1. Recent judgments on the right to vote: implications for practitioners Jan Fiala Disability Rights Center (DRC) Budapest, Hungary

2. Recent judgments on the right to vote: implications for practitioners 1. The basic contradiction of electoral systems 1. The basic contradiction of electoral systems 2. The solution reached by the European Court and the Czech Constitutional Court 2. The solution reached by the European Court and the Czech Constitutional Court 3. Implications and solutions 3. Implications and solutions

3. Restrictions on the right to vote All electoral systems have to comply with two seemingly contradictory requirements All electoral systems have to comply with two seemingly contradictory requirements –Accessibility to as wide segment of the population as possible –Maintaining the integrity of the electoral system

4. The solution chosen by many European states: Exclusion of people under guardianship from the right to vote Exclusion of people under guardianship from the right to vote Hungary: all persons under guardianship excluded Hungary: all persons under guardianship excluded Czech Republic: persons under plenary guardianship excluded Czech Republic: persons under plenary guardianship excluded

5. The European Courts opinion Alajos Kiss v. Hungary, application no. 38832/06, judgment of 20 May 2010 Alajos Kiss v. Hungary, application no. 38832/06, judgment of 20 May 2010 Is the automatic exclusion from the right to vote of a person under partial guardianship compatible with Article 3 of Protocol No. 1 (right to vote)? Is the automatic exclusion from the right to vote of a person under partial guardianship compatible with Article 3 of Protocol No. 1 (right to vote)?

6. The question of legitimate aim …ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs is a legitimate aim according to the Court …ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs is a legitimate aim according to the Court

7. Proportionality Narrow margin of appreciation Narrow margin of appreciation Lack of public debate on the measure Lack of public debate on the measure Size of the excluded group Size of the excluded group Relevant international law Relevant international law

8. Proportionality Automatic exclusion – unacceptable Automatic exclusion – unacceptable Capacity is not an all or nothing concept, it does not exist in general Capacity is not an all or nothing concept, it does not exist in general An individualised assessment of the capacity to vote is required An individualised assessment of the capacity to vote is required

9. Solutions – 1. the obvious Individualised assessment of the right to vote Individualised assessment of the right to vote –Disenfranchisement cannot be an automatic consequence of incapacitation –In guardianship proceedings, or in a separate proceeding, courts must have competence to decide on the right to vote

10. The Czech solution Decision no. IV. ÚS 3102/08 of the Czech Constitutional Court (12.7.2010) Decision no. IV. ÚS 3102/08 of the Czech Constitutional Court (12.7.2010) Same logic as Kiss v. Hungary, same (?) end result – individual assessment of voting capacity Same logic as Kiss v. Hungary, same (?) end result – individual assessment of voting capacity Technique: if incapacitation leads to disenfranchisement under the law, courts must not incapacitate unless they prove that the person is not capable of voting Technique: if incapacitation leads to disenfranchisement under the law, courts must not incapacitate unless they prove that the person is not capable of voting

11. Assessment of the capacity to vote What is capacity to vote? What is capacity to vote? Is there a rational basis of assessing it? Is there a rational basis of assessing it? Do psychiatrists have methodology to assess it? Do psychiatrists have methodology to assess it? What questions would courts and expert testimonies examine? What questions would courts and expert testimonies examine? Competence Assessment Tool for Voting (CAT-V) Competence Assessment Tool for Voting (CAT-V)

12. Assessment of the capacity to vote Some countries decided that there is no methodology that would let them decide who is competent to vote and who is not, therefore they chose not to exclude anybody Some countries decided that there is no methodology that would let them decide who is competent to vote and who is not, therefore they chose not to exclude anybody

13. Solutions – 2. the hidden The European Court invoked the CRPD The European Court invoked the CRPD The CRPD does not allow for disenfranchisement – it requires support of the person with disability The CRPD does not allow for disenfranchisement – it requires support of the person with disability Support not only ensures that PWD can participate, but also that they cast a competent vote Support not only ensures that PWD can participate, but also that they cast a competent vote What was the aim of the measure? What was the aim of the measure?

14. Solutions – 2. the hidden Maybe the basic contradiction of electoral systems does not exist Maybe the basic contradiction of electoral systems does not exist Supporting measures not only ensure that PWD can participate, they also protect the integrity of the electoral system Supporting measures not only ensure that PWD can participate, they also protect the integrity of the electoral system Paradigm shift: it does not matter that PWD cannot participate alone, without support – the process needs to accommodate their needs, they need to be supported, not excluded Paradigm shift: it does not matter that PWD cannot participate alone, without support – the process needs to accommodate their needs, they need to be supported, not excluded

15. Recent judgments on the right to vote: implications for practitioners Thank you for your attention! Jan Fiala Jan Fiala jfiala@freemail.hu jfiala@freemail.hu jfiala@freemail.hu Disability Rights Center (DRC) Disability Rights Center (DRC) Budapest, Hungary