at how the Committee on Economic, Social and Cultural Rights (CESR) has interpreted the issue of old age in its General Comments. These are views which are quasi-judicial in nature which aid the interpretation of the rights included in the Covenant. States are obliged to have regard to those documents when implementing the Covenant’s individual provisions.

In 1995 the ICCESR[56] adopted General Comment No. 6 entitled “The Economic, Social and Cultural Rights of Older Persons[57]” whose content is considered to be a milestone for this age group. The Committee made it clear that even though age is not specified as a basis for discrimination in the Covenant or in the ICCPR, the list of forms of discrimination is indicative only and age is included among the “any other status” contained in Articles 2(2) and 2(1) respectively. The Committee recalled that a state’s economic status cannot be sufficient grounds for avoiding its international obligations towards individuals. Moreover, relying on Article 3 of the ICESCR which guarantees equality of the sexes and Article 9 of the ICESCR which relates to social security, including social insurance, it attached particular importance to older women who in many countries have not worked in such a way as to be entitled to a pension and so are in a critical situation. The Committee went on to stress the obligation that derives from Article 11 of the ICESCR on the enjoyment of an adequate standard of living, which is a condition for the independence of such persons, as outlined in the UN Principles a few years earlier. The General Comment closes with a reference to Articles 12 and 15 of the Covenant which relate to the right to the enjoyment of a satisfactory standard of physical and mental health and the right to education and culture. In short, the Committee stressed that states parties are obliged to promote and safeguard the economic and social rights of older persons[58].

In 2008 the CESR went on to adopt General Comment No. 19 relating to Article 9 of the Covenant and the right to social security[59]. That Comment found that states must put in place legislative provisions for social security, and offer benefits to older persons, and must clearly designate the retirement age and the level of pension depending on the type of work done and working conditions.

That was followed by the adoption of General Comment No. 20 in 2009 on the elimination of discrimination[60], in which the Committee clearly stated that age-based discrimination in various sectors, such as job seeking and vocational training and against individuals on the poverty line who do not have access to a pension is prohibited, and stressed the need for proactive measures to be taken to protect unemployed older persons.

In General Comment No. 21 on the right of everyone to take part in cultural life, which interprets Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights, the Committee dedicated two paragraphs to older persons (28 and 29) stating the need to protect the cultural rights of older persons because many of them are transmitters of information, knowledge, traditions and cultural values, who could with suitable infrastructure convey that knowledge to cultural institutions, and above all to the next generation[61].

Note that the General Comments are quasi-judicial in nature and that the interpretations are frequently used in the judgments of human rights courts. Moreover, many General Comments refer to precedents when discussing issues such as health, education, social security, non-discrimination and so on.

2.1.2.2. The Convention on the Elimination of all Forms of Discrimination against Women

The Committee on the Elimination of Discrimination against Women moved in the same direction when it adopted General Recommendation No. 27 on older women and protection of their human rights at its 47th Session. It is clear that older women are by definition victims of a dual disadvantage[62]. There are many forms discrimination against them can take and the risks they face are countless, and in some cases even insuperable, especially the risks of marginalisation. The General Recommendation clarifies the Convention’s normative content, resting as it does on the elimination of discrimination, so that it is clear that states are obliged to safeguard the rights of older women. It is worth noting that the Committee has often highlighted the need for states to educate women, to combat illiteracy, etc., as is clear from its reports[63].

2.1.2.3. The Convention against Torture

In General Comment No. 2[64][65] on the implementation of Article 2 of the Convention against Torture, the Committee against Torture also draws a compelling parallel. It stresses that care facilities for older persons fall within the definition of detention centres where the state is duty-bound to prohibit and prevent torture and other forms of ill-treatment.

3. The activities of various Regional Organisations

It is common ground that compared to global human rights protection mechanisms, regional systems have a greater degree of integration and cohesion. It is a fact that wherever there are courts there is a clear quality difference from the Committees which oversee the implementation of human rights conventions at UN level, which are merely quasi-judicial bodies. Among such systems, the European system holds prime position along with the US one, followed in second place by the African one. In Asia, human rights protection is still in its early stages, where a Declaration has been adopted along with a Charter of Human Rights and a draft control mechanism in the form of a Committee. It is worth noting that the Declaration[66] adopted by ASEAN countries clarifies that the concept of ‘individual’ expressly includes older persons. However, as far as the protection of the rights of older persons and the adoption of special international instruments are concerned, the Organisation of American States (OAS) and the African Union (AU) are leaders.

3.1. The Council of Europe

3.1.1. The European Convention for the Protection of Human Rights and Fundamental Freedoms

In Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)[67] makes no reference to the rights of older persons. However, that does not mean that the European legal order lacks the protections found in other regions. The ECHR is one of the most advanced human rights instruments because, as the European Court of Human Rights (ECHR) has frequently stated, it is a living organism. The text of the Convention is constantly developing thanks to the case law of the Court which has adopted the principle of effet utile and adapts the protective scope to meet contemporary needs. So in many instances where the Convention is silent on a specific matter, the European Court of Human Rights has taken it upon itself to use the interpretative tools it has to direct legal reasoning down innovative paths where that is needed. That is clear if we take a brief look at some of its case law.

3.1.1.1. The ECtHR’s case law

The ECtHR has ruled in a series of cases to do with the rights of older persons that the provisions of the Convention have been infringed. A few representative examples are sufficient here.

1) Looking at Article 2 which safeguards the primary right to life, the Court examined the inability of a government care home for the elderly in Bulgaria to protect the mother of Mr. Dodov[68] who was suffering from Alzheimer’s disease who escaped without those in charge noticing, and who neglected to promptly trigger the procedures to find her. The Court found that Bulgaria had violated Article 2 and Article 6 which guarantees a fair trial, because the case lasted 10 years before the national courts, thereby violating the right to the prudent administration of justice.

2) The Court has often looked at violations of Article 3 which prohibits torture, inhuman and ill-treatment or punishment. There are numerous cases on this point, leading to the conclusion that older persons are not receiving appropriate care so that they can live with dignity. It was those precise issues which were raised in Chyzhevska v. Sweden [69] and Frolova v. Finland.[70] The first was an elderly Ukrainian lady and the second an elderly Russian lady who were obliged to leave the countries where they were living as foreigners. They sought recourse to the ECtHR asking to remain in their country of residence for health reasons and out of the fear of moving. In these cases it was proven that the claimants did not have relatives or social contacts in their countries of origin, and depended on relatives in the host countries and consequently their fragile health and advanced age were considered grounds to prevent any potential deportation. Before the ECtHR issued its ruling those countries did in fact reverse their decisions.

In the Farbtuhs v. Latvia[71] case the ECtHR identified inhumane treatment of a convict who was an elderly paraplegic, since at the prison where he was serving his sentence after being convicted for crimes against humanity and for genocide in the 1940s in Latvia, he was not given special care and the facilities were completely unsuited to meet his needs. Having ascertained that his health had deteriorated over the course of his sentence, he was pardoned and the ECtHR ruled that Latvia had violated Article 3 of the Convention.

Mr. Contrada[72], aged 83, had been convicted to 10 years in prison for his involvement in the criminal organisation, the Cosa Nostra. His repeated requests for his sentence to be terminated or converted to house arrest due to serious health issues were rejected by the Italian courts and he brought Italy before the ECtHR, which ruled that there was a violation of Article 3 of the Convention, and ordered Italy to accept his request. It is worth noting that in the Mouisel v. France[73] case, the ECtHR clarified that Article 3 does not require the release of detainees when they become ill during detention, but does create an obligation to preserve their physical and mental condition, which includes the duty to provide medical assistance. The claimant who suffered from leukaemia was transferred to a facility where he was to receive medical care but during the course of his treatment he was bound in chains in bed, surrounded by guards who maltreated him. The ECtHR found that France had violated Article 3 of the Convention.

