Alex RKIn Caamaño Valle v Spain [2021] ECHR 387, the European Court of Human Rights hardened yet further its stance that those with cognitive impairments can be disenfranchised if they do not have the mental capacity to vote. The court had in February 2021 held in Strobye and Rosenlund v Denmark [2021] ECHR 95 – on its face perhaps rather surprisingly – that there was no breach of the right to vote enshrined in Article 3 of Protocol 1 ECHR involved in the provisions in Danish law disenfranchising the applicants because they had been deprived of their legal capacity. In that case – which is understood to be under appeal t the Grand Chamber – the applicants had (perhaps surprisingly) agreed that the measure in Danish law had pursued the legitimate aim of ensuring that voters in general elections had the required level of mental skills.
In Caamaño Valle v Spain, the applicant did not sell this intellectual pass, rather arguing (on behalf of her daughter) that:
it was an “impossible chimera” (quimera imposible) to attempt to limit a person’s right to vote through an evaluation of his or her capabilities or ability to think freely. She maintained that voting constituted an individual and personal choice and that political pluralism was an expression of human diversity in terms of elections and respect for elections (paragraph 39)
The Commissioner for Human Rights of the Council of Europe intervened (not having done so in the previous Danish case), to argue that:
48. […] Article 3 of Protocol No. 1 to the Convention should be interpreted in the light of Article 29 of the CRPD and other international standards that provided that the right to vote of persons with disabilities should be upheld without exception. The Commissioner furthermore asserted that the practice of depriving persons with intellectual and psychosocial disabilities of their right to vote on the basis of a judicial decision could not be considered to be compatible with a legitimate aim in a modern democracy and amounted to discrimination; interfering with the ability of the persons concerned to freely express their opinions had serious negative effects on those persons, on society and on democracy. Accordingly, States should be reminded of their positive obligations to ensure that persons with disabilities (including intellectual and psychosocial disabilities) could effectively exercise their right to vote; they could realise those obligations by undertaking general measures securing the accessibility of electoral procedures, reasonable accommodation, and the provision of individual support where necessary.
The European Court of Human Rights set out its stall clearly in relation to the CRPD:
54. The Court acknowledges that other instruments can offer wider protection than the Convention (regarding the CRPD, for example, see Rooman v. Belgium [GC], no. 18052/11, § 205, 31 January 2019), but the Court is not bound by interpretations given to similar instruments by other bodies, having regard to the possible difference in the contents of the provisions of other international instruments and/or the possible difference in role of the Court and the other bodies (see Muršić v. Croatia [GC], no. 7334/13, § 113, 20 October 2016). The Court understands that the Convention should be interpreted, as far as possible, in harmony with other rules of international law.
The ECtHR emphasised that the presumption in a democratic state must be in favour of the inclusion of all. However, the court continued at paragraph 59:
This does not mean, however, that Article 3 of Protocol No. 1 guarantees to persons with a mental disability an absolute right to exercise their right to vote. Under this provision, these persons are not immune to limitations of their right to vote, provided that the limitations comply with the conditions set out above (see paragraphs 58 and 59 above). It is not for the Court to express an opinion on whether Article 29 of the CRPD imposes stricter obligations on the States that are parties to that convention. For the purpose of the interpretation of Article 3 of Protocol No. 1, the Court notes the fact that there is at present no consensus among the States Parties to Protocol No. 1 in the sense of an unconditional right of persons with a mental disability to exercise their right to vote. On the contrary, a majority of these States seems to allow for restrictions based on the mental capacity of the individual concerned (see paragraph 27 above [in which it reviewed studies by the European Union Agency for Fundamental Rights])
This did not mean that each state had an unlimited “margin of appreciation,” rather that they had to stay within the zone of ensuring that only citizens “capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs” (paragraph 61).
The ECtHR then looked at the situation in Spain. Since the events complained of, Spain had, in fact, abolished the legal bar on disabled people voting, such that the applicant’s daughter could in fact now vote, but the court considered that this did not mean that the previous legal regime was incompatible with Article 3 of Protocol 1 to the ECHR. Rather, it considered that it was necessary to see, above all, whether the domestic courts had “thoroughly examined the justification of the limitation of the daughter’s rights, in the light of the Convention principles” (paragraph 70).
