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Fiala-right-to-vote-implications

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									 Recent judgments on the right to
               vote:
   implications for practitioners

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

• 1. The basic contradiction of electoral
  systems
• 2. The solution reached by the European
  Court and the Czech Constitutional Court
• 3. Implications and solutions
Restrictions on the right to vote

• 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
The solution chosen by many
European states:

• Exclusion of people under guardianship
  from the right to vote
• Hungary: all persons under guardianship
  excluded
• Czech Republic: persons under plenary
  guardianship excluded
The European Court’s opinion

• 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)?
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
Proportionality

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

• Automatic exclusion – unacceptable
• Capacity is not an “all or nothing” concept,
  it does not exist in general
• An individualised assessment of the
  “capacity to vote” is required
Solutions – 1. the obvious

• 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
The Czech solution

• 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
• Technique: if incapacitation leads to
  disenfranchisement under the law, courts
  must not incapacitate unless they prove
  that the person is not capable of voting
Assessment of the capacity to vote

• What is “capacity to vote”?
• Is there a rational basis of assessing it?
• Do psychiatrists have methodology to
  assess it?
• What questions would courts and expert
  testimonies examine?
• Competence Assessment Tool for Voting
  (CAT-V)
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
Solutions – 2. the hidden

• The European Court invoked the CRPD
• 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
• What was the aim of the measure?
Solutions – 2. the hidden
• 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
• 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
Recent judgments on the right to
vote: implications for practitioners

Thank you for your attention!


• Jan Fiala
• jfiala@freemail.hu
• Disability Rights Center (DRC)
 Budapest, Hungary

								
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