EHRM, 26-10-2021, nr. 34591/19, nr. 42545/19

Both applicants had muscular dystrophy and used electric wheelchairs for mobility. The first applicant's condition deteriorated in 2018, which meant that he was no longer able to hold a pen.

In 2014 the Constitutional Court ruled that the legislature should, within two years, adopt legal provisions ensuring the accessibility of all polling stations to people with disabilities (see paragraphs 43–45 below). In 2015 almost 50% of polling stations in Slovenia were physically accessible to people with disabilities.

Further to the decision by the National Assembly of 4 November 2015, the National Election Commission (‘the National Commission’) announced that a referendum concerning amendments to the Marriage and Family Relations Act would be held on 20 December 2015 (‘the 2015 Referendum’). The announcement provided, inter alia, that voters with disabilities who considered that the polling station of their local electoral area was not accessible to them should inform their district election commission (‘the district commission’) in advance of their intention to vote at a polling station that was accessible to people with disabilities or at a polling station with an available voting machine.

Under the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), all polling stations were required to be accessible to people with disabilities as of 1 February 2018. It is unclear what, other than entry to the polling station, the required level of accessibility involved. The Government submitted that, in general, the furniture inside polling stations (tables and chairs) was of standard dimensions, partitions designed to secure the secrecy of the voting procedure were positioned on the floor and the ballot boxes were placed on tables.

On 9 April 2019 the National Commission announced that elections to choose Slovenian members of the European Parliament (‘the 2019 EP Elections’) would be held on 26 May 2019. The announcement included the information that voters with disabilities should inform their local district commission if they wished to vote by post. It also provided that those who could not vote at the polling station owing to illness should inform the relevant district commission by 22 May 2019 of their intention to vote from home. Requests to be permitted to vote by mail or from home could also be made via a dedicated Internet site.

The first applicant submitted in his application form that a ramp had been installed but that in all other aspects the polling station had not been rendered accessible. The second applicant submitted that his polling station ‘[had not been] made accessible in any way’. They both submitted that they had been unable to ‘enter a little polling room with a wheelchair [owing] to a narrow door entry [and that] the ballot box and the desk [had been] too high and inaccessible, and no accessible voting methods or equipment [had been] available’. It can be seen from the submissions lodged by the first applicant, in reply to those of the Government, that he did not participate in the 2019 EP Election owing to a deterioration in his condition. According to him, he had no longer been able to use a pen and had not wished to be assisted by another person.

The Government submitted copies of the voting directory from the second applicant's local polling station; the directory contained the name and signature of the second applicant, who had apparently voted in the election. The records of the election committee responsible for the second applicant's local polling station do not contain any complaint made by participants.

On 28 September 2018 a number of petitioners, including the second applicant, requested to be allowed to join the proceedings in respect of the petition for constitutional review lodged by the first applicant (see paragraphs 15 and 16 above). Together with the first applicant, they submitted additional arguments concerning, inter alia, sections 79 and 79a of the Elections Act (see paragraphs 40 and 42 below). They submitted that the Constitutional Court's 2014 decision, which required all polling stations to be accessible to people with disabilities (see paragraphs 43–45 below), had been implemented by the amendments to the Elections Act as far as the physical accessibility of polling stations was concerned (see paragraph 42 below), but not with respect to voting machines. They emphasised that proceedings that concerned elections and were initiated in a timely manner should be completed before the election day in question. They also submitted that polling stations could be properly adjusted before local elections that were to take place in two months' time.

On 21 February 2019 the Constitutional Court rejected as manifestly ill-founded the petition for constitutional review in so far as it concerned the issue of a speedy resolution of election-related disputes. As regards sections 79 and 79a of the Elections Act (see paragraphs 38–42 below) and the issue of the non-implementation of the Constitutional Court's 2014 decision, it noted that the conditions for suspending the effect of the above-mentioned provisions had not been met but that consideration of the petition would be given absolute priority.