The ECtHR observed that there had been four different judicial bodies involved in the assessment of the woman’s fitness to vote, all of which had found that “the removal of the applicant’s daughter’s voting rights was based on her lack of understanding of the meaning of a vote and her susceptibility to being influenced” (paragraph 73) the ECtHR concluded that this meant that her disenfranchisement was not disproportionate to the legitimate aim pursued.
The ECtHR noted that it was for each State to determine how the “free” expression of the opinion of the people is to be ensured while at the same time making provision that the opinion expressed represents the one “of the people” continuing that:
The survey of 28 Member States of the European Union shows that while a number of States put the emphasis on the right of all people to participate in the elections, other States put the emphasis on the requirement of a free and self-determined electoral choice by the voters, thus prohibiting persons with certain mental disabilities from participating in the elections (see paragraphs 27-28 above). Article 3 of Protocol No. 1 does not impose either one of these systems. The Court considers that both systems fall within the margin of appreciation of the States, as long as – in the second system – the conditions for disenfranchisement are such that they apply only to those persons who are effectively unable to make a free and self-determined electoral choice.
In the instant case, the court considered that, given the reasons for exclusion of the applicant’s daughter from the electoral process, the measure in question did not thwart the free expression of the opinion of the people.
Of broader relevance than just voting rights, the court then went on to consider the question of whether the applicant’s daughter had been discriminated against in the enjoyment of her right to vote. For technical reasons, it considered the question both by reference to Article 14 ECHR and Article 1 of Protocol No 12, but on the basis that the concept of discrimination was identical under both.
As a starting point, the ECtHR observed that only differences in treatment based upon an identifiable characteristic or status could be capable of amounting to discrimination within the meaning of Article 14 ECHR, continuing:
82. The Court notes, in respect of the instant case, that the right to vote of the applicant’s daughter was restricted because of her limited mental capacity. The differencein treatment between the daughter (whose right to vote was restricted) and persons who had the right to vote was therefore based on the respective mental capacity of each person. The Court considers that (in respect of restrictions on the right to vote) a difference in treatment based on such grounds pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The assessment underlying the Court’s conclusion that the interferences with the right to vote of the applicant’s daughter were justified under Article 3 of Protocol No. 1 took into account the applicant’s daughter special status (that is to say the fact that the degree of her legal capacity had been modified). These considerations are equally valid within the context of Article 14 and, even assuming that the applicant’s daughter can be deemed to be in a comparable position to other persons whose legal capacity has not been modified, justify the difference of treatment complained of.
The court therefore found that there had been no discrimination against the applicant’s daughter.
The case is also notable for a very strong dissent from Judge Paul Lemmens, the Belgian judge at the ECtHR. Whilst he accepted that the majority’s reasoning was based on solid reasoning and in line with the court’s existing case-law, he argued that the “interpretation of the Convention in this area requires updating, and that an updated interpretation would necessarily lead to a different outcome in the present case.”
He considered that it was clear from the UN CRPD Committee’s approach that “under the CRPD, all persons with disabilities, without exception, should have the right to vote, and no one should be deprived of that right on the basis of any perceived or actual intellectual disability.” Whilst he had no problem agreeing with the majority that the ECtHR was not bound by interpretations given to similar instruments by other bodies, he set out a spirited attack on the way in which the majority had distanced itself from the CRPD Committee, based on four prongs:
- Relying upon the work of Martha Nussbaum, denying those with cognitive disabilities from the right to vote equated to disqualifying them from the most essential functions of citizenship;
- The majority, Judge Lemmens asserted, did not fully grapple with the difference between legal capacity and mental capacity, accepting the complete removal of the applicant’s daughter to right to vote on the basis of her cognitive disability. Judge Lemmens proposed that:
A much less far-reaching measure is possible, which fully respects the person’s legal capacity to vote, while at the same ensuring that that capacity is exercised by a person “capable of assessing the consequences” of any vote cast (see the terms used by the first-instance court in the present case, quoted in paragraph 8 of the present judgment). In this respect I should like again to refer to Nussbaum, who argues that in the case of a person with “profound cognitive disabilities” a surrogate may be designated who would be able to vote on that person’s behalf. Such an arrangement would reflect the principle “one person, one vote”, a principle that is not observed when the person with a disability is excluded altogether from voting (see M. Nussbaum, cited above, p. 347; see also M. Nussbaum, Creating Capabilities. The Human Development Approach, Belknap Press, Cambridge, Mass., 2011, 24).
