However, these policies are inconsistent among nation-states and do not indicate the presence of a comprehensive legal, policy and institutional framework for the protection of the human rights of older persons.
Particularly lacking are mechanisms of participation and accountability. In varying degrees, contributions Lawson, ; Seatzu, underline deficits in implementation of policies, when available, while others note measures may be effective but insufficient when confronted with large and growing demands. In situations where more structural measures are required, some governments have chosen a welfare approach which may not ensure sustainability or long-term impact on the enjoyment of human rights without discrimination UN Secretary-General, In sum, the international soft law protection of the human rights of older persons is wide-ranging and while providing useful guidelines for state action in setting standards and influencing domestic policies, however, none of the documents contains legally binding obligations.
Generally speaking, in the European and Inter-American systems, the provisions on elderly rights are embodied in economic, social, and cultural rights treaties, while the African System protects those rights alongside civil and political rights in a unique instrument.
This Charter, which applies exclusively to the states that are members of the European Union, includes an ambitious and innovative list of human rights covering the range of civil, political, economic, and social rights. In relation to the protection of the elderly, Article 25 states: "The [European] 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 Inter-American human rights system adopted the first binding convention on the rights of older persons, the Inter-American Convention on Protecting the Human Rights of Older Persons on December 12, Tonolo: International Human Rights Law and the Protection of the Elderly in Europe 26 protected rights and also establishes a follow-up mechanism to monitor the implementation of the commitments under the Convention, which includes a reporting procedure and the ability of individuals to submit petitions alleging violations of the Convention to the Inter-American Commission on Human Rights.
The Convention lists general principles related to the rights and fundamental freedoms of older persons, with a focus on equality and non-discrimination stated at Art. Further, the Convention emphasizes the dignity, independence, and autonomy of older persons as well as their physical, economic, and social security. It also calls for the respect and appreciation of cultural diversity, effective judicial protection, proper treatment and preferential care.
The Convention lists several general duties of States parties, that have a duty to adopt measures to prevent, punish, and eradicate practices contrary to the Convention and to adopt affirmative measures and make the necessary changes in domestic legislation so that older persons can exercise the rights established in the Convention.
More specifically, Articles 5 through 31 of the Convention list the various protected rights of older persons: the right of older persons to safety and a life free of violence of any kind; right to receive long-term care; right to work; right to health, including physical, mental, and social health; right to education; right to housing, emphasizing policies that progressively adapt housing solutions so that they are architecturally suitable for older persons, policies that ensure expedited procedures for complaints regarding evictions, and measures to protect older persons from illegal forced evictions; and, the right to accessibility and personal mobility.
The rights of older persons receiving long-term care are detailed in Article 12 of the Convention. Article 12 encompasses the right to a comprehensive system of care that promotes the health of older persons, provides social services that cover food and nutrition security, promotes the ability of older persons to live in their own home and maintain their autonomy, and provides services for families and caregivers. To ensure this right is fulfilled, the Convention calls on States parties to establish mechanisms that ensure long-term care services are subject to the free and express will of older persons and that such services have specialized personnel.
The right to work encompasses anti-discriminatory policies and procedures that promote more inclusive labor markets guaranteeing the same rights, benefits, and protections to all workers for similar tasks and responsibilities, regardless of age.
Tonolo: International Human Rights Law and the Protection of the Elderly in Europe retirement and expand on labor policies that account for the needs and characteristics of older persons. Additionally, Article 36 authorizes individuals, groups of individuals, and non- governmental organizations to submit complaints of allegations of the Convention by a State party to the Inter-American Commission on Human Rights. States parties may also submit a specific declaration recognizing the competence of the Inter- American Commission to hear inter-State complaints under the Convention.
The Additional Protocol to the European Social Charter articulates protection for the rights of elderly persons in Article 4 Additional Protocol to the European Social Charter, opened for signature May 5, , art.
