STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
99. Only persons covered by section 5 and who had also been declared
legally incompetent under section 6 of the Guardianship Act were excluded
from voting in general elections.
100. In order for a person to be declared legally incompetent under
section 6, two conditions had to be fulfilled. The first condition was that the
person in question had to be unable to manage his or her own affairs owing
to reasons, such as mental unsoundness or mental disability, set out under
section 5, and the second condition was that a legal incapacitation order was
necessary to prevent the relevant person from exposing his or her assets,
income or other financial interests to the risk of a major loss, or to prevent
financial exploitation. It followed from section 8(1) of the Act that a person
could not be deprived of his or her legal capacity if his or her interests could
be sufficiently safeguarded through guardianship under section 5. Under
section 10, a legal incapacitation order had to be quashed if the prescribed
conditions were no longer met. Domestic law thus required an assessment
of proportionality and proscribed an obligation to implement the least
intrusive measure, in other words, the principle of proportionality applied to
the imposition, content and lifting of the measures.
101. As regards the quality of the parliamentary review, having regard,
inter alia, to the historical and political context, the Guardianship Act and
its preparatory notes (see paragraphs 50-54 and 61-63 above), and the reply
of 17 March 2014 from the Minister for Justice to question no. 644 from the
Legal Affairs Committee of the Danish Parliament (see paragraph 60
above), the Court finds it established that the review of the necessity of the
general measure at issue, namely the disenfranchisement imposed as a
consequence of declaring a person legally incompetent, and its compliance
with section 29 of the Constitution, was indeed thorough.
102. It also notes that the number of persons who had been declared
legally incompetent was rather low, and the disenfranchisement in question
therefore affected a small group of persons, amounting to 0.046% of the
Danish population of voting age.
103. The Court will proceed to examine the quality of the judicial
review, and will have particular regard to the Supreme Court’s reasoning.
104. In its judgment of 18 January 2018, the Supreme Court (see
paragraph 17 above) explicitly took into account the applicable principles
under Article 3 of Protocol No. 1 and the relevant Convention case-law.
105. The Supreme Court observed that “strict requirements must be met
in order to deprive a person of his or her legal capacity and to maintain in
effect such a legal incapacitation order, and such requirements are closely
related to the issue of whether the person in question is able to foresee the
consequences of his or her decisions and to make conscious and judicious
decisions”.
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