On 22 October 2020 the Constitutional Court delivered a decision in which it examined the implementation of its 2014 decision (see paragraphs 43–45 below). It found that the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), was not incompatible with the Constitution. It noted that section 79a, which had been inserted into the Elections Act by the 2017 Amendment, explicitly provided that polling stations must be accessible to people with disabilities and that the petitioners themselves had considered that as regards this aspect the Constitutional Court's 2014 decision had been properly implemented. As regards the availability of voting machines, it noted that the use of voting machines had been ended by the 2017 Amendment and that a new assessment of the compatibility of the election legislation with the Constitution was required in that respect. The Constitutional Court noted that the petitioners' main argument was that the legislature should have adopted measures that would allow every person with a disability to vote autonomously, under conditions of secrecy, and at the nearest polling station to his or her residence without having to give advance notice of his or her attendance.

The Constitutional Court cited: the United Nations Convention on the Rights of People with Disabilities (‘the CRPD’) — especially Article 29 thereof; the Venice Commission's Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections; and the Parliamentary Assembly of the Council of Europe's resolution entitled ‘The political rights of people with disabilities: a democratic issue’ (see paragraphs 54, 58, 59 and 60–62 below).

The Constitutional Court took account of the arguments submitted by the Government and the National Assembly — specifically, that only a very small number (in 2015 only 0.2% of people with disabilities) had used voting machines, that such machines could not facilitate voting by people suffering from all types of disability, that their use was very expensive and that a new mode of voting for people with disabilities (namely, voting by post) had been introduced by the 2017 Amendment. The Constitutional Court also noted that the Elections Act also provided for assisted voting and that that mode of voting was also envisaged in the above-mentioned international instruments. Referring to the relevant provisions of the Elections Act and the Penal Code, the Constitutional Court stated that the law should be interpreted as imposing on the person assisting the person with a disability the obligation to respect the secrecy of the ballot. It also noted that election committees (see paragraphs 38 and 40 below) had little scope to exercise discretion in taking decisions. When confronted by a person with a disability an election committee had merely — as regards the voting assistants — to ascertain his or her identity and to note his or her name in its records. The Constitutional Court furthermore examined the regulation governing voting at home, which it considered to be applicable also to people with disabilities. The Constitutional Court, referring to a ‘reasonable accommodation’ (primerna prilagoditev), noted that the legislature was under the obligation to ensure that people with disabilities could as much as possible exercise their right to vote in person, autonomously, in conditions of secrecy and at a polling station, but that the legislature was not under an obligation to adopt measures that would impose a disproportionate or unnecessary burden.

The Constitutional Court went on to note that a 2018 decision of the United Nations Committee on the Rights of People with Disabilities (‘the CRPD Committee’) concerning a case brought by Fiona Given against Australia (see paragraph 57 below), on which the petitioners had relied, could not be understood as having done away with the concept of a ‘disproportionate burden’. It furthermore noted that only three European countries (Belgium, France and Bulgaria) continued to use voting machines to a different extent, and that voting with the assistance of another person was a method of voting permitted in almost all European countries. The Constitutional Court concluded that assisted voting, as regulated in Slovenia, was in line with the principle of reasonable accommodation.

The relevant parts of the Constitution of the Republic of Slovenia read as follows:

Article 90

(Legislative Referendum)

Article 160

(Powers of the Constitutional Court)

The relevant parts of the CRPD are set out in Guberina v. Croatia, no. 23682/13, § 34, 22 March 2016. Furthermore, the following passages from the CRPD, ratified by Slovenia on 24 April 2008, are particularly relevant to the present case:

Article 29 — Participation in political and public life

The CRPD Committee's General Comment No. 2 (adopted on 11 April 2014), concerning Article 9 of the CPRD, reads, in so far as relevant, as follows:

The relevant passages from the CRPD Committee's General Comment No. 6 (adopted on 26 April 2018) on equality and non-discrimination read as follows:

