Article 12 addresses the right to equality before the law and the issue of legal capacity, which is the law’s recognition of the decisions a person makes. It lies at the heart of a human rights based approach to disability and underpins the exercise of many other rights. FRA’s report on legal capacity discusses this issue and sets out the nature of the obligations stemming from Article 12 in more detail.
Article 12 is relevant to the right to political participation because in many jurisdictions a person whose legal capacity is deprived or restricted is – either automatically or through a judicial process – deprived of the right to vote and to stand for election. In some jurisdictions they are also deprived of the right to join or form associations such as non-governmental organisations, political parties or trade unions. This calls into question the fulfilment of the principle of non-discrimination enshrined in Article 29 which states that state parties “shall guarantee persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others.”
As with a reservation, a state party can accept (typically ratify) a treaty with a declaration setting out a state’s interpretation of how it will implement the article or part of an article. A declaration, distinct from a reservation, is not seeking to limit or alter the legal effects of a provision. Still, in practice, the interpretative effects of a state in a declaration, can amount to a de facto reservation by having similar effect.
Have EU Member States ratified the CRPD without a declaration to Article 12?
Sources: FRA, 2014; United Nations Treaty Collection.
Of the EU Member States that have ratified the CRPD, Estonia, France and Poland have entered a declaration to Article 12. These declarations provide that they will implement Article 12 in accordance with their respective national legislation, which in each case allows restrictions on the right to vote of persons deprived of legal capacity. The declarations therefore have the effect of limiting the right to political participation of persons who have been deprived of their legal capacity. No EU Member States have made a reservation to Article 12 of the CRPD.
Estonia’s declaration sets out that, in its view, Article 12 does not prevent restricting a person’s legal capacity “when such need arises from the person’s ability to understand and direct his or her actions”. Similarly, France’s declaration states that legal capacity “may not be restricted except in the conditions and in accordance with the modalities provided for in Article 12 of the Convention”, which it interprets as permitting a judge to deprive a person with a disability of the right to vote. In its declaration, Poland confirms it will continue to restrict the legal capacity of people with disabilities as it views such a restriction as a type of safeguard under Article 12 (4).
The CRPD Committee has commented extensively on the link between legal capacity and political participation. In its General Comment on Article 12, the Committee states that a “person’s decision-making ability cannot be used to justify any exclusion of persons with disabilities from exercising their political rights, including the right to vote, to stand for election, and to serve as a member of a jury.”
On the issue of support and reasonable accommodation, the Committee has underlined that state parties must, “protect and promote the right of persons with disabilities to access support of their choosing in voting by secret ballot” and “guarantee the right of persons with disabilities to stand for elections, to effectively hold office and to perform all public functions at all levels of government, with reasonable accommodation, and support, where desired, to exercise legal capacity.” To ensure that this happens in practice, the Committee has recommended that state parties “provide training, in consultation and cooperation with persons with disabilities and their representative organisations, at the national, regional and local levels, for all actors […] on recognition of the legal capacity of persons with disabilities and on mechanisms of supported decision-making.”