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SECOND
SECTION
CASE OF ALAJOS KISS v. HUNGARY
(Application
no. 38832/06)
JUDGMENT
STRASBOURG
20 May
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Alajos Kiss v.
Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38832/06) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr Alajos Kiss (“the
applicant”), on 1 September 2006.
- The
applicant was represented by Mr J. Fiala, Legal Officer of the Mental
Disability Advocacy Center, a non-governmental organisation with its
seat in Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Justice and
Law Enforcement.
- The
applicant alleged that his exclusion – required by the
Constitution itself – from the electoral register solely on the
strength of his placement under partial guardianship amounted to a
violation of Article 3 of Protocol No. 1, read alone or in
conjunction with Articles 13 and 14 of the Convention.
- On
26 January 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- 6. The
applicant and the Government each filed observations on the merits
(Rule 59 § 1 of the Rules of Court). The parties replied in
writing to each other's observations. In addition, third-party
comments were received from the Harvard Law School Project on
Disability, which had been granted leave by the President of the
Chamber to intervene in the written procedure (Article 36 § 2 of
the Convention and Rule 44 § 2) on 11 May 2009. The applicant,
but not the respondent Government, replied to those comments (Rule 44
§ 5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Rózsaszentmárton.
- In
1991 the applicant was diagnosed with manic depression. On 27 May
2005 he was placed under partial guardianship. Although this measure
was based on the Civil Code which deals with the pecuniary and
certain personal relations of citizens (see paragraph 12 below), it
nevertheless also attracted the application of Article 70(5) of the
Constitution (see paragraph 11 below) to the applicant, excluding him
from the right to vote. In the underlying court decision it was noted
that he took care of himself adequately but sometimes wasted money in
an irresponsible fashion and was occasionally aggressive. The
applicant did not appeal against this decision.
- On
13 February 2006 the applicant realised that he had been omitted from
the electoral register drawn up in view of the upcoming legislative
elections. His complaint to the Electoral Office was to no avail.
- The
applicant further complained to the Pest Central District Court. On
9 March 2006 this court dismissed his case. It observed that,
under Article 70(5) of the Constitution, those under
guardianship could not participate in elections. This decision was
served on the applicant's representative on 25 April 2006.
- In
the meantime, legislative elections took place on 9 and 23 April
2006, in which the applicant could not participate.
II. RELEVANT DOMESTIC LAW AND THE INTERNATIONAL LEGAL
INSTRUMENTS CONSIDERED
- Article
70(5) of the Hungarian Constitution provides inter alia that
persons placed under total or partial guardianship do not have a
right to vote.
- The
Civil Code provides:
Section 1
“(1) This Act regulates the pecuniary and certain
personal relations of citizens ...”
Section 14
“(4) Persons of legal age may be placed under
partial guardianship by a court if their faculties necessary to
conduct their affairs are – owing to their mental state,
unsound mind or pathological addiction – permanently or
recurrently diminished to a great extent in general or in relation to
certain groups of matters.
(5) If the limitation of discretionary ability is only
partial, the person under guardianship may make valid legal
statements independently in all matters in relation to which the
court did not limit his/her capacity in its decision.
(6) The court may limit the full capacity of a person
placed under guardianship in particular in respect of the following
groups of matters:
i. requests of social security, social and
unemployment benefits and disposition over such benefits or over
income deriving from employment ... exceeding the amount defined in
paragraph (2) c) of section 14/B;
ii. right of
disposition concerning moveable and real property;
iii. making certain
legal statements in family law matters, namely:
a)
legal statements concerning matrimonial property rights or property
rights related to a registered partnership,
b)
making statements in relation to the establishment of parentage,
c)
defining the name of one's child and its alteration,
d)
giving consent to the adoption of one's child;
iv. taking
pecuniary decisions in relation to maintenance obligations;
v. making legal
statements in relation to residential leases (conclusion and
termination of the contract);
vi. inheritance
matters;
vii. legal
statements concerning placement in an in-house social institution;
viii. disposing of
rights related to health services;
ix. determination
of place of residence.”