Under the Optional Protocol to the CRPD, the CRPD Committee examined communication no. 19/2014, submitted by Fiona Given against Australia, in which the author, who suffered from cerebral palsy, complained that during federal elections in 2013 she had been given no choice but to vote with the aid of her attendant. She had been unable to use electronically assisted voting, which was normally available to people with visual impairments, and had been denied assistance by the electoral officer. On 16 February 2018 the CRPD Committee found that none of the options available to the author had enabled her to exercise her right to vote in the way that she had wanted — namely, without having to reveal her political choice to the person accompanying her. The CRPD Committee furthermore noted that access to the use of an electronic voting system would have enabled her to cast an independent and secret ballot without having to reveal her political choice to anyone, on an equal basis with others. It went on to find as follows:

The Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections (‘the Revised Interpretative Declaration’) was adopted by the Council for Democratic Elections at its 39th meeting (Venice, 15 December 2011) and by the Venice Commission at its 89th plenary session (Venice, 16–17 December 2011). It reads, in so far as relevant, as follows:

In Resolution 2155 (2017), adopted on 10 March 2017 and entitled ‘The political rights of persons with disabilities: a democratic issue’, the Parliamentary Assembly of the Council of Europe called on member States to, inter alia:

Relevant comparative information concerning access to voting in the EU member States may be found in the information report entitled ‘Real rights of people with disabilities to vote in European Parliament elections’ issued in March 2019 by the Section for Employment, Social Affairs and Citizenship of the European Economic and Social Committee (EESC). According to the report, eleven EU countries apply the general principle that all polling stations have to be adapted to suit the needs of persons with disabilities. However, the report finds that this accessibility is understood rather narrowly in practice — only as a lack of physical barriers to wheelchair users arriving at a polling station accompanied by other people who might, if necessary, help to push a wheelchair (6.2.3). Six EU countries have no rules on adapting polling stations to the needs of people with disabilities (ibid.) and no EU member State has implemented comprehensive solutions (6.2.11). Some of the most frequent difficulties include: ‘excessively small voting booths, major difficulties in using them by wheelchair users …, [a] lack of choice [regarding] how to fill out the ballot paper (sitting or standing), overly small tables to fill in ballot papers …, [and the] location of the slot in the ballot box in a way that [prevents] some voters with disabilities from independently inserting their ballot’ (6.2.13). As regards voting with the assistance of a freely chosen person, the report notes that in most EU member States, such assistance is permitted, but that in only some of them can a member of an electoral commission be designated to undertake the role of an assistant. (6.2.6).

As regards voting at a polling station, the report makes the following comments (6.2.18):

The report considers voting by mobile ballot box to be an effective way to enable persons with disabilities to take part in voting and notes that that option could be combined with postal voting (6.6.8). Moreover, until the accessibility of polling stations is improved, it suggests as a provisional solution the taking of ballot papers and the placing of a small additional ballot box in front of the polling station so that voters may cast their vote there (ibid.). The report also notes the fact that electronic voting using stationary devices in polling stations does not render it substantially easier for people with disabilities to participate in elections. In order to change that, it declares it necessary to put in place technical arrangements allowing people with various disabilities to operate such devices independently and to ensure genuine privacy and secrecy for voters (6.8.4).

ODIHR found in its Election Assessment Mission Final Report on 2011 early parliamentary elections in Slovenia, published on 7 February 2012, that although Slovenian law provided for measures to enable the participation of voters with disabilities, access to polling stations remained an issue. As regards the secrecy of the voting procedure, ODIHR noted that votes cast using voting machines had a different format from other ballots and were often low in number, thereby potentially compromising the secrecy of the vote. In its Election Assessment Mission Final Report on early parliamentary elections held in 2018 in Slovenia, which was published on 12 September 2018, ODIHR noted that almost full compliance had been achieved in rendering polling stations physically accessible for voters with disabilities. It also suggested that e-voting could provide a viable alternative method of allowing voters with disabilities to exercise their suffrage rights without assistance.

