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Nowy Sącz court to hear case on incapacitated persons’ right to vote in European parliamentary elections

The Helsinki Foundation for Human Rights and Clifford Chance conducts proceedings in a case of a person with the “partially incapacitated” legal status who has been deprived of his right to vote in the upcoming elections to the European Parliament. The case was started with a complaint filed on 4 April 2019 to the District Court in Nowy Sącz.

Voter registration proceedings

Adam Kowalski* wishes to participate in the European Parliament elections scheduled for 26 May 2019. Currently, this is 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 allege that the mayor’s decision is 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. We thus submit that the court should amend the mayor’s decision or refer a question to the CJEU for a preliminary ruling”, explains complainant’s attorney Dr Piotr Bogdanowicz, Clifford Chance.

The Helsinki Foundation for Human Rights has joined the case and supported the attorney’s suggestion concerning the preliminary reference. “The Court of Justice of the European Union has already ruled that Member States must respect EU law, including the Charter of Fundamental Rights, when establishing restrictions on citizens’ right to vote in elections to the European Parliament”, Dr Szwed says.

How case will proceed?

According to the provisions of the Electoral Code, the court must hear the complaint within three days of its submission. Court’s decision in this matter is final and cannot be appealed.

* name and last name changed

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