Mr Ugo Mifsud BONNICI, European Commission for Democracy Through Law
(Venice Commission)
THE COUNCIL OF EUROPE ROLE IN PROMOTING PARTICIPATION
OF ALL CITIZENS IN DEMOCRATIC PROCESSES IN EUROPE:
VOTING RIGHTS OF PERSONS WITH DISABILITIES
Democracy provides the framework within which human beings in a community
can delegate, without surrendering their personal dignity, part of their selfdetermination to others, for the government of the community. A citizen in a
democracy, when participating actively (standing for election) or passively (voting
her/his choice) in this delegation of governance does not become a subject in
adhering to a commonwealth. It is imperative that this confluence of individual wills
into a collective will should not exclude any person or group of persons. Universal
participation is not only required as a fulfilment of the democratic premises, it is also
an obligation under the profile of human rights, in that it is demeaning of the human
dignity of any person to be delivered into the subjection of others against his will
and without justification.
Those states which styled themselves as democracies, decked with well written
Constitutions and observing the ritual of periodic elections, but which
disenfranchised part of their population have been shown in history as
fundamentally flawed. Sometimes, as was the case of the United States of America, a
bloody hard fought civil war was needed to rectify the position. The Union of South
Africa was more fortunate, in that international pressure and courageous resistance
brought about change and universal participation but the drag of the former
injustice is slow to disappear.
Notwithstanding the lessons of history some still labour under the delusion that non
fully inclusive “democracies” are sustainable. Time and again however it has been
shown that democracy is the result of an ethical trust towards liberty, justice, respect
for human dignity, equality and for the rule of law. Democracy can and usually does
bring in its train well being, prosperity and efficiency in the conduct of affairs, but
democracy must, first of all, also satisfy a basic yearning for justice and equality.
Hitherto western democratic development has seen a way of discarding through the
political process the former disenfranchising of majorities and minorities such as
those discriminated against because of means and property, of sex, of race, of
language or birth, of penal seclusion. This process was accelerated by the United
Nations’Human Rights Declaration of 1948 article 21 of which declares:
Mr Ugo Mifsud BONNICI, European Commission for Democracy Through Law
(Venice Commission)
(1) Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this
will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by equivalent
free voting procedures.
The use of the word “everyone” left no doubt as to the absolute commonality of
the right to participate, and this was further emphasized by the explicit phrase
”universal and equal suffrage”.
When the Council of Europe was founded in 1949, in the aftermath of a terrible
pan-european war and widespread denial of human rights under Fascist
dictatorships, and with the imminent threat of a takeover by a communist
ideology which would again remove the basic guarentees of human rights, the
rule of law and democracy as understood in the continent’s traditions, it was
stated in the Statute Article 1 (a) that :"The aim of the Council of Europe is to achieve a
greater unity between its members for the purpose of safeguarding and realising the
ideals and principles which are their common heritage and facilitating their economic
and social progress. The common heritage was an ethical consensus and an acquis of
popular expectations, which had been achieved through philosophical elaboration
and historical development. The safeguard of ideals and principles and their
realisation in practice, had priority over economic and social progress even
though, it was implied that it was through the safeguard and realisation of
principles and idesaks, that progress could come about.
The European Convention signed in Rome in 1950 which provided, for the first time,
international judicial sanction for Human Rights infringements through the
establishment of the European Human Rights Court at Strasbourg, further reiterated
this Right through article 3 of its Protocol number 1 Signed in Paris in 1952: The High
Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot,
under conditions which will ensure the free expression of the opinion of the people in the
choice of the legislature. So that:Everyone has the right to elect the government of
his/her country by secret vote. Without this right there can be no free and fair
elections. It guarantees the citizens’ free expression, the proper representativeness of
elected representatives and the legitimacy of the legislative and executive bodies,
and by the same token enhances the people’s confidence in the institutions.
The conscience of Europe with regard to the continuing disadvantages suffered by people
with disabilities was shown both in the Parliamentary Assembly as well as in the
Mr Ugo Mifsud BONNICI, European Commission for Democracy Through Law
(Venice Commission)
Ministers’meetings. Notable are the Ministerial Declaration on People with
Disabilities “Progressing towards full participation as citizens”, adopted at the
Second European Conference of Ministers responsible for integration policies for
people with disabilities held in Malaga (Spain) on 7 and 8 May 2003; the Action
Plan of the Third Summit of Heads of State and Government of the Council of
Europe (CM(2005)80 final), adopted in Warsaw on 17 May 2005, which laid down
the role and main responsibilities of the Council of Europe in the following years;
Recommendation 1592 (2003) by the Council of Europe Parliamentary Assembly
“Towards full social inclusion of people with disabilities”;
The most relevant and directly focused United Nations’ Convention on the Rights of
Persons with disabilities which was adopted on the 13.12.06 provides in its Article 29 –
bearing the title Participation in political and public life:
States Parties shall guarantee to persons with disabilities political rights and the opportunity
to enjoy them on an equal basis with others, and shall undertake to:
a. Ensure that persons with disabilities can effectively and fully participate in political
and public life on an equal basis with others, directly or through freely chosen
representatives, including the right and opportunity for persons with disabilities to
vote and be elected, inter alia, by:
i.