3) In the Meier v. Switzerland case[74], due to his age the claimant argued he could not work in prison and cited a violation of Article 4 ECHR which prohibits slavery and forced labour. The ECtHR ruled that the obligation for a person serving out his sentence to do work in the normal course of his detention does not violate the ECHR.

4) Looking at violations of privacy and family life, the Court ruled that Switzerland had violated Article 8 of the Convention when it prohibited Mrs. Gross[75] from receiving a specific medicine which would terminate her life. Swiss law does not clarify when it is permissible to assist someone to terminate his/her own life. The Court’s Grand Chamber to which the case was referred, placed the case on file since it was found that the claimant had died in the meantime[76].

The McDonald v. UK case is also interesting[77]. The UK was found to have violated Article 8 of the Convention because it decided to cut the amount of weekly allowance for a 71 year old lady with a serious leg problem and instead of providing assistance obliged her to wear incontinence pants during the night even though she did not need them. The Court accepted Mrs. McDonald’s view that the decision to reduce her care allowance on that basis violated the right to respect for her privacy and undermined her dignity.

5) Heinisch v. Germany looked at Article 10 and the freedom of expression[78]. A nurse in an old people’s home lost her job because she was letting the public know about the problems residents of the old people’s home were facing. The decision did not relate to protection of the rights of an older person but the Court’s ruling is nonetheless of interest since it accepted that the issues of elderly patients and information about those matters is of interest to the public, given that it can be used to avoid abuse, and so the ban on the nurse expressing her opinion was a violation of Article 10 ECHR.

6) The prohibition on age-based discrimination was an issue of concern to the ECtHR even though Article 14 ECHR appears weak on the issue compared to corresponding provisions in other international instruments which we saw above[79]. However, the Court has attempted to fill the lacuna in quite a few cases, including those relating to issues of pension equality for the sexes[80]. (Articles 14 and 1 of the First Protocol). The ECtHR ruled that discrimination on the retirement ages of men and women (65 and 60 respectively) was based on the government’s attempt to address the treatment which women had suffered in the past, and that based on the margin of appreciation which exists, states are able to bring forward laws on these matters without violating Article 14 read in conjunction with Article 1 of the Protocol.

In another case the ECtHR found a violation of the Convention because a pension cut was due to the claimant being of a different nationality[81].

7) The Court’s case law on issues of social security is important, in light of Article 1 of the First Additional Protocol which safeguards property, because the right to a pension[82] is treated as a property right[83], and pension benefits fall within the scope of that Article irrespective of whether they are contributory or non-contributory and irrespective of the funding mechanism[84]. Cases on social security began to emerge from 1986 onwards. In the Deumeland case,[85] a German citizen tried unsuccessfully to secure a supplementary widow’s pension after the accident her husband had been in had cost him his life. The Court took the view that the German public administration had not paid sufficient care when examining her request and consequently had violated the right to hearing enshrined in Article 6 ECHR. It is interesting that the ECtHR stressed in its judgment that in cases of social security for older persons states must act without delay.

A clear answer about pension cuts is given in the Mateus and Januario v. Portugal case[86]: The claimants’ pensions were cut because of the country’s financial problems and the Court ruled that the claim was inadmissible because the exceptional financial problems Portugal faced and the cuts in its pensions were temporary. According to the ECtHR the government had ensured a balance between the public interest and protection of the right to receive a pension.

In the Solodyuk v. Russia case[87], the ECtHR examined how quickly the pension had been paid and ruled that a delay of over 4 months during which inflation rose dramatically imposed an unbearable burden on the claimant and consequently Russia had violated Article 1(1) of the Additional Protocol. Poland was also found to have violated the same Article in the Moskal case[88], because of its failure to achieve a fair balance between the public interest and protection of the claimant’s rights.

Although it is clear that the Article does not require states to establish a social security system, when such a system is mandated by law so that beneficiaries acquire an ownership interest, the system falls within the protection afforded by the Article. The level of benefits cannot of course be included lightly into the right to property and the government is entitled to limit benefits provided it complies with the fundamental guarantees of legality, public interest and proportionality[89]. It is well-established case law that Article 1(1) does not safeguard a predefined level of pension[90].What is examined is the existence of a balance between the right of an individual to receive a pension and the public interest[91]. The state has a margin of discretion in examining this matter, as the body most competent to determine issues of social and economic policy. The ECtHR respects the state’s policy and choices, and its decisions in the social policy realm, unless it is proven that those choices lack basis[92]. As for the concept of public interest, states retain a wide margin of appreciation because national authorities are best placed to decide what is in the national interest and to chose the most appropriate means to achieve that objective[93], while the ECtHR limits itself to ruling on the extent to which certain measures taken by the state ensure a reasonable balance between the requirements in the general interest and the obligation to safeguard fundamental freedoms[94].

3.1.2. The European Social Charter

The European Social Charter (ESC)[95] is considered to be Europe’s social constitution or, as others have put it, the international instrument with the most comprehensive list of social rights in the world[96]. It safeguards a series of social, economic and cultural rights, without discrimination, emphasising vulnerable groups, including older people. The ESC was enriched with the First Additional Protocol to the ESC[97] which specifically sets out old people’s right to social protection[98]. The content of Article 4 was integrated ‘as is’ into Article 23 of the revised version of the European Social Charter[99]. It is the first provision in an international treaty that safeguards the rights of older people, setting out the means and actions which states are obliged to adopt. The provision seeks to allow older people to remain active members of society with sufficient income to live a dignified life, to provide them with information about services that operate for their benefit and the right to live an independent life and to choose their lifestyle and to positively impact on society[100]. It also specifies the option of providing homes suited to their needs and the healthcare concomitant with their condition. On issues of healthcare protection, Article 23 is supplemented by Article 11 ESC which gives everyone access to the healthcare system including vulnerable groups[101]. The rights of older persons to social security are supplemented by Articles 12, 13 and 14 and must be read in conjunction with Article 23. Finally, special steps should be taken to protect the privacy of those living in old peoples’ homes and to provide them with suitable assistance[102].

Member States undertake the obligation to adopt special measures to implement and give effect to Article 23. The Explanatory Report accompanying the Protocol[103] stresses that the phrase ‘special measures’ indicates that the measures listed are not exhaustive, but merely indicative, and the intention was simply to establish a minimum set of rights which Member States are to implement. That indicates that the states can adopt other measures of their choosing to ensure better implementation. On the implementation of Article 23[104], it should be noted that the Member States are not obliged to directly implement all Articles of the ESC immediately upon its ratification. Part III of the Charter states that Member States will directly implement 6 of the 9[105] Articles in Part II, but those do not include Article 23. Until recently, 19 Member States[106] had undertaken to also implement Article 23.

