Persons with disabilities, like many other marginalised groups, have historically been the object of exclusion from political participation. Unfortunately, ingrained prejudices are slow to change. When it comes to persons with disabilities, the fundamental principle of universal suffrage is still not fully applied in many countries today.
With the entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), it is enshrined in international law that it is not acceptable to deprive persons with disabilities of their fundamental right to vote regardless of the nature or degree of their disability. Article 29 of the CRPD spells out that States Parties should ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others.
The right to effectively and fully participate
The first element raised by Article 29 of the CRPD is the right of persons with disabilities to participate in political life like everyone else, by voting and standing for elections. All persons, including all persons with disabilities, have the same right to actively contribute to and be engaged in wider society, and should have the same opportunities to enjoy this right.
This is both a matter of equal individual rights and of a broader societal interest. As spelled out in the Council of Europe Disability Action Plan, our societies need to reflect the diversity of their citizens and benefit from their varied experience and knowledge. It is crucial to ensure that there is full equality in participation in elections and representation of all members of society in decision-making bodies for the reflection of the diversity of views and needs in national, regional and local legislation and policy development.
Furthermore, this participation should be full and effective, rejecting all forms of barriers and requiring openness by persons who have no disabilities to the participation of persons with disabilities. It calls on public and private actors and institutions to guarantee equal opportunities to all human beings to make productive contributions to the community.
Universal suffrage is a fundamental principle and people with disabilities may not be discriminated against in this respect.
The very purpose of the CRPD Convention is to promote, protect and ensure the full and equal enjoyment of the full range of human rights by all persons with disabilities on an equal basis with others, without distinction. It leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person; as we do not test that capability for someone without disabilities, this would amount to blatant discrimination.
A paramount example of CRPD application in this regard is the recommendation of the Committee of Ministers of the Council of Europe which affirms that persons with disabilities have the right to vote on the same basis as other citizens “whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses”. Furthermore, it asserts that persons with disabilities should not be deprived of this right “by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity.”
Legal capacity and the right to vote
At the heart of the paradigm shift which the CRPD introduced, lies the right to legal capacity, i.e. the right to make one’s own decision and exercise one’s rights. Today, however, persons with intellectual and psychosocial disabilities continue to face barriers in this regard. Very often, their legal capacity is restricted or removed completely, meaning they are no longer entitled to make decisions about their own lives.
Persons with disabilities should be placed at the centre of decision-making processes, being regarded as subjects of their own lives, entitled to the full range of human rights on an equal basis with everyone else.
The aim of the CRPD is to promote the full inclusion and participation of all persons with disabilities in society, including persons with intellectual and psychosocial disabilities. When society deprives individuals of their rights to freely make their own choices and to represent themselves, it contradicts Convention standards. The CRPD places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights. This is the paradigm shift that the CRPD represents: it builds on the idea that we should go further than to just help persons with disabilities to adjust to existing conditions – our societies should seek to adapt to and accommodate everyone, including those with special needs, and including with respect to their right to vote.
The European Court of Human Rights ruled on such a case in 2010, Kiss v Hungary in which a man with psychosocial disabilities was denied the right to vote following the partial loss of his legal capacity The Court interpreted that the indiscriminate removal of voting rights based on a mental disability on account of partial guardianship was not compatible with the principle of universal suffrage enshrined in Article 3 of Protocol no 1 of the European Convention on Human Rights.
Despite this positive aspect of the judgment, the European Court missed the opportunity to go further to declare that any restriction or removal of legal capacity is no longer acceptable and not in accordance with the CRPD which today has been ratified by the absolute majority of EU Member States and by 37 out of the 47 member states of the Council of Europe.
The CRPD Committee has made it increasingly clear that any judicial or administrative decision which removes rights on the basis of disability should be eliminated as a matter of priority from national legislation and practices as demonstrated by its Concluding Observations on Spain:
“The Committee recommends that all relevant legislation be reviewed to ensure that all persons with disabilities, regardless of their impairment, legal status or place of residence, have the right to vote and participate in public life on an equal basis with others. The Committee requests the State party to amend article 3 of Organic Act 5/1985, which allows the denial of the right to vote based on individualized decisions taken by a judge. The amendment should ensure that all persons with disabilities have the right to vote. Furthermore, it is recommended that all persons with disabilities who are elected to a public position are provided with all required support, including personal assistants.”
The international human rights community has an important role to play to guide States to realise the full extent of their obligations under the CRPD. The old approach should be replaced by the United Nations Convention standards around the globe.
Some concrete steps which can be taken by States and the international human rights community are as follows:
(i) States should review and reform discriminatory legislation depriving persons with disabilities of their legal capacity.
(ii) The general principle of non-discrimination should form the basis of government policies geared to ensuring equal rights and opportunities for persons with disabilities through the removal of restrictions on legal capacity, the abolition of voting tests, the introduction of relevant legal provisions, specific forms of assistance, awareness raising and funding.
(iii) States must make their services more accessible to persons with disabilities to exercise their right to vote and be elected, providing, when necessary, reasonable accommodation to persons with disabilities, including the provision of information in plain language, Braille and sign language and the acceptance of a support person to assist or communicate the will of the individual concerned, if needed.
(iv) Universal and regional human rights mechanisms should base their decisions and practices on CRPD standards.
(v) Persons with disabilities and/or their representative organisations should be involved in the whole policy cycle: design, planning, implementation, monitoring and evaluation of policies that affect participation and inclusion of persons with disabilities within the community.
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