Last week, the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, issued a Human Rights Comment stating that “persons with disabilities must not be denied the right to vote.” Commissioner Hammarberg’s comment came as a result of a number of key developments in the jurisprudence on electoral rights for people with disabilities within the Council of Europe over the past year.
The first of these was the judgement issued by the Second Section of the European Court of Human Rights in May 2010 on the case of Alajos Kiss v. Hungary. This decision concerned an adult man who had been diagnosed with bi-polar disorder and subsequently placed under partial guardianship in Hungary. This status resulted in his automatic exclusion from the right to vote, as provided for under Article 70(5) of the Hungarian Constitution. Mr. Kiss was not challenging his status as a person subject to partial guardianship, but was rather challenging the fact that any person placed under partial guardianship would be excluded from the right to vote in Hungary, arguing that this constituted a violation of Article 3 to Protocol No.1 of the ECHR (which requires states to hold free elections, “under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”) The government argued that it should enjoy a wide margin of appreciation in determining those eligible to vote.
The Court found in favour of Mr. Kiss, stating as follows:
[…] 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 […] [t]he reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs […].
Therefore the Court determined that a blanket disenfranchisement of people with disabilities (or of a category of persons with certain disabilities) was contrary to the ECHR, and did not come within the State’s margin of appreciation. However, its judgement stopped short of declaring that all exclusions of individuals with disabilities from voting rights would be a violation of the Convention.
Five months after this judgement was delivered, the Venice Commission of the Council of Europe published an Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections. This declaration stated that no person with a disability should be excluded from the right to vote or be elected on the basis of a disability, unless the decision to exclude the person “is imposed by an individual decision of a court of law because of proven mental disability.” This led to outcry from a number of disability activists, advocacy organisations and academics, on the basis that this statement runs contrary to principles of international human rights law, including the right to participate in political and public life as enshrined in Article 29 of the UN Convention on the Rights of Persons with Disabilities.
The Mental Disability Advocacy Center (based in Hungary) subsequently prepared a legal opinion for the Venice Commission, requesting the Commission to revise its interpretative declaration to ensure compliance with pre-existing European and international human rights law. MDAC also secured an assurance from the Commission that it would consider this issue at its latest meeting which took place this past weekend. The release of Commissioner Hammarberg’s comment last week was well-timed, given the recent meeting of the Venice Commission and should ensure that the spotlight remains on this crucial issue of political participation.
It also follows the release of a report by the EU Fundamental Rights Agency on the political participation of persons with mental health problems and persons with intellectual disabilities. This report found that 17 EU member states (including Ireland) had legal provisions which ensured automatic or quasi-automatic exclusion of certain people with disabilities from the right to usually as a result of the person being placed under a protective measure such as partial or plenary guardianship, and regardless of the individual’s actual level of functional capacity.
Closer to home, there have been some positive efforts on the part of advocates and organisations of people with disabilities to increase awareness of political rights and the supports required to enable political participation; most notably Inclusion Ireland’s Guide to Voting and Sunbeam Media’s Your Power, Your Vote video clip developed for General Election 2011 which provides a very accessible overview of why people with disabilities should vote and how people can exercise this right. However, at every election, reports of inaccessible polling stations abound, and many people with intellectual disabilities find that they are not viewed as potential voters when canvassers call to their homes. Therefore it is clear that much more is needed to ensure that the most fundamental civil and political rights are accessible to people with disabilities, and that individuals are supported to have their say in determining the make-up of the legislature at local, national and European levels.