STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
57. The reason for the statutory amendment was the political desire that
emerged following the Supreme Court judgment of 18 January 2018 to
bestow the right to vote in general elections upon as many citizens as
possible, as far as the Constitution allowed.
58. According to information received from the Agency of Family Law
(Familieretshuset), which considers applications for the revision of
guardianship orders, the Agency had received a total of seventeen
applications by 16 September 2019 for changing guardianship orders
involving the total deprivation of legal capacity to guardianship orders
involving the partial deprivation of legal capacity. Fourteen of those
applications have been decided on, and one guardianship order combined
with the total deprivation of legal capacity has been changed to an order on
guardianship involving the partial deprivation of legal capacity, the
consequence being that the relevant person now has the right to vote in
general elections. In three cases, the legal incapacitation order has been
terminated in its entirety.
D. Concerning the right to vote in European Parliament and local
and regional elections
59. Act no. 391 of 27 April 2016 gave persons deprived of their legal
capacity (under section 6 of the Guardianship Act) the right to vote in
European Parliament elections and in local and regional elections. It appears
from the preparatory notes to the Act that it was intended to bestow upon
this group of individuals the right to vote to the extent possible under the
Constitution. The relevant part of the statutory amendment (Bill no. 130 of
24 February 2016) reads as follows:
“The Government wishes to bestow the right to vote in nationwide elections in
Denmark upon as many citizens as possible within the framework of the Constitution.
Accordingly, it is proposed to amend the legislation on elections to allow persons who
are [both] subject to guardianship [and have been deprived of] of their legal capacity
under section 6 of the Guardianship Act, but who otherwise meet the conditions for
suffrage, the right to vote in European Parliament elections and in local and regional
elections.
There has been a demand for some time, including from the Danish Institute for
Human Rights, for an amendment to the legislation on elections to allow persons [who
are both] subject to guardianship and have been deprived of their legal capacity under
section 6 of the Guardianship Act the right to vote in all nationwide elections and
referendums in Denmark. Under current law, it is a condition for having the right to
vote in all nationwide elections and referendums in Denmark that one is not subject to
guardianship combined with deprivation of legal capacity under section 6 of the
Guardianship Act.
It is the assessment of the Government that the Constitution does not make it
possible to bestow the right to vote in general elections upon persons deprived of their
legal capacity as a consequence of a guardianship order under section 6 of the
Guardianship Act. On the other hand, the Constitution cannot be considered to
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