Judge Lemmens considered that such an arrangement would be compatible with Article 12(3) CRPD, which States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. On the basis of the CPRD Committee’s interpretation of Article 12, Judge Lemmens considered that
[i]n the case of the exercise of the right to vote by a person with a cognitive disability, the trusted person can – and should – vote according to his or her interpretation of that person’s “will and preferences” (Article 12 § 4 of the CRPD; see General comment No. 1 (2014), cited above, § 21). [note that this does not specifically refer to voting, but rather to the broader idea of acting in accordance with a person’s will and preferences]
- Judge Lemmens was also underwhelmed by the reliance of the majority on a lack of consensus among the States Parties to Protocol No. 1 in favour of an unconditional right of persons with a mental disability to exercise their right to vote. He observed that the CRPD been ratified by 45 out of 47 member states of the Council of Europe and that, whilst a number had made declarations or reservations with respect to Articles 12 and/or 29 “a very large majority of States Parties to Protocol No. 1 unreservedly agreed with the principles contained in the CRPD.” Further, a different question was the extent to which “States Parties also live up to the obligations to which they have committed themselves by ratifying the CRPD.” Judge Lemmens found that the reports of the European Union Agency for Fundamental Rights showed a:
“slow but steady” trend to align national legislation with the CRPD, that is, to implement the obligations arising from the CRPD in domestic law.
- Finally, Judge Lemmens regretted that the majority did not take the same approach as two other independent bodies of the Council of Europe. The first was the Venice Commission: although its Code of Good Practice in Electoral Matters, adopted by the Commission in 2002 allowed “for the deprivation of individuals of their right to vote ‘by express decision of a court of law,’ on the basis of “mental incapacity,’” the Commission had adopted a more nuanced stance subsequently, to the effect that: “[u]niversal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities may not be discriminated against in this regard, in conformity with Article 29 of the [CRPD] and the case-law of the European Court of Human Rights.” The second body was the Commissioner for Human Rights, whose stance is set out above.
Judge Lemmens therefore considered that, Spanish system under review pursued a legitimate aim it had a disproportionate effect on the applicant’s daughter’s right to vote.
Judge Lemmens was equally unimpressed with the reasoning of the majority as to whether the restriction had a bearing on the “free expression of the opinion of the people.” He considered that its key aspect was the “opinion of the people [referring] to the opinion, or the diversity of opinions, of the electorate as a whole.” He considered that the approach of the majority reduced the notion of the “opinion of the people” to that of “an aggregation of the individual opinions of each voter. In doing so, they in fact return to the question of the justification for the restriction of the individual voters’ right to exercise their right to vote.” As he pointed out, this was to lose the “collective dimension” of the opinion of the people, whereas:
What is required by respect for the “free expression of the opinion of the people” is that the various groups in society, with their different views on how society should be organised and how the benefits and the burdens should be divided among the various categories of citizens, are fairly represented in the body set up to represent “the people” and to take important political decisions.
In this respect, I agree with the view of the Commissioner for Human Rights, namely that excluding a large category of persons, such as persons with intellectual and psychosocial disabilities, from the electoral process, not only deprives these persons “of any possibility of influencing the political process and the chance of shaping the policies and measures that directly [affect] their lives”, but also deprives “society as a whole … of a legislature that [reflects] its full diversity” (see paragraph 47 of the judgment).
An electoral system providing for the disenfranchisement of a whole category of vulnerable persons is hardly able to ensure “the free expression of the opinion of the people”.
Unsurprisingly, perhaps, Judge Lemmens then disagreed with the majority, finding that she had been discriminated against by the approach taken:
By barring the applicant’s daughter from the exercise of her right to vote, the State reduced her to a second-class citizen. Unlike other citizens, she cannot make her voice heard, not even via a trusted person.
