The right to political participation of persons with mental health problems and persons with intellectual disabilities.
Date: 2010-11-29
Institutions: European Union Agency for Fundamental Rights
Subjects: discrimination based on disability, fundamental rights, mentally disabled person, political participation, right to vote, turnout of voters

The right to political participation of persons 
with mental health problems and persons 
with intellectual disabilities

October 2010

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The report addresses matters most closely related to the principle of non-discrimination (Article 21), the integration of persons 
with disabilities (Article 26), the right to vote and to stand as a candidate at elections to the European Parliament (Article 39) 
and the right to vote and to stand as a candidate at municipal elections (Article 40) all falling under the Chapters III ‘Equality’ 
and V ‘Citizens’ rights’ of the Charter of Fundamental Rights of the European Union.

Cover image: 

© Vladimir Cetinski – iStockphoto

05-08-08

A great deal of information on the European Union Agency for Fundamental Rights is available on the Internet. 
It can be accessed through the FRA website at www.fra.europa.eu

Cataloguing data can be found at the end of this publication.

FRA - European Union Agency for Fundamental Rights
Schwarzenbergplatz 11
1040 - Wien
Austria
Tel.: +43 (0)1 580 30 - 0
Fax: +43 (0)1 580 30 - 691
E-Mail: information@fra.europa.eu
fra.europa.eu

Reproduction is authorised, except for commercial purposes, provided the source is acknowledged.

Printed in Belgium

PRINTED ON WHITE CHLORINE-FREE PAPER

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The right to political participation of persons 
with mental health problems and persons 
with intellectual disabilities

October 2010

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Foreword

Since the entry into force of the UN Convention on the Rights of Persons with Disabilities (CRPD) on 3 May 2008, 
16 EU Member States have ratiﬁ ed the CRPD as of September 2010 and many more countries are at various stages of the 
ratiﬁ cation process. Now, with the anticipated accession of the European Union to the CRPD, protection of the rights of 
persons with disabilities will take another major step forward. The ﬁ rst ratiﬁ cation of an international human rights treaty 
by the EU marks a signiﬁ cant development in itself. For persons with disabilities, it means concretely that the rights and 
principles of the CRPD will be upheld EU-wide and that performances of the EU and the Member States will be under 
international scrutiny.

The CRPD requires a paradigmatic shift in the way our societies consider persons with disabilities. The Convention 
explicitly recognises the fundamental rights of persons with disabilities on an equal footing with every other individual. 
Nevertheless, the main challenge is to ensure that rights on paper are put into practice. Thus, the most signiﬁ cant 
development introduced in the CRPD is as follows: rather than persons with disabilities having to ﬁ t into the way society 
is organised, the responsibility is now on society to adapt to and accommodate persons with disabilities and their 
speciﬁ c needs. The close monitoring of changes in practice will see this ambition become reality.

This is the ﬁ rst project of the European Union Agency for Fundamental Rights (FRA) in the area of disability. It is carried 
out in the spirit of the CRPD. The project aims to assess the fundamental rights situation of some of the most vulnerable 
groups of persons with disabilities, namely those with mental health problems and those with intellectual disabilities.

This speciﬁ c report on the right to political participation of persons with intellectual disabilities and persons with mental 
health problems presents the preliminary results drawn from the legal component of the study. The right to vote and 
to be elected was chosen because it is a fundamental right that all citizens in the Union should be able to enjoy, on 
an equal basis. The report highlights international and European standards in this area and analyses the current legal 
framework in all 27 EU Member States, with the intention of contributing to knowledge about and the process of reform 
currently taking place in the EU Member States. 

Morten Kjærum 
Director

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Contents

FOREWORD .................................................................................................................................................................................. 3

INTRODUCTION .......................................................................................................................................................................... 7

1.  INTERNATIONAL AND EUROPEAN STANDARDS ........................................................................................................... 9
1.1.  A general right to political participation ............................................................................................................ 9
1.2.  A right specifi cally guaranteed to persons with intellectual disabilities and persons with mental 

health problems..................................................................................................................................................... 11

2.  THE POLITICAL PARTICIPATION SPECTRUM ................................................................................................................. 15
2.1.  Exclusion from political participation ............................................................................................................... 15
2.2.  Limited political participation ............................................................................................................................ 16
2.3.  Full political participation .................................................................................................................................... 18

3.  THE WAY FORWARD ........................................................................................................................................................... 21

ANNEX ......................................................................................................................................................................................... 23

Table of maps

Map 1: Exclusion from the right of political participation in the European Union ....................................................... 16
Map 2: Limited political participation in the European Union ......................................................................................... 17
Map 3: Full political participation in the European Union................................................................................................. 19

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Introduction

In 2009, the European Union Agency for Fundamental 
Rights (FRA) started its ﬁ rst project in the area of disability. 
This three-year project will assess the fundamental rights 
protection of persons with mental health problems and 
persons with intellectual disabilities. The project follows 
an established FRA socio-legal approach, which consists 
of legal research in 27 EU Member States during 2009-
2010 and is complemented with sociological research 
on the ground in eight EU Member States. Research is 
supported by the development of networks of partners 
advising the FRA with regard to the development 
and direction in the work. A dedicated and adapted 
communication policy will be developed in order to 
ensure that the research target groups are encompassed 
and are provided with accessible information.1

The FRA has decided to start its work in the area of 
disability by focusing on what the European Court of 
Human Rights (ECtHR) has described as “a particularly 
vulnerable group in society, who have suﬀ ered 
considerable discrimination in the past,”2 namely, persons 
with intellectual disabilities and persons with mental 
health problems. While recognising that these are two 
separate groups, both suﬀ er similar fates as they are too 
often stigmatised and excluded by society.

It is diﬃ  cult to ﬁ nd an agreement on a deﬁ nition of the 
two groups studied. Nonetheless, the report will use the 
following deﬁ nitions:3

A person with intellectual disability has life-long 
development needs. Intellectual disability is a 
condition of slow development, where medication has 
no eff ect.

A person with mental health problems is a patient. 
Mental illness can be cured or stabilised with 
medication, psychotherapy or other support systems.3

The FRA is aware that depending on the jurisdiction, 
the country or the organisation, diﬀ erent terms are 
used to refer to the two groups of individuals studied. 
After careful consultation with partner organisations 
representing these groups of persons, the Agency has 
decided to refer to “persons with intellectual disabilities” 
and “persons with mental health problems”. In some 
cases, in order to avoid repetition, the reader will ﬁ nd a 
reference to “persons with disabilities”; such reference is 
done in the spirit of the UN Convention on the Rights of 

1 

2 

3 

 See for additional information on this speciﬁ c project: http://www.fra.
europa.eu.
 ECtHR, Alajos Kiss v. Hungary, No. 38832/06, judgment of 20 May 2010, 
paragraph 42.
 Inclusion Europe and Mental Health Europe, The Diﬀ erence between 
Mental Illness and Intellectual Disability (2004), available at http://www.
inclusion-europe.org and http://www.mhe-sme.org.

Introduction

Persons with Disabilities (CRPD) and is not intended in any 
way to undermine the diﬀ erences between both groups.