Implementation of the provisions of the ESC is reviewed by the European Committee of Social Rights[107] (ECSR) in two ways; via national reports[108] sent by the Member States to the Committee or by the organisations cited in Article 1 of the ESC Additional Protocol[109] submitting collective reports/complaints in cases where their rights have been violated. It is important for all states to provide older persons with the ability to seek recourse to the ECSR through a representative body so that it they do not find vindication before the courts of their home country they can seek recourse to the Committee[110]. Decisions of the Committee are not directly enforceable in the Member States; however they do establish rules of law which the Member States are obliged to implement. The Committee operates as a quasi-judicial body; its decisions interpret the ESC in a binding manner for the Member States[111] and acquire effect with the intervention of the Council of Ministers of the Council of Europe. On a collective complaint against Greece and others for reducing pensions, the ECSR stated that it was not compatible with the ESC to reduce the income of older persons below the poverty line[112], and cited Article 4.1a of the Additional Protocol on the right of older persons to a satisfactory income in order to live with dignity[113].

3.1.3. Other initiatives of the Council of Europe

3.1.3.1. The Convention on Human Rights and Biomedicine

Although the Convention on Human Rights and Biomedicine[114] does not expressly refer to older persons, special reference does need to be made to the categories of older persons who receive treatment such as the mentally ill, those suffering from incurable diseases (Alzheimer’s and Parkinson’s diseases for example) who need immediate treatment or those who undergo research, who are covered by the protective framework established in a series of other provisions in the Convention. A series of Articles in the Convention refer to issues of consent for treatment or for research and its effects, where such persons are able to provide information in person or through a representative in the case of mental disability (Articles 5, 6(3), 16, 17 and 20)[115].

3.1.3.2. Recommendations of the Committee of Ministers

For its part the Council of Europe’s Committee of Ministers has noted in a series of Recommendations about older persons (relating to status, demographic challenges, protection of dignity of the sick and dying)[116] that Europe is concerned about the ageing of the population. Recalling the major human, social and economic contribution of older persons to society, the Committee of Ministers recommended that the 47 member states adopt legislation to safeguard older persons so that their dignity is respected, they know their rights and they do not fall victim to discriminatory treatment. It focused states’ attention on providing security to older persons so that they do not feel fear and are not exposed to any form of abuse. It also stressed the need for all laws and all instruments to make reference to age.

In 2014 the Committee of Ministers adopted a new Recommendation on the promotion of the human rights of older persons and the need to raise awareness among the public about their rights, especially when issues of poverty and economic crisis are involved[117]. The Committee of Ministers pointed out the need to combat all measures which constitute discriminatory treatment based on age, and that older people must gain autonomy and be involved in society, that they must be protected against violence and ill-treatment and they must enjoy social protection and care and administrative justice. It ended by setting out examples of good practices toward older persons in Council of Europe member states, calling upon member states to continue to submit good practices in order for other countries[118] to learn from their example in their efforts to safeguard their older people. Among the good practices we can single out the fact that in 2012 Austria adopted a Federal Plan for Older Persons; in 2006 Germany established the independent Federal Anti-Discrimination Agency; Belgium organised training courses on intercultural communication for services working with older migrants; the Czech Republic adopted a new National Action Plan promoting positive ageing (2013-2016), which explicitly underlines the protection of the human rights of older persons as a key principle; Sweden bolstered protection for older persons (2013); and the UK and Greece (both in 2012) adopted programmes to enable older persons to be autonomous at home via social welfare, psychological support and home help services. The programme encourages older persons to participate in cultural activities and attempts to secure a dignified standard of living for them. Poland introduced the ‘Golden Years at University’ scheme which organises educational events for older persons; Spain establish a Council for Older Person on which representatives of the public administration and civil society sit, which only looks at old age issues. Turkey provides services daily to old people living at home and in 2007 the WHO published a guide to help cities become more old people-friendly. Finland adopted a programme to combat violence against women (2010-2015) including older women. In 2013 France also adopted a similar national plan on the treatment of older disabled people while Portugal, Holland and other states placed emphasis on making society more aware about protecting older people’s rights. Greece and Portugal also offer older people travel opportunities while social services in Greece can check older people to ensure they are keeping well and are in good health. The list is long and creative, but not yet sufficiently effective. The Recommendation was adopted at a time when the entire international community was active following the appointment of the Independent Expert on Older Persons. Looking at the Recommendation as a complement to existing international instruments which protect human rights, even though non-binding in nature, we consider that states will take account of it in planning future legal instruments.

3.2. The European Union

The ageing population is an economic and political challenge for the Europe of the 21st century[119]. It requires strategy and suitable organisation in order for states to be able to provide older persons with the appropriate help in fields such as health. The European Commission is currently drawing up a strategy on ageing, setting out priorities and stressing the need for the Commission to work with states, professional groups, various associations, and so on[120]. Protection for older persons was initially safeguarded via the principles of equal treatment and non-discrimination. However, the principle of non-discrimination, and its application to age-related issued, is something relatively recent for the EU, and has not been widely addressed in the case law. In the case Commission v. Hellenic Republic[121] relating to discriminatory treatment of men’s and women’s retirement ages, the ECJ looked at Article 141 EC which enshrines the principle of equal pay for men and women for the same work. The Court ruled that by retaining in effect provisions which specified different treatment for men and women on the retirement age, Greece had violated its obligations deriving from Article 141 EC.

Age-based discrimination is contrary to EU law according to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, leaving states the discretion to determine different treatment due to age in certain cases such as the maximum age limit for recruitment. The Directive did not set retirement ages.[122]

The Charter of Fundamental Rights adopted by the EU[123] which applies to all 28 member states includes a comprehensive list of individual freedoms such as equality before the law, non-discrimination, human dignity and a provision relating to the rights of older persons (Article 25). That Article reads “The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life”. The Explanatory Report accompanying the Charter[124] states that Article 25 must be interpreted in accordance with Article 23 of the revised European Social Charter, and along with Articles 24 and 25 of the Community Charter of the Fundamental Social Rights of Workers. It is a generally worded provision, lacking substantive guarantees or clarifications about how it is to be implemented. Despite the importance of the Article for the EU, reservations have been expressed about the legal basis of the provision and about how helpful it can be for the elderly[125].

3.3. The Organisation of American States[126]

Human rights protection on the American continent is enshrined in the American Declaration of the Rights and Duties of Man (1948) and the American Convention on Human Rights (1969) (ACHR) and is supplemented by a series of Conventions and Protocols which extend protection to other rights and other categories of individuals[127]. Among those is the Andean Charter for the promotion and protection of human rights[128], a 96-article long text which has two articles dedicated to the rights of older persons (Article 46-47). The Charter reaffirms the obligation of state parties to protect older persons in the public and private sphere and in the family. Moreover, the Caribbean Charter on Health and Ageing[129] mandates the full integration of older persons into society.

Under the ACHR protection of older persons and the enjoyment of their rights is safeguarded by the general prohibition on discrimination against “any other social condition” contained in Article 1. However, there is a provision of the ACHR which does refer to older persons, when it prohibits the death penalty for people over 70 at the time they commit the crime[130].

3.3.1. First Additional Protocol to the American Convention of Human Rights

The First Additional Protocol[131] to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (the San Salvador Protocol) expressly covers protection of the rights of older persons[132]. Article 17 refers to the provision of suitable facilities, as well as food and specialised medical care, to the organisation of special work programmes and leisure activities so that they can feel productive, and to improving the quality of their life. The Article did not become directly applicable when the Protocol was ratified and is being implemented gradually. State parties are obliged to take special measures to implement it pursuant to Article 1 of the Protocol. The measures listed are indicative, indicating that states parties can offer additional protection. It is also significant that Article 9 enshrines the right to social security. Given the content of the Article, in the Five Pensioners v. Peru[133] case the Inter-American Court of Human Right ruled that although a reduction in the level of the pension is a prima facie violation of the American Convention, in such matters states have a wide margin of appreciation and acquitted Peru. It is worth noting that the protection afforded by Article 17 is limited compared to the corresponding protection afforded by Article 23 of the European Social Charter (revised).

