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Legally incapacitated persons must be allowed to vote in EP elections, says HFHR

The Helsinki Foundation for Human Rights has petitioned the Senate to amend the Electoral Code and to allow incapacitated persons to participate in the European Parliament elections. The disenfranchisement of incapacitated persons is contrary to international law and human rights standards.

No right to vote without full legal capacity

Currently, legally incapacitated persons in Poland cannot vote in any elections. They are disenfranchised regardless of the degree of incapacitation and their actual mental capacity. In the case of parliamentary, presidential and local government elections, incapacitated individuals are prohibited from participating in the electoral process based on the Polish Constitution. However, the prohibition of taking part in EP elections is based on the Electoral Code, a statutory law instrument. Consequently, a change of law that would ensure that incapacitated persons may vote in European elections does not require a constitutional amendment.

A contradiction with international human rights standards

The exclusion of incapacitated persons from the electoral process is contrary to binding international and EU law.

“In the past, the European Court of Human Rights rules in a case brought against Hungary that an automatic and complete restriction on the franchise of all legally incapacitated persons, regardless of their actual mental capacity, violated the provisions of the European Convention on Human Rights”, reminds Dr Marcin Szwed, the HFHR legal expert.

In its petition, the Foundation emphasised that the current national laws are also in conflict with EU law, which requires that elections to the European Parliament should be universal and free of any discriminatory restrictions. The Convention on the Rights of Persons with Disabilities, signed by both the European Union and Poland, is also relevant in this context. This Convention precludes the introduction of any restrictions on the exercise of voting rights by persons with disabilities.

An incapacitated person is going to vote, rules a court in a landmark decision

The Foundation was involved in a landmark case that led to awarding the right to vote in the European Parliament elections to a partially incapacitated person. The District Court in Nowy Sącz has waived the application of Polish provisions, considering them to be contrary to international and EU law. Ultimately, the individual concerned was entered in the voters’ register and could take part in the European Parliament elections.

The District Court held that “the utterly unjustified discrimination against persons with mental disorders is an excessive and disproportionate restriction. The fact of being partially incapacitated does not mean that such a person is incapable of discerning the political situation and making a rational and conscious electoral decision as well as realizing the consequences of such a decision. It is not permissible to automatically extend the consequences of partial incapacitation to the sphere of electoral law without an evaluation of the intellectual capacity of the incapacitated person.”

A change of law is needed

“The ruling of the District Court in Nowy Sącz is crucial and groundbreaking on a European scale but has not changed the law in Poland; the Electoral Code still contains provisions that deprive incapacitated persons of their electoral rights. That is why the legislator needs to step in and remove the legislative barriers that prevent incapacitated persons from exercising their political rights”, explains Jarosław Jagura, an attorney working for the HFHR.

In the Foundation’s view, all persons who are considered incapacitated under the law should be able to vote in elections to the European Parliament and no restrictions should be introduced in this respect, either of a general nature or even based on individual decisions.

 

Our petition to the Senate may be read here.

Check out the following links to see how the petition is being dealt with in the Senate.

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