Three months after a case against Denmark, the European Court of Human Rights in a judgment adopted on 11 of May 2021 considers proportionate the removal of the right to vote of persons with intellectual disabilities in a case against Spain (case Caamaño Valle v. Spain). The case was brought by the mother of a woman with intellectual disabilities who had seen her right to vote removed after being put under partial guardianship.
The Court nevertheless acknowledges the 2018 reform of the Spanish electoral law (Ley 2/2018) which banned the possibility of limiting the right to vote to persons with disabilities, and considers that the woman with intellectual disabilities concerned can from that moment exercise her political rights.
Despite this, the decision proves again that the European Court of Human Rights lags behind in its interpretation of the European Convention of Human Rights adopted of 1950 and Protocol No. 1 to the Convention adopted in 1952, especially in light of the adoption and ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) by Spain, and 181 other parties including 46 of the 47 members of the Council of Europe and the European Union. The CRPD fully prohibits the removal of the right to vote based on disability. According to its article 29 of the CRPD, persons with disabilities must have the right to participate in civil and political life.
The Council of Europe’s Commissioner for Human Rights made an intervention in the case explaining that “developments within the UN system and Council of Europe demonstrated a clear evolution in terms of the clarification of international obligations and that there was a consensus (…) to the effect that the withdrawal of political rights on the basis of a disability (including cognitive impairment) and mental health status was unacceptable.” The Court however still refuses to see this evolution and does not want to recognise persons with intellectual as full citizen, to the exception of Judge Lemmens who wrote an important dissenting opinion.
In its judgement the Court considered that there is “no consensus in the sense of an unconditional right of persons with a mental disability to exercise their right to vote (and) a majority of these States seems to allow for restrictions based on the mental capacity of the individual concerned.” It recalled its argument of “ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.” In this specific case, the Court stated that “based on her lack of understanding of the meaning of a vote and her susceptibility to being influenced” the withdrawal of the right to vote was justified.
While the judgment does not affect the electoral law reform in Spain, it may undermine the efforts of other European countries in their attempts to apply the CRPD.
EDF continues to strongly 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.
EDF will continue advocating with its members at national and European level to ensure that, like in Spain, electoral laws are reformed in line with the CRPD. In Spain, the revision in 2018 led to recognise the right to vote to 100,000 persons with disabilities. Currently in the EU, there are still 14 Member States limiting political rights to certain persons with disabilities, accounting approximately 400,000 citizens who are deprived of their political rights.
More information:
- Legal summary of the judgment
- CERMI, El Cermi deplora el pronunciamiento del Tribunal Europeo de Derechos Humanos sobre la privación del derecho al voto a personas con discapacidad intelectual
- UN experts urge European Court of Human Rights to rethink vote ban for those with cognitive disabilities
- An urgent call to revise the European electoral law of 1976
- Joint statement on political participation for the Commission on the Status of Women