CAAMAÑO VALLE v. SPAIN JUDGMENT – SEPARATE OPINION The majority distance themselves from the CRPD Committee’s position on the issue at stake, summarised above. They do so because of a lack of “consensus among the States Parties to Protocol No. 1 in the sense of an unconditional right of persons with a mental disability to exercise their right to vote”; they in fact see a consensus in the other direction, namely a prevailing view among the States Parties that “restrictions based on the mental capacity of the individual concerned” are permissible (see paragraph 59 of the judgment). I respectfully disagree. In my opinion the Court should have aligned its approach to that of the CRPD Committee, for the reasons that I will now try to set out. 6. In the first place, voting is more than just expressing a certain preference on a particular day, every few years. As is confirmed by the title of Article 29 of the CRPD, it forms part of the broader right to participate in political and public life. As eloquently stated by Martha Nussbaum, the exclusion of persons with cognitive disabilities from the right to vote means that these persons “are simply disqualified from the most essential functions of citizenship”, “they do not count”, “their interests are not weighed in the balance”, “they are not regarded as fully equal citizens, with a dignity commensurate with that of others” (see M. Nussbaum, “The Capabilities of Persons with Cognitive Disabilities”, Metaphilosophy, vol. 40, 2009, (331), at 347). Respect for human dignity is a strong argument for fully respecting each person’s right to vote. 7. Secondly, as underlined by the CRPD Committee in its general comment on Article 12 of the CRPD, there is a difference between legal capacity and mental capacity: “Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors. ... Article 12 of the [CRPD] makes it clear that “unsoundedness of mind” and other discriminatory labels are not legitimate reasons for the denial of legal capacity (both legal standing and legal agency). Under Article 12 of the [CRPD], perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity” (General Comment No. 1 (2014), cited above, § 13). I regret that the majority do not draw the above distinction. They accept the complete removal of the applicant’s daughter’s right to vote on the basis of her cognitive disability. This is exactly the kind of situation that the CRPD Committee denounced in 2014: “In most of the State party reports that the CRPD Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or 29