- Act
no. C of 1997 on Election Procedure provides as follows:
Registration of citizens of legal age without the
right to vote
Section 17
“(1) In order to establish the right to vote, the
organs listed under points a)-c) keep informed the central agency,
managing the register of citizens' personal data and addresses, of
the changes occurring in the data, specified in paragraph (2), of ...
citizens of legal age without the right to vote, as follows:
a) the office of guardians ... on placement under
guardianship limiting or excluding legal capacity, and on the
termination of guardianship, ...
(2) The communication described under paragraph (1)
includes the citizen's:
a) first and last name (for women, also maiden name),
b) personal identification number,
c) the reason for exclusion from the exercise of voting
rights, its beginning date and expected end date.”
- The
United Nations Convention on the Rights of Persons with Disabilities
(the “CRPD”), which was ratified by Hungary on 20 July
2007, provides as follows:
Article 1 - Purpose
... “Persons with disabilities include those who
have long-term physical, mental, intellectual or sensory impairments
which, in interaction with various barriers, may hinder their full
and effective participation in society on an equal basis with
others.”
Article 12 - Equal recognition before the law
“1. States Parties
reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall
recognize that persons with disabilities enjoy legal capacity on an
equal basis with others in all aspects of life.
3. States Parties shall take
appropriate measures to provide access by persons with disabilities
to the support they may require in exercising their legal capacity.
4. States Parties shall ensure
that all measures that relate to the exercise of legal capacity
provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law. Such safeguards shall
ensure that measures relating to the exercise of legal capacity
respect the rights, will and preferences of the person, are free of
conflict of interest and undue influence, are proportional and
tailored to the person's circumstances, apply for the shortest time
possible and are subject to regular review by a competent,
independent and impartial authority or judicial body. The safeguards
shall be proportional to the degree to which such measures affect the
person's rights and interests. ...”
Article 29 - Participation in political and public
life
“States Parties shall
guarantee to persons with disabilities political rights and the
opportunity to enjoy them on an equal basis with others, and shall
undertake to:
a. Ensure that
persons with disabilities can effectively and fully participate in
political and public life on an equal basis with others, directly or
through freely chosen representatives, including the right and
opportunity for persons with disabilities to vote and be elected,
inter alia, by:
i. Ensuring that
voting procedures, facilities and materials are appropriate,
accessible and easy to understand and use;
ii. Protecting the
right of persons with disabilities to vote by secret ballot in
elections and public referendums without intimidation, and to stand
for elections, to effectively hold office and perform all public
functions at all levels of government, facilitating the use of
assistive and new technologies where appropriate;
iii. Guaranteeing
the free expression of the will of persons with disabilities as
electors and to this end, where necessary, at their request, allowing
assistance in voting by a person of their own choice;
b. Promote actively
an environment in which persons with disabilities can effectively and
fully participate in the conduct of public affairs, without
discrimination and on an equal basis with others, and encourage their
participation in public affairs, including:
i. Participation in
non-governmental organizations and associations concerned with the
public and political life of the country, and in the activities and
administration of political parties;
ii. Forming and
joining organizations of persons with disabilities to represent
persons with disabilities at international, national, regional and
local levels.”
- The
Council of Europe Recommendation R(99)4 of the Committee of Ministers
to Member States on Principles Concerning the Legal Protection of
Incapable Adults (adopted on 23 February 1999) (“Recommendation
R(99)4”) provides as follows:
Principle 3 – Maximum preservation of capacity
“... 2. In particular, a measure of
protection should not automatically deprive the person concerned of
the right to vote, or to make a will, or to consent or refuse consent
to any intervention in the health field, or to make other decisions
of a personal character at any time when his or her capacity permits
him or her to do so.”
- Opinion
no. 190/2002 of the European Commission for Democracy through Law
(Venice Commission) on the Code of Good Practice in Electoral Matters
(“Opinion no. 190/2002”) provides as follows:
I.1. Universal suffrage – 1.1. Rule and
exceptions
d. Deprivation of the right to vote and to be
elected:
“i. provision may be made for depriving
individuals of their right to vote and to be elected, but only
subject to the following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed;
conditions for depriving individuals of the right to stand for
election may be less strict than for disenfranchising them;
iv. The deprivation must be based on mental incapacity
or a criminal conviction for a serious offence.
v. Furthermore, the withdrawal of political rights or
finding of mental incapacity may only be imposed by express decision
of a court of law.”
