Resistance to the ‘paradigm shift’ of disability and the disenfranchisement of persons with cognitive disabilities under the European Convention of Human Rights

Gallagher, Hugh. (2022). Resistance to the ‘paradigm shift’ of disability and the disenfranchisement of persons with cognitive disabilities under the European Convention of Human Rights. University of Galway Law Review, 1, 68-79.

Abstract

The European Court of Human Rights (‘ECtHR’) has firmly entrenched jurisprudence concerning the removal of voting rights for persons with cognitive disabilities which, it will be argued, relies on a regressive understanding of disability and defective legal reasoning. Following the recent decisions of Strøbye and Rosenlind v Denmark and Caamaño Valle v Spain, 1 this body of case law has justifiably drawn intense criticism, being referred to as ‘disappointing’,2 ‘sad and unfair’,3 and an outright ‘[failure] to protect the right to vote of persons with disabilities’.4 Consequently, an alternative approach, which aligns Article 3 of Protocol No. 1 to the European Convention of Human Rights (‘ECHR’) with appropriate human rights standards and conceptions of disability, will be advocated. Following initial framing, the Court’s implicit support of the medical model of disability will be critiqued and the alternative rights-based social model presented as the correct frame for understanding disability. Subsequently the Court’s acceptance of mental capacity as a condition to suffrage and its use as a proxy for disability will be challenged. It will be further argued that the Court unjustifiably dismisses the democratic consequences of disenfranchising persons with cognitive disabilities. Finally, an approach integrating the principles of the Convention on the Rights of Persons with Disabilities (‘CRPD’),5 which the Court previously failed to pursue due to inaccurate assessments of European consensus, will be presented as a viable foundation for future decisions.

Publisher

University of Galway

Rights

Attribution-NonCommercial-NoDerivatives 4.0 International

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Collections

School of Law (Scholarly Articles)