Something About The Law

Yesterday the European Court of Human Rights in Alajos Kiss v. Hungary issued an important judgment in a case on voting rights for the mentally disabled. The Guardian reports:

The applicant in the case suffered from manic depression and had for that reason been placed under partial guardianship. Since the Hungarian Constitution contained an absolute voting ban for people put under guardianship, he could not vote in the 2006 parliamentary elections. The European Court held unanimously that such an absolute ban violated the right to free elections of Article 3 of Protocol 1 ECHR.The Court did accept the Government’s contention that “that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs” (para. 38.), but did not buy the consequence Hungary attached to it, namely an automatic exclusion from the right to vote. The Court thus held that the ban was disproportionate.

For the full text of the judgement click here. Extracts:

42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing (Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82). In addition, 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 (cf. also the example of those suffering different treatment on the ground of their gender – Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race – D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 …, or sexual orientation – E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008 …). The 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 (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008).

44. The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paragraphs 14-17). The Court therefore concludes 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. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. (my emphasis, A.B.)

We observe with approval this new trend in international jurisprudence. Back home, the Supreme Court in Suchita Srivastava v. Chandigarh Administration last year stepped in to prevent the state government from aborting the baby of a pregnant mentally retarded woman against her wishes, giving the element of “choice”, even to her, as one of the major factors, voicing that since the woman was mildly retarded as opposed to severely, it could not regard “mental retardation” as a blanket category of individuals.

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