The two applicants were wheelchair users. They claimed to the Strasbourg court that their local voting facilities were not sufficiently accessible, so that there was discrimination contrary to the European Convention of Human Rights. Their claims for reasonable accommodation failed. For a 2015 referendum, the physical premises were accessible, and any problems with access or the arrangements inside did not produce a particularly prejudicial impact on the applicants. By the time of elections in 2019, the first applicant’s disability was such that he could not mark his own ballot paper. However the court held the authorities were not obliged to use voting machines so that he could vote without needing an assistant.
2021, European Court of Human Rights (ECtHR), Strasbourg. Full decision www.bailii.org/eu/cases/ECHR/2021/879.html
Facts
The two applicants were wheelchair users. They claimed that their local voting facilities in Slovenia were not sufficiently accessible in a 2015 referendum, and in the 2019 European Parliament elections.
They claimed there was a failure to make reasonable accommodation under Article 14 (and a similar provision) of the European Convention of Human Rights.
Held by ECtHR: Their claims for reasonable accommodation failed.
Reasonable accommodation (ie reasonable adjustments)
The ECtHR reiterated that Article 14 of the Convention has to be read in the light of the CRPD requirements regarding reasonable accommodation – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” (Çam § 65). [§ 114]
The ECtHR added that “these considerations apply equally to the participation of people with disabilities in political life. It notes in this regard that Article 29 of the CRPD explicitly requires the States Parties to guarantee to people with disabilities the opportunity to enjoy political rights on an equal basis with others and to undertake to ensure, among other things, accessible voting procedures…”. [§ 114]
2015 referendum
This referendum fell within the European Convention through Article 1 of Protocol No.12, [§ 81]. [Comment: For an explanation of this, see below Comments: 2015 referendum and Protocol No. 12. As explained there, Protocol No. 12 does not apply in the UK.]
The ECtHR said that states enjoyed a margin of appreciation in assessing the needs of people with disabilities in respect of elections – and doubtless referendums – and in assessing the means of providing them with adequate access to polling stations, in the context of the allocation of limited state resources. National authorities were in a better position to carry out such an assessment than an international court. [§ 119]
The court said the applicants were able to vote at polling stations near where they lived, rather than having to go to specially designated polling stations. Adaptations to the voting facilities (such as tables, voting booth and ballot box) were not made in advance, but assistance could be provided to the applicants on the spot by means of reasonable accommodation of their needs. [§ 119]
Both applicants had been able to mark their ballot paper by themselves:
- At the request of the first applicant a ramp had been installed at his local polling station in advance. He complained that he had to vote in the middle of the room with several people around him, but it was not evident that this impacted on the secrecy of his vote. Also his nephew posted on Facebook how his uncle “voted in an accessible polling station today. One polling station adjusted, 3,000 to go.”
- The authorities had arranged for the second applicant to visit the relevant building (a school) a few days before voting to check it was accessible. However he said he needed the help of a passer-by to use the ramp at the entrance to the polling station. As regards his actual voting, it seemed he had been able to mark and deposit his ballot paper. His grievance related only to the inclination of the ramp. [§ 120, 121]
The ECtHR said that since voting was organised ad hoc in buildings that otherwise served other purposes, it might be particularly difficult to ensure full accessibility. This was so especially if the state aimed to provide a high number of polling stations, as Slovenia seemed to. Since improvement of accessibility in the built environment may take time, it was “essential that in the meantime the domestic authorities react with the requisite diligence to ensure that people with disabilities can vote freely and by secret ballot”. [§ 121]
In this case, the authorities had responded promptly and constructively to the applicants’ requests, installing the ramp and arranging the advance visit [§ 121]. Also:
“121 …Even if the applicants did encounter certain problems, these did not appear to have produced a particularly prejudicial impact on them and been such as to have reached the threshold of discrimination (see Napotnik, cited above, § 73, and Ádám and Others, cited above, § 87) or to indicate indifference to their needs on the part of the respondent State (compare, mutatis mutandis, the above-cited cases of Çam, § 68, and Guberina, § 86)…”
[See my comment on this below: Comments: Whether particularly prejudical impact.]
There had therefore been no violation of Article 1 of Protocol No. 12 as regards the 2015 referendum.
2019 European Parliament elections
Under a change in Slovenian law from February 2018, all polling stations had to be accessible to people with disabilities, but there was no longer a possibility of voting by voting machine. The change in law (from May 2017) also allowed people with disabilities to vote by post if they wished. [§ 42]
The first applicant did not vote in the 2019 elections, allegedly because he was unable to hold a pen and thus would not be able to mark his ballot paper by himself. He argued that the authorities should have made it possible for him to vote using a voting machine. [§ 122] (The court did not consider the second applicant’s claim on the 2019 election, because it held he had not exhausted domestic remedies [§ 98].)
