STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
paragraphs 98, 99 and 102 of the judgment delivered on 22 May 2012 in Scoppola
v. Italy (no. 3).
The Supreme Court also observes that it follows from the legislation on elections
and the constitutions of a number of other European countries that persons deprived of
their legal capacity do not have the right to vote [it appears from the transcript that the
Supreme Court referred to a report by the European Union Agency for Fundamental
Rights of 21 May 2014 “The right to political participation for persons with
disabilities: human rights indicators”, see paragraph 71 below].
Against this background, the Supreme Court finds no basis for ruling that the
arrangement set out in section 29 of the Constitution is contrary to Article 3 of
Protocol No. 1 or to Article 14 read in conjunction with Article 3 of Protocol No. 1.
The Supreme Court also finds, as was also found by the High Court, that there is no
basis for ruling that section 29 of the Constitution is contrary to the Convention on the
Rights of Persons with Disabilities.
For this reason alone, the appellants are not entitled to compensation.”
18. The Supreme Court judgment attracted renewed focus among
politicians on the situation of persons who were both subject to
guardianship and had been deprived of their legal capacity, and who did not
have the right to vote in general elections. Consequently, several parties that
were not government parties at that time introduced private members’ bill
no. B 71, which sought that fewer persons subject to guardianship should be
excluded owing to their disability from the right to vote in general elections.
At the first reading of the bill in Parliament, the then Minister of Justice
expressed the view that the bill served a commendable purpose, and he
promised to examine the possibility of excluding fewer persons subject to
guardianship from the right to vote in general elections. After the reading of
the bill, a report was published saying that the Parliamentary Committee on
Social Affairs, the Interior and Children (Social-, Indenrigs- og
Børneudvalget) looked forward to discussing with the Government the
outcome of the analytical work launched by the Government.
19. In the light of this report, the Ministry of Justice carried out an
analysis of the rules within this field. On 3 October 2018, the Ministry of
Justice concluded, on the basis of that analysis, that section 29 of the
Constitution did not constitute a bar to an amendment to or repeal of the
guardianship rules aimed at allowing some of those persons who had been
deprived of their legal capacity to again be allowed to manage their own
assets in full or in part. The opinion of the Ministry of Justice was that a
person subject to guardianship who was barred only in part from managing
his or her assets was not “legally incompetent” within the meaning of the
Constitution and could therefore retain the right to vote in general elections.
20. Against that background, the then Minister of Justice introduced a
bill to amend the Guardianship Act and the Parliamentary Elections Act;
that amendment was passed by Parliament on 20 December 2018 and
entered into force on 1 January 2019. The following appears from the
explanatory notes to the bill:
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