The European Disability Forum, Disabled People’s Organisations Denmark and the International Disability Alliance advocate for fully inclusive and democratic societies in which all persons with disabilities can be active participants and contributors to the public and political life of their societies.
We are deeply concerned by the decision of the European Court of Human Rights in “Strøbye v. Denmark and Rosenlind v. Denmark,” a case in which two persons with disabilities were seeking to recover their right to vote in national elections. In a judgment of the 2nd of February, the court ruled against the right to vote of persons under guardianship who are also deprived of their legal capacity, instead favoring a legal scheme that discriminates against and excludes persons with disabilities as a reasonable restriction to the right to vote under Article 3 of Protocol No. 1 to the European Convention on Human Rights. This decision excludes persons with disabilities from the democratic process, reducing them to second-class citizens and perpetuating stereotypes about them.
The European Court of Human Rights failed to properly consider the relevant legal standards of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which has been ratified by Denmark and 46 of the 47 member states of the Council of Europe, as well as by the European Union. The Court failed to identify the blatant discrimination against persons with disabilities by accepting the restriction’s ostensible “aim of ensuring that voters in general elections had the required level of mental skills” and “[are] capable of assessing the consequences of their decisions and of making conscious and judicious.” It is important to point out that these standards are not applied to the general population, who, at the age of 18 are placed in the voters’ register without any testing of their capacity to assess the consequences of their decisions.
Legal provisions excluding part of the population from political life leads to a form of “selective suffrage”, which was a norm of the past when, for example, women or Black people could not vote. The court’s decision not only violates the rights to equality and non-discrimination, to exercise their legal capacity and to vote under CRPD, it relies on a legal fiction that ignores the reality and complexity of all the psychological and emotional factors involved in an individual´s decision when voting. By doing so, the Court accepts the deprivation of some persons with disabilities of their right to be part of the democracy of their country, based on discriminatory considerations.
Unfortunately, this is not the first time the European Court of Human Rights has failed to properly consider the standards set by the CRPD and protect the rights of persons with disabilities (see for instance on education of pupils with disabilities).
We call on all States and the European Court of Human Rights, to respect, uphold and implement the right to vote of all persons with disabilities in line with Article 29 of the CRPD, and its interpretation by the Committee on the Rights of Persons with Disabilities, ending any form of selective suffrage and exclusion from participation in public life, which undermines the foundations of a truly inclusive and democratic society. In particular, we call on the European Court of Human Rights, and all its judges and professional staff, to recall the important mission and role entrusted to it as final guardian of the rights and fundamental freedoms of all persons, without discrimination of any kind on the basis of disability, in the countries of the Council of Europe. For the time ahead, we hope that the Court will be able to enhance its awareness on the rights of persons with disabilities and on disability as a prohibited ground of discrimination and we would welcome any institutional effort and initiative in this direction.
We, and all persons with disabilities in countries within the Council of Europe and beyond, need and hope to count on the European Court of Human Rights to assume an active lead in the promotion and protection of the rights of persons with disabilities to build more inclusive and democratic societies for all.
Human Rights Officer