One of the Agency’s key tasks is to provide EU Institutions 
and EU Member States with comparable information on 
the situation in the Union. At a time when the European 
Union as well as its 27 Member States are in the process 
of acceding to the CRPD, the FRA, pursuant to its role, 
collected information on the fundamental rights situation 
of persons with disabilities in the Union. This information 
is complementary to the work of other organisations such 
as the Council of Europe (CoE), which is currently in the 
process of implementing its comprehensive Disability 
Action Plan (2006-2015).

While further results from the FRA disability project will 
be published in the course of 2011 and 2012, the Agency 
is publishing preliminary ﬁ ndings drawn from the legal 
research. This research has already been carried out in 
order to assist EU Member States who are presently 
undertaking reforms in this area.

The FRA chose to publish a short report on the right to 
political participation, which forms one part of a wider 
study on the fundamental rights of persons with mental 
health problems and persons with intellectual disabilities, 
for two main reasons. The right to vote is essential in our 
democratic countries. Furthermore, it exempliﬁ es the 
three key principles of the disability strategy grounded in 
the CRPD, namely: non-discrimination, equality and active 
inclusion.

The ﬁ ndings presented here are based on data collected 
by the FRA FRALEX network of legal experts. Additional 
information was gathered through exchanges with key 
partners including the European Commission Disability 
High Level Group, the European Co-ordination Forum for 
the Council of Europe Disability Action Plan (2006-2015), 
two major non-governmental organisations (NGOs) in 
this ﬁ eld, Mental Health Europe and Inclusion Europe,4 
and several national human rights institutions working in 
the area of disability. The FRA expresses its gratitude for 
these valuable contributions. The Agency emphasises, 
however, that the conclusions contained in this report 
represent the views of the FRA and not necessarily any of 
its collaborating organisations.

This report begins with an analysis of the key international 
and European principles relating to the right to political 
participation. The situation in EU Member States is 
summarised and compared in Section 2. The report then 
presents the legal situation in the EU Member States and 
concludes with some possible ways forward.

4 

 See in particular the project ‘Accommodating Diversity for Active 
Participation in European Elections’ (ADAP); http://www.voting-for-all.eu/.

7

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1.  International and European standards

1. International and European standards

1.1.  A general right to political 

participation

Article 21 of the Universal Declaration 
of Human Rights (1948)

(1)  Everyone has the right to take part in the 

government of his country, directly or through 
freely chosen representatives. (…)

(3)  The will of the people shall be the basis of the 
authority of government; this will shall be 
expressed in periodic and genuine elections which 
shall be expressed in periodic and genuine elections 
which shall be by universal and equal suff  rage and 
shall be held by secret vote or by equivalent free 
voting procedures.

Article 25 of the International Covenant 
on Civil and Political Rights (1966)

Every citizen shall have the right and the opportunity, 
without any of the distinctions mentioned in article 2 
and without unreasonable restrictions:

(a)  To take part in the conduct of public aff  airs, directly 

or through freely chosen representatives;

(b)  To vote and to be elected at genuine periodic 

elections which shall be by universal and equal 
suff  rage and shall be held by secret ballot, 
guaranteeing the free expression of the will of the 
electors; (…)

The ri ght to political participation has a long and 
disputed history.5 Solemnly proclaimed by Article 21 of 
the Universal Declaration of Human Rights, it became 
legally binding with its inclusion in the International 
Covenant on Civil and Political Rights (ICCPR). In 1996, 
the UN Human Rights Committee (HRC) adopted a 
General Comment on Article 25 ICCPR. In interpreting 
this Article, the HRC acknowledged that limitations to the 
right to vote are permissible. However, conditions on the 
exercise of these rights “should be based on objective 
and reasonable criteria”.6 For example, for the Committee, 
a higher age requirement to be elected to a certain 
post could be considered as a legitimate limitation. 
However, “no distinctions are permitted between citizens 
in the enjoyment of these rights on the ground of race, 
colour, sex, language, religion, political or other opinion, 
national or social origin, property, birth or other status.”7 

Furthermore, the HRC considered it “unreasonable 
to restrict the right to vote on the ground of physical 
disability or to impose literacy, educational or property 
requirements”.8 Nevertheless, according to the Human 
Rights Committee, “mental incapacity may be a ground 
for denying a person the right to vote or to hold oﬃ  ce”.9 
As the next section will show, the HRC interpretation will 
probably need to evolve in order to take due account 
of the developments in international human rights 
protection in the disability area.

Article 3 of Protocol No. 1 to the European 
Convention on Human Rights (1952)

The High Contracting Parties undertake to hold free 
elections at reasonable intervals by secret ballot, under 
conditions which will ensure the free expression of the 
opinion of the people in the choice of the legislature.

At the European level, the right to free elections is 
guaranteed by Article 3 of Protocol No. 1 to the European 
Convention on Human Rights (ECHR). It was initially 
unclear whether the Convention’s drafters wanted to 
conﬁ ne themselves solely to the democratic structures 
of the ECHR Member States or to guarantee an individual 
right to free elections for everyone.10 The European 
Court of Human Rights (ECtHR) case-law clariﬁ ed this. 
In its landmark judgment of Mathieu-Mohin and Clerfayt 
v. Belgium of 1987,11 the ECtHR conﬁ rmed that Article 
3 of Protocol No. 1 protects the “subjective right of 
participation” (paragraph 51) – that is, the right to vote 
and the right to be elected (also referred to as the active 
and passive right to vote).

ECtHR case-law has since then conﬁ rmed this initial 
approach, emphasising that these rights “are crucial 
to establishing and maintaining the foundations of an 
eﬀ ective and meaningful democracy governed by the 
rule of law”.12

In the seminal case of Hirst v. the United Kingdom No. 2, 
which dealt with the blanket ban on voting rights 
imposed on convicted prisoners in the United Kingdom, 
the ECtHR stated further that:

5 

6 

7 

 See the historical background of Article 25 ICCPR, Nowak, UN Covenant 
on Civil and Political Rights – CCPR Commentary (2005), pp. 566 ﬀ .
 Human Rights Committee, General Comment No. 25: ‘The right to 
participate in public aﬀ airs, voting rights and the right of equal access to 
public service (Article 25)’, UN doc. CCPR/C/21/Rev.1/Add.7 (12 July 1996), 
paragraph 4.
 Ibid., paragraph 3.

8 
9 
10 

11 

12 

 Ibid., paragraph 10.
 Ibid., paragraph 4.
 See Harris, O’Boyle and Warbrick, Law of the European Convention on 
Human Rights, 2nd Ed. (2009), p. 712.
 ECtHR, Mathieu- Mohin and Clerfayt v. Belgium, No. 9267/81, judgment 
of 2 March 1987, paragraph 46-51.
 ECtHR, Hirst v. the United Kingdom No. 2 (GC), No. 74025/01, judgment of 
6 October 2005, paragraph 58.

