As at the national level, consideration of a particular rights issue by judicial and non-judicial complaints mechanisms at the international level can play an important role in interpreting the scope and application of rights as well as highlighting problems with implementation. For the EU Member States, the key international judicial complaints mechanisms are, at the EU level, the Court of Justice of the European Union (CJEU) and at the Council of Europe level the ECtHR.
The case law of the ECtHR has been an important instrument driving change in national legislation and compliance with human rights standards in EU Member States. Until now, however, the only instance of an ECtHR judgment relating to the right to political participation of persons with disabilities was in the case Alajos Kiss v. Hungary. A brief summary is presented below and further analysis can be found in the FRA report The right to political participation of persons with mental health problems and persons with intellectual disabilities.
European Court of Human Rights, Alajos Kiss v. Hungary, No 38832/06, judgment of 20 May 2010 Mr Kiss has a psychosocial disability and was placed under partial guardianship. He complained under Article 3 of Protocol 1 (right to free elections) to the European Convention on Human Rights (ECHR), that he automatically lost his right to vote as a result of being placed under partial guardianship. The ECtHR found a violation of Article 3 of Protocol No 1 to the ECHR. In assessing the proportionality of the measure, the ECtHR noted that the Hungarian legislature did not seek “to weigh the competing interests or to assess the proportionality of the restriction” (para. 41). The Court further stated that “if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question”. (para. 42) The Court concluded that “an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote”. (para. 44) Following this judgment Hungary changed its constitution in 2012, and the current Fundamental Law requires that judges make a decision regarding the right vote for persons deprived of legal capacity based on an individual assessment.
European Court of Human Rights, Alajos Kiss v. Hungary, No 38832/06, judgment of 20 May 2010
Mr Kiss has a psychosocial disability and was placed under partial guardianship. He complained under Article 3 of Protocol 1 (right to free elections) to the European Convention on Human Rights (ECHR), that he automatically lost his right to vote as a result of being placed under partial guardianship. The ECtHR found a violation of Article 3 of Protocol No 1 to the ECHR.
In assessing the proportionality of the measure, the ECtHR noted that the Hungarian legislature did not seek “to weigh the competing interests or to assess the proportionality of the restriction” (para. 41). The Court further stated that “if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question”. (para. 42) The Court concluded that “an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote”. (para. 44)
Following this judgment Hungary changed its constitution in 2012, and the current Fundamental Law requires that judges make a decision regarding the right vote for persons deprived of legal capacity based on an individual assessment.
Source: ECtHR, Alajos Kiss v. Hungary, No 38832/06
Regarding non-judicial complaints mechanisms, individuals in Member States that have ratified the Optional Protocol to the CRPD – 21, as of March 2014 – can also bring individual communications to the CRPD Committee. The CRPD Committee has so far considered four such communications, of which one concerned Article 29 of the convention. While the Kiss case illustrated the ECtHR’s position that the right to vote can be restricted on the basis of an “individualised judicial evaluation”, the CRPD Committee’s views in the communication of Zsolt Bujdosó and five others reinforce the position it set out in the Concluding Observations that Article 29 “does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities”.
UN Committee on the Rights of Persons with Disabilities, Zsolt Bujdosó and five others vs. Hungary The communication was submitted by six people with intellectual disabilities, who were placed under partial or plenary guardianship by judicial decisions. As an automatic consequence of their placement under guardianship, they were removed from the electoral register, pursuant to Article 70, paragraph 5, of the Constitution of Hungary that was applicable at the time. Due to this restriction on their legal capacity, the six people were prevented from participating in the 2010 parliamentary and municipal elections. The decisions to place them under guardianship did not take into consideration their ability or desire to vote, as they were automatically disenfranchised by the constitutional provision, regardless of the nature of their disability, their individual abilities or the scope of the guardianship. The Committee found that Hungary had failed to comply with its obligations under Article 29 of the CRPD (the right to political participation), read alone and in conjunction with Article 12 (the right to equality before the law). The Committee also made several recommendations to the State Party, including that the deletion of the names of the six people who submitted the communication from the electoral register be remedied with compensation for moral damages and the legal costs incurred by filing the communication, as well as several measures to prevent similar violations in the future by introducing legislative as well as procedural changes. Following this judgment Hungary changed its constitution in 2012, and the current Fundamental Law requires that judges make a decision regarding the right vote for persons deprived of legal capacity based on an individual assessment.
UN Committee on the Rights of Persons with Disabilities, Zsolt Bujdosó and five others vs. Hungary
The communication was submitted by six people with intellectual disabilities, who were placed under partial or plenary guardianship by judicial decisions. As an automatic consequence of their placement under guardianship, they were removed from the electoral register, pursuant to Article 70, paragraph 5, of the Constitution of Hungary that was applicable at the time. Due to this restriction on their legal capacity, the six people were prevented from participating in the 2010 parliamentary and municipal elections. The decisions to place them under guardianship did not take into consideration their ability or desire to vote, as they were automatically disenfranchised by the constitutional provision, regardless of the nature of their disability, their individual abilities or the scope of the guardianship.
The Committee found that Hungary had failed to comply with its obligations under Article 29 of the CRPD (the right to political participation), read alone and in conjunction with Article 12 (the right to equality before the law). The Committee also made several recommendations to the State Party, including that the deletion of the names of the six people who submitted the communication from the electoral register be remedied with compensation for moral damages and the legal costs incurred by filing the communication, as well as several measures to prevent similar violations in the future by introducing legislative as well as procedural changes.
Source: United Nations, Committee on the Rights of Persons with Disabilities (2011), Communication No 4/2011, CRPD/C/10/D/4/2011
No individual complaint before the UN Human Rights Committee alleging a violation of Article 25 of the ICCPR (participation in public affairs and the right to vote) in conjunction with Article 2 (non-discrimination) or Article 26 (equality before the law) was identified. Similarly, no relevant Inter-American Court of Human Rights case law was found.
