Incapacitated persons will vote in European Elections, says court in landmark ruling

The District Court in Nowy Sącz ordered an incapacitated person to be entered in the voters register, reversing the previous negative decision of the city’s mayor. The court found that the blanket deprivation of the right to vote in elections to the European Parliament of partially incapacitated persons violates the European Convention on Human Rights, the Convention on the Rights of Persons with Disabilities and European Union law.

The case involved Adam Kowalski*. The Helsinki Foundation for Human Rights and Clifford Chance conducted proceedings in the case of Mr Kowalski, declared by a court as a “partially incapacitated” person, who has been deprived of his right to vote in the upcoming elections to the European Parliament.

“In the statement of reasons the court noted that a disability cannot limit the exercise of electoral rights and found that the mechanism of automatic disenfranchisement was flawed. Exclusion from participation in elections should be preceded by an individual assessment of the situation of the person concerned. In the case of Mr Adam Kowalski, the court found that our client was fit to vote”, said Jarosław Jagura, an attorney who represented HFHR before the court.

The court also emphasised that the Polish legislation is inconsistent: the law allows incapacitated persons to join political parties but forbids them to vote for their leaders. At the same time, the court stated that the current design of the measure of legal incapacitation does not match the realities of the present time.

Voter registration proceedings

Adam Kowalski wanted to participate in the European Parliament elections scheduled for 26 May 2019. This was not possible because he considered a partially incapacitated person under Polish law and, according to the provisions of the Electoral Code, such persons do not have electoral rights and are not included in the voters register. The man first submitted an official objection to an error in the voters register to the mayor of Nowy Sącz, demanding his name to be added to the register. As the mayor refused to admit his objection, Adam filed a complaint to the court.

Non-compliance with international law

In the past, international human rights bodies have pointed out that the complete deprivation of incapacitated persons of the right to vote in elections is a violation of human rights. “A key decision here is the European Court of Human Rights’ judgment in the case of Alajos Kiss v. Hungary, in which the ECtHR stated that an automatic, blanket restriction on the franchise of all legally incapacitated persons, regardless of their actual mental capacity, violates the provisions of the European Convention on Human Rights”, reminds Dr Marcin Szwed, HFHR’s legal expert. Interestingly, the mayor noted in his decision that he recognized the impact of ECtHR jurisprudence, but said that he did not have the authority to enter an incapacitated person in the voters register.

Complainants’ arguments

In his submissions, the complainant stressed that Polish law was incompatible with international and EU law. “In our complaint, we alleged that the mayor’s decision was incompatible with the European Convention on Human Rights, the Convention on the Rights of Persons with Disabilities, as well as EU law, which states, among other things, that the elections to the European Parliament must be universal. Also, EU law prohibits any discrimination against persons with disabilities”, explains complainant’s attorney Dr Piotr Bogdanowicz, Clifford Chance.

Read the sentence in English here.

* name and last name changed