Through a broad interpretation of article 8 ECHR, the Strasbourg Court has considered an increasing number of disability rights cases. In few cases, however, has it found a violation and identified states’ positive obligations. This chapter re-writes the Court’s judgment in McDonald v The United Kingdom, concerning the reduction in night-time care for an older disabled woman, in which the Court only found a partial violation based on procedural considerations rather than substantive ones. The authors propose an integrated approach to the interpretation of the ECHR, taking into account the broader normative developments concerning persons with disabilities, as reflected most recently in the UN Convention on the Rights of Persons with Disabilities. It also calls for the consideration of the intersection between disability and age, and the integration of the fundamental rights of older persons. More so, it is argued that integration of disability rights and older persons’ rights provided for in external instruments would have left the Court little choice but to assess Ms McDonald’s situation in terms of positive obligations. Such an approach would have increased the visibility of the rights of these particular groups and countered the derogation of the proportionality test as applied in the original judgment.
Integrating disability and elder rights into the ECHR: rewriting McDonald v The United Kingdom (ECtHR)
Rewriting Human Rights Decisions
Marijke De Pauw and Paul De Hert
Paul De Hert
Paul De Hert
This contribution focuses on the use made by the Belgian Constitutional Court and the Cour de Cassation of the right to privacy and the right to have data protected as anchored in the Belgian Constitution, the Belgian Data Protection Act and the European sources. The judgments are discussed along the lines of their impact on health privacy, workplace privacy, surveillance and social media privacy. Our analysis shows a great deal of European loyalty on behalf of the Belgian Constitutional Court towards European messages about these issues and privacy and data protection in general. In stark contrast stands the case law of the Cour de Cassation mainly focused on preserving prosecutorial interests and the employer’s interest to the detriment of privacy and data protection interests. Keywords: Constitutional Court, Court of Cassation, health privacy, workplace privacy, surveillance, social media privacy.