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

The Court notes that the first applicant died soon after lodging the application with the Court and that his daughters, Nataša Toplak and Renata Toplak, expressed the wish to continue the proceedings before the Court in his stead. They submitted a copy of the relevant inheritance decision, which shows that they are the sole heirs of the first applicant. The Court, having regard to its relevant case-law (see, for instance, Jama v. Slovenia, no. 48163/08, § 28, 19 July 2012), accepts that the aforementioned heirs may pursue the application initially lodged by the first applicant. Any submissions made by them will be referred to as ‘the first applicant's submissions’.

The Government pointed out that the applicants had not raised the issue of the non-availability of voting machines in the applications that they had lodged with the Court and had not submitted with their applications any documents related to the constitutional review concerning, inter alia, the use of voting machines (see paragraph 31 above).

The Government furthermore argued that the applicants had in their remedies cited the need for polling stations, voting booths, tables and ballot boxes to be physically accessible, but had provided no or insufficient information regarding their actual participation in the 2015 Referendum. In his constitutional appeal, the first applicant had not detailed the circumstances of his participation in the 2015 Referendum. The second applicant had alleged in his constitutional appeal that the polling station had been inaccessible, even though he had previously acknowledged in his appeal to the Supreme Court that he had, in fact, voted.

The Government also asserted that the applicants had failed to exhaust the available domestic remedies because they had not brought an action under section 4 of the Administrative Disputes Act seeking a finding of a violation of human rights (see paragraph 48 above). Moreover, they had not sought remedies under the Elections Act and the Referendums Act (see paragraphs 46–47 above) and had not availed themselves of the remedy available under section 39 of the Protection against Discrimination Act (see paragraph 52 above) with respect to the alleged discrimination that they had suffered during the 2019 EP Elections.

The Government also alleged that the applicants had failed to comply with the six-month time-limit with respect to their complaints concerning the 2015 Referendum. While the applicants had lodged their application within six months of the dismissal of their constitutional complaints, the actions that they had brought in the Administrative Court had been premature (they had brought them before, instead of after, the referendum).

The applicants argued that they had used all the available remedies, including lodging a constitutional complaint and lodging a petition for constitutional review. They contested the Government's argument that the present case did not concern voting machines and pointed out that they had argued before the domestic authorities that polling stations should be fully accessible (which would necessitate the facilitating of access to all elements of the voting process). In the proceedings before the Constitutional Court they had relied on the CRPD Committee's decision of 2018 (see paragraph 57 above), which concerned also voting machines.

The Court observes that in their respective application forms the applicants did not explicitly raise the issue of the availability of voting machines. However, the alleged lack of accessibility comprised various aspects, and there is no reason why the lack of voting machines should not be considered among them. The Court notes in this regard that with respect to the 2019 EP Elections the applicants alleged, inter alia, that ‘no accessible voting methods or equipment [had been] available’ (see paragraph 29 above). They referred to the standards of accessibility set out in the relevant international material, with which in their view the Slovenian authorities should have been familiar. The Court also finds it important that one set of proceedings before the Constitutional Court, in which both applicants participated, concerned precisely this issue. It is true that the applicants did not submit information concerning those proceedings in their applications, but they were bound up with the first applicant's constitutional complaint (see paragraphs 15 and 31 above) and at the time at which the applications were lodged the constitutional review was still pending. The constitutional review proceedings ended with the Constitutional Court's decision (see paragraphs 33 to 36 above), which was issued after the applications had been lodged with the Court. The Court lastly notes that the Government extensively commented on whether voting machines were required, especially after the delivery of the aforementioned Constitutional Court's decision. Hence, the first preliminary objection is dismissed (see paragraph 66 above).

As regards the precise circumstances concerning the applicants' participation in the 2015 Referendum and in the 2019 EP Elections, the Court cannot lose sight, firstly, of the fact that their original complaints concerned their alleged inability to vote on an equal basis with others over a long period of time in several elections and referendums, but that the Government were given notice only of the complaints concerning the 2015 Referendum and the EP 2019 Elections (the remaining complaints having been rejected as inadmissible at an earlier stage of the proceedings). Secondly, as regards the facts submitted in the domestic proceedings, the Court observes that the applicants brought actions prior to the 2015 Referendum and that their arguments were largely based on their previous experiences. Having said that, the uncertainties regarding certain factual issues will be addressed when the applicants' complaints are examined on the merits. This preliminary objection should thus also be dismissed.

