8
ALAJOS KISS v. HUNGARY JUDGMENT
rights in question to such an extent that their very substance was affected.
The grounds for exclusion from the right to vote (Article 70(5) of the
Constitution, see paragraph 11 above) had been incorporated into the
Constitution by Act no. 31 of 1989. According to the reasoning of the Act,
its purpose had been to regulate the basic rights and obligations in the spirit
of international human rights instruments, including the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
25. In identifying those eligible to vote, the general practice was to set a
minimum age requirement, normally that of majority, whereby States
automatically excluded from the right to vote all underage citizens (although
assessed individually, several minors could be found mature enough to
participate in public affairs). The objective was to ensure that only citizens
capable of assessing the consequences of their decisions, capable of making
conscious and judicious decisions and vested with other rights linked to the
age of majority, should participate in public affairs.
26. The exclusion from the right to vote of persons under guardianship
pursued the same legitimate aim. These persons, although adults, lacked the
capacity to manage their affairs, including the exercise of their right to vote,
owing to their mental state, unsound mind or pathological addiction. When
assessing whether to place the applicant under guardianship, the District
Court factored into its decision the applicant's resultant exclusion from the
right to vote, pursuant to the constitutional rule disenfranchising those
citizens who were incapable of assessing the consequences of their
decisions or of making conscious or judicious decisions.
27. Furthermore, in the Government's view, the prohibition complained
of was in compliance with the Venice Commission's Opinion no. 190/2002
(see paragraph 16 above) and cannot therefore be considered
disproportionate, all the more so since the applicant's right to vote would be
statutorily restored if his placement under guardianship was rescinded at one
of the periodical judicial reviews of his condition, or if a motion of the
applicant to the same end succeeded in view of his improved mental status.
b. The applicant
28. The applicant accepted in principle that the restriction in question
pursued a legitimate aim, as suggested by the Government (see paragraphs
25 and 26 above), without subscribing to the view that people under
guardianship in general could not make the responsible choices required for
participation in elections. However, he argued that States should enjoy a
narrow margin of appreciation in the matter, essentially because any
exclusion of people with disabilities from public life must be subject to
scrutiny as to whether it was compatible with relevant international human
rights requirements, particularly where there had been no substantive debate
at the domestic level on the appropriateness of the measure. He added that,