- The
Council of Europe Recommendation R(2006)5 of the Committee of
Ministers to Member States on the Council of Europe Action Plan to
Promote the Rights and Full Participation of People with Disabilities
in Society: Improving the Quality of Life of People with Disabilities
in Europe 2006-2015 (adopted on 5 April 2006) (“Recommendation
R(2006)5”) provides as follows:
3.1. Action line No.1: Participation in political and
public life
3.1.3. Specific actions
by member states
“... iii. to ensure that no person with a
disability is excluded from the right to vote or to stand for
election on the basis of her/his disability; ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained that the disenfranchisement, imposed on him
because he was under partial guardianship for manic depression,
constituted an unjustified deprivation of his right to vote, which
was not susceptible to any remedy since it was prescribed by the
Constitution, and which was discriminatory in nature. He relied on
Article 3 of Protocol No. 1, read alone or in conjunction with
Articles 13 and 14 of the Convention.
- The
Government contested those arguments.
- The
Court considers that the application falls to be examined under
Article 3 of Protocol No. 1 (see, mutatis mutandis, Hirst v. the
United Kingdom (no. 2), no. 74025/01, §§ 53 and 54, 30
March 2004) which provides as relevant:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
A. Admissibility
- The
Government submitted that the application should be rejected for
non-exhaustion of domestic remedies, since the applicant had not
appealed against his placement under guardianship (see paragraph 7
above).
- The
applicant submitted that he had accepted the necessity of his
placement under partial guardianship in view of his mental ailment;
therefore, he had not appealed against the District Court's decision.
The purpose of the present application was solely to challenge the
fact that as a person placed under guardianship he had automatically
lost his right to vote. To challenging his guardianship was not an
effective remedy to this problem; guardianship proceedings are not
concerned as such with one's right to vote. Only a full restoration
of the applicant's legal capacity would restore his right to vote,
which however was neither possible (since he suffers from a mental
disability) nor desirable (since he would lose the legal protection
provided by guardianship).
- The
Court notes that the applicant accepted the necessity of his
placement under partial guardianship and that, therefore, he did not
appeal against it. It observes that the subject matter of the
application is not the guardianship measure, but its automatic
consequence prescribed in the Constitution (see paragraph 11 above),
namely the applicant's disenfranchisement. The Government have not
pointed to any remedy capable of redressing this latter issue. It
follows that the application cannot be rejected for non-exhaustion of
domestic remedies. Moreover, it is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
a. The Government
- The
Government submitted that the rights under Article 3 of Protocol No.
1 are not absolute and might be restricted under certain conditions.
The Contracting States might specify the conditions of active and
passive suffrage in their domestic law and enjoyed a wide margin of
appreciation in this respect, although those conditions must not
restrict the rights in question to such an extent that their very
substance was affected. The grounds for exclusion from the right to
vote (Article 70(5) of the Constitution, see paragraph 11 above) had
been incorporated into the Constitution by Act no. 31 of 1989.
According to the reasoning of the Act, its purpose had been to
regulate the basic rights and obligations in the spirit of
international human rights instruments, including the Universal
Declaration of Human Rights and the International Covenant on Civil
and Political Rights.
- In
identifying those eligible to vote, the general practice was to set a
minimum age requirement, normally that of majority, whereby States
automatically excluded from the right to vote all underage citizens
(although assessed individually, several minors could be found mature
enough to participate in public affairs). The objective was to ensure
that only citizens capable of assessing the consequences of their
decisions, capable of making conscious and judicious decisions and
vested with other rights linked to the age of majority, should
participate in public affairs.
- The
exclusion from the right to vote of persons under guardianship
pursued the same legitimate aim. These persons, although adults,
lacked the capacity to manage their affairs, including the exercise
of their right to vote, owing to their mental state, unsound mind or
pathological addiction. When assessing whether to place the applicant
under guardianship, the District Court factored into its decision the
applicant's resultant exclusion from the right to vote, pursuant to
the constitutional rule disenfranchising those citizens who were
incapable of assessing the consequences of their decisions or of
making conscious or judicious decisions.