Judge Lemmens concluded with some observations about how the court viewed its role as a guarantor of human rights, noting, finally, that:
The Court occasionally warns itself against failing “to maintain a dynamic and evolutive approach”, as this would “risk rendering it a bar to reform or improvement” […] I am afraid that the present judgment could constitute a bar to the alignment of the Convention and domestic laws with the inclusive approach to equality as introduced by the CRPD in human-rights law.
Comment
Fragmentation in international human rights law is a continuing, and serious, problem in the area of legal capacity. The ECtHR has shown itself quite willing to go toe-to-toe with the CRPD Committee in the context both of Article 5 (Rooman) and Article 8 ECHR (AM-V v Finland), in both instances finding that the CRPD Committee’s interpretation of the CRPD did not mandate the radical change in the interpretation of the ECHR that some might have expected. It is clear from the strong dissent of Judge Lemmens that at least some within the ECtHR are concerned about what this means in terms of its role as guarantor of human rights. Conversely, and whilst the majority judgment in the instant case does seem almost willfully to be determined to stand in the face of the approach of the Committee, decisions such as AM-V v Finland can also be seen as legitimate demands from an experienced human rights court to the CRPD Committee to make out its case both that (1) its interpretation of the CRPD is, in fact, reflecting what the Convention requires; and (2) almost more importantly, that it is ethically right to make the leaps of faith that the Committee demand in a number of areas.
Transposing Judge Lemmens’ observations about voting to the UK context is also an interesting exercise. The position in the United Kingdom, it should be noted, is nuanced. There is no explicit prohibition on voting based upon mental incapacity (or a status such as mental disorder), s.73 Electoral Administration Act 2006 explicitly having abolished “[a]ny rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state,” but as Lucy Series explains in this blog, inadvertent barriers are placed in the way of individuals with cognitive impairments through requirements relating to registration. Moreover, in England & Wales s.29 MCA 2005 provides, expressly, that nothing in the MCA permits a decision on voting to be made on behalf of a person, although there are some interesting questions which arise as to precisely how it can be tested that a person operating a proxy vote is doing so as the proxy for a person with capacity to vote (as the Electoral Commission envisages) or doing so on a surreptitious best interests basis. It would also be interesting to see whether and how policy makers would seek to enable decision-making on a ‘will and preferences’ basis within the UK context given the – obvious – concerns that must arise about the potential for the end result to reflect the views of the person constructing the will and preferences of the individual voter. However, given that the CRPD is not directly applicable in England & Wales, then unless the Grand Chamber in either the Strobye and Rosenlund case or (if it goes there) this case finds that the ECHR should be interpreted in the fashion that Judge Lemmens sought, the difficulty of bringing any Human Rights Act 1998 challenge to s.29 MCA 2005 has only been increased. So it is not – yet – a question that policy makers within the English & Welsh context are likely to be required to answer by the courts (they may, interestingly, be required to in Scotland if the Scottish Government’s stated intention to seek to incorporate the CRPD into Scottish law bears fruit).
Finally, the observations about mental capacity and Article 14 are of some interest, given that, at least in England & Wales, the courts have been robust in finding that it is not possible to have a ‘status’ of lacking mental capacity, essentially on the basis that capacity is time- and issue- specific. The disparity may be explained by the different approaches taken to the interaction between mental and legal capacity in jurisdictions such as Spain, which (as a very broad generalisation) formalise questions of mental capacity through declarations of legal incapacity.[1] By contrast, in England & Wales, the fiction is a person is never declared to lack legal capacity as a status (as opposed to being factually incapable of making specific decisions). This is sometimes a fiction which wears quite thin, for instance in the context of the appointment of a deputy to manage a person’s property and affairs, even if a deputy is, in principle, supposed to take practicable steps to support the person to make each and every decision before exercising their court-granted authority.
[1] Recent legal reforms in Spain have been asserted to have changed this position, although it is an open question as to whether, in practice, the change is going to be as dramatic as has been hailed when, as always must happen, the whole legal framework is examined, including as it does provisions for substitute decision-making to be made in the healthcare context where a person is factually unable to give informed consent.
