MOLKA v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Antoni Mółka, is a Polish national who was born in 1957 and lives in Nowy Sącz. He was represented before the Court by Mr P. Sendecki, a lawyer practising in Lublin. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant suffers from severe dysfunction of the limbs and is confined to a wheelchair. On 11 October 1998 the applicant was driven by his mother to a polling station in Nowy Sącz where he intended to vote in the elections to municipal and district councils and provincial assemblies (wybory do rad gmin, rad powiatów i sejmików województw). The applicant’s mother asked the Chairman of the Local Electoral Commission to either show her how the applicant, who was waiting in his wheelchair outside the station, could enter it or hand a ballot paper to him. The chairman informed the applicant’s mother that the applicant could not cast his vote because it was not permitted to take ballot papers outside the premises of the polling station and the chairman was not going to carry the applicant inside the station. The applicant returned home without casting his vote. At 5 p.m. on the same day, i.e. three hours before the polling stations closed, the applicant telephoned the Municipal Electoral Commission (Miejska Komisja Wyborcza) and protested about the refusal to allow him to vote. He also asked for help in casting his vote. However, the applicant was informed that the Local Electoral Commission acted in conformity with the Law of 16 July 1998 on Elections to Municipal Councils, District Councils and Regional Assemblies (Ordynacja wyborcza do rad gmin, rad powiatów i sejmików województw) (“the Local Elections Act”) and advised to arrange for assistance in entering the premises of the polling station. On 14 November 1998 the applicant lodged an electoral complaint (protest wyborczy) with the Nowy Sącz Regional Court (Sąd Wojewódzki). He submitted that he had been unlawfully deprived of his right to vote. The applicant pointed out that getting to the polling station had required substantial effort on his part, the assistance of other persons and certain expenses. He ended his submissions with the following statement: “I would like to stress that the only way I could have been carried in was on a stretcher (which was not available) and anyway no handicapped person would have agreed to that because of the feeling of embarrassment. Carrying me upstairs in a wheelchair was also impossible as [my] battery-powered wheelchair weighed, together with myself, about 200 kg and was not portable. As the number of physically handicapped persons in Poland is 5 million, one can assume that my case was not isolated and that making it impossible for handicapped persons to vote by not preparing polling stations for them could have had a fundamental impact on the turnout and the results of the elections.” In a letter of 20 October 1998 the Nowy Sącz Regional Court asked the applicant whether his complaint concerned the validity of the elections or whether he requested amendments to the relevant law. On 26 October 1998 the applicant informed the Regional Court that his electoral complaint resulted from the fact that he had been deprived of his right to vote in the elections held on 11 October 1998. The applicant referred to section 5 of the Local Elections Act, which stated that every Polish citizen had a right to vote. On 30 October 1998 the Nowy Sącz Regional Court refused to consider the applicant’s electoral complaint. The court was of the view that it did not fall within “the scope of the subject matter” of an electoral complaint. On 23 November 1998 the applicant appealed against that decision to the Cracow Court of Appeal (Sąd Apelacyjny). On 5 January 1999 the Court of Appeal allowed the applicant’s appeal, quashed the decision of 30 October 1998 and remitted the case to the Nowy Sącz Regional Court. On 12 March 1999 the Nowy Sącz Regional Court dismissed the electoral complaint lodged by the applicant. The court observed that the applicant had assumed that a ballot paper would be handed to him and cast by his mother. However, he had been advised by the Chairman of the Local Electoral Commission and the Municipal Electoral Commission that this was not permissible under the Local Elections Act. Moreover, the applicant had not considered the possibility of entering the polling station with the assistance of third persons on a stretcher or in a wheelchair as he had felt that it would have been embarrassing and degrading for him. The court further considered that: “The complainant’s general claim that ‘the organisers of the elections’ should have provided him with the possibility of entering the polling station ... does not fall within the legal scope of an electoral complaint ... since none of the provisions of the Local Elections Act imposes such an obligation on the electoral commissions – on the contrary, section 46 of the Act excludes such help. Each disability is in itself restricting in different fields of private and public life. It makes it difficult for a handicapped citizen to enjoy his rights. The public authorities are not in position to eliminate all those difficulties. [There] is