The ECtHR considered whether the authorities had complied with Article 14 of the European Convention read in conjunction with Article 3 of Protocol No. 1. [§ 112]
The first applicant could have voted either by going physically to his local polling station (which had to be wheelchair accessible) or by post, or possibly also at his home. However under any of these options he would have had to be assisted by another person, who would have marked his ballot paper for him and taken care of other practicalities, such as putting it in the ballot box or posting it. Slovenian law allowed an assistant, and he was free to choose who it was. The applicant did not allege he could not ask someone to assist, and he had a family, but he would have had to disclose his electoral choice to the person assisting him. The assistant would be obliged to respect the secrecy of the voting procedure. [§ 123-125]
The court commented that technology-assisted voting was mentioned in international instruments as one means of ensuring the right of people with disabilities to vote. Voting machines might afford a higher level of autonomy in voting for some people with disabilities [§ 126]. However:
- Use of assistive technologies had been mentioned in international instruments as one means of supporting people with disabilities and not as a necessary requirement that would need to be immediately implemented [§ 127].
- Use of assistive technologies no doubt required significant financial investment, the operation of voting machines posed potential problems for the secrecy of the voting procedure, and voting machines did not appear to be widely available in the member States. “Indeed, there is no indication in the present case of a consensus having been reached among the member States as to the use of voting machines as a requirement for the effective exercise of the voting rights by people with disabilities…”. [§ 128]
Therefore, and because assistance to people with disabilities might take a variety of forms, the decision as to whether voting machines should be used was to be made primarily by the national authorities. They were better placed than an international court to evaluate local needs and conditions in this regard (Çam, § 66). “It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on people with disabilities, whose particular vulnerability cannot be ignored (see Enver Şahin, …. § 61).” [§ 129]
Here the (Slovenian) Constitutional Court had considered whether the lack of voting machines following the change in law complied with the (Slovenian) Constitution and with the international obligations of Slovenia. It took account of, among other things, the fact that a very small number of people with disabilities had used voting machines in the past, that such machines could not assist people with all types of disabilities and that their provision was linked to high costs. The ECtHR said the reasons provided by the Constitutional Court appeared persuasive, and based on a careful assessment of past experience in using voting machines and on the compliance of the new regulation with international standards (contrast Guberina, § 92). [§ 130]
Therefore, and bearing in mind that the first applicant could use an assistant of this choice, the authorities could not be said to have failed to strike a fair balance between the protection of the interests of the community and respect for the first applicant’s rights and freedoms, as safeguarded by the Convention. There had been no breach of Article 14. [§ 131-132]
My comments
Comments: Reasonable adjustments
For the 2015 referendum, the ECtHR mainly found that any accessibility problems were not serious enough to found a claim under the Convention: below Whether particularly prejudical impact.
For the 2019 election, the question was whether voting machines should have been used, so that people such as the first applicant who could not mark their own ballot paper would not have to use an assistant. In holding that they were not required, it seems to have been particularly important that international instruments saw voting machines as an option but not as necessary, and that there was no consensus in Europe on using them. The ECtHR’s view might change if international standards change: “the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved” [§ 113]. The “persuasive” assessment of voting machines by Slovenia’s Constitutional Court also helped the ECtHR’s decision.
On reasonable adjustments generally under Article 14, see What is ‘discrimination’ under Article 14 European Convention?>Reasonable adjustments.
Comments: Whether particularly prejudical impact
Apparently in the context of Thlimmenos discrimination – namely “when States without an objective and reasonable justification fail to treat differently people whose situations are significantly different” – the ECtHR decision in the present case says at § 111:
“In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see Ádám and Others v. Romania [echr.coe.int] … , and Napotnik v. Romania, [echr.coe.int] … .”
It is interesting that the ECtHR then, at § 121 (above), applies the same concept to the reasonable accommodation claim in respect of the 2015 referendum. The court said that any problems did not appear to have produced a particularly prejudicial impact on the applicants, and been such as to have reached the threshold of discrimination.
This is reminiscent of the Equality Act requiring that for reasonable adjustments the disabled person (for employment), or people with that particular kind of disability, are put at a substantial disadvantage. In the Equality Act “substantial” means only ” meaning “more than minor trivial”. It sounds like the ECtHR’s threshold may be somewhat higher.
Comments: 2015 referendum and Protocol No. 12
Article 14 (discrimination) of the European Convention only applies to a matter falling within the “ambit” of one of the substantive articles of the Convention. The 2019 election fell within the ambit of Article 3 of Protocol No. 1, but the 2015 referendum did not necessarily fall within its ambit.
However Slovenia had signed up to Protocol No. 12 (www.coe.int) of the Convention. For the referendum, the ECtHR therefore applied Article 1 of Protocol No.12 [§ 81]. This is similar to Article 14 of the main Convention, but extends to “any right set forth by law” (here the right to vote in the referendum), so not just to matters within the ambit of the Convention.
However the UK has not signed up to Protocol No.12: Scope of European Convention rights>Protocol No. 12 does not apply in the UK. In the UK the Convention’s anti-discrimination protection is therefore limited to Article 14, and so to matters falling within the ambit of a Convention right. Referenda may not be covered.
Even so, the principles applied by the ECtHR for the 2015 referendum are equally applicable to Article 14. The court said that notwithstanding the difference in scope between Article 14 and Article 1 of Protocol No. 12, the meaning of the term “discrimination” was intended to be identical in both cases. Therefore, in principle, the same standards developed by the court in its case law on Article 14 applied to cases brought under Article 1 of Protocol No. 12. [§ 115]
