Last Updated on February 9, 2021 by LawEuro
Information Note on the Court’s case-law 248
February 2021
Strøbye and Roselind v. Denmark – 25802/18 and 27338/18
Judgment 2.2.2021 [Section II]
Article 3 of Protocol No. 1
Right to free elections
Vote
Disenfranchisement of persons divested of legal capacity affecting only a small group and subject to thorough parliamentary and judicial review: no violation
Facts – The applicants were deprived of their legal capacity. As a result, they were disenfranchised and prevented from voting in general elections, including the 2015 parliamentary elections. The applicants unsuccessfully brought proceedings before the Danish courts claiming that they had wrongfully been denied the right to vote in the latter elections.
Law – Article 1 of Protocol No. 3:
The restriction had been lawful and pursued the legitimate aim of ensuring that voters in the general elections had the required level of mental skills.
In assessing the proportionality of the said measure the Court had regard to various of factors.
Firstly, the mentally disabled had not been in general subject to disenfranchisement under Danish law. Nor had persons under guardianship. At the time of the 2015 parliamentary elections, only those persons who had been subject to guardianship under section 5 and who, after an individualised judicial evaluation, had also been found legally incompetent by a court under section 6 of the Guardianship Act, had been excluded from voting in general elections. Under the Act, the principle of proportionality had applied to the imposition, content and lifting of a legal incapacitation order.
Secondly, the disenfranchisement in question had only affected a small group of persons, as the number of persons declared legally incompetent had been rather low.
Thirdly, both the parliamentary review of the necessity of the general measure and the judicial review of the applicants’ disenfranchisement had been thorough. In connection to the latter, the Court found that the Supreme Court had thoroughly examined the proportionality and justification of the limitation of the applicants’ voting rights and had performed a balancing of interests, in the light of the Court’s case-law. The quality of the judicial review of the disputed general measure and its application in the present case therefore militated in favour of a wide margin of appreciation. While that margin was substantially narrower when a restriction of fundamental rights applied to a particularly vulnerable group in society, such as the mentally disabled, the legislation at issue in the present case significantly differed from that examined in Alajos Kiss v. Hungary, where all persons, whether under full or partial guardianship, had been subject to an automatic blanket restriction in respect of suffrage.
In addition, a further factor of relevance to the scope of the margin of appreciation was the existence or not of common ground between the national laws of the Contracting States. The Supreme Court had observed that other European countries also had legislation restricting the right to vote in respect of persons who had been deprived of their legal capacity. Indeed, the Court observed that it could not be concluded that there was common ground between the national laws of the Contracting States to uncouple disenfranchisement from deprivation of legal capacity. Nor did the Court discern any common ground at the international and European level in this respect. In the Court’s view therefore, the Supreme Court had not overstepped the margin of appreciation afforded to it.
The Court also noted the following:
– It was true that, apart from the individualised judicial evaluation of the applicants’ legal capacity, domestic law had not required a separate individualised assessment of their voting capacity. However, under Article 3 of Protocol No. 1 it was not a requirement for depriving a person of his or her right to vote that a specific and individualised assessment of their voting capacity be carried out. In this connection, the lack of European consensus, including as to whether to detach disenfranchisement from deprivation of legal capacity was also relevant. Further, in certain situations a general measure might be found to be a more feasible means of achieving a legitimate aim than a provision requiring a case-by-case examination, a choice, that in principle was left to the legislature in the Member States, subject to European Supervision.
– In cases arising from individual petitions, the Court’s task was not to review the relevant legislation or an impugned practice in the abstract but to confine itself as far as possible, without losing sight of the general context, to examining the issues raised in the case before it. In the present case, it had had regard to the historical and political context; the Danish legislator had constantly sought to limit restrictions on the right to vote while also aiming to protect the small group of persons who had been in need of guardianship combined with a deprivation of their legal capacity. The restrictions on the right to vote had therefore been gradually reduced from 1996 onwards. In 2016, persons deprived of their legal capacity had been granted the right to vote in European Parliament, local and regional elections and in 2019, legislation had provided for the possibility of depriving a person “only” partially of his or her legal capacity, with the intended consequence that such a person would retain the right to vote in general elections. The applicants were thus now eligible to vote in general elections. The fact that the change in the legislation had been gradual, requiring thorough legal reflection and time, could not in the Court’s view be held against the Government to negate the justification and proportionality of the restriction at issue. In this regard, the changing perspective of society also had to be taken into account.
Accordingly, the present case had significantly differed from the situation in Alajos Kiss v. Hungary, in which the Court had found no evidence that the legislature had ever sought to weigh the competing interests or to assess the proportionality of the restriction in question.
In conclusion, the restriction on the applicants’ voting rights had been proportionate to the aim sought to be achieved.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been no violation of Article 14 taken in conjunction Article 3 of Protocol No. 1 as, referring to its reasoning in its examination of the latter provision, it was satisfied that the difference in the treatment of the applicants had pursued a legitimate aim and that there had been a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(See also Alajos Kiss v. Hungary, no. 38832/06, 20 May 2010, Legal Summary; Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006‑IV, Legal Summary; Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005‑IX Legal Summary)
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