As regards the Government's objection concerning compliance with the six-month time-limit (see paragraphs 69 above), the Court notes that the applicants lodged their applications with the Court within six months of the date on which they had received the decisions of the Constitutional Court dismissing their constitutional complaints (see paragraphs 16 and 24 above). The Constitutional Court decisions relate to the proceedings that the applicants had initially instituted before the Administrative Court with a view to seeking adjustments of the polling stations with respect to the upcoming 2015 Referendum, as well as any future elections and referendums (see paragraphs 11 and 19 above). Even though these proceedings proved to be incapable of offering any redress, in view of the Supreme Court's position (see paragraphs 14 and 22 above), it has not been demonstrated by the Government that they could be regarded as constituting inappropriate or misconceived avenues which could be considered as bound to fail from the outset and hence should not be taken into account for the calculation of the six-month period (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 138, 19 December 2017; also contrast Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006, and Rezgui v. France (dec.), no. 49859/99, ECHR 2000-XI). In this respect, the Court notes that the Constitutional Court did not dismiss the applicants' constitutional complaints against the Supreme Court and Administrative Court decisions, in which they had complained about essentially the same issues as those being examined by the Court (see paragraphs 15 and 23 above), on the grounds that the available remedies had not been properly exhausted (see paragraphs 15 and 23 above). It thus rejects this objection of the Government.

With regard to the Government's objections concerning the exhaustion of certain domestic remedies (see paragraphs 68 above) the Court notes that they are closely linked and should thus be joined to the examination of the merits of the complaint under Article 13, taken together with other cited provisions.

The Court notes that the applicants complained under Article 3 of Protocol No. 1 and under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1. They also complained under Article 1 of Protocol No. 12. Furthermore, they cited Article 13 of the Convention. Being the master of characterisation to be given in law to the facts of the case (see Radomilja and others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that in so far as they relate to the 2015 Referendum the applicants' complaints should be examined from the standpoint of Article 1 of Protocol No. 12 — both alone and in conjunction with Article 13 of the Convention. In respect of the 2019 EP Elections, the complaints should be examined under Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1, and from the standpoint of these two provisions taken together with Article 13 of the Convention.

The Court furthermore notes that when considering whether there has been a violation of the right to an effective remedy in respect of a violation of a substantive right guaranteed by the Convention, the Court's normal practice is to consider first whether there has been a violation of the substantive right relied upon and then to consider whether there has been a violation of Article 13. However, having considered the applicants' submissions and in view of the Court's decision to join the Government's objection regarding the exhaustion of domestic remedies to the merits of the complaint under Article 13 (see paragraph 74 above), the Court considers that it should examine first whether there has been a violation of Article 13, read in conjunction with the other provisions relied on by the applicants.

The applicants complained of the lack of effective judicial means by which they could have requested an accessible polling station in advance. They furthermore complained of the lack of any effective remedy by which to claim compensation for being discriminated against in exercising their right to vote in elections or referendums. The relevant provisions (see paragraph 75 above) read as follows:

Article 13 (right to an effective remedy)

Article 14 (prohibition of discrimination)

Article 3 of Protocol No. 1 (right to free elections)

Article 1 of Protocol No. 12 (General prohibition of discrimination)

The applicants, whose mobility was impaired owing to disability and who used wheelchairs, complained of a violation of Article 1 of Protocol No. 12 with respect to their alleged lack of access to the voting procedure during the 2015 Referendum. They furthermore complained of a violation of Article 14, taken together with Article 3 of Protocol No. 1, with respect to the 2019 EP Elections. Those provisions have already been cited above (see paragraph 77 above).

Article 41 of the Convention provides: