Deprivation of the right to vote regarding a person under partial guardianship without strict and individualized control of his / her abilities. Violation of the right to free elections
JUDGMENT
Anatoliy Marinov v. Bulgaria 15.02.2022 (app. no. 26081/17)
SUMMARY
Partial guardianship. Deprivation of the right to vote. Right to free elections.
The applicant had been under partial guardianship due to mental disorders. He automatically lost the right to vote. His application to regain legal capacity and all the rights deriving from it, was rejected for procedural reasons. The applicant was unable to vote in the national elections. He filed a complaint for violation of the right to free elections.
The Court found that such a measure of restricting persons who have been placed under judicial protection was legitimate, but noted that this general treatment of all persons with mental or psychiatric disabilities was questionable and the curtailment of their rights should be subject to strict judicial review.
In the present case, it found that the applicant had been deprived of the right to vote without strict individual control simply because he had a mild mental disorder and had been placed under partial guardianship.
The Court concluded that the indiscriminate removal of Mr Marinov’s voting rights – without individual judicial review and solely because he had been placed under partial guardianship – had
not been proportionate to the legitimate aim for restricting the right to vote. It awarded claimed EUR 3,000 in respect of non-pecuniary damage and EUR 1,926 in respect of costs and expenses.
PROVISION
Article 3 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Anatoliy Tsvetankov Marinov, is a Bulgarian national who was born in 1975 and lives
in Sofia.
In 1999 Mr Marinov was diagnosed with psychiatric disorders and was placed under partial
guardianship, by virtue of a court decision, the following year. In its decision, the court held that Mr
Marinov could not take good care of himself and was occasionally aggressive, but that his diagnosis
was not severe. As a result of being placed under partial guardianship, his right to vote was
automatically removed due to the Constitutional ban on voting rights for anyone under
guardianship.
In November 2015, Mr Marinov, through a lawyer authorised by him and his guardian, applied for
his legal capacity to be restored. The court noted that the application had been lodged by his
guardian and terminated the proceedings on that ground in February 2016. The court considered
that only the applicant could be a respondent in such proceedings; therefore, his guardian should
have submitted an address for him, so that he could be summoned in that capacity.
Following an unsuccessful appeal, Mr Marinov lodged a request for leave to appeal with the
Supreme Court of Cassation, arguing that he had been denied free and direct access to a court. The
Supreme Court of Cassation remitted the case to the Regional Court for the proceedings to be
reopened. In October 2016, the Regional Court terminated the proceedings again, reasoning that
Mr Marinov’s guardian, considered as a claimant, had failed to comply with the court’s instructions
to specify the respondent in the case and to provide an address at which he could be summoned.
As he was still declared legally incapable, Mr Marinov was unable to participate in the Bulgarian
parliamentary elections in March 2017.
A few weeks later, he lodged a fresh application for the restoration of his legal capacity. In
December 2017, the Sofia City Court, considering that he was able to manage his own affairs and
interests, restored his legal capacity and lifted his guardianship.
Relying on Article 3 of Protocol No. 1 to the Convention (right to free elections), Mr Marinov
complained that his automatic disenfranchisement on account of his being under partial
guardianship and without an individual judicial assessment had been disproportionate and had
violated his rights. He submitted that the exclusion of disabled people, including those suffering
from mental disorders, from the possibility to vote in elections contravened international standards.
THE DECISION OF THE COURT…
The Court noted that the essence of the applicant’s complaint was not that he had been divested of
his legal capacity, but that as such, he had been barred from participating in any form of election in
the country.
In the Government’s view, the removal of voting rights from those under guardianship ensured that
only persons capable of making informed and meaningful decisions could participate in choosing the
country’s legislature. They put forward that each person’s individual situation was assessed by the
national courts within the course of the proceedings to place that person under guardianship.
The Court was satisfied that there was a legitimate aim to the measure. However, it noted that the
restriction did not distinguish between those under total guardianship and those under partial
guardianship. Furthermore, there was nothing to show that the Bulgarian legislature had ever
sought to weigh the competing interests or to assess the proportionality of the Constitutional
restriction as it stood and thus open the way for the courts to analyse the capacity of a person to
exercise the right to vote, independently of a decision to place that person under guardianship. It
appeared, moreover, that such a possibility would not be in line with the domestic legal framework.
Mr Marinov had lost his right to vote as the result of an automatic, blanket restriction on the
franchise of those under partial guardianship with no individual judicial evaluation of his fitness to
vote. The Court reiterated that such blanket treatment of all those with intellectual or psychiatric
disabilities was questionable, and the curtailment of their rights must be subject to strict scrutiny.
The Court therefore concluded that the indiscriminate removal of Mr Marinov’s voting rights –
without an individual judicial review and solely on the basis of the fact that his mental disability
meant that he had been placed under partial guardianship – could not be considered to be proportionate to the legitimate aim for restricting the right to vote. There had accordingly been a
violation of Article 3 of Protocol No. 1 to the Convention.
Just satisfaction (Article 41)
The Court held that Bulgaria was to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary
damage and EUR 1,926 in respect of costs and expenses.
