ECtHR, Third Section, App. No. 43564/17, [2021] ECHR 43564/17, 11 May 2021

Judge Lemmens (President), Judges Serghides, Dedov, Ravarani, Elósegui, Seibert-Fohr, Roosma

This case, which concerned the disenfranchisement of a mentally incapacitated adult, is perhaps most notable for the eviscerating dissent of the Third Section President, Judge Lemmans, who ruled that there had been a breach of A3P1, read alone and in conjunction Article 14 of the Convention and A1P12. In doing so he favoured the approach of the Commissioner for Human Rights of the Council of Europe, who intervened, over the view of his colleagues who acknowledged, but did not follow, the jurisprudence developed under the Convention on the Rights of Persons with Disabilities. Judge Lemmems presents a compelling case for an “inclusive equality” implying “the full recognition of humanity through inclusion in society” (citing the CRPD Committee)and encourages a critical reading of the majority judgment in this case.

The applicant complained of a violation of A3P1, read alone or in conjunction Article 14 of the Convention and A1P12, by reason of the revocation of her daughter’s right to vote. The revocation occurred in connection with the applicant’s application for partial guardianship of her (then 18 year old) daughter “M” who was significantly cognitively impaired and who was found by a judge to lack capacity to vote. In reaching this conclusion the first instance judge had distinguished between the general concept of disability, taking into account the Convention on the Rights of Persons with Disabilities (“CRPD”), and the concept of incapacity. The judge had acknowledged that under the relevant law “The loss of the right to vote is not an automatic or necessary consequence of incapacity” but that it was for “the judge in charge of the case to analyse and assess the situation of the person under his consideration and to rule on the advisability of denying that person his right to exercise of this fundamental right, … which is a rule and not the exception …” The first instance judge had revoked M’s right to vote “based neither on the requirement of a higher cognitive or intellectual capacity nor on M’s lack of knowledge regarding her voting options (that is to say her choice of candidate or party) nor on any hypothetical irrationality in respect of such choices, but on the strict and objective establishment of her lack of capacity in respect of political affairs and electoral matters”, noting M’s “notable – and at that time insuperable – deficiencies … in respect of her exercising an electoral choice” and relying not on “the fact that she hardly knew anything about the Spanish political system, but because she was highly influenceable and not aware of the consequences of any vote that she might cast”.

The applicant’s domestic appeals failed, the Regional Court emphasising that M’s intellectual ability was equivalent to that of a child aged between six and eight and Spain’s Supreme Court ruling that the judge’s reasoning at first instance had contained a thorough analysis of the case and had correctly balanced the interests at stake. The Constitutional Court also rejected the applicant’s challenge, ruling that the right to vote was subject to considerations of age and capacity.

The ECtHR accepted that the applicant had standing to bring the case on her daughter’s behalf (§34) and that the claim was admissible (§36). The applicant claimed that the deprivation of M’s right to vote amounted to discrimination on grounds of disability and was unrelated to and disproportionate to any legitimate aim, relying on the CRPD as well as on the ECHR. The Commissioner for Human Rights of the Council of Europe, intervening, argued that there was a consensus among the Contracting States within the context of commonly agreed international standards to the effect that the withdrawal of political rights on the basis of a disability (including cognitive impairment) and mental health status was unacceptable, even when it stemmed from a judicial decision and that the right to vote of persons with disabilities should be upheld without exception.

At §52 the Court ruled that the ECHR was “to be interpreted in accordance with the relevant standards and principles of public international law and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969” pursuant to which “the Court must establish the ordinary meaning to be given to terms within their context and in the light of the object and purpose of the provision from which they are taken. Thus, the Court has never considered the provisions of the Convention to constitute the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties”. Having said this, the Court’s authority existed (§53) only in relation to the Convention and it was not bound by interpretations of other instruments which might offer wider protection (§54). At §55 the Court stated that the rights guaranteed under A3P1 were “not absolute. There is room for implied limitations, and the Contracting States have a margin of appreciation in this sphere, which generally is a wide one”, though “if a restriction on the right to vote applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower”.

