Ageism, Human Rights, and the European Court of Human Rights: A Critical Analysis of the Carvalho v. Portugal Case (2017)

On July 25, 2017 the European Court of Human Rights (the ECtHR or “the Court”) gave its decision in the case of Carvalho Pinto de Sousa Morais v. Portugal. The Court found, in a majority ruling, that Portugal had violated Article 14 of the European Convention of Human Rights (ECHR), which prohibits discrimination, as well as Article 8, which protects the right of private and family life. The decision came after the Portuguese courts had reduced the compensation awarded for a medical malpractice that had left her seriously impaired in her physiological functions and in her sex life.

While the Court reached, in our view, a correct conclusion, what is less clear is the rationale that the Court adopted to address the case under article 14, and in particular, under the different categories of sex and age. This case, as this article will argue, raises an important human rights weakness within European jurisprudence: European human rights law still fails to detect ‘age’ as a distinct and unique discriminating factor, even when, as in the case of Carvalho, ageism, i.e. the process of systematic stereotyping and discrimination against people because they are old, is clearly and unambiguously portrayed.