Published: 4 February 2020 Authors: Rohan Sinha and Stefan Talmon
Under Germany’s Federal Elections Act persons who are under full guardianship and criminal offenders confined in a psychiatric hospital were disenfranchised from voting. Eight persons affected by these restrictions challenged their disenfranchisement in an electoral complaint before the Federal Constitutional Court. On 29 January 2019, the Federal Constitutional Court declared the relevant provisions in the Elections Act unconstitutional as they violated the constitutional principles of universal suffrage and the prohibition of discrimination on grounds of disability. However, the Federal Constitutional Court also confirmed that under constitutional law it may be generally justified to exclude disabled persons from exercising the right to vote if they must be considered not sufficiently capable of participating in the communications process between the people and State organs. This finding put the Federal Constitutional Court on a collision course with the United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee).
The CRPD Committee takes the position that under Article 29 of the Convention on the Rights of Persons with Disabilities (CRPD) the right to vote of persons with disabilities can neither be restricted nor excluded. Germany has been a party to the CRPD since 26 March 2009. The Constitutional Court was thus forced to engage with the position of the CRPD Committee which was summarized as follows:
“The CRPD Committee takes the position that full and effective participation of persons with disabilities requires full recognition of their legal capacity. This is guaranteed by Article 12(2) CRPD, which leaves no room for restrictions on the basis of lack of decision-making capacity. For that reason, exclusions from voting rights cannot be justified by the inability of a person with disabilities to make decisions. Since the CRPD Committee takes the view that the right to vote of persons with disabilities can neither be restricted nor excluded, it considers exclusion from voting rights in accordance with section 13 nos. 2 and 3 of the Federal Elections Act to be in breach of the Convention.”
The Federal Constitutional Court, however, was not convinced by the CRPD Committee’s interpretation of the Convention. The Court held that Article 29(a) CRPD did not give rise to a general prohibition of exclusions from voting rights, nor to a prohibition of exclusions specifically of persons with disabilities. Exclusions from voting rights which equally affected persons with disabilities and persons without disabilities were not within the scope of application of the provision, given that the provision guaranteed persons with disabilities participation in public and political life, including the right to vote, “on an equal basis with others.” The Court continued:
“However, even if an exclusion from voting rights affects only or primarily persons with disabilities, an absolute prohibition of exclusions from voting rights cannot be inferred from Article 29(a)(iii) CRPD. According to this provision, the States Parties to the CRPD shall guarantee the ‘free expression of the will’ of persons with disabilities as electors and to this end, where necessary, allow assistance in voting by another person. The provision is thus aimed at the non-discriminatory development of the free electoral will by persons with disabilities. However, this requires the ability to form and express an independent electoral will. Thus, the persons concerned must have the cognitive skills necessary to make a free and self-determined electoral decision. If persons lack the ability to participate in the democratic communication process and make a self-determined electoral decision on this basis, even when using all possible means of assistance, a corresponding exclusion from voting rights does not violate Article 29 CRPD, even though the provision does not expressly address justifications for the restriction of voting rights of persons with disabilities.”
According to the Federal Constitutional Court, Article 12 CRPD also did not merit a different conclusion. While voting rights were within the provision’s scope of protection, the provision’s guarantee of legal capacity of persons with disabilities on an equal basis with others was not absolute. This followed from the relationship of Article 12(2) CRPD with Article 12(4) CRPD which specifically refers to measures restricting the exercise of legal capacity of the persons concerned. The Convention did not prohibit such measures in general; rather, it restricted their permissibility. For example, Article 12(4) CRPD obliged States Parties to provide for appropriate safeguards protecting the persons concerned against conflicts of interests, abuse and disrespect of their rights, and to ensure proportionality. The provisions of the Convention, even if they were aimed at safeguarding and strengthening the autonomy of persons with disabilities, did not generally prohibit measures directed at the natural will which are linked to a limited capability for self-determination due to illness. The same must also apply to exclusions from voting rights specific of persons with disabilities if such exclusions were linked to the inability to participate in the democratic discourse and the resulting inability to make a self-determined electoral decision. These exclusions did not violate Article 12 CRPD if the requirements of Article 12(4) were satisfied, that is, if the respective arrangement was proportionate, tailored to the circumstances of the persons concerned, applied for the shortest time possible, was subject to regular review, and if appropriate and effective safeguards to prevent abuse were in place. To this extent, Article 12 CRPD did not require an interpretation of Article 29(a) CRPD to the effect that it contains an absolute prohibition of any exclusion from voting rights of persons with disabilities.
