The Partial Incapacitation vs. Voting Rights in the Light of European  Standards

The article consists of two parts. In the first part the author describes the principle of the universality and a problem of electoral censuses. In the second part the author shows an issue of voting rights of people placed under partial guardianship in the light of the third article of the First Protocol to The European Convention on Human Rights and Fundamental Freedoms. The principle of universality means that the right to vote belongs to everybody who fulfils conditions described in the Constitution and in statutes. Censuses are exceptions from the principle of the universality. According to the art. 62 sect. 2 of the Polish Constitution the incapacitation excludes a person from the right to vote. In this part of the article the author also describes premises of partial incapacitation and its legal and social consequences. The article 3 of the provides for the right to regular, free and fair elections. The European Court of Human Rights in his judgment from the day of 20 May 2010 (case of Alajos Kiss vs. Hungary) has find out that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, disturbs the pointed above article of the Protocol. The author of the article acknowledges that provisions of art. 3 of the First Protocol to The Convention and provisions of Polish statutes that regulated problems of the right to vote do not disturb the Polish Constitution especially it’s art. 62. But there is discrepancy between the art. 3 of the Protocol and Polish statutes which exclude people under partial guardianship from the right to vote. In conclusion the author suggests establishing some changes in Polish statutes.

On the need to reflect on the issue of electoral rights for incapacitated persons

The aim of the article is to analyze critically the institution of incapacitation under Polish law, in the light of its impact on the exclusion of electoral rights of people affected by intellectual disability and mental disorders, in relation to whom Art. 13 and 16 of the Civil Code have been applied. The automatic relationship between incapacitation of a person and the deprivation of his/her right to participate in the election, sanctioned in Art. 62 of the Constitution, shows the contradiction with the international standards to protect the rights of persons with disabilities, expressed in the agreements ratified by Poland and the case law of the ECHR, and it also stands in opposition to the demands expressed by international organizations that uphold individual rights.

On the need to reflect on the issue of electoral rights for incapacitated persons. Part II

The problem of limiting the political rights of people with intellectual disabilities under Polish law has been a matter of interest for the Ombudsman for a long time, consistently postulating legislative work aimed at eliminating the institution of legal incapacitation from the Polish legal order, and it is reflected in the jurisdiction of the Constitutional Court and in the activity of the social organisations. The article indicates the need postulated in the doctrine of the constitutional law to replace the Polish model of substitute decision by instruments of supported decision-making by people affected by intellectual disability and the need to have the ability to use the political rights by an individual assessed thoroughly each time by an impartial body, including the fundamental right to elect his/her representatives, while applying some measures restricting the individual’s discretionary power under civil law.