“I so want to vote this year,” says Soufiane El Amrani.
He isn’t allowed to because he is under legal guardianship, after making his mother responsible for his financial affairs in 2015.
The 41-year-old Belgian is one of about 400,000 adult EU citizens who won’t be allowed to vote in next month’s elections on account of intellectual disabilities or mental health issues that require them to have a legal guardian, according to NGO Inclusion Europe, where El Amrani works as an accessibility expert.
Having an intellectual disability means that someone needs support in learning, making decisions, or maintaining their daily lives. Family members, social workers or lawyers can act as guardians.
Milan Šveřepa, Inclusion Europe’s director, says that the overall concept of legal capacity measures isn’t necessarily bad. It can, for instance, protect vulnerable people from fraud. But the model of guardianship is outdated, he says, as it can severely restrict those people’s legal rights.
The effects vary by country. Estonia, Bulgaria, Cyprus and Poland don’t grant any voting rights to people with intellectual disabilities under guardianship, according to Inclusion Europe’s research last year. In Bulgaria, for instance, this rule is based on the Persons and Family Act, a law introduced in 1949.
Soufiane El Amrani lost his right to vote in 2015.
Fifteen of the EU’s 27 member states grant full voting rights for people with intellectual disabilities under guardianship, including Germany, Italy and France. But even in those countries, they may be restricted from standing as candidates.
There has been progress in other EU countries. The number of people with intellectual disabilities excluded from voting has roughly halved since the last EU elections in 2019, when the number stood at around 800,000, according to Inclusion Europe. But that still leaves a Malta-sized electorate who cannot.
The European Court of Human Rights has several times upheld national restrictions on voting rights. In 2010, when a Hungarian with mental health difficulties took legal action to restore his right to vote, the court found “that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.” This ruling was reiterated in 2021 when two Danes tried to restore their right to vote.
This exclusion leaves people with disabilities feeling like “second-class citizens,” says Alejandro Moledo of the European Disability Forum. And it is based on a false premise, he says, that “the rest of voters wouldn’t be influenced or manipulated by other people around them and by media.”
Belgian courts decide
Belgium, El Amrani’s country, is one of eight EU countries that limit voting rights. A judge must decide over the right to vote once guardianship is set in place – ruling on whether a person is capable of carrying out certain acts, like marrying or choosing their residence, explains Thomas Dabeux, an advocacy manager at Inclusion ABSL, a Belgian organisation for intellectually disabled people.
The problem, Dabeux says, is that judges usually don’t properly assess the person and their disability, but rather “check off the whole list.” Thus, judges tend to “overprotect the person,” he says – which is likely what happened to El Amrani.
El Amrani’s case contains another twist. Back in 2015, when he wanted to appoint his mother to look after his finances and a judge considered his case, the list of potential restrictions presented to judges did not include the right to vote. “The judge always retains the possibility of adding other acts in his order for which he considers that protection is necessary,” Dabeux says.
People tend to give up rather than fight for their rights.
El Amrani is trying to have his right to vote restored through his local government, which in Belgium acts as a portal to most public services. “I emailed the commune and they said, because I'm under legal guardianship, [I] won't receive the ballots for this year or in the foreseeable future,” he says.
Restoring the right to vote can be prohibitively difficult, Dabeux says. “To change the judge's protective measure, you must be able to show that the person's situation has changed,” he says. Moreover, families would have to pay high legal fees. “People tend to give up rather than fight for their rights.”
EU powers to intervene
The European Commission has shown no real appetite to intervene – even though all EU member states and the EU itself have signed and ratified the legally binding UN Convention on the Rights of Persons with Disabilities (UN CRPD), which affirms the right to vote and to be elected for people with disabilities. A spokesperson for the Commission says that both electoral procedures and the implementation of the UN CRPD, when it comes to elections, are the responsibility of national governments.
But Krzysztof Pater, a member of the European Economic and Social Committee, argues that the EU could, and should, exert its jurisdiction over harmonising the rules for the European elections.
Pater tells The Parliament that “there’s no reason” why the EU shouldn’t guarantee the voting rights of disabled people. Moreover, action on the European level could have a spill-over effect to the national level, he argues.
In 2019, Pater compiled the report Real rights of persons with disabilities to vote in European Parliament elections, which, as he recalls, was widely covered in the European media before the 2019 elections. “Nothing serious [on the European level] has been changed within the last five years,” he says.
The European Parliament sought in May 2022 to reform the EU’s Electoral Act from 1976, to include a provision that every “citizen from 16 years of age, including persons with disabilities regardless of their legal capacity, shall have the right to vote in elections to the European Parliament.” The proposal has not advanced. Some member states are sceptical given it contains contested strategies like transnational lists.
The Commission spokesperson pointed to its efforts to nudge national governments towards ensuring voting rights, notably a formal recommendation in December 2023 against the “blanket removal of electoral rights of persons with intellectual and psycho-social disabilities without individual assessment and possibility of judicial review.”
Moledo from the European Disability Forum says this doesn’t go far enough, as ending the “blanket” removal of rights would still leave room for rights to be removed in individual cases. “Therefore, it is legitimising that certain persons with disabilities may be deprived [of] the right to vote or the right to stand as a candidate based on their disability,” he tells The Parliament.
Šveřepa from Inclusion Europe remains optimistic. He thinks that the next EU elections in 2029 – marking the 50th anniversary of the first ballot in 1979 – will be the time the bloc does away with “this business of not allowing people to vote.”
As for this year, his colleague El Amrani, who also holds American citizenship, can at least vote once this year – in the US elections in November.