The court overturned a Hungarian blanket provision which denied voting rights to mentally disabled people under partial guardianship. The court said that if a restriction on fundamental rights applies to a particularly vulnerable group who have suffered considerable discrimination in the past, such as the mentally disabled, the State’s margin of appreciation (ie its range of discretion) is substantially narrower and it must have very weighty reasons for the restrictions in question.
European Court of Human Rights (ECtHR), May 2010, Application no. 38832/06. Full judgment: Hudoc database.
The applicant had manic depression, and was placed under partial guardianship. Partial guardianship was based on the Civil Code which dealt with pecuniary and certain personal relations. However under a provision in the Hungarian constitution, partial guardianship also meant he was excluded from voting.
Held by the European Court of Human Rights: there was a breach of Article 3 of Protocol 1 to the European Convention of Human Rights, which provides for free elections and includes the right to vote.
Article 3 of Protocol 1 (free elections)
The court reiterated that the rights under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, the rights are not absolute. States’ margin of appreciation (ie their discretion) in this area is wide. However it was for the court to determine in the last resort: whether conditions impair the very essence of the rights and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate
The Court therefore had to determine whether the measure here pursued a legitimate aim in a proportionate manner.
It was accepted that the legitimate aim here was to ensure that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs
The Hungarian Government argued, relying on the margin of appreciation, that it must be permissible for the legislature to establish rules ensuring that only those who are capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs. (The “margin of appreciation” means roughly the State’s ‘range of discretion’, or ‘room for manoeuvre’.) The court accepted that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature. However there was no evidence that the Hungarian legislature had ever weighed the competing interests or assessed the proportionality of the restriction as it stands. The court went on:
“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…. 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…). 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 (…).”
The applicant in the present case had lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship.
The Court further considered 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 was reflected in other instruments of international law, for example the UN Convention. The Court therefore concluded 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.”