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CAAMAÑO VALLE v. SPAIN JUDGMENT – SEPARATE OPINION psychosocial disability, his or her legal capacity to make a particular decision is consequently removed” (see General comment No. 1 (2014), cited above, § 15). A much less far-reaching measure is possible, which fully respects the person’s legal capacity to vote, while at the same ensuring that that capacity is exercised by a person “capable of assessing the consequences” of any vote cast (see the terms used by the first-instance court in the present case, quoted in paragraph 8 of the present judgment). In this respect I should like again to refer to Nussbaum, who argues that in the case of a person with “profound cognitive disabilities” a surrogate may be designated who would be able to vote on that person’s behalf. Such an arrangement would reflect the principle “one person, one vote”, a principle that is not observed when the person with a disability is excluded altogether from voting (see M. Nussbaum, cited above, p. 347; see also M. Nussbaum, Creating Capabilities. The Human Development Approach, Belknap Press, Cambridge, Mass., 2011, 24). It should be noted that such an arrangement would be fully compatible with the CRPD. Article 12 § 3 of the CRPD provides that States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. The CRPD Committee explains that “support” is a broad term. It may encompass, depending on the type and intensity of the disability of the person, assistance by a trusted person in exercising his or her legal capacity (General comment No. 1 (2014), cited above, § 17). In the case of the exercise of the right to vote by a person with a cognitive disability, the trusted person can – and should – vote according to his or her interpretation of that person’s “will and preferences” (Article 12 § 4 of the CRPD; see General comment No. 1 (2014), cited above, § 21). 8. Thirdly, I must also address the majority’s reliance on a lack of consensus among the States Parties to Protocol No. 1 in favour of an unconditional right of persons with a mental disability to exercise their right to vote. In a matter such as the one at issue, which is the subject of a specific treaty, adherence to that treaty should be a strong indicator of the existence or lack of consensus. The CRPD has to date been ratified by 45 of the 47 member States of the Council of Europe (the only two States that are not party to the CRPD are Liechtenstein and Ukraine). It is true that a number of these 45 States have made declarations or reservations with respect to Articles 12 and/or 29 (for an overview of the declarations and reservations, see the dedicated website of the United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I V-15&chapter=4&clang=_en). This does not alter the fact that a very large 30

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Caamaño Valle v. Spain

Judgment

Question Presented: Whether the rescission of voting rights for disabled person under guardianship based on individualized assessment is legal under Article 3, Protocol No. 1 of the European Convention on Human Rights.

Alleged Acts: Applicant, Ms. Caamaño Valle, was the mother of a young woman with an intellectual disability. Around her daughter's 18th birthday, the mother requested that her daughter be placed under her legal guardianship (partial guardianship under Spanish law), but explicitly asked that the daughter not be deprived of her right to vote. Spanish courts placed the daughter under guardianship but also removed her voting rights, finding that she was "highly influenceable and not aware of the consequences of any vote that she might cast." The Spanish courts determined that the daughter lacked sufficient mental capacity to make a free and informed electoral choice, and that allowing her to vote would not serve the purpose of the democratic process.

Procedural history: Mother filed an application with the European Court of Human Rights, alleging that the disenfranchisement violated her daughter's right to vote under Article 3 of Protocol No. 1 to the European Convention on Human Rights.

Summary: The European Court of Human Rights (ECHR) ruled in Caamaño Valle v. Spain that Spain did not violate the applicant’s rights under Article 3 of Protocol No. 1 (right to vote) and Article 14 (prohibition of discrimination) in the case of her daughter, M., who has an intellectual disability.

Conclusion: Spain's disenfranchisement of the applicant's daughter did not violate the European Convention. The judgment upheld the removal of voting rights for a person with an intellectual disability where domestic courts had conducted an individualized assessment and found that the person was incapable of understanding the electoral process and susceptible to undue influence.

Legal Issue(s)

Accessibility

Applicable Law(s): Article 3, Protocol No. 1, and Article 14 of the European Convention on Human Rights

Region: Europe and Eurasia

Country: Spain

Language of Decision

English

Court: Human Rights Court

Election Type: Parliamentary

Date of decision: Aug 11, 2021

Geolocation

Latitude: 48.5964

Longitude: 7.7742

: Geolocation

Link: https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-210089%22]}

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CASE OF CAAMAÑO VALLE v. SPAIN.pdf
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Caamaño Valle v. Spain

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