- Furthermore,
in the Government's view, the prohibition complained of was in
compliance with the Venice Commission's Opinion no. 190/2002
(see paragraph 16 above) and cannot therefore be considered
disproportionate, all the more so since the applicant's right to vote
would be statutorily restored if his placement under guardianship was
rescinded at one of the periodical judicial reviews of his condition,
or if a motion of the applicant to the same end succeeded in view of
his improved mental status.
b. The applicant
- The
applicant accepted in principle that the restriction in question
pursued a legitimate aim, as suggested by the Government (see
paragraphs 25 and 26 above), without subscribing to the view that
people under guardianship in general could not make the responsible
choices required for participation in elections. However, he argued
that States should enjoy a narrow margin of appreciation in the
matter, essentially because any exclusion of people with disabilities
from public life must be subject to scrutiny as to whether it was
compatible with relevant international human rights requirements,
particularly where there had been no substantive debate at the
domestic level on the appropriateness of the measure. He added that,
with regard to the voting rights of people with disabilities, the
historical or political specifics of particular electoral systems
played no role.
- The
applicant also submitted that the restriction in question affected
0.75% of the Hungarian population of voting age, which was a
substantial group. In reply to the Government's argument in paragraph
25 above, he emphasised that there were important distinctions
between minors and people with disabilities, the most significant
being that, while an individual assessment of the maturity of all
minors would be an unreasonable burden on the authorities, the same
could not be said about the fitness to vote of adults under
guardianship, whose status was in any event determined in individual
judicial proceedings.
- He
further argued that the judicial decision resulting in his placement
under guardianship had not been preceded by any particular scrutiny
establishing a connection between his mental ailment and his capacity
to vote. In his view, there was indeed no such connection, since his
condition in no way impeded his capacity to orient himself in
political matters. The absence of such scrutiny could be explained by
the fact that, in any event, the District Court had no discretion in
this regard, the restriction being directly prescribed by the
Constitution. This was different from the legislation of several
Member States of the Council of Europe including Germany, Austria,
Switzerland, France, Italy, Sweden and Spain, where persons under
partial guardianship could vote.
- As
regards international law, the applicant submitted, in reply to the
Government's argument in paragraph 27 above, that Opinion no.
190/2002 was in fact silent on the issue of whether persons under
guardianship could be excluded from the right to vote, but this
silence could not be interpreted as permitting a blanket and
automatic prohibition on all persons under guardianship. He drew
attention to Principle 3.2 of Recommendation R(99)4 (see paragraph 15
above) and Articles 12 and 29 of the CRPD (see paragraph 14 above).
- The
applicant further rejected as outdated the Government's approach
according to which all persons with intellectual and psycho-social
disability, placed under guardianship, were incapable of independent
decision-making. In his view, modern legislation accepted that the
decision-making capacity of people with intellectual or mental
disabilities should be recognised as much as possible, especially in
the field of the right to vote. This approach was reflected in trends
in international law, such as the CRPD (see paragraph 14 above). If
one were to accept that a blanket and automatic prohibition on the
right to vote of people under guardianship was justified because they
were, based on their legal status, unable to make conscious and
judicious decisions and were unfit to vote, then a large class of
citizens would be deprived of the protection provided by Article 3 of
Protocol No. 1, without due consideration given to their individual
circumstances. This was incompatible with the Court's case-law on the
matter (see Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, ECHR 2005 IX).