It also provided for a working group[134] (which became operational in 2010) to examine periodic reports and also laid down guidelines on how those reports are to be filed by states parties[135], and how the provisions of the Protocol are to be implemented.

3.3.2. American Convention on the Rights of Older Persons

The OAS went even further and in 2011 set up a working group[136] to prepare an American Convention on the Rights of Older Persons which was adopted in mid-2015[137]. That Convention enshrines the principles of equality and non-discrimination, the right to life and to dignity, the right to independence and autonomy, the right to participation, social integration and security and the right to give informed consent on medical issues, the right to long-term care, as well as the rights to personal freedom, information and expression, to social security, work, health, education, culture, property, accommodation and to a healthy and accessible environment, and also makes reference to the rights before the law and access to justice. The fact that the authors of the Convention chose to include a series of definitions of concepts such as older person, ageing, age-discrimination, care, abuse, negligence, and social and healthcare services in the text is interesting. Old age is defined as starting at 60. It remains to be seen to what extent those definitions will be a starting point for subsequent legislative texts and to what extent states parties to the OAS will adopt appropriate legislative measures to implement the Convention[138].

3.4. The African Union[139]

The Organisation of African Unity was set up in Africa in 1963 and then subsequently replaced by the African Union. African states have shown themselves to be particularly sensitive to human rights in general and to the rights of specific social groups in particular like children and women. One could argue that the last decade has been especially important in promoting and protecting human rights in Africa with the establishment of regional courts and institutions, at the pinnacle of which is the African Court of Human Rights.

3.4.1. The African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights (the Banjul Charter)[140] adopted by the African Union seeks to promote and protect the rights of African peoples. Article 2 prohibits discrimination but there is no express reference to age. That aside, it guarantees all traditional rights recognised in other international human rights instruments and the rights of special categories of persons and groups, including older persons. Article 18 among other things safeguards older persons[141] requiring states parties to the Charter upon ratification to immediately implement its provisions, by adopting legislative and other protective measures based on their physical or mental needs. This direct obligation demonstrates the actionability of these rights, which is something which has been stressed on many occasions by the African Court of Human Rights, which was set up in 1986[142]. However, protection for these people still remains uncertain. Along with the African Court of Human Rights and Peoples, the African Commission, which is the main mechanism for enforcing all provisions of the Charter, and established by the 1998 Protocol[143], is expected to play an important role in implementing the rights of this vulnerable group. These two institutions complement each other in the attempt to protect the rights of the African Peoples[144].

3.4.2. Protocol to the African Charter on the Rights of Women in Africa

A new Protocol to the African Charter[145], relating to the rights of women, includes a specific provision on older women[146], stressing that their social and economic needs must be safeguarded, and that states parties must ensure the protection of women against abuse, violence or age discrimination.

3.4.4. Additional Protocol on the Rights of Older Persons

It is also worth noting that the African Commission on Human Rights and Peoples set up a working group to draft an Additional Protocol on the rights of older persons[147], which was finalised in March 2014[148]. The text of the Protocol goes into particular detail and its scope of protection is innovative, but it still remains to be seen whether it will be adopted by the General Assembly of the States Parties to the African Union.

3.5. The League of Arab States

Early on the Arab States expressed their desire to collaborate and signed the Charter of the League of Arab States on 22 March 1945. In 1994 the Council of the Arab League adopted the Arab Charter on Human Rights but it was never implemented. In 2002 the states parties decided to revise the Arab Charter on Human Rights in line with international standards.

3.5.1. The Arab Charter on Human Rights

The Arab Charter on Human Rights was indeed revised in 2004[149] and is the most recent regional human rights instrument. It protects the whole range of human rights, stresses the need to prepare younger generations for a free and responsible life with respect for their rights and obligations, emphasises the value of equality and the principle that all rights are global, interdependent and inviolable. It contains a specific provision[150] on protection of the family, stressing the obligation to the state and society to protect the disabled, the elderly, and teenagers and young people and to safeguard their physical and mental development[151]. The Charter has a body to monitor its implementation, a 7-member committee which examines reports sent periodically by states parties[152], comments on them and submits recommendations to the Council of Ministers of the Arab League.

4. Conclusion

Old age relates to both a stage of life and to a large group of people who should enjoy the appreciation and respect of society as a whole. At a time when the population is ageing at a rapid pace, it is clear that old age should be at the focus of our thoughts and concerns.

The entire world can be expected to benefit from a powerful body of older people able to make a significant contribution to the development process and the task of building more productive, peaceful and sustainable societies.

The international community has been making constant efforts in this sector, though they lack daring and have come somewhat late in the day. The mechanisms which exist tend not to refer specifically to the problems of the elderly or do so only rarely. Since the adoption of the UDHR in 1948, the UN has come far in protecting human rights in general. It has also made great leaps in specific areas such as the protection of children, women and the disabled, among others. However further efforts are needed, especially with the effectiveness of mechanisms, and the involvement of states in incorporating international instruments into the national legal order.

Regional systems have shown themselves willing to move forward more rapidly, especially in the case of Africa and Latin America. Europe too is not lagging behind. Both in the context of the EU and the Council of Europe efforts in the right direction are being made to safeguard old age. However, we need something more specific[153]. There are objections because key international human rights instruments, especially the two Covenants, are considered to already safeguard the rights of older people[154]. Nonetheless, a new convention would fill all the lacunae which exist in various fields and would better safeguard protection. Moreover, it would raise awareness among older persons, and inform the entire international community that the rights of older persons are part of the overall scheme of human rights protection[155]. Increasingly voices are in agreement that older people deserve an international treaty which specifically sets out their rights[156]. The Convention on the Rights of the Child, the only one which refers to and protects a group of people based on age, could be used as a template; a convention which would change the image of older persons, in the same way that happened with the conventions on the rights of the child and the disabled[157], which would be immediately ratified by all states parties to the UN and implemented in their domestic law, by adapting national legislation to its provisions. At the same time, that Convention should have a control mechanism, a Committee in standard UN practice, to examine periodic reports about how its provisions are being adopted. States are obliged to focus their attention and treat older person with care, ensuring that they enjoy a decent standard of living. How they are treated and how they interact with all other age groups reflects how cultured our modern society is[158]. In Europe where the mechanisms are more effective, the adoption of a Protocol to the ECHR on the rights of older persons would be a move in the right direction.

 

 

 

[1] Dr.Dr.h.c. Paroula Naskou-Perraki is Professor of International Law recently retired from the University of Macedonia.

[2] This is the message of 2015 for the UN International Day for older peoples.

[3] The term refers to the care of young storks towards the old parents and is described by Saint Vassilios.

[4] World Health Organization, Europe Report on preventing elder maltreatment, Dinesh Sethi and others (eds), Geneva, 2011.

[5] World Ageing Report 2015, Department of Economic and Social Affairs of UN Secretariat, Population Division of the Department. New York 2015.

[6]  UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, December 2015, E/1996/22, available at: http://www.refworld.org/docid/4538838f11.html.

[7] The UN was created in 1945 and the Charter came in force on the 24th October 1945. It was ratified by Greece with the law Α.Ν. 585/1945, O.J. Α, 242.

[8] Adopted with the Resolution no 217 Α (ΙΙΙ) of the GA of the UN on the 10^th December 1948.