9

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

“… the right to vote is not a privilege. In the twenty-
ﬁ rst century, the presumption in a democratic State 
must be in favour of inclusion… Universal suﬀ rage has 
become the basic principle (…). Any departure from [this] 
principle risks undermining the democratic validity of the 
legislature thus elected and the laws it promulgates.”13

Although no speciﬁ c limitations to the right to free 
elections are included in Article 3 of Protocol No. 1 
(unlike Articles 8 to 11 ECHR), the ECtHR has recognised 
that the right to vote is not absolute.14 Some restrictions 
foreseen by national legislation are permissible. But 
the ECtHR always inquires as to whether limitations 
imposed are impinging on the “free expression of the 
opinion of the people in the choice of the legislature”. 
In doing so, the ECtHR “looks for arbitrariness or a lack of 
proportionality”15 in the restrictive measures introduced 
by national authorities. At the same time, the ECtHR 
recognises that electoral systems in Europe are very 
diverse. The European Judges are therefore prepared to 
leave Member States a wide discretion (“wide margin of 
appreciation”) as to how to organise electoral processes.

Article 3 of Protocol No. 1 refers to “the choice of the 
legislature”. In doing so, the scope of this Article is limited 
to certain types of elections. But, according to the ECtHR, 
it is not restricted to the election of national parliaments.16 
Consequently, in the landmark judgment of Matthews v. 
the United Kingdom, the ECtHR considered that elections 
to the European Parliament are included in the scope of 
Article 3 of Protocol No. 1.17

The Charter of Fundamental Rights of the European 
Union (CFR) and the EU Treaties also apply. Article 39 
CFR guarantees to “every citizen” the right to vote and 
to stand as a candidate at elections to the European 
Parliament while Article 40 CFR protects the right to 
vote and to stand as a candidate at municipal elections. 
These rights to vote have to be read in conjunction with 
Article 10 on the Treaty of the European Union (TEU) 
and Article 22 of the Treaty on the Functioning of the 
European Union (TFEU) (providing for the right to vote in 
European Parliament elections and municipal elections)18 

 ECtHR, Hirst v. the United Kingdom No. 2, paragraphs 59 and 62.
 See ECtHR, Mathieu- Mohin and Clerfayt v. Belgium, paragraph 52.
 See Harris, O’Boyle and Warbrick, Law of the European Convention on 
Human Rights, 2nd Ed. (2009), p. 714.
 See for case-law references, Harris, O’Boyle and Warbrick, Law of the 
European Convention on Human Rights, 2nd ed. (2009), pp. 730 ﬀ .
 ECtHR, Matthews v. the United Kingdom (GC), No. 24833/94, judgment of 
18 February 1999.
 Article 10 TEU states: 1. The functioning of the Union shall be founded on 
representative democracy. 2. Citizens are directly represented at Union 
level in the European Parliament. (…)
 Article 22 TFEU states: 1. Every citizen of the Union residing in a Member 
State of which he is not a national shall have the right to vote and to 
stand as a candidate at municipal elections in the Member State in 
which he resides, under the same conditions as nationals of that State. 
This right shall be exercised subject to detailed arrangements adopted 
by the Council, acting unanimously in accordance with a special 

13 
14 
15 

16 

17 

18 

10

as well as with Directive 93/10919 and Directive 94/8020 
(as adapted several times to organise the participation of 
EU citizens from new Member States).21 In application of 
the non-discrimination principle, these legal norms place 
national and non-national EU citizens on an equal footing 
as regards the right to vote for and be elected to the 
European Parliament and municipal elections.

Finally , the Venice Commission’s Code of Good Practice 
in Electoral Matters of 2002, albeit a soft law document, 
provides interesting guidelines for the proper conduct 
of democratic elections.22 The document includes the 
Commission’s guidelines as to the circumstances in which 
there may be a deprivation of the right to vote or to be 
elected. It states in its Guideline 1.1.d that: “i. provision 
may be made for depriving individuals of their right to 
vote and to be elected, but only subject to the following 
cumulative conditions: ii.  it must be provided for by 
law; iii.  the proportionality principle must be observed; 
conditions for depriving individuals of the right to stand 
for election may be less strict than for disenfranchising 
them; iv.  the deprivation must be based on mental 
incapacity or a criminal conviction for a serious oﬀ ence; 
v.  Furthermore, the withdrawal of political rights or 
ﬁ nding of mental incapacity may only be imposed by 
express decision of a court of law.”23

In sum, the right to political participation is legally 
protected by international and European instruments. Its 
importance for a well-functioning democratic process 
transpires from the texts and the interpretation provided 
by diﬀ erent bodies in charge of implementation. 

legislative procedure and after consulting the European Parliament; these 
arrangements may provide for derogations where warranted by problems 
speciﬁ c to a Member State. 
 2. Without prejudice to Article 223(1) and to the provisions adopted for 
its implementation, every citizen of the Union residing in a Member State 
of which he is not a national shall have the right to vote and to stand as 
a candidate in elections to the European Parliament in the Member State 
in which he resides, under the same conditions as nationals of that 
State. This right shall be exercised subject to detailed arrangements 
adopted by the Council, acting unanimously in accordance with a special 
legislative procedure and after consulting the European Parliament; these 
arrangements may provide for derogations where warranted by problems 
speciﬁ c to a Member State.
 Council Directive 93/109/EC of 6 December 1993 laying down detailed 
arrangements for the exercise of the right to vote and stand as a candidate 
in elections to the European Parliament for citizens of the Union residing in 
a Member State of which they are not nationals, OJ L 329, 30.12.1993, pp. 
34-38.
 Council Directive 94/80/EC of 19 December 1994 laying down detailed 
arrangements for the exercise of the right to vote and to stand as a 
candidate in municipal elections by citizens of the Union residing in a 
Member State of which they are not nationals, OJ L 368, 31.12.1994, pp. 
38-47.
 See the latest adaptation: Council Directive 2006/106/EC of 20 November 
2006, OJ L. 363 of 20.12.2006, pp. 409-410.
 See the European Commission for Democracy through Law (the Venice 
Commission), Code of Good Practice in Electoral Matters – Guidelines and 
Explanatory Report, adopted by the Venice Commission at 52nd session 
(18-19 October 2002), Opinion No. 190/2002, doc. CDL-AD (2002) 23 rev.
 Ibid., pp. 5-6.

19 

20 

21 

22 

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1. International and European standards

their large number).”24 However, as shown in the previous 
section, some limitations to the right to vote are legitimate, 
in particular when it comes to persons with intellectual 
disabilities and persons with mental health problems.

UN 

UN Convention on the Rights of 
Persons with Disabilities (2006)

Article 1 – Purpose 

The purpose of the present Convention is to promote, 
protect and ensure the full and equal enjoyment of 
all human rights and fundamental freedoms by all 
persons with disabilities and to promote respect for 
their inherent dignity.

Persons with disabilities include those who have 
long-term physical, mental, intellectual or sensory 
impairments which in interaction with various barriers 
may hinder their full and eff ective participation in 
society on an equal basis with others.

Notwithstanding the Human Rights Committee’s 
interpretation of Article 25 ICCPR or the Guidelines 
adopted by the Venice Commission, when read in 
conjunction with each other, Articles 1 and 29 CRPD 
guarantee the active and passive right to vote of persons 
with intellectual disabilities and of persons with mental 
health problems. In the absence of an authoritative 
interpretation of these norms by the UN Committee on 
the Rights of Persons with Disabilities, it is not yet possible 
to aﬃ  rm with certainty the scope of protection provided 
by Article 29 CRPD. One can only infer that the deprivation 
of the right to political participation of persons with 
disabilities that was considered allowable before the entry 
into force of the CRPD would need to be reconsidered by 
the Parties to the CRPD.

