Loneliness that is good for you: the European Court addresses the right to marry of people with disabilities

By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights

On 25 October 2018, the European Court of Human Rights issued its first substantive ruling under Article 12 regarding people placed under guardianship.[i] Delecolle v. France involved an elderly man who was not allowed to marry a long-time friend under the pretext that he was not able to understand the financial implications of that decision. The Court held that the right to marry and found a family under Article 12 benefited only those possessing full legal capacity. It did not engage with the justifications advanced for depriving the applicant of his capacity to marry, focusing instead on the quality of the national procedures. Worryingly, the Court endorsed reasoning that was impregnated with prejudice against and paternalism towards the elderly and the disabled. The Court has lately proven increasingly willing to consider the implications of the widely ratified Convention on Human Rights of Persons with Disabilities (CRPD) for its jurisprudence. Several judgments have broken new ground, such as Çam v. Turkey on inclusive education and Guberina v. Croatia on accessibility and reasonable accommodation. With the Delecolle judgment, the Court reverts to an uncertain trajectory in the area of disability, characterised by a palpable inability to develop, and apply consistently, a coherent set of principles on difficult subjects such as legal capacity, accessibility, independent living or detention. Continue reading