STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
granted in 2016. At that time the right to vote had been extended to the
greatest extent possible, without having to resort to an amendment to the
Constitution.
89. Lastly, the Government pointed to the fact that other European
countries had made exceptions for persons without legal capacity with
regard to the right to vote, and that Contracting States should be allowed a
wide margin of appreciation in determining what procedures should be
followed in order to assess mentally disabled persons’ fitness to vote.
2. Submissions by the third party
90. The European Network of National Human Rights Institutions, a
Belgium-based NGO, submitted, inter alia, that recent changes in
legislation, jurisprudence and practices across the Contracting Member
states showed that there was a consensus, and common values, emerging
around the principle that the voting rights of persons with disabilities should
be guaranteed – including those of persons who were subject to a restriction
or removal of their legal capacity. That consensus could equally be inferred
from various resolutions, opinions, statements and recommendations from
international and regional human rights bodies, which had repeatedly
emphasised that the automatic link between the right to vote and one’s legal
capacity disproportionately infringed upon the political rights of persons
with disabilities.
3. The Court’s assessment
(a) General principles
91. The Court refers to its relevant case-law, as outlined in the judgment
of Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX:
“57. [T]he Court has established that [Article 3 of Protocol No. 1] guarantees
individual rights, including the right to vote and to stand for election (see MathieuMohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 2223, §§ 46-51). ...
58. The ... rights guaranteed under Article 3 of Protocol No. 1 are crucial to
establishing and maintaining the foundations of an effective and meaningful
democracy governed by the rule of law ...
59. ... [T]he right to vote is not a privilege. In the twenty-first century, the
presumption in a democratic State must be in favour of inclusion. ... Universal
suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited
above, p. 23, § 51, citing X v. Germany, no. 2728/66, Commission decision of
6 October 1967, Collection 25, pp. 38-41).
60. Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not
absolute. There is room for implied limitations and Contracting States must be
allowed a margin of appreciation in this sphere.
61. ... The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin
and Clerfayt, cited above, p. 23, § 52, and, more recently, Matthews v. the United
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