A Strasbourg victory for the mentally disabled

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. Continue reading