Denmark and Rosenlind v Denmark

● It is recommended that the EU and its Member States are further cognisant of the varied forms of disability which exist, and consequently ensure that their efforts in these areas ensure flexibility in the provision of disability-specific supports and appropriate accommodations;

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● It is suggested that EU institutions and Member States should expand current structures for the engagement of people with disabilities, including by forming advisory or consultative bodies, in order to effectively decrease the barriers to political participation. Representatives of persons with disabilities should be full members of these bodies on an equal footing with others, and the necessary supports be provided to guarantee as such.

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● EU institutions and Member States should consider creating policies to guarantee that candidates and potential candidates for public office are sufficiently supported to participate in the electoral processes.

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Financial and other resources to account for the additional resources that persons with disabilities may require in order to campaign effectively, as well as measures to remove physical and other barriers to access to buildings where political activities are conducted, could be included in such plans.

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Once in office, elected officials with disabilities should be provided with the necessary accommodations to ensure they can continue to effectively conduct their role.

Collectively, it is hoped that these measures will help remedy the inconsistencies across the EU regarding the lifting of administrative and legal barriers to political participation.

III. Analysing the European Court of Human Rights Decisions in Strøbye v Denmark and Rosenlind v Denmark

66 UNDP, “Participation of persons with disabilities in political and public Life” (UNDP, 10 June 2019) < https://www.undp.org/speeches/participation-persons-disabilities-political-and-public-life> accessed 10 June 2019; European Union, Union of Equality: Strategy for the rights of Persons with Disabilities 2021 – 2030 (3 March 2021). 67 National Disability Authority, ‘Advice Paper on Engagement with Disabled Persons’ Organizations’ (October 2020). 68 UNDP, “Participation of persons with disabilities in political and public Life” (UNDP, 10 June 2019) https://www.undp.org/speeches/participation-persons-disabilities-political-and-public-life accessed 10 June 2019. 69 UNDP, “Participation of persons with disabilities in political and public Life” (UNDP, 10 June 2019) https://www.undp.org/speeches/participation-persons-disabilities-political-and-public-life accessed 10 June 2019.

One important case in the European context of inclusion in public and political life for persons with disabilities is that of Strøbye v Denmark and Rosenlind v Denmark.70 This joint-ruling demonstrates the ongoing struggles for persons with disabilities in having their voting rights protected under the European Convention of Human Rights.

Background to the Case

Both cases concerned individuals from Denmark who have lost their legal capacity due to mental disability.

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In the case of Mr. Strøbye, born 1966, he was declared incompetent in 1984 under sections 2(1)(i) and 46 of the then Act on Legal Competence, which has since (1996) been replaced by the Guardianship Act, and section 46 of the Administration of Justice Act.

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Mr. Rosenlind, born 1987, was similarly declared incompetent in 2009 after being placed under financial guardianship by order of the District Court of Roskilde.

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As a result, both individuals were declared to have lost their legal capacity under Danish law. As such, neither of them were able to vote in the Danish general election in 2015, due to the limitations placed on those without legal capacity by Section 29 of the Danish Constitution and Section 1 of the Danish Act on Parliamentary Elections.

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In 2016, the EU, through Act No. 391, made an allowance for those without legal capacity to vote in local and EU-level elections, save for national parliamentary elections.

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This would give the Applicants the ability to vote in local elections, but they would remain unable to vote in Danish general elections such as that in 2015. As a result, the applicants instituted proceedings in Denmark, claiming that they had been wrongfully denied their right to vote –relying on Article 3 of Protocol No. 1 of the European Convention on Human Rights.

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A. Litigation in Denmark High Court

70 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021). 71 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 2. 72 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 6. 73 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 8. 74 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 9. 75 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 11. 76 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 12.

In 2017, relying on Danish national law, the High Court rejected their argument.

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The Court set out that the provisions of the Danish Constitution had “continuously been construed by the legislature to mean that persons deprived of their legal capacity under section 2 and section 34 of the former Act on Legal Competence and, since the effective date of the Guardianship Act, under section 6…do not have the right to vote in general elections. This understanding also seems to be supported to a predominant extent in printed legal literature on the subject.”

Supreme Court In 2018, the Danish Supreme Court upheld the decision of the High Court, relying on national law provisions, as well Alajos Kiss v Hungary.