At §57 the Court ruled that “any conditions imposed must not thwart the ‘free expression of the people in their choice of legislature’” and that “[a]ny departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws that it promulgates. The exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1” (citing, inter alia, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 62, ECHR 2005 IX). At §58 it made reference to the significance of emerging consensus across member states and at §59 it “reiterate[d] that the presumption in a democratic State must be in favour of the inclusion of all, and that universal suffrage is the basic principle…

59…. This does not mean, however, that Article 3 of Protocol No. 1 guarantees to persons with a mental disability an absolute right to exercise their right to vote. Under this provision, these persons are not immune to limitations of their right to vote, provided that the limitations comply with the conditions set out above … It is not for the Court to express an opinion on whether Article 29 of the CRPD imposes stricter obligations on the States that are parties to that convention. For the purpose of the interpretation of Article 3 of Protocol No. 1, the Court notes the fact that there is at present no consensus among the States Parties to Protocol No. 1 in the sense of an unconditional right of persons with a mental disability to exercise their right to vote. On the contrary, a majority of these States seems to allow for restrictions based on the mental capacity of the individual concerned”

60. The margin of appreciation left to the States is not unlimited. The Court has already stated that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, does not fall within any acceptable margin of appreciation … Likewise, 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 (ibid., § 44)

61. By contrast, the Court has accepted as legitimate the aim of “ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs” (ibid., § 38).”

Applying this to the instant case the Court ruled by a majority at §64 that the limitation in issue was designed to “ensur[e] that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs”, and thus pursued a legitimate aim. It went on to find that the limitation was “not disproportionate to the legitimate aim pursued” in view of the fact, in particular, that the removal of M’s “voting rights was based on her lack of understanding of the meaning of a vote and her susceptibility to being influenced” (§73). The Court went on to observe at §76 that “Having regard to the reasons for the exclusion of the applicant’s daughter from the electoral process (see paragraphs 71-73 above), the Court considers that the contested measure does not thwart the free expression of the opinion of the people” and to conclude at §78 that there had been no violation of A1P1. As to the claim under Article 14 read with A1P1 and A1P12 the Court ruled at §79 that “in spite of the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 is intended to be identical to that in Article 14” (citing §§18 and 19 of the Explanatory Report to Protocol No. 12).

At §82 the Court ruled by a majority that “The difference in treatment between the daughter (whose right to vote was restricted) and persons who had the right to vote was therefore based on the respective mental capacity of each person” and that “a difference in treatment based on such grounds pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The assessment underlying the Court’s conclusion that the interferences with the right to vote of the applicant’s daughter were justified under A3P1 took into account the applicant’s daughter special status (that is to say the fact that the degree of her legal capacity had been modified). These considerations are equally valid within the context of Article 14 and, even assuming that the applicant’s daughter can be deemed to be in a comparable position to other persons whose legal capacity has not been modified, justify the difference of treatment complained of”. This being the case, it found no breach of Article 14 read with A3P1 or A1P12.

Judge Lemmens dissented on the basis that “the interpretation of the Convention in this area requires updating, and that an updated interpretation would necessarily lead to a different outcome in the present case.” In particular, he stated that the view (§§3-4) that “only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs … conflicts with the interpretation given by the Committee on the Rights of Persons with Disabilities …to Articles 12 and 29 of the [CRPD]”, the Committee having concluded 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 …”  and ruled in Zsolt Bujdosó and Others v. Hungary (communication no. 4/2011, views adopted on 9 September 2013, CRPD/C/10/D/4/2011) that “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 individualised assessment, constitutes discrimination on the basis of disability” and that “[a] provision ‘which allows courts to deprive persons with intellectual disability of their right to vote …, is in breach of Article 29 of the [CRPD]’. The conclusion to be drawn from the above is simple: under the CRPD, all persons with disabilities, without exception, should have the right to vote, and no one should be deprived of that right on the basis of any perceived or actual intellectual disability”.

Judge Lemmens went on to state at §6 that “voting is more than just expressing a certain preference on a particular day, every few years … [but] forms part of the broader right to participate in political and public life” and to cite Martha Nussbaum in “The Capabilities of Persons with Cognitive Disabilities”, Metaphilosophy, vol. 40, 2009, (331), at 347 that “the exclusion of persons with cognitive disabilities from the right to vote means that these persons ‘are simply disqualified from the most essential functions of citizenship’, ‘they do not count’, ‘their interests are not weighed in the balance’, ‘they are not regarded as fully equal citizens, with a dignity commensurate with that of others’. He also cited the CRPD Committee’s general comment on Article 12 of the CRPD which distinguished between legal and mental capacity and pointed out that Article 12 CRPD “makes it clear that ‘unsoundness of mind’ and other discriminatory labels are not legitimate reasons for the denial of legal capacity (both legal standing and legal agency)”. Judge Lemmens “regret[ted] that the majority do not draw the above distinction” and “accept the complete removal of the [M’s] right to vote on the basis of her cognitive disability… exactly the kind of situation that the CRPD Committee denounced in 2014” in general comment No. 1. He instead proposed, as Nussbaum had done, that legal capacity could be recognised “while at the same ensuring that that capacity is exercised by a person ‘capable of assessing the consequences’ of any vote cast” by the appointment of a surrogate (§7).