Such an approach is supported by several non-binding 
legal instruments adopted unanimously by the 
Committee of Ministers of the Council of Europe.

According to general human rights law, the right to 
vote is not an absolute right and, in some cases, it can 
be limited, in particular in cases of incapacity. Persons 
with intellectual disabilities and persons with mental 
health problems are directly concerned by this limitation. 
The following section will introduce recent legal 
developments that speciﬁ cally protect rights to political 
participation of persons with disabilities.

1.2.  A right specifi cally guaranteed 
to persons with intellectual 
disabilities and persons with 
mental health problems

UN Convention o n the Rights of 
Persons with Disabilities (2006)

Article 29 – Pa rticipation in political and public life

States Parties shall guarantee to persons with 
disabilities political rights and the opportunity to 
enjoy them on an equal basis with others, and shall 
undertake to: 

(a)  Ensure that persons with disabilities can eff ectively 
and fully participate in political and public life on an 
equal basis with others, directly or through freely 
chosen representatives, including the right and 
opportunity for persons with disabilities to vote and 
be elected, inter alia, by: 

(i)  Ensuring that voting procedures, facilities and 

materials are appropriate, accessible and easy to 
understand and use; 

(ii)  Protecting the right of persons with disabilities 
to vote by secret ballot in elections and public 
referendums without intimidation, and to stand 
for elections, to eff ectively hold offi  ce and perform 
all public functions at all levels of government, 
facilitating the use of assistive and new 
technologies where appropriate; 

(iii)  Guaranteeing the free expression of the will of 

persons with disabilities as electors and to this end, 
where necessary, at their request, allowing assistance 
in voting by a person of their own choice; (…)

Article 29 of the Convention on the Rights of Persons with 
Disabilities (CRPD) provides that the Parties should ensure 
that persons with disabilities can eﬀ ectively and fully 
participate in political and public life on an equal basis with 
others, directly or through freely chosen representatives, 
including the right and opportunity for persons with 
disabilities to vote and be elected. Gerard Quinn 
underlines the importance of this Article “since persons 
with disabilities typically lack political impact (despite 

24 

 G. Quinn, ‘A Short Guide to the United Nations Convention on the Rights of 
Persons with Disabilities’, 1 European Yearbook of Disability Law, 2009, p. 108.

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

Recommendation Rec(2006)5 
of 5 April 2006

The participation of all citizens in political and public 
life and the democratic process is essential for the 
development of democratic societies. Society needs 
to refl ect the diversity of its citizens and benefi t from 
their varied experience and knowledge. It is therefore 
important that people with disabilities can exercise 
their rights to vote and to participate in such activities.25

In a nutshell, Article 12 CRPD stipulates that the equality 
principle between persons with disabilities and everyone 
else applies also to legal capacity. However, as will be 
shown in the next section, in many EU Member States 
deprivation of the right to vote is often directly, and 
sometimes automatically, linked to the loss of legal 
capacity.28 Yet, in 1999, the Council of Europe Member 
States recommended that the deprivation of the right to 
vote should not be automatically linked to the loss of 
legal capacity or any other protecting measure 
(such as guardianship).

Recommendation Rec(2004)10 
of 22 September 2004

Recommendation R(99)4 
of 23 February 1999

Article 4 – Civil and political rights 

Principle 3 – Maximum preservation of capacity

1.  Persons with mental disorder should be entitled to 

exercise all their civil and political rights. 

2.  Any restrictions to the exercise of those rights 

should be in conformity with the provisions of the 
Convention for the Protection of Human Rights and 
Fundamental Freedoms and should not be based on 
the mere fact that a person has a mental disorder.26 

“... 2.  In particular, a measure of protection should 
not automatically deprive the person concerned of 
the right to vote, or to make a will, or to consent or 
refuse consent to any intervention in the health fi eld, 
or to make other decisions of a personal character at 
any time when his or her capacity permits him or her 
to do so.”29

•  How can the political participation of persons with 
disabilities be guaranteed? 2526

•  Are possible restrictions in conformity with the current 
international standards?

These questions still need to ﬁ nd authoritative answers, 
but the following paragraphs provide some guidance. 
Initially, however, it is essential to refer to the concept of 
legal capacity. As shown in Section 2, this legal concept is 
pivotal. Indeed, the evolution in the understanding of 
legal capacity, as now deﬁ ned in the CRPD, 
is a cornerstone of this Convention.27

UN Convention on the Rights of 
Persons with Disabilities (2006)

Article 12 – Equal recognition before the law 

1. States Parties reaffi  rm that persons with disabilities 
have the right to recognition everywhere as persons 
before the law. 

2. States Parties shall recognize that persons with 
disabilities enjoy legal capacity on an equal basis with 
others in all aspects of life. (…)

 Action line No.1: Participation in political and public life, Recommendation 
Rec(2006)5 of the Committee of Ministers to Member States on the 
Council of Europe Action Plan to promote the rights and full participation 
of people with disabilities in society: improving the quality of life of people 
with disabilities in Europe 2006-2015.
 Recommendation Rec(2004)10 of the Committee of Ministers to Member 
States concerning the protection of the human rights and dignity of 
persons with mental disorder.
 Given its importance, the FRA will prepare a dedicated publication on this topic.

25 

26 

27 

12

Against this background, and for the ﬁ rst time, the 29 
European Court of Human Rights had to decide a case 
in which the applicant complained about his automatic 
disenfranchisement due to his mental health problem. 
In the landmark judgment of Alajos Kiss v. Hungary, the 
ECtHR unanimously found a violation of Article 3 of 
Protocol No. 1.30 Mr Kiss suﬀ ered from manic depression 
and was placed under partial guardianship. Under Article 
70 (5) of the Hungarian Constitution, persons placed 
under total or partial guardianship lose their right to 
vote. In assessing the proportionality of this measure, 
the ECtHR noted that the Hungarian legislature never 
“sought to weigh the competing interests or to assess 
the proportionality of the restriction” (paragraph 41). 
The Court went further in denying a wide margin of 
appreciation to Hungarian authorities since, “if a restriction 
on fundamental rights applies to a particularly vulnerable 
group in society, who have suﬀ ered considerable 
discrimination in the past, such as the mentally disabled, 
then the State’s margin of appreciation is substantially 
narrower and it must have very weighty reasons for the 
restrictions in question (…). The reason for this approach, 
which questions certain classiﬁ cations per se, is that 
such groups were historically subject to prejudice with 
lasting consequences, resulting in their social exclusion. 
Such prejudice may entail legislative stereotyping which 
prohibits the individualised evaluation of their capacities 

28 

29 

30 

 See Bartlett, Lewis, Thorold, Mental Disability and the European 
Convention on Human Rights, 2007, p. 196.
 Recommendation R(99)4 of the Committee of Ministers to Member States 
on Principles Concerning the Legal Protection of Incapable Adults.
 ECtHR, Alajos Kiss v. Hungary, No. 38832/06, judgment of 20 May 2010.