[9] Art. 22 of UDHR claiming the obligation of the states to provide to all members of the society economic, social and cultural rights in accordance with the organization and recourses of each state.

[10] Adopted on the 1st January 1951, came in force on 22^nd of April 1954. Ratified by Greece with the N.D. 3989/1959, O.G.A, 201. P. Naskou-Perraki, The legal status of refugees in international and national legal order. The Geneva Convention of 1951 on the status of refugees, Ant.N.Sakkoulas, Athens -Komotini, 1991,p. 133 et seq.(in greek).

International Convention on the elimination of racial discrimination (CERD). Adopted by the Gen. Assembly, Res. (2106 A (XX) on the 21th December 1965, came in force on January 4th, 1969.

[12] International Covenant on Civil and Political Rights, (ICCPR). Adopted by the Gen. Assembly, Res (2200 A (XXI) on 16^th December 1966, came in force on March 23^rd, 1976.

[13] International Covenant on Economic, Social and Cultural Rights, (ICESCR). Adopted by the Gen. Assembly, Res (2200 A (XXI) on the 16Th December 1966,  came in force on  Ιανουαρίου 3^rd,1976.

[14] Convention on the Elimination of All Forms of Discrimination against Women, (CEDAW). Adopted by the Gen. Assembly, Res  (34/180) on the  18^th December 1979, came in force on September  3^rd, 1981.

[15] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (CAT). Adopted by the Gen. Assembly, Res (39/46) on the 10th of December 1984, came in force on June 26^th, 1987.

[16] Convention on the Rights of the Child (CRC). Adopted by the Gen. Assembly, Res (44/25) on the 20th November 1989, came in force on September 2nd, 1990.

[17] International Convention for the Protection of the Rights of Migrant Workers and Members of their Families, (Doc. A/RES/45/158. (CMW). Adopted by the Gen. Assembly, Res  (45/158) on the 18^th of December 1990, came in force on  July 1^st,2003.

[18] Convention on the Rights of Persons with Disabilities, (CRPD). Adopted by the Gen. Assembly, Res ( A/RES/61/106) on the  13^th of December 2006, came in force on May 3^rd, 2008.

[19] International Convention for the Protection of All Persons from Enforced Disappearance, (CPED). Adopted by the Gen. Assembly, Res (A/RES/61/177) on the 20th December 2006, came in force on December 23rd, 2010.

[20] For all the above Conventions see P.Naskou-Perraki Human Rights. Universal and Regional Protection. Theory-Case Law. Sakkoulas, Athens-Thessaloniki, 2016 (in greek) and for the texts of the conventions P. Naskou-Perraki, International Mechanisms protecting Human Rights, Texts, comments and case law, Ant. N Sakkoulas/Bruylant, Athens-Brussels, 2010.

[21] Article 7 of the Convention .Greece did not ratified.

[22] [22] Articles 16§2, 25§b, 28§2b of the Disable Convention, ratified by the L.4074/2012, O.J. Α, 88.

[23] [23] Article 1 of the CEDAW convention, ratified by the L.1342/1983, O.J. Α, 39.

[24] Ratified by the L.2462/1997, O.J. Α, 25.

[25] See the Reports of the above states at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=45&DocTypeID=29

[26] Grom the initial, Committee for the Elimination of Discrimination against Women.

[27] Draft Res. On a Declaration of Old Age Rights, Res.213 (iii), December 4, 1948.

[28] See, P. de Hert and Eu. Mantovani, Specific Human Rights for Older Persons? Europa Human Rights Law Review, 4, 2011, p. 398, Craven notes that the discussion on art. 9 of the CESCR was mend to be taken under consideration in a special convention. M. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (Oxford : Clarendon Press 5),1995 p. 25 .

[29] The Vienna International Plan of Action on Aging was adopted by the World Assembly on Aging held in Vienna, Austria from 26 July to 6 August 1982. Available at https://www.google.gr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB4QFjAAahUKEwi9n8vzlaTIAhWGfywKHVbwDZ0&url=http%3A%2F%2Fwww.un.org%2Fes%2Fglobalissues%2Fageing%2Fdocs%2Fvipaa.pdf&usg=AFQjCNET-Pf9aHrNEZP6PJKvll8Nypqofg&cad=rja

[30] At the same period (1980), the ILO adopted the – Older Workers Recommendation, 1980 (No. 162), Recommendation concerning Older Workers Adoption: Geneva, 66th ILC session (23 Jun 1980), available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:R162 . See also Lung-chu Chen, Aging: A New Human Rights Concern, 38 American Society of International Law. Proc.1964, p.168.

[31] GA Res. 45/106, Implementation of the International Plan of Action on Aging and related activities, December  1990, available at: http://www.un.org/documents/ga/res/45/a45r106.htm

[32] GA Res. 46/91, Implementation of the International Action on Ageing and related activities, December 1991, available at: http://www.un.org/documents/ga/res/46/a46r091.htm .

[33] See GA Res. 50/141, International Year of Older Persons: towards a society for all ages, December 1995, available at: http://www.un.org/documents/ga/res/50/ares50-141.htm Also at the years  1997 και 1998  with GA Res. 53/109 and GA Res. 54/24.

[34] United Nations, Political Declaration and Madrid International Action Plan on Ageing, Madrid, 2002, available at: https://www.google.gr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB4QFjAAahUKEwjEh_vImaTIAhVH2CwKHWznDKI&url=http%3A%2F%2Fwww.un.org%2Fen%2Fevents%2Fpastevents%2Fpdfs%2FMadrid_plan.pdf&usg=AFQjCNFiszm7if62coygyuwUv7hh8zqxdw&bvm=bv.104317490,d.bGg

[35]Kofi Annan, Report of the Secretary General to the Commission for Social Development acting as the preparatory committee for the Second World Assembly on Ageing of the ECOSOC, Abuse of older persons: recognizing and responding to abuse of older persons in a global context, Report of the Secretary-General E/CN.5/2002/PC/2, available at: https://www.google.gr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCYQFjABahUKEwi14pytm6TIAhULWSwKHcJkApM&url=http%3A%2F%2Fwww.un.org%2Fswaa2002%2Fecn52002pc2eng.pdf&usg=AFQjCNE_SGuNRSQN6kfp8FUIg34fXHltIw&cad=rja

[36] At the Assembly 150 representatives of member states were present, none from Greece.

[37] For the first presentation of the Plan of Action see, Κ. Κouroumalos, The older age at the multiparty development diplomacy , in Th. Dardavesis (ed,),Papers on Geriatric and Gerontology,2^nd circle Thessaloniki  ,2007, p. 351 et seq.(in greek).

[38]GA Res. 65/182, adopted 21 December 2010, Follow-up to the Second World Assembly on Ageing, February 2011, available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/65/182.

[39] Open-ended Working Group on Ageing for the purpose of Strengthening the protection of human rights of older persons.GA Res., ibid.

[40]GA Res. 67/139, Towards a comprehensive and integral international legal instrument to promote and protect the rights and dignity of older persons, February 2013,

[41]GA Res. 67/143, Follow-up to the Second World Assembly on Ageing, February 2015, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/67/143.

[42]  Report of the Open-ended Working Group on Ageing, December 2016, A/AC.278/ 2015/ 2, available at: http://www.un.org/Docs/journal/asp/ws.asp?m=A/AC.278/2015/2 .

[43] Ibid.

[44] Subsidiary organ of the Gen. Assembly of the UN. Founded in 2006 replacing the Committee of Human Rights, subsidiary organ of  ECOSOC.

