GENEVA (19 September 2022) – Older persons can only be deprived of their liberty in circumstances clearly established by international human rights law and such restrictions must be necessary and proportionate to the legitimate objective, a UN expert said today.

“The restriction or denial of the right to personal liberty may be considered arbitrary when unjustified, disproportionate, discriminatory, or where due process has not been afforded,” said Claudia Mahler, UN Independent Expert on the enjoyment of all human rights of older persons. “Older persons are deprived of liberty when confined to a specific space or placed in a public or private institution against their wishes, without their free and informed consent or without permission to leave at will,” she said.

Mahler’s report to the 51st Session of the Human Rights Council analysed the situation of older persons deprived of liberty and their needs and rights within three specific contexts: criminal justice; immigration-related detention; and care settings.

The expert stressed that the right to personal liberty is a core human right for all people, including in older age.

“In the context of criminal justice, States must ensure older persons are treated with dignity and that their specific needs with respect to age, health and disability status are taken into consideration, in line with the Mandela Rules and the Bangkok Rules for older women,” she said.

“In the context of migration-related detention, States are obliged to provide open and humane reception arrangements for older asylum-seekers and refugees, including safe, dignified and human rights-compatible treatment,” Mahler said.

The expert said ageism and age discrimination were underlying most situations of deprivation of liberty for older persons and around the world, ageist attitudes had led to discriminatory laws, policies and practices.

In relation to deprivation of liberty in care settings, the expert stressed that the adoption of laws enabling the deprivation of liberty and coercive care and health interventions for older persons are contrary to international human rights standards, including the Convention on the Rights of Persons with Disabilities.

“Respecting older persons’ autonomy, independence and legal capacity is crucial when it comes to decision-making affecting their care and support,” she said.

The expert highlighted the need for laws and policies implementing monitoring mechanisms to assess and determine the status of deprivation of liberty of older persons, on a case-by-case basis. “Given the uneven collection of data about older persons deprived of liberty, the experiences and lived realties of older persons will continue to remain invisible,” Mahler said.

Monitoring practices and access to justice should also be made available for older persons in situations of deprivation of liberty, the expert said. “States must carry out effective, prompt, thorough and impartial investigations on allegations of such violations on older persons, including on their right to life, arbitrary detention and torture and other ill-treatment."

The Special Rapporteur also presented findings from her 2021 country visit to Finland to the Council.

ENDS

Claudia Mahler (Austria) was appointed by the UN Human Rights Council as Independent Expert on the enjoyment of all human rights by older persons in May 2020. She has been working for the German Institute for Human Rights as a senior researcher in the field of economic, social and cultural rights since 2010. She was also a visiting professor at the Alice Salomon Hochschule in 2020-2021. From 2001 to 2009, Ms. Mahler conducted research at the Human Rights Centre of the University of Potsdam where her main fields were in human rights education, minority rights and the law of asylum. In 2000, she received her doctoral degree and was appointed as Vice President of the Human Rights Commission for Tyrol and Vorarlberg.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.