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1. International and European standards

In a similar way, the Council of Europe Committee of 
Experts on Participation of People with Disabilities 
in Political and Public Life (CAHPAH-PPL) is currently 
working together with the Venice Commission on the 
preparation of an interpretative declaration of the Venice 
Commission’s Code of Good Practice in Electoral Matters. 
This document would align the Code with the principles 
guaranteed by Article 29 CRPD.

As shown above, international and European law in the 
area of the rights to vote of persons with mental health 
problems and persons with intellectual disabilities is 
rapidly changing towards full and equal participation. 
Evolving international principles have had and will have 
an impact at national level. 

The following section will describe the FRA ﬁ ndings 
on how the legal systems of the 27 EU Member 
States guarantee the right to political participation 
of persons with mental health problems and persons 
with intellectual disabilities. Focusing rather on 
the legal framework, this section will not address 
facilitating measures that are not prescribed by law. 
While recognising the importance of such measures for 
the full enjoyment of the right to vote, their analysis falls 
outside the scope of this report.

and needs (…)” (paragraph 42). In the course of reaching 
its conclusion, the Court made some far-reaching 
statements, referring in particular to Article 29 CRPD:

“The Court further considers that the treatment as a single 
class  of  those  with  intellectual  or  mental  disabilities  is  a 
questionable  classiﬁ cation  and  the  curtailment  of  their 
rights must be subject to strict scrutiny. This approach is 
reﬂ ected  in  other  instruments  of  international  law  (…). 
The  Court  therefore  concludes  that  an  indiscriminate 
removal  of  voting  rights,  without  an 
individualised 
judicial evaluation and solely based on a mental disability 
necessitating  partial  guardianship,  cannot  be  considered 
compatible with the legitimate grounds for restricting the 
right to vote.”31

The importance of this case cannot be underestimated. 
Although the ECtHR does not have the authority to 
interpret the CRPD – it is the responsibility of the UN 
Committee on the Rights of Persons with Disabilities 
to do so – this judgment will probably have an impact 
beyond Europe and consequently not only in those EU 
Member States that have a legal framework similar to 
Hungary (see Chapter 2). Furthermore, the judgment 
clearly strikes down automatic deprivation of voting 
rights of persons under protective measures. The Court 
seems ready to accept that “individualised judicial 
decision” could restrict the right to vote of persons 
with disabilities. It remains to be seen how this will be 
implemented in practice since Article 29 CRPD clearly 
calls on States Parties to secure full participation of 
persons with disabilities, if need be by accommodating 
their speciﬁ c needs.

31 

Ibid., paragraph 44.

13

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FRA-10-110H_Intellectual disabilities3.indd   14

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2. The political participation spectrum

2. The political participation spectrum

This se ction analyses the results of the FRA national 
studies of the 27 European Union Member States with 
respect to persons with mental health problems and 
persons with intellectual disabilities. National practice 
in this ﬁ eld is quite diverse. Nevertheless, we can 
detect three approaches to the issue. The spectrum 
of approaches ranges from (1) total exclusion through 
(2) case-by-case consideration to (3) full participation. 
The following paragraphs cluster countries according to 
these three approaches. However, several countries use 
speciﬁ c solutions adapted to the two distinct groups 
studied in this report. It is for this reason that the situation 
in a given country can be reﬂ ected under diﬀ erent 
approaches. This explains why one country can be 
present in one or two maps (see Maps 1 and 2).

2.1.  Exclusion from political 

participation

A majority of European Union Member States links the 
right to political participation to the legal capacity of 
the individual. These Member States have an automatic 
or quasi-automatic exclusion provision in their legal 
systems. They deny the right to political participation to 
all persons under a protective measure such as a partial 
and plenary guardianship, regardless of their actual and/
or individual level of functional ability or whether they 
have an intellectual disability or a mental health problem. 
These are shown in Map 1 below. Additional details with 
the speciﬁ c legal norms can be found in Annex I, p. 28 
below. The following paragraphs will provide examples of 
this approach.

In countries where there is an automatic exclusion it is 
either entrenched in the Constitution or prescribed in 
electoral legislation.

One example is Bulgaria where exclusion from political 
participation is triggered by deprivation of legal capacity. 
Article 42 (1) of the Bulgarian Constitution states: 
“Every citizen above the age of 18, with the exception 
of those placed under judicial interdiction (…), shall 
be free to elect state and local authorities and vote in 
referendums”.32 Persons with mental health problems and 
persons with intellectual disabilities who are considered 
not to be able to take care of their aﬀ airs and for that 
reason are placed under guardianship (“through judicial 
interdiction”) are thus deprived of their legal capacity. 
In other words, political rights are denied to all people 
under partial and plenary guardianship, regardless of their 

32 

 Unoﬃ  cial translation; see Venice Commission CODICES Database, available 
at: http:www.codices.coe.int.

actual individual level of functional ability.33 In addition, 
the Political Parties Act provides that political parties can 
only be established by Bulgarian citizens who have the 
right to vote.34 Consequently, the exclusion of the right to 
vote for people under guardianship also leads to a ban on 
any other political activities.

The Hungarian Constitution provides an explicit 
exception from the universal right to vote – only persons 
with full legal capacity can exercise it.35 Persons placed 
under full or partial guardianship, even if in an unrelated 
area (such as parental rights, or consent to medical 
treatment), are excluded from political participation.

Similar constitutional provisions can be found in several 
countries: the Czech Republic, Denmark, Estonia, 
Greece, Lithuania, Luxembourg, Malta or Poland and 
Portugal, among others.

In some other countries speciﬁ c laws can have the eﬀ ect 
of excluding certain categories of persons from the 
electoral process. The German Federal Electoral Law is an 
example of this approach. Persons for whom a custodian 
to manage all their aﬀ airs is appointed, not just by 
temporary order, are automatically deprived of their 
voting right.36

The Lithuanian legal framework takes a similar 
approach: all relevant electoral legislation for presidential, 
parliamentary, municipal or European Parliament 
elections proscribes voting by persons who have been 
declared incapable by a court order.

Similar provisions are prescribed by law in other countries, 
including: Belgium, the Czech Republic, Denmark, 
Latvia, Portugal, Romania and Slovakia.

The next section will analyse the situation where the 
participation of persons with mental health problems 
and persons with intellectual disabilities is made possible, 
but in a limited way.

33 

34 
35 
36 

 See Article 93, paragraph2, Article 94 of the Constitution of the Republic of 
Bulgaria. By virtue of the fact that a person under guardianship is not eligible 
to  be  elected  to  the  National  Assembly,  a  person  under  guardianship  is 
similarly disqualiﬁ ed from the Presidency and Vice-Presidency. 
 See Article 4 of the Political Parties Act.
 See Article 70 (5) of the Constitution of Hungary.
 See Article 13 (2) of the Federal Electoral Law.