no statutory or higher provision requiring such [elimination] – even if those provisions concern handicapped persons (Article 69 of the Constitution of the Republic of Poland and Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ... which is part of our legal system, and Article 3 of Protocol No. 1 to the Convention ...). The complainant was aware of his disability and therefore had a special duty to acquaint himself with his rights and the restrictions under the Local Elections Act before the date of the elections. Ignorance of the law – in particular one so important – cannot excuse anybody. If the complainant had known the law, he would not have expected that it would be breached in order to allow him to vote. He would have taken steps to obtain the assistance of third persons in casting his vote.... As pointed out above, a disability is always a restriction. Therefore, the complainant’s argument that he did not consider the possibility of being carried by third persons to the polling station because it would have been embarrassing for him cannot justify his claim that he could not vote for reasons beyond his control. Since the complainant was put in a car – probably by third persons – he could have been carried by those persons, for instance in a chair....” The applicant appealed to the Cracow Court of Appeal against the decision of 12 March 1999. In his appeal the applicant submitted that: “Participation in the elections was the only purpose of my presence at the polling station.... I was not aware of the details of the Local Elections Act, and I thought that I would be able to vote in the way I had done before (i.e. ballot papers are handed to me under the stairs, I mark them and a member of my family puts them into the ballot box). However, this time it turned out that casting a vote by a disabled person would be considered as a violation of the electoral law. ... The Nowy Sącz Regional Court did not take into consideration my good will and my positive civic attitude and indicated several additional solutions that should have been undertaken by me. [The court] tried to establish that I could, and should, have solved all those problems by myself. ... Under section 5 of the Local Elections Act“... every Polish citizen has a right to vote...”. [It] does not impose on the disabled any additional obligations which should be fulfilled before ... entering a polling station. I do not know of any institution that would offer “election services” with a stretcher. ... Using a stretcher in the way suggested by the court would make the voting grotesque. In suggesting that the problem could have been solved with the assistance of third persons, the court did not take into account the fact that such persons could have refused help, or that they might not have managed to help (even using a chair - because of the significant degree of my disability ...), or that there could have been a risk of injuries for those who helped and those who were being helped, or that there could have been no people around to help. The standard solution in similar cases is to provide a ramp or a lift.... Even in the case of the polling station in question, it would have been possible to prepare such a ramp at small (when compared with the electoral campaign) financial cost. I have read several times with disbelief the reasoning of the Nowy Sącz Regional Court’s judgment which states that ‘each disability is in itself restricting in different fields of private and public life. It makes it difficult for a handicapped citizen to enjoy his rights’. I think that this odd reasoning ... compromises the institution which protects social justice. By giving such reasoning the Nowy Sącz Regional Court outlined the position of a disabled person in Polish society. With reasoning like this one can deprive disabled persons of several other civic rights. It contradicts the perception of disability in all other democratic countries. The question arises here: can criminal law, tax law or traffic regulations also be applied to a limited extent in the case of a disabled person? The Polish State imposes on its citizens a number of obligations.... In return it gives every citizen a right to vote and in this way the possibility of having an influence on public life. It is the fundamental right in democratic states and that is what democracy is all about. ...” On 29 April 1999 the Cracow Court of Appeal dismissed the applicant’s appeal. The appellate court agreed with the Regional Court’s conclusion that the applicant’s case did not disclose a breach of the Local Elections Act. Article 10 of the Constitution provides: “1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. 2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in the courts and tribunals.” Article 69 of the Constitution provides: “Public authorities shall provide, in accordance with statute, assistance to disabled persons to ensure their subsistence, adaptation to work and social communication.” Chapter III of the Constitution, entitled “Sources of Law”, begins with Article 87, which provides: “1. The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. 