STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
106. The Supreme Court found that the purpose of disenfranchising
legally incompetent persons under section 29 of the Constitution pursued a
legitimate aim, as set out by the Court in Alajos Kiss (cited above).
107. The Supreme Court also found that such disenfranchisement had
been proportionate. In that respect it gave weight to the fact, as stated above,
that the requirements for declaring a person legally incompetent were strict,
that the restriction on the right to vote set out in section 29 of the
Constitution therefore affected a low number of persons, and that the
legislature had intended to afford the right to vote to the extent possible
under the Constitution, notably when passing the Guardianship Act in 1996,
and when passing Act no. 391 of 27 April 2016, which had given persons
deprived of their legal capacity the right to vote in elections for the
European Parliament and in local and regional elections. The case thus
differed significantly from the situation in Alajos Kiss (cited above).
Moreover, the Supreme Court considered that it could not be inferred from
the Court’s case-law that in order for a restriction on the right to vote in
respect of persons deprived of their legal capacity to be considered
compatible with Article 3 of Protocol No. 1, a specific and individual
assessment always had to be made of the relevant person’s mental capacity
to exercise the right to vote. It observed in that respect, as did the High
Court, that a specific and individual assessment of whether a person’s
mental capacity was sufficient to exercise the right to vote might give rise to
concern.
108. Lastly, the Supreme Court observed that other European countries
also had legislation restricting the right to vote in respect of persons who
had been deprived of their legal capacity.
109. Against this background, the Supreme Court found no violation of
Article 3 of Protocol No. 1 (or of Article 14 of the Convention).
110. The Court notes from the above that the Supreme Court thoroughly
examined the proportionality and justification of the limitation of the
applicants’ voting rights, and performed a balancing of interests, in the light
of the Court’s case-law, including Alajos Kiss (cited above). The quality of
the judicial review of the disputed general measure and its application in the
present case therefore militate in favour of a wide margin of appreciation.
111. A further factor of relevance to the scope of the margin of
appreciation is the existence or not of common ground between the national
laws of the Contracting States. Relying on the report by the European Union
Agency for Fundamental Rights of 21 May 2014 on “The right to political
participation for persons with disabilities: human rights indicators”, the
Supreme Court noted that other European countries also had legislation
restricting the right to vote in respect of persons who had been deprived of
their legal capacity. At the time, besides Denmark, it concerned Belgium,
Bulgaria, Cyprus, Estonia, Germany, Greece, Ireland, Lithuania,
Luxembourg, Malta, Poland, Portugal, Romania and Slovakia (see
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