[45] Human Rights Council ,Advisory Committee, The necessity of a human rights approach and effective UN mechanism for the human rights of the older persons ,4^th session, January 25-29,2010,A/HRC/AC/4/CRP.1,the “Chung Report”, see also A. K. Loweinstein, Draft U.N. Declaration on the Rights of Older Persons, June 2008,available at the Report  Chung (2010), par 57 .

[46] UNHRC, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural, including the Right to Development, Twenty-fourth Session, Agenda item Three, UN Doc. A/HRC/24/L.37/Rev. J. (September 25, 2013).

[47] Res. A/HRC/RES/24/20, 8 October 2013, available at: http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/Download.aspx?SymbolNo=A%2fHRC%2fRES%2f24%2f20&Lang=en .The role of Mrs Matte will be complimentary of that of the Open -ending Working Group.

[48] UNHRC Report of Independent Expert on the Enjoyment of All Human Rights by Older Persons UN Doc .A/HRC/27/46 (Roza Kornfeld-Matte July 23, 2014).

[49] The Sustainable Development Goals, replacing the Millennium Development Goals containing only 7 targets for development.

[50]In 1988 in Malta, it was founded the International Institute on Ageing, appointing, since then, every three years, the members of the Board. See Res. 1987/41 ECOSOC. Created, also, the UNFPA, UN Population FUND, for research, analysis and data on issues concerning older people.

[51] The slogan for the 1^st October 2014 was – “Leaving No One Behind: Promoting a Society for All”.

[52] World Population on Ageing, Report 2015, Department of Economic and Social Affairs of UN Secretariat.

[53] Report Α/66/173 following G.A. Res. 65/182 of  2010 , with the participation of states and civil society.

[54]See European Council Directive requiring member states to  harmonize their jurisprudence in such a way to avoid discrimination at the working field, based on the age. Directive 2000/78/ΕΚ of the Council, of 27th November 2000.

[55] Art. 2§1 ICCSPR and art. 2§2 ICCESCR.

[56] The Covenant was ratified with L.1532/1985, O.J. Α, 45.

[57] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, see above. The Specialised Agencies in the UN System, like ILO and WHO introduced from their site development goals concerning the rights of the old people. For example the ILO adopted Conventions no. 142 and no. 156, as well as Recommendations no.162 and 122. The WHO was occupied with health problems and health care of old people, giving special emphasis on the Report of the Regional Office in Europe ,which underlines that 4 million old people have suffered maltreatment and 2500 died because of the maltreatment. See WHO, Europe Report on preventing elder maltreatment, Dinesh Sethi and others eds. Geneva 2011. All the above were communicated to the Committee of CESCR to be incorporated at the General Comment no 6. With the WHO Res. 67/13 the Global Strategy and Action for elderly are under consideration ,while the decade  2020-2030 will be offered to them.

[58] General Comment No 6, above, 13.

[59] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant),, February 2008, E/C.12/GC/19, available at: http://www.refworld.org/docid/47b17b5b39c.html .

[60] UN Committee on Economic, Social and Cultural Rights (CESCR), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, par. 2, of the International Covenant on Economic, Social and Cultural Rights), July 2009, E/C.12/GC/20, available at: http://www.refworld.org/docid/4a60961f2.html.

[61] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.21, right of everyone to take part in cultural life (art 15,1,a) December 2009,Ε/C.12/GC/21

[62] UN Committee on the Elimination of Discrimination against Women (CEDAW), General Recommendation 27 Article 16: Economic consequences of marriage, family relations and their dissolution, December 2010, CEDAW/C/GC/27, available at http://daccess-ods.un.org/access.nsf/Get?Open&DS=CEDAW/C/GC/27&Lang=E

[63] CEDAW, Concluding observations on the seventh Report of Greece, adopted 1 March 2013.

[64] The Convention against Torture was ratified by L.1782/1988, O.J. Α, 116.

[65] General Comment No 2, Implementation of art.2 by States Parties, CAT/C/GC/2 /24 January 2008, par.15.

[66] ASEAN Human Rights Declaration, adopted in 2012 from the Working Group for Human Rights of ASEAN on 2009, see also  Draft Agreement on the establishment of the ASEAN Human Rights Commission. See  R. C. Severino, ASEAN’s Declaration advances Human Rights in Asia, East-Asia Forum, 8 February 2013.

[67] L-A Sisilianos (ed), The European Convention on Human Rights, art by art interpretation, Legal Library, Athens , 2013.(in greek).

[68] [68]Case Dodov v. Bulgaria, Application No59548/00, Decision 17 January 2008.

[69] [69]Case Ganna Petrovna Chyzhevska v. Sweden, Application No.60794/11, Decision 25 September 2012.

[70]Case  Frolova v. Finland, Application No 47772/11, Decision  14 January 2014.

[71] Case Farbtuhs v. Latvia, Application No. 4672/02, Decision 2 December 2012.

[72] Case Contrada v. Italy No. 2, Application No 7509/08, Decision 11 February 2014. Mr. Contrada deposited three applications v. Italy which were examined separately.

[73] Case Mouisel v. France , Application No  67263/01, Decision 14 Δεκεμβρίου 2002.

[74] Case Meier v. Swiss, Application No 10109/14, Decision 9 Φεβρουαρίου 2016.

[75] Case Gross v. Swiss, Application No 67810/10, Decision 14 Μαΐου 2013.

[76] The ECHR judged the application abusive ,as the applicant misinformed her attorney and the Court about her death ,aiming to continue the trial.

[77]Case McDonald v. United Kingdom, Application No 4241/12, Decision 20 May 2014.

[78] Case  Heinisch v. Germany, Application  No 28274/08, Decision 21 July 2011.

[79] Η. Κastanas , Article 14,prohibition of discrimination, at  [79] L-A Sisilianos (ed), The European Convention on Human Rights, art by art interpretation ,as above, p. 498. It is worth noting that Protocol 12^th of the ECHR when it will come in force, will recognize the right of prohibition of discrimination, as an individual right.

 

 

[80]  Case  Stec and others v. United Kingdom, Applications Nos 65731/01 και 65900/01, 12.4.2006, Case  Andrle v. The Tsech Republic, Application No 6268/08, Decision 17 February 2011.

[81] Case  of Andrejeva v. Latvia, Application No 57707/00, Decision 18 February 2009.

[82] Α. Skordas-L.A.Sisilianos, Does article 1 of the 1^st Protocol of the ECHR protect a certain amount of pensions? ΝοΒ 2000, p. 1228, also M.Skadamis,  Article of the 1^st Protocol of the ECHR and social security issues, Human Rights, 4/2009, p. 79.(in greek).

[83] For more details Μ-Α Κostopoulou, Article 1, Protection of property,at   L-A Sisilianos (ed), The European Convention on Human Rights, art by art interpretation, as above, p. 663 et seq.

also  Ε. Μylonas, The contribution of case law of the ECHR and the ECSR in the protection of social rights , ΕΔΚΑ, 2013, p.750 et seq.(in greek).

[84] Case Andrejeva v. Latvia , Application No 55707/00, Decision 18 February 2009.

[85] Case Deumeland v. Germany, Application  No 9384/81, Decision 29 May 1986. The case lasted 11 years before the German courts.

Case [86]  Mateus and Januario v. Portugal, Applications Nos 62235/12 and 57725/12, Decision 8 October 2013.

[87] Case Solodyuk v. Rossia,.Application No.67099/01, Decision 12 July  1996.

[88] Case Moskal v. Poland, Application No.10373/05, Decision 15 September 2009.