2. Local laws (akty prawa miejscowego) passed by the organs [of local government] shall be a source of universally binding law of the Republic of Poland in the territory of the organ passing the laws.” The last provision in Chapter III is Article 94, which provides: “On the basis of and within limits specified by statute, the organs of local government and territorial organs of government administration shall enact local laws applicable to their territorially defined areas of operation. The principles of and procedures for enacting local laws shall be specified by statute.” Chapter IV, entitled “The Sejm and the Senate”, begins with Article 95, which provides: “1. Legislative power in the Republic of Poland shall be exercised by the Sejm and the Senate. 2. The Sejm shall exercise control over the activities of the Council of Ministers within the scope specified by the provisions of the Constitution and statutes.” Chapter VII, entitled “Local Government”, contains the following provisions: “Article 163 Local government shall perform public tasks not reserved by the Constitution or statutes to the organs of other public authorities. Article 164 1. The municipality (gmina) shall be the basic unit of local government. 2. Other units of regional and/or local government shall be specified by statute. 3. The municipality shall perform all tasks of local government not reserved to other units of local government. Article 165 1. Units of local government shall possess legal personality. They shall have rights of ownership and other property rights. 2. The independence of units of local government shall be protected by the courts. Article 166 1. Units of local government shall have direct responsibility for performing public duties aimed at satisfying the needs of a self-governing community. 2. If the fundamental needs of the State so require, units of local government may be required by statute to perform other public duties. The mode of transfer and manner of performance of the duties so allocated shall be specified by statute. 3. The administrative courts shall settle jurisdictional disputes between units of local government and units of government administration. Article 167 1. Units of local government shall be assured public funds adequate for the performance of the duties assigned to them. 2. The revenues of units of local government shall consist of their own revenues and general subsidies and specific grants from the State budget. 3. The sources of revenues for units of local government shall be specified by statute. 4. Any alterations of the scope of the duties or powers of units of local government shall be made in conjunction with appropriate alterations of their share of public revenues. Article 168 To the extent established by statute, units of local government shall have the right to set the level of local taxes and charges. Article 169 1. Units of local government shall perform their duties through law-making and executive organs. 2. Election to the law-making organs shall be by direct universal suffrage and shall be conducted by secret ballot. The principles and procedures for nominating candidates and for conducting the elections, and the requirements for the validity of the elections, shall be specified by statute. 3. The principles and procedures for the election and dismissal of executive organs of units of local government shall be specified by statute. 4. The internal organizational structure of units of local government shall be specified, within statutory limits, by their law-making organs. Article 170 Members of a self-governing community may decide, by means of a referendum, matters concerning their community, including the dismissal of an organ of local government established by direct election. The principles of and procedures for conducting a local referendum shall be specified by statute. Article 171 1. The legality of the actions of a local government shall be subject to review. 2. The organs exercising review of the activity of units of local government shall be: the Prime Minister and provincial governors and, regarding financial matters, regional audit offices. 3. On a motion of the Prime Minister, the Sejm may dissolve a law-making organ of local government if it has flagrantly violated the Constitution or statutes. Article 172 1. Units of local government shall have the right of association. 2. A unit of local government shall have the right to join international associations of local and regional communities and to cooperate with local and regional communities of other states. 