The Federal Constitutional Court not only rejected the CRPD Committee’s interpretation of the relevant provisions of the CRPD as unconvincing in substance, it also held that the pronouncements of the CRPD Committee were not binding on it. The Court stated:
“Notwithstanding their considerable weight, opinions of committees or comparable treaty bodies on the interpretation of human rights treaties are not legally binding on international or national courts. This also applies to the Committee on the Rights of Persons with Disabilities under Article 34 CRPD and its reports (Article 39 CRPD), guidelines (Article 35(3) CRPD) and recommendations (Article 36(1) CRPD) on the interpretation of the provisions of the Convention and the legal situation in Germany. The Committee has no mandate to issue binding interpretations of the text of the Convention. It is also not competent to further develop international conventions beyond the agreements and practices of the treaty parties. Domestic courts which are to give the greatest possible effect to international law when interpreting their domestic law should engage with the views of such treaty bodies, but they do not have to adopt them.”
The Federal Constitutional Court also stated:
“The Committee on the Rights of Persons with Disabilities, however, has no mandate to issue binding interpretations of the CRPD. Such a mandate could only be considered if the practice of the States Parties followed the Committee’s view. Yet this is not the case, since only a clear minority of the States Parties to the CRPD has inclusive voting rights without any distinctions. Moreover, the view of the CRPD Committee contradicts the position of the ICCPR [International Covenant on Civil and Political Rights] Committee. Even though the ICCPR Committee expressly found that exclusions from voting rights can be justified by objective and reasonable grounds even in consideration of Article 29(a) CRPD, the CRPD Committee did not address this finding. It also did not address the fact that France and Romania have issued declarations of interpretation regarding the CRPD according to which exclusions from voting rights are permissible under Article 29 CRPD if the conditions of Article 12(4) CRPD are observed. Above all, the legal view of the CRPD Committee does not sufficiently take into account Article 12(4) CRPD. The Committee only infers from Article 12 CRPD the obligation of States Parties to create effective safeguards to guarantee persons with disabilities the actual exercise of their legal capacity. According to the Committee, the provision does not provide a basis for restrictions of legal capacity. This, however, fails to sufficiently accommodate the regulatory content of Article 12(4) CRPD. The provision requires “appropriate and effective safeguards for all measures that relate to the exercise of legal capacity” to prevent abuse. Article 12(4) CRPD, second and third sentences, then describe the necessary safeguards that are in conformity with the Convention, particularly requiring the observation of the principle of proportionality. Thus, the provision clearly assumes that there is a possibility of taking measures that restrict the exercise of legal capacity if these conditions are observed.”
The Federal Constitutional Court made it clear that it was not impressed by the CRPD Committee’s interpretation of the Convention and, for that reason, adopted its own interpretation of the relevant provisions. This approach could be questioned both with regard to the universality of the rights of persons with disabilities and the aim to provide maximum protection to persons with disabilities. However, the interpretation of a treaty and the question of the binding force of interpretations by treaty bodies are first and foremost technical questions governed by general international law.
The States Parties to the Convention shall submit to the CRPD Committee comprehensive reports on measures taken to give effect to their obligations under the Convention and on the progress made in that regard. The CRPD Committee considers each report and “makes such suggestions and general recommendations on the report as it may consider appropriate” and forwards these to the State Party concerned. The CRPD Committee also reports every two years to the United Nations General Assembly and to the Economic and Social Council on its activities, and makes suggestions and general recommendations based on the examination of reports and information received from the States Parties. These general recommendations, or general comments, include the Committee’s interpretation of the provisions of the CRPD.
The CRPD does not endow the pronouncements of the Committee with binding force. On the contrary, the use of the terms “suggestions” and “recommendations” indicates the inherently non-binding nature of its interpretations of the Convention. The CRPD Committee has no coercive powers under any provision of the Convention. Instead, like all other human rights treaty monitoring body, its task is to encourage States Parties through exercising influence and soft power to adopt certain practices, thereby enhancing compliance with human rights obligations and carrying out a “mission éducatrice”. The main purpose of the Committee is to assist the States Parties in fulfilling their obligations through “constructive dialogue.”
State Party shall cooperate with the CRPD Committee and assist its members in the fulfilment of their mandate. By establishing the Committee and submitting to the review procedures under the Convention, States Parties have committed themselves to participate in that procedure bona fide. Even though interpretations of the Convention by the CRPD Committee are legally non-binding, State parties cannot simply ignore them, but have to consider them in good faith.
Against this background, the Federal Constitutional Court cannot be faulted for its approach with regard to the Committee’s interpretation of the CRPD. Although the Court correctly found that the interpretation of the CRPD Committee was not binding unless adopted by the States Parties, it nevertheless fully engaged with the Committee’s interpretation. The Constitutional Court laid open the inconsistencies and deficiencies of the Committee’s reasoning and offered its own, fully reasoned alternative interpretation of the relevant Convention provisions. It thus entered into a “constructive dialogue” with the Committee – such a dialogue, however, should never be a one-way street. The CRPD Committee would be well advised to engage on its part with the Constitutional Court’s interpretation of the relevant Convention provisions and – possibly – revise its uncompromising attitude on the exclusion of persons with disabilities from voting rights.
Category: Human rights