GENEVA (30 September 2013) - States should not prevent persons with intellectual disabilities from voting, nor make their inclusion on an electoral register dependent on capacity assessments, a UN Committee has said after examining the case of six Hungarians who lost the right to vote when they were placed under legal guardianship.
The six people, who have intellectual disability, brought their complaint to the Geneva-based Committee on the Rights of Persons with Disabilities (CRPD) after they were unable to vote in Hungary’s parliamentary and municipal elections in 2010.
Under an article of the Hungarian constitution applicable at the time of the complaint, all persons under guardianship were automatically excluded from voting. The complainants argued that they were able to understand politics and participate in elections, and that the ban, which took no account of the nature of their disability and their individual abilities, was unjustified.
Hungary changed its constitution in 2012. The Fundamental Law now requires judges to make a decision on suffrage based on an individual assessment. The Hungarian authorities argued that under this new legislation, courts can only remove the right to vote in the case of a complete lack of legal capacity.
But the Committee found that this was still in breach of the Convention on the Rights of Persons with Disabilities, which under Article 29 requires States parties to ensure that persons with disabilities can effectively and fully participate in public and political life on an equal basis with others.
“Article 29 does not foresee any reasonable restriction, nor does it allow any exception for any groups of persons with disabilities,” the CRPD said in its decision.
“Therefore, an exclusion of the right to vote on the basis of a perceived or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability.”
The Committee, composed of 18 independent human rights experts, said that Hungary was obliged to reinstate the six people on the electoral roll.
The experts recommended that the Hungarian authorities prevent similar violations by considering repealing an article in the Fundamental Law* and an article in the Transitional Provisions to the Fundamental Law ** that are contrary to the Convention.
The CRPD members also called on Hungary to enact laws that recognize, without any “capacity assessment”, the right to vote for all persons with disabilities, “and provide for adequate assistance and reasonable accommodation”. The Committee said the Hungarian authorities should uphold and guarantee in practice the right to vote for persons with disabilities by ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use, “and where necessary, at [the person’s] request, allowing assistance in voting by a person of their choice”.
The CRPD monitors implementation of the Convention on the Rights of Persons with Disabilities by States Parties. It considered this case (Bujdosó v. Hungary, http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Jurisprudence.aspx ) under the Optional Protocol to the Convention which gives the Committee the competence to examine individual complaints.
*Article XXIII, paragraph 6 of the Fundamental Law:
A person disenfranchised by a court for committing an offence or due to his or her limited mental capacity shall have no suffrage.
** Article 26, paragraph 2 of the Transitional Provisions to the Fundamental Law (31 December 2011):
If a person whose capacity is limited or restricted by being subject to guardianship on the basis of a final court judgment, the person does not have the right to vote until the guardianship is terminated by a court or until a court decision returns to the person the right to vote.
For more information about the Committee on the Rights of Persons with Disabilities:
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