The Strasbourg Court (Second Section) came out with a landmark judgment yesterday; Kiss v. Hungary. The applicant, Mr. Kiss, suffers from manic depression. Due to this condition he was placed under partial guardianship in 2005. In 2006, with the elections coming up, he realized that the Hungarian law forbade him to vote, as all persons put under (partial or complete) guardianship were disenfranchised. The Court holds that article 3 of Protocol 1 (right to free elections) is violated.
Kiss v. Hungary is a great case for a few reasons. To begin, this is the first time the Court refers to the recent United Nations Convention on the Rights of Persons with Disabilities (“the Disability Convention”). Thus the door is opened for further and more intensive use of this recent Convention. This will undoubtedly gladden all the proponents of a disability-sensitive case law.
But the part the Court’s reasoning that excites me the most is where they explicitly condemn the stereotyping indulged in by the Hungarian legislators. To my knowledge – and I readily admit I haven’t done thorough research on this topic yet – this is the first case where the Court explicitly employs an anti-stereotyping approach in a disability-context. Even though scholars, like Michael Perlin, have maintained for years that stereotypes pollute all aspects of disability law.
It is worth quoting the relevant paragraph at length here (citations omitted):
42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing (Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82). In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered 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 (cf. also the example of those suffering different treatment on the ground of their gender – Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race – D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007‑…, or sexual orientation – E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008‑…). The reason for this approach, which questions certain classifications 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 and needs (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008).
Stereotypes are assumptions about the characteristics of certain groups of people. Stereotypes are always contingent on history, as they are the social and cultural constructions that we use to make the world around us manageable. These constructions differ with time and place. The Court’s acknowledgment of a history of discrimination is therefore especially important. Stereotypes do not necessarily have to be negative, but in this case the operative stereotype was clearly negative; namely that people with a mental handicap are not “capable of assessing the consequences of their decisions and making conscious and judicious decisions” (par. 38) and that they are incapable of participating in public affairs. Such stereotypes are egregious and the Court is apt at pointing out their harm: legislative stereotyping makes it impossible that individuals are evaluated according to their capacities and needs.
An anti-stereotyping approach fits the obligations that the Disability Convention entails. Art. 8 of that Convention stipulates that: “States Parties undertake to adopt immediate, effective and appropriate measures(b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life”. Even though the Court does not mention this article, their approach is clearly in line with it. This is the sort of perspective the Court should embrace in all disability cases.