Amicus curiae brief to the Czech Constitutional Court

Constitutional Court of the Czech Republic Ústavní soud České republiky Joštova 8 660 83 Brno Czech Republic IN THE CONSTITUTIONAL COURT OF THE CZECH REPUBLIC In the cases of: HLAVÁČ TOMÁŠ (Case No. IV. ÚS 3073/08) and SOLDÁN JIŘÍ (Case No. IV. ÚS 3102/08) _____________________________________________________________ AMICUS CURIAE BRIEF BY TWENTY-FIVE NON-GOVERNMENTAL ORGANISATIONS AND ACADEMIC INSTITUTIONS, ALL HAVING EXPERTISE IN INTERNATIONAL HUMAN RIGHTS LAW _____________________________________________________________ Contact details: Mental Disability Advocacy Center Hercegprímás u. 11, H-1051 Budapest Hungary Tel: +36 1 413 2730 Fax: +36 1 413 2739 Email: mdac@mdac.org 18 February 2010 Table of Contents I. Executive Summary 3 II. Introduction 4 III. Czech Law and the Right to Vote 5 IV. International Law and the Right to Vote 6 VI. Comparative Legal Analysis 16 VII. Conclusions 19 VIII: Appendix 1: Interest, Expertise and Contact Details of Signatories 20 I. Executive Summary The right to vote is one of the most fundamental rights of any democratic state. Yet under Czech law, people with intellectual disabilities or psycho-social (mental health) disabilities who have been deprived of legal capacity cannot vote or stand for election. The Constitutional Court of the Czech Republic is considering two cases which address these concerns, that of Mr. Hlaváč and Mr. Soldán. This amicus brief has been written by international experts in order to provide the Constitutional Court with assistance in adjudicating upon the two instant cases. The exercise of the right for persons deprived of full legal capacity is restricted by Article 2(b) of the Law on Elections to the Parliament of the Czech Republic (Act no. 247/1995: o volbách do Parlamentu České Republiky). A substantial number of people – more than 25,000 – will not be able to express their political opinions in the upcoming elections in May 2010. This amicus brief provides the Czech Constitutional Court with legal context and international and comparative legal analysis to assist the Court in the proper administration of justice. The amicus curiae brief particularly elaborates on the United Nations Convention on the Rights of Persons with Disabilities, which the Czech Republic ratified in September 2009, and whose provisions are therefore binding. This amicus brief firstly sets out the Czech legal landscape with regard to the right to vote for people with actual or perceived psycho-social (mental health) disabilities or intellectual disabilities. The universal right to vote is enshrined in the Czech Constitution as well as the Czech Charter of Fundamental Rights and Freedoms. Additionally, the amicus brief provides the Constitutional Court with an analysis which challenges common assumptions that votes cast by people with psycho-social (mental health) disabilities or intellectual disabilities are “irrational”, “incompetent” or “manipulated”. The amicus curiae brief suggests that any system which impedes the right to vote of people under guardianship is arbitrary, lacks proportionality and interferes with the free expression of all people, contrary to the European Convention on Human Rights. Further, several examples of countries with a more flexible and equitable approach to the right to vote for people under guardianship are provided. II. Introduction 1. This amicus brief provides the Czech Constitutional Court with legal context and international and comparative legal analysis to assist the Court in the proper administration of justice. These comments may be helpful to interpret the Constitution in two cases of Mr. Hlaváč and Mr. Soldán which are currently before it. The reason for the interest by the signatories of this amicus brief is that to the best of the signatories’ knowledge, these cases are the first time that a Constitutional Court is being asked to interpret the United Nations Convention on the Rights of Persons with Disabilities, which the Czech Republic ratified on 28 September 2009. 2. The amicus brief has been coordinated by the Mental Disability Advocacy Center (MDAC), an international human rights organization headquartered in Budapest, and working in several European countries. It is respectfully submitted jointly by the following organisations and persons, all having expertise in international disability law. The signatories are: Peter Bartlett, Professor of Mental Health Law, University of Nottingham, United Kingdom; Canadian Association for Community Living; Center on Human Policy, Law and Disability Studies at Syracuse University, USA; Luke Clements, Professor of Law and Director of the Centre for Health and Social Care Law, Cardiff Law School, Cardiff University, Wales; Theresia Degener, Professor of Law and Disability Studies, Protestant University of Applied Sciences in Bochum, Germany; Amita Dhanda, Professor of Law and Head of the Centre for Disability Studies, NALSAR University of Law, Hyderabad, India; Robert D. Dinerstein, Professor of Law and Director of the Clinical Program and Disability Rights Law Clinic at American University, Washington College of Law; European Disability Forum; The European Network of (Ex-) Users and Survivors of Psychiatry; The Harvard Law School Project on Disability, Cambridge, USA; Aart Hendriks, Professor of Law at Leiden University, the Netherlands; Human Rights Law Center at Nottingham University, United Kingdom; Hungarian Association for Persons with Intellectual Disability; Inclusion Europe; Inclusion International; Anna Lawson, Senior Lecturer in Law at University of Leeds, United Kingdom; Mental Disability Advocacy Center, Hungary; Torbjörn Odlöw, Professor of Law, School of Law at University of Gothenburg, Sweden; Open Society Mental Health Initiative, Hungary; Rethinking Mental Health Laws Project at Monash University, Australia; Michael Perlin, Professor of Law and Director of the International Mental Disability Law Reform Project of the Justice Action Center at New York Law School, USA; Jan Pfeiffer, Psychiatrist and Advocate for Mental Health Care Reform, Czech Republic and United Kingdom; Gerard Quinn, Professor of Law and Director of the Centre for Disability Law and Policy at the NUI Galway School of Law, Ireland; Michael Stein, Professor of Law, Harvard Law School, Cambridge, USA; and Renata Uitz, Professor and Chair of Comparative Constitutional Law, Central European University, Budapest, Hungary. 