Right to vote of people with intellectual disabilities: Referral to the ECtHR Grand Chamber
On 2 February 2021, a Chamber of the European Court of Human Rights published its judgment in the case of Strøbye and Rosenlind v. Denmark. The Chamber held that the Danish legal system preventing the two applicants from voting did not violate Article 3 of Protocol No. 1 to the Convention (the right to vote) or Article 14 (the right to non-discrimination) taken together with Article 3 Protocol 1. The legal provision affected the two applicants because they both have intellectual disabilities and had been restricted of their legal capacity. The Chamber found that the Danish law pursued a legitimate aim of ensuring that voters had "the required level of mental skills".
The Chamber judgment caused consternation among the global human rights community. The European Disability Forum said in a statement, that it was "deeply concerned" by the judgment. Gerard Quinn, the UN Special Rapporteur on the Rights of Persons with Disabilities, together with the UN Committee on the Rights of Persons with Disabilities, described the judgment as "a disappointing setback" and expressed their "hope that the decision is temporary and that the Grand Chamber of the Court will have an opportunity to re-consider the case."
Oliver Lewis was instructed by Dorthe Kynde Nielsen, a lawyer practising at Foldschack, Forchhammer, Dahlager & Barfod in Copenhagen, to draft a referral to the Grand Chamber appealing against the Chamber judgment.
The application for a referral, lodged on 1 May 2021, was made on four grounds, namely that the Chamber erred because it (1) departed from its well-established jurisprudence; (2) permitted individualised assessments of voters’ capacity to justify restrictions; (3) widened the margin of appreciation of permissible restrictions to the right to vote; and (4) misdirected itself as to the relevant international and regional standards.
The referral argued that the Chamber judgment ignored Article 29 of the UN Convention on the Rights of Persons with Disabilities (a treaty ratified by 46 of the 47 Member States of the Council of Europe), which sets out the right of every disabled person to vote and stand for election. The right is not dependent on the type of the person's impairment or the level of their support needs. The CRPD prohibits countries from adopting any measure that prevents disabled people from voting. It requires states to put in place accessible voting systems, procedures and facilities to encourage and enable disabled people's political participation.
Oliver has worked internationally on disability inclusive electoral systems for several years. When he was the Executive Director of the Mental Disability Advocacy Centre in Budapest, the organisation initiated the Strasbourg court's first disability-related voting case of Alajos Kiss v Hungary, in respect of which in 2010 the Court found a violation of the ECHR. The following year, Oliver presented to a plenary session of the Venice Commission, resulting in the adoption of its "Revised interpretative declaration to the code of good practice in electoral matters on the participation of people with disabilities in elections". Oliver has worked on political participation with the UN Human Rights Committee, the EU Fundamental Rights Agency and the Commissioner of Human Rights of the Council of Europe.
More recently, Oliver has worked as a UNDP consultant, drafting guidance for governments on political participation of people with intellectual disabilities and/or mental health issues, which will be published later this year. He has recently completed an assignment for the OSCE on electoral inclusion in Kazakhstan.