This is possible as the right to a fair trial and the right to non-discrimination are fundamental guarantees that can be used creatively to protect elder persons from certain practices such as forced retirement and slow judicial proceedings regarding health or social benefits. Moreover, through the right to property, the elderly may protect their rights to pensions and social security benefits. In the Deumeland case Deumeland v. Germany, Eur. After her death during the proceedings before the ECtHR, her son continued the proceedings and brought the petition to the European Human Rights System upon exhausting domestic remedies.
The applicant claimed that the German courts had not given the case a fair hearing within a reasonable time, which violated Article 6 paragraph 1 of the European Convention on Human Rights.
The Court assessed the reasonableness of the length of the Deumeland proceedings with regard to criteria established by the Court's case law, namely: the degree of complexity of the case, the behavior of the applicant, and the conduct of the competent courts.
In several cases, the ECtHR affirmed that there is no prohibition in the Convention against the detention in prison of persons who attain an advance age.
Nevertheless, a failure to provide the necessary medical care to prisoners may constitute inhuman treatment and there is an obligation on States to adopt measures to safeguard the well-being of persons deprived of their liberty.
Whether the severity of the ill- treatment or neglect reaches the threshold prohibited by Article 3 prohibition of inhuman or degrading punishment or treatment of the Convention will depend on the particular circumstances of the case, including the age and state of health of the person concerned as well as the duration and nature of the treatment and its physical or mental effects see Sawonjuk v. UK, 29 May ; Priebke v. Italy, 5 April ; Enea v. Italy, 17 September In the case Contrada v.
Italy 11 February , the Court held that there had been a violation of Article 3 prohibition of inhuman or degrading treatment of the Convention. It observed in particular that it was beyond doubt that the applicant had suffered from a number of serious and complex medical disorders, and that all the medical reports and certificates that had been submitted to the competent authorities during the proceedings had consistently and unequivocally found that his state of health was incompatible with the prison regime to which he was subjected.
Poland, 9 March ; Schlumpf v. Switzerland, 8 January ; Georgel and Georgeta Stoicescu v. Romania, 26 July However, many NGOs, as well as some UN member states, argue that these instruments fail to provide explicit support and are easily subject to ageist interpretation see, for example, HelpAge International, These organisations argue for the need for a new international human rights instrument explicitly for the protection on older persons - a Convention on the Rights of Older Persons.
The task of the group was to evaluate the current international human rights framework for older persons, to identify gaps and how best to address them, and to consider the possibility of additional instruments and measures UNOEWG The goal of the mandate is to address the specific challenges and vulnerabilities of older persons and to strengthen the protection of their human rights at a time when about million people around the world are over the age of In her latest report to the Human Rights Council, Kornfeld-Matte emphasized the issues of accessibility, education, the right to work, and violence and abuse, among others, that particularly affect older persons.
There is no doubt that the elderly are protected by human rights treaties, as is any member of society. The principles of non-discrimination and equality before the law require that states adopt special measures to protect disadvantaged and vulnerable groups, considering the international standards of protection Revillard, Moreover, the "vulnerable group" approach is central to enhancing the protection of those rights because it is applicable in the context of both civil and political, as well as economic, social, and cultural rights Bucher, References von Bernstorff, J.
Bucher, A. Clive, E. Fagan, A. Kayess, R. Lagarde, P. Lawson, A. McCrudden, J. Article 3 Everyone has the right to life, liberty and security of person. Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6 Everyone has the right to recognition everywhere as a person before the law.
Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9 No one shall be subjected to arbitrary arrest, detention or exile. Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11 Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Article 13 Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country. Article 14 Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15 Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16 Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17 Everyone has the right to own property alone as well as in association with others.
No one shall be arbitrarily deprived of his property. Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20 Everyone has the right to freedom of peaceful assembly and association. No one may be compelled to belong to an association. Article 21 Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country.
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23 Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26 Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
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