15

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

Map 1: Exclusion from the right of political participation in the European Union

Note: An EU Member State can be represented in more than one map, as persons with mental health problems and persons with intellectual 
disabilities can be treated diﬀ erently according to the national law of the respective Member State.  
Source: FRA, 2010

2.2. Limited political participation

Several EU Member States (Czech Republic, Denmark, 
Estonia, Finland, France, Slovakia, Slovenia and Spain; 
see Map 2) have adopted a variety of practices falling 
between the two ends of the spectrum, in which an 
assessment is made of the individual’s actual ability 
to vote. This individualised decision triggers our 
classiﬁ cation since, in some cases, these countries have 

16

adopted either an exclusion policy coupled with an 
individualised assessment (such as Estonia and Malta) 
or a full participation policy complemented with a 
speciﬁ c decision on voting capacity (Spain and France). 
Furthermore, among these countries a diﬀ erentiation 
can be made between those in which the individual’s 
situation is assessed by a medical practitioner and those 
in which the assessment is made by a judge.

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Map 2: Limited political participation in the European Union

2. The political participation spectrum

Note: An EU Member State can be represented in more than one map, as persons with mental health problems and persons with intellectual 
disabilities can be treated diﬀ erently according to the national law of the respective Member State.
Source: FRA, 2010

In the case of Cyprus, it appears that disenfranchisement 
procedures foreseen by law are no longer being applied 
in practice. Therefore, persons with intellectual disabilities 
and persons with mental health problems who could, by 
law, be struck oﬀ  the voters’ lists are not being removed.37 
However, in the case of a person placed in a psychiatric 
institution, it is up to the treating psychiatrist to decide 

37 

 See FRALEX thematic legal study on Cyprus.

whether a patient will be able to exercise his or her right 
to vote. A patient will regain his or her political rights 
after discharge from the institution. There is currently a 
debate as to whether even during involuntary placement 
patients could still retain some of those rights.38

38 

 See the website of Supervisory Committee for the Protection of the Rights 
of Mental Patients (or ‘Cyprus Mental Health Commission’) at: http://
mentalhealthcommission.org.cy/en/law/ (03.06.2010).

17

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

As mentioned in the previous section, the constitution 
of Malta denies voting rights to persons “interdicted 
or incapacitated for any mental inﬁ rmity by a court 
in Malta or (…) otherwise determined in Malta to be 
of unsound mind”.39 A medical board, consisting of 
doctors, is set up to decide on any dispute related to the 
exclusion of persons “with mental inﬁ rmity” or persons 
with “unsound mind” as foreseen in the constitution.40 
Unless a competent court takes a decision concerning 
the incapacity of an individual, the medical board’s 
decision will be needed before refusing to register 
a person as a voter.41

In Estonia, as mentioned in the previous section, the 
constitution foresees an exclusion of the right to vote for 
persons deprived of their legal capacity. Nevertheless, 
according to the Code of Civil Procedure, a person whose 
legal capacity would only be partially limited by a court 
could still retain his or her right to vote.42 

France and Spain have similar laws. In 2007, the French 
legislature amended the Electoral Code: when deciding 
to maintain or renew a protective measure, the judge will 
decide whether to maintain or not the right to vote of 
the individual.43 Likewise in Spain, the express restriction 
of the right to vote needs to be decided upon by a judge 
according to the Act on the General Electoral System.44

The situation in the Czech Republic appears to be 
evolving in a similar direction. Although in principle 
the right to vote is closely linked to the legal capacity 
of an individual,45 in fact incapable individuals enjoy 
neither the active nor the passive right to vote. In 2009, 
the Constitutional Court held that only in case of total 
legal incapacity should an individual be deprived of his 
or her right to vote.46 If an individual’s capacity is merely 
limited, all the circumstances of the case have to be 
considered to determine if she/he enjoys the right to vote 
as well as other political rights. In the present case, the 
Court decided that a slight “mental retardation” (to use 
the terms of the Court) should not deprive the particular 
individual of her right to vote. In a 2010 decision, the 
Constitutional Court stated that, even in proceedings 
aimed at deprivation of legal capacity, courts should 
perform a personal assessment in order to judge whether 

 Constitution of Malta, Article 58(a); http://docs.justice.gov.mt/lom/
legislation/english/leg/vol_1/chapt0.pdf (03.06.2010).
 Chapter 354 of the Laws of Malta, General Elections Act, Section 14(1); 
http://docs.justice.gov.mt/lom/legislation/english/leg/vol_9/chapt354.pdf 
(03.06.2010).
 See Article 27 (1) of the General Elections Act.
 See Article 526 (5) of the Code of Civil Procedure: http://www.legaltext.ee/
text/en/x90041.htm (03.06.2010).
 Article L 5 of the French Electoral Code: http://www.legifrance.gouv.fr/
home.jsp (03.06.2010).
 See Article 3.1. b) of the Act on the General Election System, Oﬃ  cial State 
Journal no. 147 of 20.06.1985.
 Act No. 247/1995 Coll., Election Act, Section 2. 
 Judgment of the Czech Constitutional Court I.ÚS 557/09 of 18.08.2009.

39 

40 

41 
42 

43 

44 

45 
46 

18

an individual who is about to loose his or her legal 
capacity can in fact participate in the election process. 
In that case, the person’s legal capacity should only be 
limited and not fully deprive of his or her legal capacity.47

The situation in Slovenia is somewhat particular. National 
legislation used to proscribe participation in the electoral 
process by persons deprived of legal capacity. However, 
in 2003, the Slovenian Constitutional Court found the 
relevant provisions unconstitutional. According to the 
Court, capacity to vote should not be equated with legal 
capacity.48 Parliament amended the legislation in 2006. 
According to the amended Act, in order to restrict the 
right to vote of an individual, a court needs 1) to decide 
on the prolongation of parental rights, which in Slovenia 
is a speciﬁ c form of guardianship, and 2) to conﬁ rm that 
the individual is unable to understand the meaning, 
purpose and eﬀ ect of the elections.49

The ﬁ nal section of this comparative analysis will describe 
the situation in countries that have lifted all restrictions 
on political participation by persons with intellectual 
disabilities and persons with mental health problems.

2.3. Full political participation

A minority of countries has lifted all restrictions on 
political participation; in doing so, these countries have 
opted to give persons with mental health problems and 
persons with intellectual disabilities full participation in 
the electoral process (see Map 3).

In several countries, the right to full participation is 
entrenched in national constitutions. This is the case 
speciﬁ cally in Austria, Finland, the Netherlands, Spain 
and Sweden.

Austria is one of the states in which persons with 
mental health problems and persons with intellectual 
disabilities are allowed to vote and to be elected like all 
other citizens. According to Article 26(5) of the Austrian 
Constitution, a person can only be deprived of his or 
her right to vote and to be elected in case of a criminal 
conviction, which is further speciﬁ ed in Section 22 of the 
Elections to the Parliament Act.50

47 

48 

49 

50 

 See Czech Constitutional Court, Decision No. IV. US 3102/08 of 
21 July 2010 in the case of Soldán Jiří. Another case is pending before 
the Constitutional Court dealing with a similar issue: Hlaváč Tomáš 
(Case No. IV. US 3073/08). See in general the Amicus Curiae Brief  
co-ordinated by Mental Disability Advocacy Center (MDAC), available at: 
http://www.mdac.info/en/Czech-Republic (21 June 2010).
 See Oﬃ  cial Journal of the RS, No. 73/29 July 2003, pp. 11212-11216, cited 
in a Amicus Curiae Brief coordinated by MDAC, p. 19.
 See Article 7(2) of the National Assembly Elections Act of 1992, as 
amended in 2006.
 Austria/BGBl 471/1992 as amended by BGBl II 147/2008 (29.12.2008).

