STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
(see section 5), and the second condition is that a legal incapacitation order be
necessary to prevent the person in question from exposing his or her assets, income or
other financial interests to the risk of major loss, or to prevent financial exploitation.
Persons subject to guardianship solely under section 5 are legally competent, whereas
persons also deprived of their legal capacity under section 6 are legally incompetent.
It follows from section 8(1) that a person cannot be deprived of his or her legal
capacity if his or her interests can be sufficiently guarded through guardianship under
section 5. As opposed to persons who are only subject to guardianship under
section 5, persons deprived of their legal capacity under section 6 need more than a
guardian to guard their interests; they are often persons who act contrary to their own
best interests or risk being exploited by others.
Under section 10, a legal incapacitation order must be quashed if the prescribed
conditions are no longer met. The legal incapacitation order in respect of [one of the
two additional persons who joined the proceedings] has been quashed, in accordance
with that provision, and he is now solely subject to guardianship under section 5 and
consequently now has the right to vote in general elections.
Accordingly, strict requirements must be met in order to deprive a person of his or
her legal capacity and to maintain in effect such a legal incapacitation order, and such
requirements are closely related to the issue of whether the person in question is able
to foresee the consequences of his or her decisions and to make conscious and
judicious decisions.
The Guardianship Act, which was enacted in 1996, reduced the group of persons
declared legally incompetent and consequently disenfranchised in general elections as
compared with the group similarly disenfranchised under the former Danish Act on
Legal Competence (myndighedsloven). In 1990, just under 3,300 persons had been
declared legally incompetent, and in December 2017 about 1,850 persons had been
deprived of their legal capacity.
Danish Act no. 391 of 27 April 2016 gave persons deprived of their legal capacity
the right to vote in European Parliament elections and in local and regional elections.
It appears from the preparatory notes to the Act that it was intended to bestow upon
this group of individuals the right to vote to the extent possible under the Constitution.
The restriction on the right to vote set out in section 29 of the Constitution therefore
reflects an arrangement [ordning] that is considerably narrower than the Hungarian
measure deemed by the European Court of Human Rights in respect of Alajos Kiss to
be disproportionate.
The Supreme Court finds that it follows from that judgment that an arrangement
imposing a more limited restriction on the right to vote of persons suffering from a
mental disability as compared with the then applicable Hungarian measure might be
compatible with Article 3 of Protocol No. 1. It cannot be inferred from the judgment
that in order for a restriction on the right to vote of persons deprived of their legal
capacity to be considered compatible with Article 3 of Protocol No. 1, a specific and
individual assessment must always have been made of the relevant person’s mental
capacity to exercise the right to vote. The Supreme Court observes in this respect, as
did the High Court, that a specific and individual assessment of whether a person’s
mental capacity is sufficient [for that person] to exercise the right to vote may give
rise to concern. The case-law of the European Court of Human Rights concerning
restrictions on the right to vote and on eligibility to stand for election for reasons other
than mental disability also supports the view that a specific and individual assessment
is not always required to deprive a person of his or her right to vote – see in this
respect paragraphs 112 and 114 of the judgment delivered in Ždanoka v. Latvia and
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