Strasbourg human rights court: people under partial guardianship should have the right to vote
Yesterday, 15 February 2022, the European Court of Human Rights (ECtHR) - the body tasked with overseeing the application of the European Convention on Human Rights (ECHR)—handed down its judgment in the case of Anatoly Marinov v. Bulgaria (application no. 26081/17). It concerned the applicant’s right to vote in parliamentary elections despite his status as a person placed under partial guardianship.
Marinov has been placed under guardianship since 2000 on the grounds of a mental disorder. Therefore, and pursuant to Article 42(1) of the Bulgarian Constitution, he was deprived of the right to vote in the election of state and local bodies and in referendums. Marinov and his guardian authorized a lawyer to take action to lift the ban. But the progress of the case was delayed due to an appeal. In the meantime, 2017 arrived, and the general election was held. After filing a fresh application to lift the guardianship, a few months later the court granted his application.
Before the ECtHR, Marinov complained that his automatic disenfranchisement due to being placed under guardianship violated his right to vote under Article 3 of Protocol No. 1 to the ECHR.
In this case, the Bulgarian government argued that the applicant's guardianship could have been revoked as early as 2015, but only at the request of the guardianship authority, while Marinov had tried to initiate the revocation himself. In 2017, following another judgment of the ECtHR—in the case of Stanev v. Bulgaria—a change in Article 340(2) of the Code of Civil Procedure gave the person under guardianship the right to request the revocation of his or her guardianship, which led to the court’s positive decision in Marinov’s subsequent case for revocation of his guardianship.
The ECtHR found, however, that the deprivation of the applicant’s right to vote was indiscriminate, automatically following from the fact of him being placed under guardianship, and that a proceeding to revoke guardianship would not separately address the issue of his right to vote. The judgment explains that, if the application to revoke the guardianship were dismissed, the restriction would remain without examination of the appellant’s capacity to make a conscious choice in exercising his right to vote. Therefore, the Court does not find a proceeding to revoke guardianship under Chapter Twenty-Eight of the Code of Civil Procedure to be an effective remedy.
The ECtHR notes that the legislature could leave it to the discretion of the national courts in each individual case whether a person who meets the criteria for being placed under guardianship has the capacity to vote or not; accordingly, to consider whether that right should be limited, irrespective of the decision on placement under guardianship as a whole. Under Bulgarian law, the restriction is automatic and blanket—by virtue of the guardianship placement only.
“The Court reiterates that the treatment as a single class of all those with intellectual or psychiatric disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny,” the judgment reads. “The Court therefore concludes that the indiscriminate removal of the voting rights of the applicant—without an individualised judicial review and solely on the basis of the fact that his mental disability necessitated that he be placed under partial guardianship—cannot be considered to be proportionate to the legitimate aim for restricting the right to vote […].”
The ECtHR found a violation of Article 3 of Protocol No. 1 of the ECHR and awarded the applicant EUR 3,000 for non-pecuniary damage and EUR 1,926 for legal costs.
“Guardianship in Bulgaria is a 19th century arrangement. It equates the legal capacity of a person under guardianship with that of minors, and placement under full guardianship is tantamount to civil death,” said Krassimir Kanev, chairman of the BHC and legal representative of the applicant in this case.
“This system needs to be seriously reformed. A number of international bodies and organisations are talking about the complete abolition of the restriction of legal capacity. And in our country, there was a bill that planned to replace the institution of guardianship with that of supported decision-making. It, too, is a kind of restriction of legal capacity in the interests of the person, and it can be applied in extreme cases, temporarily, with an ex officio review by a court at short intervals and with guarantees that supported decision-making is in the interests of the person who is being supported. This should be done on a case-by-case basis and in specific areas, not in general, as is currently the case,” said Kanev.
In 2016, several NGOs submitted to the Ministry of Justice a proposal for a bill to abolish the institution of guardianship, but due to strong opposition to it from judges and the academic community, it was abandoned. ♦