A/HRC/19/36 29. Article 29 of the Convention on the Rights of Persons with Disabilities requires States parties to guarantee to persons with disabilities the equal and effective enjoyment of political rights, including the right to vote and be elected. This provision does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities. Therefore, any exclusion or restriction of the right to vote on the basis of a perceived or actual psychosocial or intellectual disability would constitute “discrimination on the basis of disability” within the meaning of article 2 of the Convention. 30. It may be argued that such restriction is not based on disability itself, but rather on a lack of legal capacity. Such an argument would be, however, inconsistent with the provisions of article 12, paragraph 2, of the Convention, which recognizes that persons with disabilities enjoy legal capacity “on an equal basis with others in all aspects of life”. This provision does not provide any exception. It only requires States parties to take appropriate measures “to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (art. 12, para. 3). Consequently, deprivation of legal capacity based on a perceived or actual mental illness or psychosocial disability may constitute a violation of the obligations set out in article 12. 31. Recent developments in the jurisprudence of international and regional human rights mechanisms and bodies support the argument that restrictions of the right to vote and stand for election on the basis of a psychosocial or intellectual disability are not consistent with modern human rights standards on disability. 32. The European Court of Human Rights has dealt with the issue of automatic disenfranchisement of a person with mental health problems in the case Kiss v. Hungary.5 Diagnosed with manic depression and placed under partial guardianship, the applicant was excluded from the electoral register pursuant to the Hungarian Constitution, which contains an absolute voting ban for people under guardianship. Relying on article 3 of the first Protocol to the European Convention on Human Rights (right to free elections), he complained that his disenfranchisement constituted an unjustified deprivation of his right to vote. The Court could not accept an absolute bar on voting rights applied to any person under partial guardianship irrespective of his or her actual faculties. It affirmed that the State had to provide weighty reasons when applying a restriction on fundamental rights to a particularly vulnerable group in society, such as persons with psychosocial disabilities. The Court concluded that the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship amounted to a violation of article 3 of the first Protocol. 33. The Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, welcomed this “landmark ruling”. He noted that the Convention on the Rights of Persons with Disabilities stipulates that State authorities “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Noting that the very purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights by all persons with disabilities, he stated that this leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person and then give a green light – or not. “As we do not test that capability for someone without disabilities, this would amount to blatant discrimination”.6 34. On 16 November 2011, the Committee of Ministers of the Council of Europe adopted a recommendation on the participation of persons with disabilities in political and public life (CM/Rec(2011)14). Building upon the Convention on the Rights of Persons with 5 6 8 European Court of Human Rights, Alajos Kiss v. Hungary, Application No. 38832/06, 20 May 2010. Statement by Thomas Hammarberg, “Persons with disabilities must not be denied the right to vote”, 22 March 2011. Available from https://wcd.coe.int/ViewDoc.jsp?id=1763941&Site=COE.