3. The principles governing the exercise by units of local government of the rights referred to in paragraphs 1 and 2 above shall be specified by statute.” A municipality (gmina) is the basic unit of local government in Poland. Section 6(1) of the Law of 8 March 1990 provides: “A municipality is responsible for all local public matters which are not assigned by statutes to other bodies.” Section 18(1) provides: “A municipal council (rada gminy) is responsible for all matters falling within the competence of a municipality unless statutes provide otherwise.” Under section 18(2), the exclusive competence of a municipal council includes, inter alia, adopting a budget, a land-use plan, economic plans, taxes and resolutions concerning municipal finances. A district (powiat) constitutes a second tier of local government. Section 4 of the Law of 5 June 1998 provides that a district is responsible for matters which are not within the competence of a municipality and which concern, inter alia, education, the public health service, social security, public transport, culture, protection of the environment, agriculture, public order, consumer protection and defence. Under section 12, the exclusive competence of a district council (rada powiatu) includes, inter alia, enacting local laws and adopting a budget, taxes and resolutions concerning district finances. There are sixteen regions (wojewόdztwo) in Poland. Section 11 of the Law of 5 June 1998 provides that the regional government shall prepare a development strategy for the region. Under section 18, the exclusive competence of a regional assembly (sejmik wojewόdztwa) includes, inter alia, enacting local laws and adopting a land-use plan, a budget and resolutions concerning regional finances. Section 46 of the Law of 16 July 1998 on Elections to Municipal Councils, District Councils and Regional Assemblies (Ordynacja wyborcza do rad gmin, rad powiatów i sejmików województw) (“the Local Elections Act”) provided, in so far as relevant: “A disabled voter may, at his or her request, be assisted in voting by another person, other than members of the [electoral] commission and election monitors (mężowie zaufania).” At the relevant time section 40 of the Law of 28 May 1993 on Elections to the Sejm of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej) provided: “A disabled voter may, at his or her request, be assisted in voting by another person, other than election monitors.” The subsequent Law – of 12 April 2001 – on Elections to the Sejm and the Senate of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu Rzeczypospolitej Polskiej) contains for the first time specific provisions regarding the exercise of the right to vote by disabled persons. Section 52(2) in fine states: “Premises designated as offices of the regional and local electoral commissions shall be easily accessible to disabled persons.” Section 53(1) reads as follows: “The mayor shall provide premises of local electoral commissions that are adapted to the needs of disabled voters.” It further provides that in each municipality there must be at least one local electoral commission with premises adapted to the needs of disabled persons. Section 54 of the Law of 27 September 1990 on Elections of the President of the Republic of Poland (ustawa o wyborze Prezydenta Rzeczypospolitej Polskiej) contains a similar provision to section 46 of the Local Elections Act (see above). Section 5 of the Construction Act (Prawo budowlane) of 7 July 1994, which entered into force on 1 January 1995, requires, inter alia, that public buildings and blocks of flats constructed henceforth must secure the necessary conditions for their use by people with disabilities, in particular those in wheelchairs. (a) Recommendation No. R (92) 6 of the Committee of Ministers, of 9 April 1992, on a coherent policy for people with disabilities urges Member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”. As regards social integration in particular, Recommendation No. R (92) 6 states: “Legislation should take account of the rights of people with disabilities and contribute, as far as possible, to their participation in civil life. When people with disabilities are not able to exercise their citizens’ rights fully, they should be helped to participate as far as possible in civil life, by means of appropriate assistance and measures.” (b) Recommendation 1185 (1992), adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, on rehabilitation policies for the disabled, emphasises: “Society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people ... in the community and society” and, to that end, “to guarantee ease of access to buildings”. (c) The revised European Social Charter, adopted by the Committee of Ministers on 1–4 April 1996 and opened for signature on 3 May 1996, provides in its Article 15, entitled “Right of persons with disabilities to independence, social integration and participation in the life of the community”: “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: ... 3. to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.” (d) Recommendation No. Rec(2006)5 of the Committee of Ministers of 5 April 2006 on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society identifies a comprehensive set of objectives and specific actions to be implemented by Member States in this area. As regards participation in political and public life, Recommendation No. Rec(2006)5 states: “The participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies. Society needs to reflect the diversity of its citizens and benefit from their varied experience and knowledge. It is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities.” It further recommends to Member States, among others, “to ensure that voting procedures and facilities are appropriate and accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting.”