Ensuring that voting procedures, facilities and materials are appropriate,
accessible and easy to understand and use;
ii.
Protecting the right of persons with disabilities to vote by secret ballot in
elections and public referendums without intimidation, and to stand for
elections, to effectively hold office and perform all public functions at all levels
of government, facilitating the use of assistive and new technologies where
appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as
electors and to this end, where necessary, at their request, allowing assistance
in voting by a person of their own choice;
b. Promote actively an environment in which persons with disabilities can effectively
and fully participate in the conduct of public affairs, without discrimination and on
an equal basis with others, and encourage their participation in public affairs,
including:
i.
Participation in non-governmental organizations and associations concerned
with the public and political life of the country, and in the activities and
administration of political parties;
ii.
Forming and joining organizations of persons with disabilities to represent
persons with disabilities at international, national, regional and local levels.
In essence what the Convention implies is that people with disabilities do not only
possess all the civil and political rights recognised to all other citizens, but that states
Mr Ugo Mifsud BONNICI, European Commission for Democracy Through Law
(Venice Commission)
have an obligation to ensure that people with disabilities be enabled to exercise these
rights overcoming the obstacles in their path deriving from the disabilities. In other
words, people with disabilities should not be excluded either by legal or
administrative measures from the exercise of these rights and moreover positive
steps should be taken to assist them in their actual exercise.
The European Commission for Democracy through Law (Venice Commission), of
which I have the honour to form part, had adopted, in its 51st Plenary Session, July
2002 THE CODE OF GOOD PRACTICE IN ELECTORAL MATTERS, which listed the five
qualities underlying Europe’s electoral heritage as universal, equal, free, secret and
direct suffrage. The Code further stated in item I.1.1 that “Universal suffrage means in
principle that all human beings have the right to vote and to stand for elections”. In
d. of the same sub section it provides for Deprivation of the right to vote and to be
elected:i
Deprivation of the right to vote and to be elected:
i. provision may be made for depriving individuals of their right to vote and to be
elected, but only subject to the following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed; conditions for depriving individuals
of the right to stand for election may be less strict than for disenfranchising them;
iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious
offence.
v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only
be imposed by express decision of a court of law.
The GUIDELINES AND EXPLANATORY REPORT were approved in the 52nd Session of
October 2002.
The Venice Commission approved at its 84th Plenary Session in October 2010 an
INTERPRETATIVE DECLARATION TO THE CODE OF GOOD PRACTICE IN ELECTORAL
MATTERS ON THE PARTICIPATION OF PEOPLE WITH DISABILITIES IN ELECTIONS
on the basis of proposals from the European Co-ordination Forum for the Council of
Europe Disability Action Plan 2006-2015 (CAHPAH),
After considerable debate and scrutiny within the Council of Democratic Elections of
the Venice Commission of which I form part, a further revised version of the
Interpretative Declaration was adopted by that Council on the 15 December 2011,
and by the Plenary at its 89th session on the 16-17 December 2011.
I. THE CODE OF GOOD PRACTICE IN ELECTORAL MATTERS, as adopted by the European
Commission for Democracy through Law (Venice Commission) in October 2002,states that “the five
principles underlying Europe’s electoral heritage are universal, equal, free,secret and direct suffrage”
(item I). The Code further states in item I.1.1 that “Universal suffrage means in principle that all
human beings have the right to vote and to stand for elections”.
Mr Ugo Mifsud BONNICI, European Commission for Democracy Through Law
(Venice Commission)
1. People with disabilities should therefore be able to exercise their right to vote and participate in
political and public life as elected representatives on an equal basis with other citizens. The
participation of all citizens in political and public life and the democratic process is essential for
the development of democratic societies.
II. THE FOLLOWING COMPLETES THE PRINCIPLES STATED IN THE CODE
1. Universal suffrage
2. Universal suffrage is a fundamental principle of the European Electoral Heritage. People with
disabilities may not be discriminated against in this regard, in conformity with Article 29 of the
Convention of the United Nations on the Rights of Persons with Disabilities1 and the caselaw of the
European Court of Human Rights.2
3. Voting procedures and facilities should be accessible to people with disabilities so that they are able
to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting,
with respect to the principle that voting must be individual (the Code,item I.4.b).
