Alajos Kiss v. Hungary, No. 38832/06, ECtHR (Second Section), 20 May 2010

Automatic exclusion from the exercise of electoral rights following a partial guardianship order.

Art. 3 Prot. 1 ECHR

1. The Court acknowledged that the measure of disenfranchisement pursued a legitimate aim, namely to ensure that only citizens capable of assessing the consequences of their decisions and of making informed and judicious decisions participated in public affairs. However, Hungarian legislation did not distinguish between persons under full and partial protection and therefore affected a significant number of persons. Even if it was accepted that it was for the national legislature to decide on the procedure for assessing the eligibility of mentally disabled persons to vote, there was no evidence in the present case that the Hungarian legislature had ever attempted to weigh the conflicting interests or to assess the proportionality of the restriction.

2. The Court could not accept that an absolute ban on voting for any person under partial guardianship, regardless of their actual faculties, was within an acceptable margin of appreciation. For the State to act in this way it would have had to have strong reasons for applying restrictions to the fundamental rights of particularly vulnerable groups in society, such as the mentally disabled, who were at risk of legislative stereotyping, without a case-by-case assessment of their capacities and needs. The applicant had also lost his right to vote as a result of the imposition of an automatic and generalized restriction. Consequently, the indiscriminate deprivation of the right to vote, without an individualized judicial assessment, solely on the basis of mental disability requiring partial protection, could not be considered compatible with legitimate grounds for restricting the right to vote.
(The applicant, who had been diagnosed with manic depression some years earlier, was placed under partial guardianship in 2005. According to Article 14 of the Hungarian Civil Code, a partial guardianship order allows the court to limit the legal capacity - in particular, with regard to financial matters - of persons with 'reduced faculties'. However, by virtue of Article 70, 5 of the Hungarian Constitution, such an order also entails the automatic loss of the right to vote. The applicant was thus prevented from voting in the legislative elections of April 2006).