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Map 3: Full political participation in the European Union

2. The political participation spectrum

Note: An EU Member State can be represented in more than one map, as persons with mental health problems and persons with intellectual 
disabilities can be treated diﬀ erently according to the national law of the respective Member State.
Source: FRA, 2010

The Netherlands has also opted for a no exclusion 
policy. The 1983 constitutional text provided that 
persons who, because of their mental health problems 
or intellectual disabilities, were placed under custodial 
care could not exercise their right to vote (Article 54 (2) of 
the Constitution). In 2003, the Administrative Jurisdiction 
Department of the Council of State held that this general 
exclusion provision was in violation of the International 

Covenant on Civil and Political Rights.51 Following this 
decision and the advice of the Electoral Council, in 2008 
the Constitution was amended and the provision was 
repealed. As a result of this constitutional revision, 
individuals with mental health problems and persons 
with intellectual disabilities can now enjoy the right to 

51 

 See Council of State decision of 29.10.2005, LJN AM5435.

19

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

vote. This change has applied since the elections for the 
European Parliament on 4 June 2009. In Italy, electoral 
law was used to deprive of their right to vote persons 
placed in psychiatric hospitals and persons subject to 
capacity limitations.52 However, these rules were repealed 
by the so-called Basaglia Law.53 Consequently, no 
limitation presently applies to the right to vote of persons 
with intellectual disabilities and persons with mental 
health problems. 

In the United Kingdom, the Electoral Administration 
Act 2006 abolished the common law rule that a person 
lacks legal capacity to vote by reason of mental health 
problems.54

 See  Article  2  (1)  and  Article  3  of  the  Presidential  Decree  no.  223/1967 
(20.03.1967).
 See Article 11 of Law No. 180/1978 of 13.05.1978.
 Electoral Administration Act 2006 c.22, s73.

52 

53 
54 

20

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3. The way forward

The above discussion began by recalling the international 
and European standards favouring the full participation 
of persons with intellectual disabilities and persons 
with mental health problems in the electoral process. 
The comparative law analysis then highlighted the diverse 
approaches adopted in the European Union Member 
States. In a majority of these, persons who have lost their 
legal capacity are automatically deprived of their right 
to political participation. The European Court of Human 
Rights however clearly stated that such an automatic 
deprivation contravenes the European Convention 
on Human Rights. The practice in other countries is to 
organise an individualised assessment of the actual ability 
to vote of the individuals in question. Finally, a third group 
of countries have moved towards full participation of 
persons with disabilities in the electoral process. Against 
this background, what is the way forward?

The guiding principles should be clearly drawn 
from Article 29 CRPD. This was recently reaﬃ  rmed in 
Resolution 1642 (2009) of the Parliamentary Assembly 
of the Council of Europe on Access to rights for people 
with disabilities and their full and active participation in 
society.55 The parliamentarians urged Council of Europe 
Member States to take necessary measures “to ensure 
that, in accordance with the United Nations Convention 
on the Rights of Persons with Disabilities and its Optional 
Protocol, people placed under guardianship are not 
deprived of their fundamental rights (not least the rights 
to own property, to work, to a family life, to marry, to vote, 
to form and join associations, to bring legal proceedings 
and to draw up a will) and, where they need external 
assistance so as to exercise those rights, that they are 
aﬀ orded appropriate support, without their wishes or 
intentions being superseded”.

In fact, in its General Comment on Article 25 ICCPR of 
1996, the Human Rights Committee already suggested, 
somewhat cautiously, this approach. It noted that 
“positive measures should be taken to overcome speciﬁ c 
diﬃ  culties, such as illiteracy [or] language barriers (…) 
which prevent persons entitled to vote from exercising 
their rights eﬀ ectively. Information and materials about 
voting should be available in minority languages. 
Speciﬁ c methods, such as photographs and symbols, 
should be adopted to ensure that illiterate voters have 
adequate information on which to base their choice.”56 
The same argument could be used for persons with 
disabilities. It would seem that restrictions on voting 

55 
56 

 Adopted on 26 January 2009.
 Human Rights Committee, General Comment No. 25: The right to 
participate in public aﬀ airs, voting rights and the right of equal access to 
public service (Article 25), UN doc. CCPR/C/21/Rev.1/Add.7 (12 July 1996), 
paragraph 12.

3. The way forward

rights of persons with disabilities should only be allowed 
in circumstances where no measures could be taken 
that would accommodate their speciﬁ c needs in order 
to allow them to take part in the election. Measures 
that could be taken include: the provision of clear 
explanations throughout the electoral process; usage 
of simple language and sentences accompanied by 
illustrations; ensuring that funding is available for the 
provision of accessible information throughout the 
electoral process; allowing persons with disabilities to 
choose a person of their choice to serve as personal 
assistant throughout the voting procedure (as speciﬁ cally 
suggested by Article 29 (i, a) CRPD); encouraging each 
political party to describe their programme in similarly 
formatted and easy to read language; electoral process 
information sessions in specialised institutions; training of 
people in charge of supervising the elections at the local 
level in order to ensure that they can provide appropriate 
explanations about the procedure for persons with 
mental health problems and persons with intellectual 
disabilities; ensuring that accessibility measures are 
implemented for any future technological developments 
such as electronic voting.

The Council of Europe Disability Action Plan 2006-2015 
in its Action Line No. 1 on participation in political and 
public life contains four speciﬁ c objectives that Member 
States should reach with the help of eight speciﬁ c actions 
that they should carry out.57

These adaptations to the particular needs of persons 
with disabilities are taking place in a number of countries. 
To take just few examples: in Denmark, persons with 
mental heath problems or intellectual disabilities who 
are allowed to vote can receive assistance when doing 
so. The Act on Parliament Elections, the Act on Election 
of Danish Members to the European Parliament and 
the Act on Municipality and Regional Elections were all 
recently amended so that all persons with disabilities 
have the right to designate a person of their own choice 
to assist them when voting.58 It follows that in each of the 
three legislations a provision was introduced according 
to which two returning oﬃ  cers or polling oﬃ  cials are 
designated to help the person with a disability to vote. 
The voter can also choose to receive assistance by a 
person of his or her own choice under the supervision 

57 

58 

 See Recommendation Rec(2006)5 of the Committee of Ministers of the 
Council of Europe on the Council of Europe Action Plan to promote the 
rights and full participation of people with disability in society: improving 
the quality of life of people with disabilities in Europe 2006-2015, adopted 
on 5 April 2006.
 See Act no. 144 of 24.02.2009 on Municipality and Regional Elections, Act 
no. 145 of 24.02.2009 on Parliament Elections and Act no. 143 of 24.02.2009 
on election of Danish Members to the European Parliament.

