Summary
The right to vote should not be restricted based on any perceived or actual disability and mental health status, including pursuant to an individualized assessment.
Obligations
Election Parts
Issues
Criteria
- The legal framework for elections did not include provisions that discriminate on the basis of prohibited grounds
- The legal framework for elections included guarantees of equality before the law
- Eligibility requirements for voter registration were reasonable and objective and did not discriminate on the basis of prohibited grounds
- The right to vote was guaranteed by law and was subject only to reasonable and objective restrictions
- The legal framework for elections was consistent with international human rights
Quotes
- The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph [right to participate in government] only on the basis of age, nationality, residence, language, education, civil... capacity or sentencing by a competent court in criminal proceedings.
- The Committee reaffirms that a person’s status as a person with a disability or the existence of an impairment (including a physical or sensory impairment) must never be grounds for denying legal capacity or any of the rights provided for in article 12. All practices that in purpose or effect violate article 12 must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others.
- States parties must refrain from denying persons with disabilities their legal capacity and must, rather, provide persons with disabilities access to the support necessary to enable them to make decisions that have legal effect.
- In its concluding observations on States parties’ initial reports, in relation to article 12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that States parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences”.
- In order to fully realize the equal recognition of legal capacity in all aspects of life, it is important to recognize the legal capacity of persons with disabilities in public and political life (art. 29). This means that a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising their political rights, including the right to vote, the right to stand for election and the right to serve as a member of a jury.
- The Committee further recommends that States parties guarantee the right of persons with disabilities to stand for election, to hold office effectively and to perform all public functions at all levels of government, with reasonable accommodation and support, where desired, in the exercise of their legal capacity.
- Article 29 does not provide for any reasonable restriction or exception for any group of persons with disabilities. Therefore, an exclusion of the right to vote on the basis of a perceived or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability, within the meaning of article 2 of the Convention.
- Accordingly, the Committee concludes that article XXIII, paragraph 6, of the Fundamental Law, which allows courts to deprive persons with intellectual disability of their right to vote and to be elected, is in breach of article 29 of the Convention, as is article 26, paragraph 2, of the Transitional Provisions of the Fundamental Law.
- To ensure consistency between articles 5 and 12 of the Convention, States parties should: (a) Reform existing legislation to prohibit discriminatory denial of legal capacity, premised on status-based, functional or outcome-based models. Where appropriate, replace those with models of supported decision-making, taking into account universal adult legal capacity without any form of discrimination.
- In general: the State party is under an obligation to take measures to prevent similar violations in the future, including by: (…) (ii) Enacting laws that recognize, without any “capacity assessment”, the right to vote for all persons with disabilities, including those with more need of support, and that provide for adequate assistance and reasonable accommodation in order for persons with disabilities to be able to exercise their political rights.
- To ensure consistency between articles 5 and 12 of the Convention, States parties should: (a) Reform existing legislation to prohibit discriminatory denial of legal capacity, premised on status-based, functional or outcome-based models. Where appropriate, replace those with models of supported decision-making, taking into account universal adult legal capacity without any form of discrimination.
- Accordingly, the Committee is of the view that, by depriving the authors of their right to vote, based on a perceived or actual intellectual disability, the State party has failed to comply with its obligations under article 29 of the Convention, read alone and in conjunction with article 12 of the Convention.
- All persons with disabilities, whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses, have the right to vote on the same basis as other citizens, and should not be deprived of this right by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity. All persons with disabilities are also entitled to stand for office on an equal basis with others and should not be deprived of this right by any law restricting their legal capacity, by any judicial or other decision based on their disability, cognitive functioning or perceived capacity, or by any other means.
- In the light of these considerations, the Assembly calls on Council of Europe member and observer States, and States whose parliaments enjoy observer or partner for democracy status with the Parliamentary Assembly to: (...) 7.2. with regard to legal capacity: 7.2.1. delink the right to vote from legal capacity and full guardianship and, recalling Assembly Resolution 2039 (2015), replace substitute decision-making mechanisms with supported decision-making mechanisms, in respect of their international commitments.
- In the light of these considerations, the Assembly calls on Council of Europe member and observer States, and States whose parliaments enjoy observer or partner for democracy status with the Parliamentary Assembly to: (...) 7.2. with regard to legal capacity: 7.2.1. delink the right to vote from legal capacity and full guardianship and, recalling Assembly Resolution 2039 (2015), replace substitute decision-making mechanisms with supported decision-making mechanisms, in respect of their international commitments.
- Persons with disabilities should be enabled, freely and without discrimination, particularly of a legal, environmental and/or financial nature, to: - vote and stand for election at all levels; - have access to communication, information, procedures and facilities related to their political rights; - have equal access to public duties; - meet, join or found associations; - meet, join or found political parties; - express their opinions; - be closely consulted and actively included in the development and implementation of legislation and policies, and in other decision-making processes concerning issues that affect them.
- It is not acceptable to remove and/or limit the right to vote or to stand as a candidate on the basis of any type of disability, including intellectual or psychosocial disabilities.
- Reasonable restrictions [on voting] have included distinctions based on age, citizenship, residency...
- Reasonable restrictions may include factors such as residence, citizenship, current incarceration or having been convicted of a crime
- Voting rights should be based on considerations that include: citizenship; legal age of majority (this may differ from country to country); residency requirements; any other additional grounds for disqualification (eg, prisoners in detention, persons with a criminal record... and so on).
- In general, these limitations fall within four categories: (1) minimum age requirements; (2) citizenship requirements; (3) residency requirements; and (4) loss of franchise due to mental incapacity, criminal conduct, or other factors. Any limitation or restriction on the right to vote, however, must be scrutinized as to whether it is clearly justified due to exceptional circumstances and whether it is proportionate to the circumstances in question.
- The UN Human Rights Committee has noted as impermissible 'excessive limitations on the voting rights of convicted criminals.'
- [P]rovision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions. ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. The deprivation must be based on ... a criminal conviction for a serious offence. v. Furthermore, the withdrawal of political rights ... may only be imposed by express decision of a court of law.
- It is not acceptable to remove and/or limit the right to vote or to stand as a candidate on the basis of any type of disability, including intellectual or psychosocial disabilities.
- Supported decision-making means that a person can receive the necessary assistance to adopt certain decisions in life, including when exercising the right to vote. Such mechanisms should replace the substituted decision-making ones, providing persons with disabilities with the necessary support to exercise their electoral and political rights without undue limitation.
- Reasonable restrictions may include factors such as residence, citizenship, convicted persons in legal detention, and those considered mentally incapacitated by the courts.
- Supported decision-making means that a person can receive the necessary assistance to adopt certain decisions in life, including when exercising the right to vote. Such mechanisms should replace the substituted decision-making ones, providing persons with disabilities with the necessary support to exercise their electoral and political rights without undue limitation.
- The CRPD Committee has consequently been very clear that the treaty does not permit the removal of legal capacity based on mental or intellectual disability. It is clear that neither general nor individualized court decisions are acceptable bases for the removal of suffrage rights. In 2011, in Bujdosó and five others v. Hungary, the Committee heard a case in which persons with intellectual disability were placed under partial or full guardianship and their names automatically removed from the electoral register. The Committee found that the “exclusion of the right to vote on the basis of a perceived, or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability”.
- People with disabilities should therefore be able to exercise their right to vote and participate in political and public life as elected representatives on an equal basis with other citizens.