The ECHR was not violated by the deprivation of the right to vote of persons who had lost their legal capacity
JUDGMENT
Strøbye and Rosenlind v. Denmark 02.02.2021 (app. no. 25802/18 and 27338/18)
SUMMARY
The right to free elections and the discretion of states to regulate their legislation. Deprivation of voting regarding persons deprived of their legal capacity.
The applicants were brought under judicial protection with the consequent deprivation of the right to vote. According to national law, the electorate must be composed of persons with the required level of intellectual capacity. They filed a complaint for violation of their right to free elections and illegal discrimination.
The Court reiterated that the right to vote is essential for a meaningful democracy, but that the Member States have a wide margin of discretion in this area.
The ECtHR found that the State had made commendable efforts to regulate its electoral legislation in accordance with the Convention, and held that the difference in treatment of the applicants who had been placed under judicial protection was proportionate to the aim it was seeking to achieve. It therefore held that Article 14 and Article 3 of the First Additional Protocol had not been infringed.
PROVISIONS
Article 14
Article 3 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Tomas Strøbye and Martin Rosenlind, are Danish nationals who were born in 1966 and
1987 and live in Frederiksberg and Greve (Denmark) respectively.
In 1984 and 2009 respectively the applicants were deprived of their legal capacity. As a result, they
lost the right to vote.
They instituted proceedings against the Danish interior ministry, arguing that they had been denied
the right to vote in the 2015 parliamentary elections. The High Court of Eastern Denmark dismissed
the claims, finding that removing the right to vote from individuals that had been deprived of their
legal capacity was consistent with the legislation over many years and legal commentary, and that
Denmark’s international obligations did not affect that. The Supreme Court confirmed that decision,
noting that the right to vote was not absolute.
A public debate ensued, culminating in legislative amendments aimed at restoring voting rights to
some individuals who had lost them, without abolishing entirely the removal of legal capacity.
On 20 May 2019 and 9 November 2019 respectively the applicantsregained the right to vote in general
elections.
Relying on Articles 3 of Protocol No. 1 (right to free elections) to the Convention and Article 14
(prohibition of discrimination), the applicants complained that they had been illegally disenfranchised.
THE DECISION OF THE COURT…
The applicants argued that their disenfranchisement had been unjustified and arbitrary, questioning
its compatibility with Denmark’s international obligations. The Government asserted that the
restrictions had been proportionate to the legitimate aim pursued – ensuring voters had had the
required level of mental skills –, particularly, in contrast with other cases, as the restrictions had
applied only to a small, specific group of people.
The Court reiterated that the right to vote was essential for a meaningful democracy, but that member
States enjoyed wide discretion in that area. The Court noted that the applicants had lost their right to
vote as a result of having been declared legally incompetent, in accordance with the law. It stated that
the Danish legal situation had been comparable to that in many European States. The Court also
examined the case in the light of Denmark’s international treaty and human-rights obligations.
The Court accepted that it was objectively difficult to justify being allowed to vote in European
elections but not parliamentary elections. Nevertheless, the Court found that the legislature had made
laudable efforts to assess and address the situation over time, reflecting the changes in society. The
State had operated within its discretion under the Convention, in particular given the quality of
domestic judicial review of these matters.
The Court was also satisfied that the difference in treatment of the applicants had been proportionate
to the aim sought to be realised.
As a result, the Court concluded that there had been no violation of the applicants’ rights.