4. The application of Universal Design principles3 and direct and/or indirect participation of the
user in all design stages are effective means for improving the accessibility of polling stations and
election procedures to cast one’s vote and for getting access to information on elections.
2. Equal suffrage
5. The principle of “equality of opportunity must be guaranteed for parties and candidates alike”
(The Code, item I.2.3.a). The application of this principle should be extended to include equality
of opportunity for people with disabilities who stand for elections.
1 The
Convention on the Rights of Persons with Disabilities was adopted on 13 December 2006 by the United
Nations in New York.
2 European Court of Human Rights, case of Kiss v. Hungary, application No. 38832/06, judgment 20 May 2010.
See in particular par. 43-44, with a reference to Article 29 of the UN Convention.
3 Recommendation CM/Rec(2009)8 of the Committee of Ministers to member states on achieving full
participation through Universal Design: Universal Design is a strategy which aims to make the design and
composition of different environments, products, communication, information technology and services accessible
and understandable to, as well as usable by, everyone, to the greatest extent in the most independent and
natural manner possible, preferably without the need for adaptation or specialised solutions. The terms “design
for all”, “integral accessibility”, “accessible design”, “inclusive design”, “barrier-free design”, “transgenerational
design” and “accessibility for all” are regarded as converging towards the term “Universal Design” used in this
text.
- 3 - CDL-AD(2011)045
3. Free suffrage
6. In the duty to “enable voters to know the lists and candidates standing for elections” (The
Code, item I.3.1.b.ii), the public authorities must ensure that the above information is available
and accessible, to the greatest extent possible and taking due account of the principle of reasonable
accommodation,4 in all necessary alternative formats under restriction of commensurability, legal
regulation and realistic feasibility. The information provided shall be easy to read and to understand.
4. Secret suffrage
7. The right of people with disabilities to vote by secret ballot should be protected, inter alia, by
“guaranteeing the free expression of the will of persons with disabilities as electors and to this
end, where necessary, at their request, allowing them to use assistance technologies and/or to
be assisted in voting by a person of their own choice5” in conditions which ensure that the
chosen person does not exercise undue influence.
4 Article
2 - Definitions of the United Nations Convention on the Rights of Persons with Disabilities; “reasonable
accommodation” means necessary and appropriate modification and adjustments, not imposing a
disproportionate or undue burden, to ensure to people with disabilities the enjoyment of human rights and
fundamental freedoms on an equal basis with others.
Mr Ugo Mifsud BONNICI, European Commission for Democracy Through Law
(Venice Commission)
5 (Article
29 (iii) of the United Nations Convention on the Rights of Persons with Disabilities; cf. item II.2 above,
and the Code, item I.4.b).
In essence what the Venice Commission’s Code of Practice with its interpretative
Declaration would tend to see removed were traditions and methods which in actual
fact disenfranchised people with disabilities by (a) blanket removal from electoral
registers of certain categories of these people especially those in institutions; (2) lack
of democratic sensibility in the provision of additional and compensatory means
which would make the whole democratic electoral process more accessible to people
with disabilities. The Commission is alerting the Governments and indeed the whole
population of the member states of the Council of Europe to their responsibilities in
a matter of respect for human rights, indeed a matter of justice and equality, as much
as of democratic practice and also of the due processes of law to be observed when
the right to vote or to stand of any single member of the community are suspended
or removed as result of the commission of certain specified crimes or of insanity.
Here the Commission in the wake of the other International documents is ensuring
that a person with disabilities has exactly the same rights at law as any other citizen.
The question is that this is not enough. The full accessibility to the whole electoral
exercise must be made possible by the provision of extra measures, legal,
administrative or even mechanical which could overcome the obstacles of disability.
Most physical disabilities and dystrophies do not in general prove insurmountable.
The question of blindness, partial or total, can be addressed by affording the
disabled person the assistance of a person of the disabled’s choice. Here again
however not only secrecy must be safeguarded but also one has to guard against the
possible intrusion of undue influence and family voting. Another area bristling with
difficulties is that of the definition of mental incapacity and the twilight zones of
certain conditions of people with Down’s syndrome and similar disabilities. One has
to be cautious so as not to allow too wide a berth of subjective discretion to the
Courts’ determination of mental deficiency. The starting point should be that every
person should be presumed sane and in full possession of judgment,
notwithstanding any medical expert’s description of a disability.
Perhaps we must also wage a cultural war against the prejudice which would tend
to discourage people with disabilities from engaging in active participation in the
political arena. We have seen in many countries Ministers with some disabilities,
even in one case total blindness from birth, performing their tasks with great
competence, some times adding extra passion to their commitment against
discrimination vis-a-vis other minorities.
The best test of the level of civilisation that we have achieved lies in the way that we
deal with the disadvantaged.