Persons with intellectual disabilities were disenfranchised in the 2019 EU elections. The European Commission should ensure this does not happen again, writes Jurij Toplak.
Jurij Toplak is a professor at Alma Mater Europaea and visiting professor at the Fordham Law School in New York.
In 2011, with the European Union’s accession to the Convention on the Rights of Persons with Disabilities, the Convention became an integral part of EU law. All 27 EU member states (and 154 other countries) agreed to ensure the right to vote of all people with disabilities.
By the time of the 2019 European Parliament elections, most member states had amended legislation accordingly, or their highest courts had enabled persons with disabilities to vote. Denmark, France, Germany, and Spain are examples.
But not Slovenia. In 2,035 individual court proceedings, Slovenian judges barred 2,035 persons from voting because they “did not understand the meaning of elections”.
Several young people with cerebral palsy asked the Constitutional Court of Slovenia to take measures to enable them to vote, but the court rejected their request. Just days before the 2019 elections, it ruled that each individual with intellectual disabilities—despite having neither legal capacity nor the power to go to court—should go to their district court, pay for the proceedings, and invoke the Convention. If unsuccessful, they could appeal the decision to three further levels of courts before again reaching the Constitutional Court.
When the 2019 elections took place, 2,035 adult Slovenian citizens were excluded from the voter rolls. Their rights were violated, they were discriminated against, and their dignity was crushed.
After the election, some disenfranchised individuals initiated procedures with various courts. To date, none of them has gained the franchise. The authorities have rejected all requests and appeals.
A complaint to the European Commission followed. Last week, after 14 months, the Commission responded that the disenfranchisement of anyone with intellectual disabilities was not its concern, but a matter for member states.
The Commission’s position is disappointing, and at odds with EU law.
It writes that the definition of persons entitled to vote falls within the competence of each member state “in compliance with EU law” but neglects to mention that the Convention is EU law. Neither does it mention that EU law prohibits discrimination based on disability, or that the UN Committee for the Rights of Persons with Disabilities explained that the Convention permits no disability-based exceptions to the right to vote, including those based on individual court decisions.
The Commission relied on the judgement of the European Court of Justice, in the matter of prisoners’ right to vote. It judged that murderers may be deprived of their rights. Thus, the Commission justifies people with disabilities being deprived of their rights by comparing them to convicts.
The European Court’s Grand Chamber made clear in its 2015 Delvigne judgment that it has jurisdiction over cases of disenfranchisement in member states, and that they are a matter of EU law.
The European Court wrote that EU member states are bound by EU law to ensure that the election of members of the European Parliament is by direct universal suffrage, free and secret.
The Commission’s statements that it “does not have a general competence in electoral matters” and that “national courts play the key role in securing rights of individuals” are misleading, if not wrong. When national courts fail, it is the Commission’s job to intervene. It does have the competence and a duty to protect its citizens who are left out.
The Commission should invoke infringement proceedings at the European Court of Justice to prevent the disenfranchisement of people with disabilities. Their degrading treatment should cease.
People with intellectual disabilities can make their own choices. True, their voting decisions may be influenced, but so are other voters’ decisions. Just like other groups, they are diverse. Some are interested in politics, some are not. Some run for office.
Some people with disabilities may not understand elections well; neither do many other people. As with other constitutional rights, the right to vote is an integral part of being a full person. No judge should be authorised to strip a person of a constitutional right, whether it is freedom of expression or of religion, or the right to vote—particularly if that person has broken no law.
The European Commission should respect the conventions to which it accedes, and end this mistreatment of its most vulnerable citizens.