Commissioner for Human Rights

People with disabilities do not generally ask for charity; they demand equal human rights. Their message was heard when the United Nations adopted a Convention on the Rights of Persons with Disabilities in 2006. This treaty has now been ratified by 27 member states of the Council of Europe and signed by another 18. However, this is only the first step – the Convention should be implemented. A good start would be to “ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others… including the right …to vote and be elected”.

In fact, this right – spelled out in Article 29 of the UN Convention - is not a reality today in the majority of European states. The principle of universal suffrage is not consistently applied. Persons with mental health problems or intellectual disabilities are denied voting rights, in most cases as a consequence of having had their “legal capacity” restricted or removed.

The European Court of Human Rights ruled on such a case (Kiss v. Hungary) in 2010. Suffering from manic depression, Alajos Kiss had been placed under partial guardianship. As the Hungarian Constitution contains an absolute voting ban for people under guardianship, he was prevented from taking part in the general elections.

Landmark ruling by the Strasbourg Court

The Strasbourg Court found such a blanket, automatic ban to be impermissible. An indiscriminate removal of voting rights based solely on a mental disability requiring partial guardianship was not compatible with the relevant provision in the European Convention on Human Rights - the basic principle of which is universal suffrage (Article 3 of Protocol No. 1).

The Court also made the point that persons with mental health problems and persons with intellectual disabilities tend to be vulnerable and have in many cases suffered considerable discrimination throughout their lives. In view of the long-standing prejudices against them it was particularly important to avoid generalised classification as a basis for the restriction of their human rights, as this might lead to further social exclusion.

This landmark judgment was an important message to European member states, eighty per cent of which ban the political participation of persons in the same situation as Alajos Kiss.

Assistance - while retaining rights

However, the Court ruling did not exclude the possibility in all circumstances of depriving a person of the right to vote – as long as the criteria and the procedures were acceptable. This makes it necessary to discuss the precise meaning of some key passages of the UN Convention on the Rights of Persons with Disabilities, which is more specific on this matter.

In fact, this treaty does not specify any exceptions to the rights therein. On the contrary, it stipulates that state authorities “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.

The very purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights by all persons with disabilities. This leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person and then give a green light - or not. As we do not test that capability for someone without disabilities, this would amount to blatant discrimination.

There are of course those who – because of their disability – have difficulties in fully exercising their human rights. In these situations society should offer assistance to make it possible for the individual to exercise them, including to take part in political life. The Convention places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights.

This is the paradigm shift that the UN Convention represents: it builds on the idea that we should go further than to just help persons with disabilities to adjust to existing conditions – our societies should seek to adapt to and accommodate everyone, including those with special needs.

Positive experiences

Some European countries have in fact taken steps in that direction. For example, a survey by EU’s Fundamental Rights Agency showed that in Austria, the Netherlands and Sweden, the rights of persons with mental health problems and intellectual disabilities to vote and be elected are protected by the constitution. Experiences in these countries have shown that any fears that this approach would cause any real problems were unfounded.

This is both a matter of equal individual rights and of a broader societal interest. As spelled out in the Council of Europe Disability Action Plan, our societies need to reflect the diversity of their citizens and benefit from their varied experience and knowledge. This is another reason why it is important that people with disabilities are able to exercise their rights to vote and to participate in political life.

Thomas Hammarberg