Mentally ill and mentally handicapped denied right to vote across EU - Main contents

EUOBSERVER / BRUSSELS - People in comas obviously cannot vote, and those with the mental age of a 12-year-old probably should not either, but what about people with down syndrome? Or manic depressives? Should they be banned from the voting booth? A new report suggests that across Europe, that is precisely what is happening.

In contravention of international and European law, across Europe citizens with mental health issues are regularly denied the vote.

According to the first study of its kind, produced by the EU's Fundamental Rights Agency i - the European outfit tasked with analysing the state of human rights in the bloc, the majority of EU states either through their constitutions or specific laws prevent thousands of their citizens from entering the voting booth.

Most EU member countries link the right to political participation to what is called the "legal capacity" of an individual.

‘Legal capacity' refers to the ability of an individual to enter into a legally-binding contract. People with mental health problems or with intellectual disabilities who are considered not able to take care of themselves on their own are placed under some form of guardianship and are thus deprived of their legal capacity, and, in turn, their right to political participation.

This occurs regardless of the individual's actual level of functional ability, failing to take into account the spectrum of capacities of those under guardianship.

In some countries this occurs as a result of exclusion under the constitution, as in Bulgaria, where the constitution explicitly excepts those under the age of 15 and those under guardianship from voting. In other countries, the same effect can be the result of specific laws.

A full 18 EU countries maintain constitutional or legal automatic expulsion from suffrage: Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, Germany, Greece, Ireland, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal and Romania.

Only a minority of states - Austria, Finland, the Netherlands, Spain and Sweden - have lifted all traditional restrictions on political participation, with such rights enshrined in their constitutions.

Elsewhere, the legal status falls somewhere between these two positions. In some cases this means there is automatic disenfranchisement, but a medical or legal assessment can overturn this, or the reverse, where there is full participation, except in cases of negative assessments of capacity.

Landmark judgement

The international and European legal consensus is that the vote is not an absolute right, particularly when it comes to those that some legislation still refers to as "lunatics" and "idiots".

The UN Human Rights Committee in 1996 issuing an interpretation of the 1948 UN Declaration on Human Rights clarified that while it is "unreasonable to restrict the right to vote on the grounds of physical disability or to impose literacy, educational or property requirements ... mental incapacity may be a grounds for denying a person the right to vote or to hold office."

However, in recent years, there as been a clear movement legally away from the automatic nature of such restrictions of the franchise.

In 1999, member states of the Council of Europe - a human rights body not connected to the structures of the European Union - recommended that the deprivation of the right to vote should not be automatically linked to the loss of legal capacity or any other protective measure such as guardianship.

Then in May this year, the European Court of Human rights i issued a landmark judgement that puts most EU states outside the law, striking down automatic disenfranchisement.

Alajos Kiss, a Hungarian man who suffered from manic depression, had been placed under partial guardianship, and according to his country's constitution, anyone at all who is placed under guardianship automatically loses their right to vote.

When he tried to vote in the 2006 parliamentary elections, he was rejected.

The court accepted the government's defence for its actions "that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs"

But the Strasbourg-based court said it "cannot accept, however ... an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties."

"The treatment as a single class of those with intellectual or mental disabilities is a questionable classification," the court concluded.

Indeed, the judges found that as the mentally disabled in the past have been the subject of "considerable discrimination", the state "must have very weighty reasons for the restrictions in question."