CASE OF ALAJOS KISS v. HUNGARY
Violation of P1-3;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
6. The applicant was born in 1954 and lives in Rózsaszentmárton. 7. In 1991 the applicant was diagnosed with manic depression. On 27 May 2005 he was placed under partial guardianship. Although this measure was based on the Civil Code which deals with the pecuniary and certain personal relations of citizens (see paragraph 12 below), it nevertheless also attracted the application of Article 70(5) of the Constitution (see paragraph 11 below) to the applicant, excluding him from the right to vote. In the underlying court decision it was noted that he took care of himself adequately but sometimes wasted money in an irresponsible fashion and was occasionally aggressive. The applicant did not appeal against this decision. 8. On 13 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. 9. The applicant further complained to the Pest Central District Court. On 9 March 2006 this court dismissed his case. It observed that, under Article 70(5) of the Constitution, those under guardianship could not participate in elections. This decision was served on the applicant's representative on 25 April 2006. 10. In the meantime, legislative elections took place on 9 and 23 April 2006, in which the applicant could not participate. 11. Article 70(5) of the Hungarian Constitution provides inter alia that persons placed under total or partial guardianship do not have a right to vote. 12. The Civil Code provides: “(1) This Act regulates the pecuniary and certain personal relations of citizens ...” “(4) Persons of legal age may be placed under partial guardianship by a court if their faculties necessary to conduct their affairs are – owing to their mental state, unsound mind or pathological addiction – permanently or recurrently diminished to a great extent in general or in relation to certain groups of matters. (5) If the limitation of discretionary ability is only partial, the person under guardianship may make valid legal statements independently in all matters in relation to which the court did not limit his/her capacity in its decision. (6) The court may limit the full capacity of a person placed under guardianship in particular in respect of the following groups of matters: i. requests of social security, social and unemployment benefits and disposition over such benefits or over income deriving from employment ... exceeding the amount defined in paragraph (2) c) of section 14/B; ii. right of disposition concerning moveable and real property; iii. making certain legal statements in family law matters, namely: a) legal statements concerning matrimonial property rights or property rights related to a registered partnership, b) making statements in relation to the establishment of parentage, c) defining the name of one's child and its alteration, d) giving consent to the adoption of one's child; iv. taking pecuniary decisions in relation to maintenance obligations; v. making legal statements in relation to residential leases (conclusion and termination of the contract); vi. inheritance matters; vii. legal statements concerning placement in an in-house social institution; viii. disposing of rights related to health services; ix. determination of place of residence.” 13. Act no. C of 1997 on Election Procedure provides as follows: “(1) In order to establish the right to vote, the organs listed under points a)-c) keep informed the central agency, managing the register of citizens' personal data and addresses, of the changes occurring in the data, specified in paragraph (2), of ... citizens of legal age without the right to vote, as follows: a) the office of guardians ... on placement under guardianship limiting or excluding legal capacity, and on the termination of guardianship, ... (2) The communication described under paragraph (1) includes the citizen's: a) first and last name (for women, also maiden name), b) personal identification number, c) the reason for exclusion from the exercise of voting rights, its beginning date and expected end date.” 14. The United Nations Convention on the Rights of Persons with Disabilities (the “CRPD”), which was ratified by Hungary on 20 July 2007, provides as follows: ... “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.” “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. ...” “States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by: i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including: i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties; ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.” 15. The Council of Europe Recommendation R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted on 23 February 1999) (“Recommendation R(99)4”) provides as follows: “... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.” 16. Opinion no. 190/2002 of the European Commission for Democracy through Law (Venice Commission) on the Code of Good Practice in Electoral Matters (“Opinion no. 190/2002”) provides as follows: “i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions: ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence. v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.” 17. The Council of Europe Recommendation R(2006)5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015 (adopted on 5 April 2006) (“Recommendation R(2006)5”) provides as follows: “... iii. to ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability; ...”