- Lastly,
the applicant submitted that the impugned restriction could be
replaced by a less restrictive alternative, such as allowing the
courts to address this particular issue in guardianship proceedings
or establishing a separate procedure with a view to assessing the
fitness to vote of a person under guardianship.
c. The third party
- The
intervener emphasised that the prohibition in question was not only
at variance with Recommendation R(2006)5 (see paragraph 17 above),
but was also not in compliance with Articles 12 and 29 of the CRPD
(see paragraph 14 above), which was the first legally binding
instrument in international law guaranteeing the comprehensive
protection of the rights of persons with disabilities. This
convention, signed by the European Community on 30 March 2007,
represented the practice of European States which should be
considered when interpreting Article 3 of Protocol No. 1.
d. The applicant's comments on the
third-party intervention
- The
applicant agreed with the intervener that the rights under the
Convention of those with disabilities should be interpreted in the
light of the CRPD (see paragraph 14 above). He considered himself
mentally disabled and, as such, should benefit from the protection
afforded by the CRPD. The restriction imposed on him is incompatible
with the CRPD's spirit and text, in particular its Articles 12 and
29.
2. The Court's assessment
a. General principles
- The
Court refers to its case-law in the matter, as outlined in the
judgment of Hirst v. the United Kingdom (no. 2) [GC],
(op.cit.):
“57. [T]he Court has established that
[Article 3 of Protocol No. 1] guarantees individual rights, including
the right to vote and to stand for election (see Mathieu-Mohin
and Clerfayt v. Belgium, judgment of 2 March
1987, Series A no. 113, pp. 22-23, §§ 46-51). ...
58. The ... rights guaranteed under Article 3
of Protocol No. 1 are crucial to establishing and maintaining the
foundations of an effective and meaningful democracy governed by the
rule of law ...
59. ... [T]he right to vote is not a
privilege. In the twenty-first century, the presumption in a
democratic State must be in favour of inclusion. ... Universal
suffrage has become the basic principle (see Mathieu-Mohin
and Clerfayt, cited above, p. 23, § 51,
citing X v. Germany,
no. 2728/66, Commission decision of 6 October 1967, Collection
25, pp. 38-41).
60. Nonetheless, the rights bestowed by
Article 3 of Protocol No. 1 are not absolute. There is room for
implied limitations and Contracting States must be allowed a margin
of appreciation in this sphere.
61. ... The Court reaffirms that the margin
in this area is wide (see Mathieu-Mohin and
Clerfayt, cited above, p. 23, § 52, and,
more recently, Matthews v. the United Kingdom
[GC], no. 24833/94, § 63, ECHR 1999-I; see also Labita
v. Italy [GC], no. 26772/95, § 201, ECHR
2000-IV, and Podkolzina v. Latvia,
no. 46726/99, § 33, ECHR 2002-II). ...
62. It is, however, for the Court to
determine in the last resort whether the requirements of Article 3 of
Protocol No. 1 have been complied with; it has to satisfy itself that
the conditions do not curtail the rights in question to such an
extent as to impair their very essence and deprive them of their
effectiveness; that they are imposed in pursuit of a legitimate aim;
and that the means employed are not disproportionate (see
Mathieu-Mohin and Clerfayt,
p. 23, § 52). In particular, any conditions imposed must not
thwart the free expression of the people in the choice of the
legislature – in other words, they must reflect, or not run
counter to, the concern to maintain the integrity and effectiveness
of an electoral procedure aimed at identifying the will of the people
through universal suffrage. For example, the imposition of a minimum
age may be envisaged with a view to ensuring the maturity of those
participating in the electoral process or, in some circumstances,
eligibility may be geared to criteria, such as residence, to identify
those with sufficiently continuous or close links to, or a stake in,
the country concerned (see Hilbe v.
Liechtenstein (dec.), no. 31981/96, ECHR
1999-VI, and Melnychenko v. Ukraine,
no. 17707/02, § 56, ECHR 2004-X). Any departure from the
principle of universal suffrage risks undermining the democratic
validity of the legislature thus elected and the laws it promulgates.
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 (see, mutatis mutandis,
Aziz v. Cyprus,
no. 69949/01, § 28, ECHR 2004-V).”
b. Application of those principles to the
present case
- The
Court will therefore determine whether the measure in question
pursued a legitimate aim in a proportionate manner having regard to
the principles identified above.
(i) Legitimate aim
- The
Court points out that Article 3 of Protocol No. 1 does not, like
other provisions of the Convention, specify or limit the aims which a
restriction must pursue and that a wide range of purposes may
therefore be compatible with Article 3. The Government submitted that
the measure complained of pursued the legitimate 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 (see paragraphs 25 and 26 above). The
applicant accepted this view (see paragraph 28 above) and the Court
sees no reason to hold otherwise. It is therefore satisfied that the
measure pursued a legitimate aim.
