U-I-156/11, Up-861/11

The challenged regulation, which is a measure of positive discrimination, does not constitute an appropriate and sufficient accommodation to enable persons with disabilities to independently physically access polling stations in public buildings and therefore in a majority of cases also to exercise their right to vote in person. The challenged regulation thus entails an omission by the legislature and as such constitutes an interference with the right of persons with disabilities to non-discriminatory treatment (indirect discrimination) in relation to the right to vote (the first paragraph of Article 14 in conjunction with the second paragraph of Article 43 of the Constitution).

 

Neither the National Assembly nor the Government established a constitutionally admissible reason that could justify the insufficient physical adaptation of polling stations for persons with disabilities. Consequently, already the first condition which is required by the Constitution in cases of the limitation of human rights is not satisfied and the challenged regulation, which does not ensure persons with disabilities physical access to polling stations, is inconsistent with the first paragraph of Article 14 in conjunction with Article 43 of the Constitution.

 

With regard to the selection of polling stations that enable the possibility to vote with the help of specifically adapted ballots and voting machines, the challenged regulation determines neither the obligation to select nor any criteria for selecting such adapted polling stations, as their selection was left entirely to the discretion of the district electoral commissions. Therefore, already at a normative level, persons with disabilities are not guaranteed the adaptation of polling stations that would ensure their actual equality to the greatest extent possible. Such entails an interference with the right of persons with disabilities to non-discriminatory treatment in relation to the right to vote (the first paragraph of Article 14 in conjunction with Article 43 of the Constitution) that is unconstitutional already due to the fact that the National Assembly Elections Act does not regulate these issues, but leaves deciding thereon entirely to the electoral authorities.

 

Every manner of exercising the right to vote (the second paragraph of Article 15 of the Constitution) must in principle be determined by law. If it is determined in such a manner that it concurrently entails an interference with the right itself – in the case at issue, as regards the right of persons with disabilities to non-discriminatory treatment in exercising the right to vote (the first paragraph of Article 14 in conjunction with the second paragraph of Article 43 of the Constitution) – it is all the more evident that, in order to be admissible, the interference must be determined by law. In this regard, the challenged regulation is thus unconstitutional from the perspective of the first paragraph of Article 14 in conjunction with the second paragraph of Article 43 of the Constitution already due to the fact that the National Assembly Elections Act does not regulate these issues, but leaves deciding thereon entirely to the electoral authorities.

 

As the elections with regard to which the alleged violations of human rights and fundamental freedoms occurred have already been completed, granting the constitutional complaint cannot improve the complainant’s legal position. The complainant achieved the aim he pursued through the constitutional complaint, as the petition he lodged was successful and therefore he improved his legal position for the next elections. In light of the above, the complainant does not have a legal interest for a decision on the constitutional complaint.