ECtHR clarifies scope of positive obligations of national authorities regarding exercise of voting rights by disabled people
The European Court of Human Rights (ECtHR) has delivered its judgment in Toplak and Mrak v. Slovenia (applications nos. 34591/19 and 42545/19), assessing whether the lack of adequate measures to allow persons suffering from muscular dystrophy to vote in elections and in a national referendum is contrary to the European Convention on Human Rights (ECHR).
The case concerns two Slovenian nationals, whose mobility was impaired owing to disability and who used wheelchairs, who were not provided with adequate measures to allow them to vote in the 2019 elections to the European Parliament and in a 2015 national referendum. They complained of the lack of effective judicial means by which they could have requested an accessible polling station in advance, and also of the lack of any effective remedy by which to claim compensation for being discriminated against in exercising their right to vote.
Regarding the existence of an effective remedy, the ECtHR concluded that the applicants did not have it at their disposal with respect to their complaint concerning the 2015 Referendum, which resulted into a violation of Article 13 ECHR, taken together with the general prohibition of discrimination (Article 1 of Protocol No. 12 to ECHR).
As regards the necessary adaptations in voting arrangements, the ECtHR noted that it had not been argued that the applicable domestic legislation contained provisions divesting people with mobility impairments of their rights of political participation. The question was therefore not one of direct discrimination by way of unjustified differentiation, but rather of the compliance of the national authorities with their positive obligation to take appropriate measures to enable the applicants, whose mobility was impaired due to disability, to exercise their right to vote on an equal basis with others. In this regard, the ECtHR recalled that the prohibition of discrimination in Article 14 ECHR imposes on national authorities an obligation to make ‘reasonable accommodations’, understood as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case’ which people with disabilities are entitled to expect in order to ensure ‘the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.
Concerning participation in the 2015 Referendum, the ECtHR found no breach of Article 1 of Protocol No. 12. In this regard, the Strasbourg-based court noted that this kind of voting is organised ad hoc in buildings that otherwise serve other purposes, which might make it particularly difficult to ensure full accessibility in respect of the voting process for people with different types of disability in advance. This makes it essential that the domestic authorities react with the requisite diligence to ensure that people with disabilities can vote freely and by secret ballot. This was complied with in the case at hand, because the National Commission responded promptly and constructively to the applicants’ request that their respective polling stations be rendered accessible, so that even if the applicants did encounter certain problems when participating in the 2015 Referendum, those problems do not appear to have produced a particularly prejudicial impact on them and been such as to have reached the threshold of discrimination or to indicate indifference to their needs on the part of the respondent State.
Likewise, and concerning the participation in the 2019 EP Elections, the ECtHR dismissed the alleged breach of the prohibition of discrimination (Article 14 ECHR) read in conjunction with the right to free elections (Article 3 of Protocol No. 1). In this regard, it stressed that, because assistance to people with disabilities may take a variety of forms, the decision as to whether voting machines should be used for that purpose is to be made primarily by the national authorities. The ECtHR further took into account that the Slovenian Constitutional Court had already ruled that the lack of availability of voting machines was in compliance with the Constitution and with the international obligations of Slovenia, on the grounds that a very small number of people with disabilities had used voting machines in the past, that such machines could not assist people with all types of disabilities and that their provision was linked to high costs. Therefore, and having regard to the other options available to the applicants, especially the possibility of assistance by a person of his own choice, the ECtHR concluded that Slovenia could not be said to have failed to strike a fair balance between the protection of the interests of the community and respect for the applicants’ rights and freedoms, as safeguarded by the Convention.
The judgment is available here.