[89] Y. Ktistakis, The influence of economic crises in social rights, at ΕDΚΑ., 2012, p 491.(in greek ).

[90] See among others, Case  Maggio and others v. Italy, Applications  Nos 46286/09, 52851/08, 53727/08, 54486/08, και 56001/08, Case  Valkov and others v.Bulgaria, Applications  Nos 2033/04, 19125/04, 19475/04, 19490/04, etr, Decision 25 October 2011, Case J. Saarinen v. Finland , Application  No  69136/01, Decision 28 October 2003, (non admissible), K. Asmundsson v. Island, Application No 60669/00, Decision 12 October 2004  Κ. Ladas  v. Greece, Application  No 15001/06, Decision 21 February 2008.

[91] Case Stec and others v. Un. Kingdom , as above, also  Α. Stergiou, The cut of pensions under article  1 of the !st Protocol of the ECHR, in  ΕDΚΑ, 2013, p. 23 et seq.(in greek).

[92] Case Stummer v. Αustria ( G.C.) Application No 37452/02, Decision 7 July 2011, par.89  and Andrle v. The Czech Republic as above par. 50. See also S. Koukouli-Spiliotopoulou, Austerity measures in Greece and human rights: opinion of international organs, EU law and Greek case law, in  ΕDΚΑ, 2014, p 238.(in greek).

[93]Among others, see  Case  Terazzi SrL v. Italy,  Application No 7265/95, Decision 17 October 2002, case Wieczorek v. Poland,  Application No.18176/05, Decision 8 December 2009.

[94] Ε. Μylonas, The percentage of reduction of pensions as criterion for the control of violation of article 1 par. 1 of 1^st  Protocol of the ECHR. The violation of the right to fair trial , in ΕDΚΑ, 2015, p. 470 et seq.(in greek). Also Case  Stefaneli and others v. Italy, Applications Nos 21838/10, 21849/10, 21855/10, 21863/10,21869/10 and 21870/10. Case Iwaszkiewicz v. Poland on the merits of 26.7.2011, par. 44. Case  Broniowski v. Poland (G.C.), Application  No  31443/96 par.146, Decision  2004-V  and Case Koufaki and ADEDY v. Greece, Applications  Nos  57665/12 και 57657/12, Decision 7 May 2013. The ECHR consided that the cut of wages and pensions as a result of the Greek government’s policy intended to cover the economic needs of the country. The Court added that “the restrictions introduced by the impugned legislation should not be considered as a “deprivation of possessions” as the applicants claim, but rather as interference with the right to the peaceful enjoyment of possessions for the purposes of the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Kjartan Ásmundsson v. Iceland, no. 60669/00, § 40, ECHR 2004-IX; Wieczorek, cited above, § 61; and Valkov and Others,cited above, § 88; see also, mutatis mutandis, Maurice v. France [GC], no. 11810/03, §§ 67–71 and § 79, ECHR 2005-IX; Draon v. France [GC], no. 1513/03, §§ 70–72, 6 October 2005; and Hasani v. Croatia (dec.), no. 20844/09, 30 September 2010).” See, Α. Stergiou, The protection of social and social security rights as property rights, Di.Dik, 4/2008, p. 825.(in greek).

[95]Adopted on the 18th of October  1961 and came in force on the  26^th of February 1965.L.1426/1984, O.J. Α΄,32.

[96] As stated by Ch. Deligianni, The decisions of the European Commission of Social rights on the Greek austerity measures and their effectiveness, at www.constitutionalism.gr. (in greek).

[97]Adopted on the 5^th of May  1988, entered in force in 1992, L.2595/1998, O.J. Α,’ 63.

[98]Article 4 of the 1st Additional Protocol.

[99]Adopted on the 3th of May 1996, entered in force in 1999, L. 4359/2016, O.J Α’, 5. When the law was introduced to the Greek Parliament ,it was clarified in the explanatory report that the term “ to the greatest time period” is referring to the physical ,physiological and spiritual abilities of elderly people.

[100]  Frederic Megret, The human rights of older persons, A growing challenge, HRLR, vol. 11, 1, 2011, p, 37 et seq.επ.

[101] See, ECSR, Medicines du Monde-International v. France, Complaint No 67/2011, 11 September 2012, p. 139. Also , L. Samuel, Fundamental Social Rights, Case Law of the European Social Charter, p.262 et seq.

[102] Digest of the case law of the European Committee of the Social Charter, 1 September 2008, p.147 et seq.

[103] Explanatory Report to the Additional Protocol to the European Social Charter, ETS No. 128  par. 53 (1988).

[104] See D. Rodriguez Pinzon, Cl. Martin, The International Human Rights Status of Elderly Persons, AUILR, v.18, iss. 4, 2003, p, 975 .

[105] Articles 1, 5, 6, 7, 12, 13, 16, 19 και 20.

[106]The 19 states are Andora, Bosnia-Ergegovina,France,Italy,Irland,Spain,Montenegro,Norvegia,Portugal,Finland,SerbiaSweden,Slovakia,Slovenia,Turkey,Ukrania and recently Greece.

[107] Article 3 of the Protocol of the European Social Charter adopted in Torino on the 21st October 1991 and came in force on the  12^th September  1996.  L. 2422/1996, O.J. Α’ 144. It is composed of 15 members elected every 6 years.

[108] The Reporting system was amended with, CM Recommendation (2014) 26, 1196 meeting, 2-3 April 2014.

[109] This Protocol which introduces a mechanism of collective complaint was adopted in Strasbourg on the  9^th of November 1995 and came in force on the  1^st July  1998.L.2595/1998,O.J. Α, 63. See P Staggos, Procedures and main issues of the contribution of the ECSR at the effectiveness of social rights at X. Dipla (ed), The contribution of the Council of Europe protecting human rights .In Honor of Christos Rozakis, 2010, p.45 et seq. (in greek)..

[110] CM Recommendation 1796 (2000) 6.

[111] R. Brillat, The European Social Charter, at N. Aliprantis, I Papageorgiou (eds), Social Rights at European, Regional and International level, Challenges for the 21^st century, Bryllant, Bruxelles, 2010 p. 43 et seq. ,N.Aliprantis, Les droits sociaux sont-ils justiciables, Droit social 2006, p.  158 et seq., Ε. Μylonas, the contribution of the jurisprudence of the ECHR and the ECSR in the protection of social rights, as above p.773.

[112] Complaints Nos. 76, 77, 78, 79, 80/2012, (6/1/2012). See, Α. Bredimas, Economic crisis and working rights. Greece facing the ILO and the ESC. Foundation of International Legal Studies Prof. E. Krispi and Dr Samara-Krispi No. 32, Sakkoula,Athens-Thessaloniki 2015, p. 54 et seq. and X Deligianni, The decisions of the ECSR for the Greek austerity measures and their effectiveness, RLL, 2013,p.135et seq.(in greek)

[113] P.Kakaras,, Greece and the right to social security in the framework of the ESC, The decisions of the ECSR on collective complains 76 έως 80/2012 v. Greece, RLL 2014,p.΄850 et seq., Ν. Gavalas, Human Rights ,the CSR and Greece, RLL.2015, p. 693 et seq. Α. Bredimas, Protecting social, economic  and cultural rights. The problem of Greece, in Human Rights, 2012, p. 662 et seq.(in greek).

[114] Adopted on the  4 April 1997 and came in force in  1999 .L. 2619/1998, O.J. Α’, 132.

