CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 mai 2010

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Hungary (application no. 38832/06)     AUTOMATIC DISENFRANCHISEMENT OF A PERSON UNDER GUARDIANSHIP UNJUSTIFIED   Unanimously   Violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights     Principal facts   The applicant, Alajos Kiss, is a Hungarian national who was born in 1954 and lives in Rózsaszentmárton (Hungary). Diagnosed with a psychiatric condition in 1991, he was placed under partial guardianship in May 2005 on the basis of the civil code. In 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. He further complained to the district court, which in March 2006 dismissed his case, observing that under the Hungarian Constitution persons placed under guardianship did not have the right to vote. When legislative elections took place in April 2006, the applicant could not participate.     Complaints, procedure and composition of the Court   Relying on Article   3 of Protocol No.   1 alone or in conjunction with Articles   13 (right to an effective remedy) and   14 (prohibition of discrimination), the applicant complained that his disenfranchisement, imposed on him because he was under partial guardianship for a psychiatric condition, 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.   The application was lodged with the European Court of Human Rights on 1   September   2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President, Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Nona Tsotsoria (Georgia), Kristina Pardalos (San Marino), judges,   and Sally Dollé, Section Registrar.     Decision of the Court   The Court considered that the complaint had to be examined under Article   3 of Protocol   No.   1 alone. It observed that the object of the complaint was not the placement of the applicant under partial guardianship, the necessity of which he had accepted, but its automatic consequence prescribed in the Constitution, namely his disenfranchisement.   The Court had established in its case-law that Article   3 of Protocol No.   1 guaranteed individual rights, including the right to vote and to stand for election. While those rights were not absolute, the Court had to satisfy itself that any limitations on them did not impair their very essence.   As to the question whether the applicant’s disenfranchisement, as prescribed by the Hungarian Constitution, pursued a legitimate aim, the Court accepted the Government’s argument that the measure aimed to ensure that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.   The Court noted that the restriction did not distinguish between persons placed under total and those under partial guardianship and that it was removed once guardianship ended. It further observed the applicant’s assertion, which was not refuted by the Government, that   0.75% of the Hungarian population of voting age were concerned by disenfranchisement on account of being under guardianship in an indiscriminate manner. This was a significant figure, which could not be claimed to be negligible in its effects.   The Court accepted that it should be for the legislature to decide on what procedure should be followed in order to assess the fitness to vote of mentally disabled persons. There was, however, no evidence that the Hungarian legislature had ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stood.   The Court could not accept an absolute bar on voting rights applied to any person under partial guardianship irrespective of his or her actual faculties. The State had to provide weighty reasons when applying a restriction on fundamental rights to a particularly vulnerable group in society, such as the mentally disabled. Having suffered considerable discrimination and social exclusion in the past, this group was at a risk of being subject to legislative stereotyping.   The applicant had lost his right to vote as a result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship. The Court could not speculate as to whether he would have been deprived of the right to vote even if a more limited restriction in compliance with Article 3 of Protocol No. 1 had been imposed.   The Court further considered that treating persons with mental abilities as a single group was a questionable classification. Demanding strict scrutiny of the curtailment of their rights was in accordance with other instruments of international law, including the United Nations Convention on the Rights of Persons with Disabilities.   In the light of these considerations, the Court concluded that there had been a violation of Article 3 of Protocol No. 1.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 3,000   euros in respect of non-pecuniary damage.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts   Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. All final judgments   are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .