As highlighted in FRA’s report on the right to political participation of persons with mental health problems and persons with intellectual disabilities, and subsequent updates in the FRA Annual Reports, the right to vote is often linked in national legislation to legal capacity. This means that people who have been deprived of their legal capacity, either wholly or in part, are prohibited from voting. This possible limitation on the right to political participation does not apply to all persons with disabilities, with persons with psychosocial or intellectual disabilities disproportionally affected.
The CRPD states that each adult citizen has the right to vote on an equal basis with others. Reflecting this, the CRPD Committee has expressed concern over legislation that “allows for the right to vote of persons with intellectual or psycho-social disabilities to be restricted if the person concerned has been deprived of his or her legal capacity”.
This indicator identifies whether legislation in EU Member States restricts the right to vote for persons deprived of legal capacity. It divides Member States into those where all persons with intellectual or psychosocial disabilities have the right to vote (full participation); those where retaining these rights is contingent on a judicial or medical decision (limited participation); and those where all persons deprived of their legal capacity are automatically deprived of the right to vote (exclusion).
Right to vote of people deprived of legal capacity in the European Union
Note: An EU Member State can be represented in more than one group, as persons with psychosocial and intellectual disabilities can be treated differently according to the national law of the respective Member State.
Sources: FRA, 2014; Waddington, 2014
Seven out of the 28 EU Member States – Austria, Croatia, Italy, Latvia, the Netherlands, Sweden and the United Kingdom – guarantee the right to vote for all persons with disabilities, including those without legal capacity. In Croatia, legal reform in December 2012 abolished the exclusion of persons without legal capacity from the right to vote, meaning that people deprived of legal capacity were able to participate in the European Parliament and local elections in 2013. Similarly, amendments to the Latvian Civil Code which came into force in 2013 end the denial of the right to vote for being deprived of legal capacity. However, the relevant electoral legislation has not yet been amended, meaning people deprived of legal capacity can in practice be barred from voting.
A second group of EU Member States have a system in place whereby an assessment is made of the individual’s actual ability to vote. In Hungary, a system where everyone under guardianship was prohibited from voting was changed in 2012; now judges decide whether persons with “limited mental capacities” are allowed to vote. In Slovenia the legal test for judges deciding whether to restrict the right to vote is whether the person with a disability is capable of understanding the meaning, purpose and effect of elections.
A further 15 Member States prohibit people with disabilities who have been deprived of their legal capacity from voting. The Member States are Belgium, Bulgaria, the Czech Republic, Cyprus, Denmark, Estonia, Germany, Greece, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania and Slovakia. This exclusion is either set out in the country’s constitution or in electoral legislation. The German Federal Election Law is an example of this second approach. Persons for whom a custodian to manage all their affairs is appointed, not just by temporary order, are automatically deprived of their voting rights.”