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This case allowed for bona fide infringements of Article 3 of Protocol No.1 rights provided that the restrictions were (1) in pursuit of a legitimate aim, and (2) proportionate in achieving that aim,

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subject to further bespoke jurisprudence relating to voting rights of persons with disabilities. The Supreme Court concluded that, notwithstanding Denmark’s international obligations, it could not deem the Parliamentary Elections Act to be inapplicable.

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B. The Decision of the ECtHR Having exhausted their domestic remedies, the applicants brought their case to the European Court of Human Rights. The ECtHR ruled against the applicants, the substance of the decision was that there had been no violation on the part of Denmark of Article 3 of Protocol No. 1 (the right to free elections) of the ECHR and equally that there had been no violation of Article 14 (prohibition of discrimination) of the same.

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The Court accepted the difficulty in justifying a vote in European but not national parliamentary elections. However, it also found that the legislature in Denmark had acted legitimately in assessing and addressing the situation over time.

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While subsequent legislation granted the applicants the right to vote in the Danish national parliamentary elections, their exclusion in 2015 was nonetheless a legally valid act by the Danish Government.

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77 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 16. 78 Alajos Kiss v Hungary, App no. 38832 (ECtHR, 20 May 2010). 79 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17. 80 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17. 81 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17. 82 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17. 83 János Fiala-Butora, Matthew S. Smith and Michael Ashley Stein, ‘Strobye and Rosenlind v Denmark: a surprising departure from the European Court of Human Rights' disability voting rights jurisprudence’ [2021] 2 European Human Rights Law Review 201.

C. Reaction to the Decision Notwithstanding the accurate application of national and EU law, many commentators have criticised this case from an inclusivity and human rights perspective. Milan Šveřepa, Director of Inclusion Europe, has reflected on the decision, describing the ECtHR’s decision as making allowances for voter suppression.84

Furthermore, the Natalia Suárez of the European Disability Forum has described the decision as amounting to the Court “favouring a legal scheme that discriminates against and excludes persons with disabilities as a reasonable restriction to the right to vote under Article 3 of Protocol 1 of the European Convention of Human Rights”.

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In essence, the wide discretion afforded to nations by the ECtHR on restrictions to the right to vote has been criticised as overly exclusive and unjust. They concluded by calling on the ECtHR to assume an “active lead in the promotion and protection of the rights of persons with disabilities to build more inclusive and democratic societies for all”.

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The issue of voting restrictions for persons with disabilities is clearly still one of contention for the ECtHR, which they continue to grapple with as evidenced in subsequent decisions such as Caamano Valle v Spain. 87

IV. Conclusion

The right to political participation of persons with disabilities is strongly enshrined in international human rights instruments, reflecting the imperative behind guaranteeing the political agency of persons with disabilities. Varied levels of progress have been made in lifting the legal and administrative barriers to political participation for persons with disabilities. The core issues which remain to be addressed relate primarily to the need for accessible communication of voting information and procedure, the accessibility of voting procedures and

84 Milan Šveřepa, ‘Voter Suppression? That’s fine by use says European Court of Human Rights’ (Inclusion Europe, 13 September 2021) < https://www.inclusion-europe.eu/voter-suppression-european-court-of-humanrights/> accessed 09 November 2021. 85 Natalia Suárez, ‘The European Court of Human Rights fails to protect the right to vote of persons with disabilities’ (European Disability Forum, 11 February 2021) < https://www.edf-feph.org/the-european-court-ofhuman-rights-fails-to-protect-the-rights-to-vote-of-persons-with-disabilities/> accessed 09 November 2021. 86 Natalia Suárez, ‘The European Court of Human Rights fails to protect the right to vote of persons with disabilities’ (European Disability Forum, 11 February 2021) < https://www.edf-feph.org/the-european-court-ofhuman-rights-fails-to-protect-the-rights-to-vote-of-persons-with-disabilities/> accessed 09 November 2021. 87 App no 43564/17 (ECtHR, 11 May 2021).

facilities themselves, and the provision of appropriate and specific supports for persons with disabilities seeking to exercise their right to political participation. Furthermore, issues relating to the disenfranchisement of persons with disabilities remain relevant, as the recent decisions of the ECtHR demonstrate. While these rights are being progressively realised, there remains significant progress to be made within this area, as the above research demonstrates.