(ii) Proportionality
- The
Court notes that the restriction in question does not distinguish
between those under total and those under partial guardianship (see
paragraph 11 above), and is removed once guardianship is terminated
(see the Government's submission in paragraph 27 above, not disputed
by the applicant). However, it observes the applicant's assertion in
paragraph 29 above, not refuted by the Government, that 0.75% of the
Hungarian population of voting age is concerned by disenfranchisement
on account of being under guardianship in a manner which is
indiscriminate. It finds this to be a significant figure, and it
cannot be claimed that the bar is negligible in its effects.
- The
Government argued, relying on the margin of appreciation, that it
must be permissible for the legislature to establish rules ensuring
that only those who are capable of assessing the consequences of
their decisions and making conscious and judicious decisions should
participate in public affairs.
- The
Court accepts that this is an area in which, generally, a wide margin
of appreciation should be granted to the national legislature in
determining whether restrictions on the right to vote can be
justified in modern times and, if so, how a fair balance is to be
struck. In particular, it should be for the legislature to decide as
to what procedure should be tailored to assessing the fitness to vote
of mentally disabled persons. The Court observes that there is no
evidence that the Hungarian legislature has ever sought to weigh the
competing interests or to assess the proportionality of the
restriction as it stands.
- The
Court cannot accept, however, that an absolute bar on voting by any
person under partial guardianship, irrespective of his or her actual
faculties, falls within an acceptable margin of appreciation. Indeed,
while the Court reiterates that this margin of appreciation is wide,
it is not all-embracing (Hirst
v. the United Kingdom (no. 2) [GC],
op. cit., § 82).
In addition, if
a restriction on fundamental rights applies to a particularly
vulnerable group in society, who have suffered considerable
discrimination in the past, such as the mentally disabled, then the
State's margin of appreciation is substantially narrower and it must
have very weighty reasons for the restrictions in question (cf. also
the example of those suffering different treatment on the ground of
their gender - Abdulaziz,
Cabales and Balkandali v. the United Kingdom,
28 May 1985, § 78, Series A no. 94, race - D.H.
and Others v. the Czech Republic [GC],
no. 57325/00, § 182, ECHR 2007 ..., or sexual orientation -
E.B. v. France
[GC], no. 43546/02, § 94, ECHR 2008 ...). The reason for
this approach, which questions certain classifications per
se, is that such
groups were historically subject to prejudice with lasting
consequences, resulting in their social exclusion. Such prejudice may
entail legislative stereotyping which prohibits the individualised
evaluation of their capacities and needs (cf. Shtukaturov
v. Russia, no.
44009/05, § 95, 27 March 2008).
- The
applicant in the present case lost his right to vote as the result of
the imposition of an automatic, blanket restriction on the franchise
of those under partial guardianship. He may therefore claim to be a
victim of the measure. The Court cannot speculate as to whether the
applicant would still have been deprived of the right to vote even if
a more limited restriction on the rights of the mentally disabled had
been imposed in compliance with the requirements of Article 3 of
Protocol No. 1 (see mutatis mutandis Hirst v. the United Kingdom
(no. 2), op.cit, §§ 48 to 52).
- The
Court further considers that the treatment as a single class of those
with intellectual or mental disabilities is a questionable
classification, and the curtailment of their rights must be subject
to strict scrutiny. This approach is reflected in other instruments
of international law, referred to above (paragraphs 14-17). The Court
therefore concludes that 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.
There
has accordingly been a violation of Article 3 of Protocol No. 1 to
the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage and awards him, on an equitable basis, EUR 3,000
under this head.
B. Costs and expenses
- The
applicant also claimed EUR 7,500 for the costs and expenses incurred
before the domestic authorities and the Court. This sum corresponds
to 75 hours of legal work, according to the time-sheet submitted,
billable by his representative and charged at an hourly rate of EUR
100.
- The
Government contested this claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,000 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of Protocol No. 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