[115] Ε. Falletti, C. Cattaneo, Medical treatment and expression of the consent of the elderly not able to consent: a comparative analysis of the case law in the countries of the Council of Europe, July 11, 2014, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2465054 See also  Sjef Gevers & J.Dute & H.Nys, Surrogate Decision making for Incompetent Elderly Patients: The Role of Informal Representatives, European Journal of Health Law. March Vol. 19,1, 2012, p. 61-68.

[116]CM Recommendation R(87) 22 on the screening and surveillance of elderly persons(1987), CM Recommendation R(94)9 Social Cohesion and Quality of Life (1994) , CM Recommendation 1254 on the medical and welfare rights of the elderly: ethics and policies (1994), CM Recommendation 1428 on the future of senior citizens: protection, participation and promotion (1999), CM Recommendation 6 (2009)on ageing and disability in the 21^st century, CM Recommendation 5 (2011) on reducing the risk of vulnerability of elderly migrants and improving their welfare.

[117] CM Recommendation (2014) 2, 19^th February, on the promotion of the human rights of older persons. The Recommendation took under consideration the conclusions of the Drafting Group,CDDH-AGE, the Recommendations of the Parliamentary Assembly of the Council of Europe ,as well as Reports from the civil society.

[118] Explanatory Memorandum of Recommendation CM Recommendation (2014) 2 to member states on the promotion of the human rights of older persons.

[119] According to  Eurostat.http;/ec.europa.eu/eurostat, the older people, in 2060, will reach 148 million..

[120] Communication from the Commission to European Parliament and Council 29.2.2012, COM (2012) 83 final. Taking Forward the Strategic Implementation Plan of the European Innovation Partnership on Active and Healthy Ageing

[121] C 559/07, Commission v. Hellenic  Republic.

[122] C388/07, The Incorporated Trustees of the National Council of Ageing v. Secretary of State for Business, Enterprise and Regulatory Return. See also R.Allen. The latest CJEU Case Law on age discrimination, March 2013 ,where he analyses the key principles that article 6 of the 2000/78 Directive underlines.

[123] The Charter of Fundamental Rights of EU was signed in Nice in 2000. It was incorporated at the Lisbon Treaty and came in force on 1^st January 2009.

[124] See .Charter  4453/00 Convent 49, p.25

[125] See among others T. K Hervey and J. Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights. A legal perspective, Oxford, 2003, p. 106 et seq.

[126] It was founded in 1948 and came in force in 1951. One of the most important conventions, the American Convention on Human Rights was adopted in 1969 and came in force in 1978.

[127]As the Inter American Convention for the prevention, punishment and elimination of violence against women of  1994 which makes reference to elderly women.

[128] The Andean Charter for the promotion and protection of human rights, adopted on the 26th of July 2002.

[129] Caribbean Charter on Health and Ageing.

[130] Article  4,5 ACHR, Pact of San Jose ,Costa Rica, November 22,1969,UNTS 123,p.147.

[131] Adopted on the 17th November 1988 and came in force in 1999.

[132] A special article was included in the Protocol for the old people, due to the fruitful collaboration of many states ,of the Pan American Health Organization and other organizations as well. See, Proposal of the Pan American Health Organization, OEA/Ser. G. CP/CAJP-622-85 add.5, 15 July 1986.

[133] Case Five Pensioners v. Peru, Judgment of 28 February 2003, http;//www.corteidh.or.cr/docs/casos/articolos/series-98-ing.pdf.

[134] Protocol of San Salvador Composition and Functioning of the Working Group to Examine the Periodic Reports of the States Parties, adopted on June 5, 2007.OEA/Rer.P.AG/doc.4771/07 rev.1 September 14.2007 p.22.

[135] AG/Res. 2262 (XXXVII-0/07).

[136] AG/Res. 2654 (XLI-0/11). The Working Group was created by the Permanent Council following a decision of he Gen. Assembly. During the preperatory works, it was stated that until  2050, the 25% of the population will be people more than 60 years old.

[137] General Assembly of the Organization of the American States, Inter-American Convention on Protecting the Human Rights of Older Persons, AG Res. 5493/15, June 2015.

[138] See also Ch. Sabatino, Human Rights of Older Persons, in Bifocal, Journal of the Commission on Law and Ageing, vol.37, iss.2, 2015.

[139] Adopted on the 11^th of July 2000 and came in force in 2001 by the African Union. See,Ch. Anselm Odinkalu, Analysis of paralysis or Paralysis by analysis? Implementing Economic, Social and Cultural Rights Under the African Charter on Human and Peoples rights, 23 Hum.Rts Q, 2001, p. 349,348

[140] Adopted on the 27th of June 1981 and came in force in 1986.

[141] Article 18§4 of the African Charter.

[142] See. African Commission Report 26^th Session, 1999 and 27^th Session, 2000.

[143] Also. P. Naskou-Perraki ,The African Court of Human and Peoples Rights,RHDI, 2004,p. 305 . It is worth mentioning that in 2008 with a new Protocol, the African Court of Justice and Human Rights was created which merges the Court of the AU with the African Court of Human and Peoples Rights. The functioning of this Court is being expected with great interest.

[144] D. Juma, Complementarily between the African Commission and the African Court, at Guide to complimentarily within the African Human Rights System, Pan African Lawyers Union, 2014, p. 7 et seq.

[145] Adopted on the  11^th July  2003 and came in force in 2005.Known as  Maputo Protocol.

[146] Article 22 of the Protocol.

[147] Βλ R.Murray, Recent Developments in the African Human Rights System, HRLR, 2008, 2, p,35 et seq.

[148] African Union Conference of Ministers of Social Development, Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, CAMSD/EXP/4(IV), 26-30 May 2014.

[149] Adopted on the 22nd of May 2004 ,from the Arab League ,came in force in 2008. See, P Naskou-Perraki, The Arab Charter on Human Rights, A new start for the protection of human rights in the Arab World, RHDI, 1/2009, p117.

[150] Article  33,2 of the Arab Charter.

[151] For the text ,see above p. 415 επ.

[152] Articles 45 et seq of  the Arab Charter .

[153] See the European Charter of Rights and Obligations of old people in need of long term care and assistance , adopted in the framework of the  Daphne III Program in November  2010. Also the Annual Report of  2015 of  AGE platform Europe, a European network of organizations of people age 50+ which tries to forward  all interests of the  150 million citizens over  50 years old.

[154] The USA, EU, Canada, Australia and Japan were opposed to the idea of such a treaty underlined that there are many conventions providing full protection of the elderly, mainly the two Covenants of the UN.

[155] M. Fredvang and S. Biggs, The rights of older persons. Protection and gaps under human rights law. Social Policy Working Papers no 16, The Centre of Public Policy, Australia, 2012.

[156] As it was stated many times by Organizations as MERCOSUR proposal to ECOSOC in 2010. See also I. Doron and I. Apter, The debate around the need for a new convention on the rights of older persons, The Gerontologist, 2010, vol. 50. p 586 et seq., and L. Poffe, Towards a New United Nations Human Rights Convention for Older Persons? HRLR,2015,15,3 p. 591 et seq.

[157] G. Van Bueren, The protection of human rights of older persons in Europe, A legal perspective, Background briefing paper from the International Symposium on the rights of older people, January 2009, p 9.

[158] As Eleanor Roosevelt said, «It is more intelligent to hope rather than to fear, to try rather than not to try. For one thing we know beyond all doubt: Nothing has ever been achieved by the person who says, ‘It can’t be done.’». See General Comment No 6, UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 6, as above, p. 35.