21

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

of the electoral oﬃ  cials. 59 In the United Kingdom, 
the Representation of the People Act 2000 60 gives all 
electors suﬀ ering from blindness, physical incapacity or 
incapacity to read (which would encompass a number 
of people with intellectual disabilities) the right to vote 
with the assistance of a companion.61 The Electoral 
Administration Act 2006 contains provisions62 requiring 
local authorities to review access to voting stations for 
all persons, including those with disabilities. Against this 
background, easy-to-read guides have been produced 
to inform people with intellectual disabilities about how 
to vote.63 For the last general election 2010, the main 
political parties provided their party manifestos in easy-
to-read language.64

The Council of Europe Committee of experts on 
participation of people with disabilities in political and 
public life (CAHPAH-PPL) is preparing a report taking 
stock of consultative and participatory mechanisms 
aimed at enhancing the participation of people with 
disabilities in political and public life in Council of Europe 
Member States. The report will provide examples of good 
practice and innovative experiences. Based on its ﬁ ndings, 
CAHPAH-PPL will elaborate recommendations for Council 
of Europe Member States to actively promote the 
participation in political life of persons with disabilities.

In conclusion, this brief report suggests some States 
Parties will need to amend their relevant legislation to 
meet the standards of the CRPD. These changes will need 
to take into account the speciﬁ c needs of persons with 
disabilities. Involving these persons or their representative 
organisations in the design and implementation of 
new legislation and accompanying measures would 
not only be in the spirit of the CRPD, but would also be 
essential in ﬁ nding practical and eﬀ ective solutions. To 
this end, the second component of the FRA research on 
the fundamental rights of persons with mental health 
problems and persons with intellectual disabilities 
incorporates the engagement of these persons in 
data collection in eight EU Member States to better 
understand their enjoyment and limitations of their rights 
in practice.

In addition to the current report, the FRA will publish 
the following short comparative law reports in the 
context of its project on the ‘Fundamental rights of 
persons with mental health problems and persons with 
intellectual disabilities’:

• Involuntary placement and involuntary treatment

• Legal capacity

 See Section 49 of the Act on Parliament Elections.
 See Representation of the People Act 2000 c.2.
 Representation of the People Act 2000 c.2, s13.
 Electoral Administration Act 2006 c.22, s18 http://www.opsi.gov.uk/ACTS/
acts2006/ukpga_20060022_en_1 (03.06.2010).
 See http://www.dopolitics.org.uk.
 See, for example: http://www.labour.org.uk/manifesto/accessible or 
http://www.conservatives.com/Policy/Manifesto.aspx. 

59 
60 
61 
62 

63 
64 

22

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Annex

Countr ies

Exclusion

Limited Participation

Full participation

Annex

AUSTRIA

BELGIUM

BULGARIA

CYPRUS

Article 7 1° Electoral Code

Article 42 (1) Constitution of 
Bulgaria

CZECH REPUBLIC

Article 2 of Elections to the 
Parliament of the Czech Republic 
Act 247/1995 

Article 10 Civil Code
Article 855 Civil Code 

Article 10 Civil Code
Article 855 Civil Code 

Article 26 Constitution of Austria 

Article 31 Constitution of the Republic 
of Cyprus 

DENMARK

ESTONIA

FINLAND

FRANCE

GERMANY

GREECE

HUNGARY

IRELAND

ITALY

LATVIA

LITHUANIA

LUXEMBOURG

MALTA

NETHERLANDS

POLAND

Section 29 (1) Constitutional Act 
of Denmark 

Section 49 (1) and (4) Parliamentary 
Election Act

Article 57 Constitution of the 
Republic of Estonia
Article 5 (3) Local Government 
Council Election Act

Article 526 (5) Code of Civil Procedure

Section 27 Constitution of Finland

Section 14 Constitution 
Section 2 Election Act

Article L5 Electoral Code 

Article L3211-3 (6) Public Health Code 

Article 13 Federal Election Act

Article 51 (3) Constitution of 
Greece
Article 5 Presidential Decree 
96/2007

Article 70 (5) Constitution of the 
Republic of Hungary 

Lunacy Regulation (Ireland) Act 
1871 and Order 67 of the Rules 
of the Superior Courts 1986

Article 2 (3) Saeima Election Law

Article 34 (3) Constitution of the 
Republic of Lithuania 

Article 53 (1) 3 Constitution of 
the Grand Duchy of Luxembourg
Article 6 -3° Election Law 2003

Article 7(1) Electoral Act of Ireland 1992 

Article 11 Law 180/1978

Article 58 (a) Constitution of 
Malta

Section 13 (9) and Section 27 (3) 
General Elections Act

Article 62-2 Constitution of 
Poland

Article 54 -2 Constitution of the 
Netherlands

23

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The right to political participation of persons with mental health problems and persons with intellectual disabilities

Exclusion

Limited Participation

Full participation

Article 49 (1) Constitution of the 
Republic of Portugal 
Article 2 Parliamentary 
electoral law

Art. 36 -2 Constitution of 
Romania

Section 2 (2) c) Law of the 
Narional Council
Section 2-3 Act of the Slovak 
Republic on European 
Parliamentary Elections 2003

Countr ies

PORTUGAL

ROMANIA

SLOVAKIA

SLOVENIA

SPAIN

SWEDEN

UNITED KINGDOM  

Article 7  National Assembly Elections 
Act 2006

Article 3. 1. b)-c) Law on Regime of 
General Elections 

Article 23 Constitution of Spain

Chapter 1 Article 1 Constitution 
of Sweden - The instrument of 
government
Chapter 3 Article 2 Constitution 
of Sweden - The instrument of  
government

C2 section 13-39 Electoral 
Administration Act 2006
C22 section 73 Electoral Administration 
Act 2006

24

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European Union Agency for Fundamental Rights

The right to political participation of persons with mental health problems and persons with intellectual disabilities
October 2010

2010 — 24 pp — 21 x 29.7 cm
ISBN 978-92-9192-636-7
doi:10.2811/84758

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This report provides the fi rst results from a legal study carried 
out by the European Union Agency for Fundamental Rights 
(FRA) in the context of its project on the ‘Fundamental rights 
of persons with intellectual disabilities and persons with 
mental health problems’. Given that the right to political 
participation is one of the fundamental rights of EU citizens, 
the FRA decided to publish its fi ndings in this area. 
The report sets out by recalling the international and 
European standards favouring the full participation of 
persons with intellectual disabilities and persons with mental 
health problems in the electoral process. The comparative 
law analysis then highlights the diverse approaches adopted 
in the EU Member States. In a majority of these, persons who 
have lost their legal capacity are automatically deprived of 
their right to political participation. The European Court of 
Human Rights, however, clearly stated that such an 
automatic deprivation contravenes the European Convention 
on Human Rights, to which all EU Member States are party. 
In other EU Member States, the practice is to organise an 
individualised assessment of the actual ability to vote of the 
individuals in question. Finally, a third group of EU Member 
States have moved towards full participation of persons with 
disabilities in the electoral process. The report provides some 
way forward to make sure that the standards in this area are 
applied in practice.

FRA - European Union Agency for Fundamental Rights
Schwarzenbergplatz 11
1040 - Wien
Austria
Tel.: +43 (0)1 580 30 - 0
Fax: +43 (0)1 580 30 - 691
E-Mail: information@fra.europa.eu
fra.europa.eu

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