Judge Lemmens also took issue with the suggestion that here was no state consensus on this matter, pointing out at §8 that 45 of the 47 member States of the Council of Europe had ratified CERD and only two were not party to it, though a number had made declarations or reservations with respect to Articles 12 and/or 29 (§8) and in 2014 “only seven of the 28 EU Member States guaranteed the right to vote for all persons, including those without legal capacity” (§9). He suggested at §9 that there was a “a ‘slow but steady’ trend to align national legislation with the CRPD” at §9, at §10 expressing regret that the majority did not follow the more nuanced approach of the Venice Commission or the approach of the Commissioner for Human Rights, intervening in this case. Judge Lemmens concluded at §11 that “while … the Spanish system under review pursued a legitimate aim … it had a disproportionate effect on [M’s] right to vote”, further at §13 that the “free expression of the opinion of the people” required that “the various groups in society, with their different views on how society should be organised and how the benefits and the burdens should be divided among the various categories of citizens, are fairly represented in the body set up to represent ‘the people’ and to take important political decisions” and that “excluding a large category of persons, such as persons with intellectual and psychosocial disabilities, from the electoral process, not only deprives these persons ‘of any possibility of influencing the political process and the chance of shaping the policies and measures that directly [affect] their lives’, but also deprives ‘society as a whole … of a legislature that [reflects] its full diversity’”.

Judge Lemmans also dissented on the Article 14 finding, stating at §16 that “In electoral matters, equality is of particular importance. By barring [M] from the exercise of her right to vote, the State reduced her to a second-class citizen. Unlike other citizens, she cannot make her voice heard, not even via a trusted person. I cannot see an objective and reasonable justification for the impugned difference in treatment”. In his concluding remarks he referred to CERD’s “inclusive equality” model which implies “among other things ‘the full recognition of humanity through inclusion in society’ (citing CRPD Committee, General comment No. 6 (2018) on equality and non-discrimination, §11, CRPD/C/GC/6). He referred at §18 to Jenny Goldschmidt’s statement (“The Implementation of the CRPD in the ECHR: Challenges and Opportunities”, in K. Lemmens, St. Parmentier and L. Reyntjens (eds.), Human Rights with a Human Touch. Liber Amicorum Paul Lemmens, Intersentia, Cambridge, 2020, (611), at 613) that “inclusion also means ‘removing the barriers’ that prevent people from enjoying their rights” and that “‘The CRPD challenges the [Court] to reconsider its own jurisprudence, as can be required to incorporate differences instead of reaffirming inequality by allowing exceptions or accommodations, which leave the excluding normative frames untouched. The progressive realisation of the rights of the [Convention] demands a more fundamental re-thinking of the cases and laws that are considered and an unveiling of the neutrality of the underlying perspectives. In some cases, the [Court] seems aware of this, but … it seems often reluctant to take a more substantive approach’ (ibid., 631)”.

19… To reconsider the case-law is sometimes necessary. The present case evidently offered an opportunity to do so. Article 12 § 2 of the CRPD obliges the States Parties to the CRPD to recognise the legal capacity of all persons with disabilities, on an equal basis with others. While the States Parties to Protocol No. 1 enjoy a certain margin of appreciation in the sphere of limitations of the right to vote, the Court has already accepted that that margin is relatively narrow when the restriction applies to the mentally disabled (see paragraph 55 of the judgment, referring to Alajos Kiss, cited above, § 42). Given the obligations imposed on the States by Article 12 of the CRPD, as clarified by the CRPD Committee, the Court should have indicated that the margin for restrictions under Article 3 of Protocol No. 1 has been further reduced.

19. The irony of this case is that while the Court is reluctant to update its case-law in accordance with the CRPD, the respondent State has in the meantime already adapted its legislation. The State did not wait for a ruling by the Court. The majority do not consider this development worth of much attention. They simply state that the fact that the law was amended “does not imply that the previous system was incompatible with the requirements of Article 3 of Protocol No. 1” (see paragraph 68 of the judgment).

The Court occasionally warns itself against failing “to maintain a dynamic and evolutive approach”, as this would “risk rendering it a bar to reform or improvement” (see, among other authorities, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002-IV; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI; and Bayatyan v. Armenia [GC], no. 23459/03, § 98, ECHR 2011). I am afraid that the present judgment could constitute a bar to the alignment of the Convention and domestic laws with the inclusive approach to equality as introduced by the CRPD in human-rights law.