3. The interest and expertise of each of these organisations and individuals is provided in Appendix 1 of this amicus brief. Together, the signatories have a wide-ranging expertise in human rights, disability rights, and constitutional law. III. Czech Law and the Right to Vote 4. This amicus curiae brief is submitted with respect to the case of Mr Tomáš Hlaváč who was deprived of legal capacity until 19 March 2009, and Mr Jiří Soldán who is still deprived of legal capacity under Article 10(2) of the Civil Code No. 40/1964. Due to their status as people deprived of legal capacity they have not been allowed to exercise the right to vote, in accordance with Article 2(b) of the Law on Elections (Law No. 247/1995) which states that deprivation of legal capacity presents “an impediment to the right to vote”. 5. During the parliamentary debates prior to the adoption by the parliament of the Election Law in 1994 and the Civil Code in 1964, there was no discussion about the specific articles concerning legal capacity. The Constitutional Court cannot therefore be guided by the articulated intent of the legislature. By legal capacity, the signatories of this amicus understand both the right to recognition everywhere as persons before the law as well as the capacity to exercise those rights (as set out in Article 12 of the UN Convention on the Rights of Persons with Disabilities). The signatories of this amicus curiae brief urge the Constitutional Court to declare as unconstitutional the provision in law which currently inhibits more than 25,000 people from voting in local, national and European Parliamentary elections. The signatories urge the Court to adjudicate upon these cases in time for these people to vote in the upcoming parliamentary elections to be held in May 2010. 6. The right to vote is one of the rights protected by the Czech Constitution, Article 18(3) of which states that “[e]very citizen of the Czech Republic who has attained the age of eighteen years shall have the right to vote.” Article 19 of the Constitution states that every person who has the right to vote also has the right to stand for election to the Chamber of Deputies if he/she has attained the age of twenty-one, or to the Senate if he/she has attained the age of forty. Article 20 of the Constitution states that “other conditions of the exercise of the right to vote, the organisation of elections and the scope of judicial review shall be set by law“. 7. Article 21(1) of the Czech Charter of Fundamental Rights and Basic Freedoms establishes that "[c]itizens have the right to participate in the administration of public affairs either directly or through the free election of their representatives." and Article 21(3) states that "[t]he right to vote is universal and equal, and shall be exercised by secret ballot", and Article 21(4) establishes that "[c]itizens shall have equal access to elected and other public functions." 8. The two cases before the Constitutional Court concern the impediment to the right to vote for people deprived of legal capacity. According to Article 10(1) of Civil Code No. 40/1964 “[i]f a person due to mental disorder that is not temporary is not competent to make legal actions at all then the court deprives the person of legal capacity. Article 10(2) says that “[i]f a person due to mental disorder that is not only temporary or due to excessive alcohol consumption or consumption of toxic agents or poisons is competent to make only some legal actions, the court will restrict the legal capacity of such person and will set out the restrictions in its decision.” The Czech law assumes that a person deprived of their legal capacity be automatically denied other rights without further examination of the proportionality of such decision. For example, a court does not assess the person’s ability to marry, to raise children or to stand for election. The right to vote is one of the Constitutional rights which are restricted as a result of deprivation of legal capacity. It is the constitutionality of this restriction upon which the Constitutional Court must adjudicate. The deprivation of legal capacity thus has a direct effect on the right to vote and provides a blanket provision which restricts specific rights of diversed individuals. IV. International Law and the Right to Vote 9. The concept of one-person-one-vote occupies one of the fundamental rights in jurisdictions which respect democracy and the rule of law. The right to vote and to stand for election are guarantees which provide the opportunity for people to participate in political and public life. As the European Court of Human Rights has said on several occasions, “[f]ree elections and freedom of expression, and particularly the freedom of political debate, form the foundation of any democracy”. 10. This section of the amicus curiae brief sets out international law binding upon the Czech Republic and therefore of prime importance for the Constitutional Court to take into account in the instant two cases. This section additionally sets out international human rights law and instruments which may be helpful for the Constitutional Court to bear in mind and cite with authority in its judgments. IV.1. International Covenant on Civil and Political Rights 11. Article 25 of the 1966 International Covenant on Civil and Political Rights (ICCPR), to which the Czech Republic is a party, guarantees the right to vote and to stand for public office for citizens of a country. 12. General Comment Number 25 by the Human Rights Committee (the ICCPR treaty monitoring body) points out in paragraph 10 that “[t]he right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements.” Although the General Comment does not specifically mention intellectual disabilities or psycho-social (mental health) disabilities, the signatories of this amicus curiae brief are of the option that restricting people of their right to vote along any disability lines is unreasonable. In light of the subsequent adoption of the UN Convention on the Rights of Persons with Disabilities, it may be assumed that the reference to disability would today also embrace any form of psycho-social (mental health) disability or intellectual disability. 13. The positive obligations on a State Party to the ICCPR, highlighted by General Comment 25, are nevertheless of considerable relevance, including the requirement that States take action to ‘’overcome specific difficulties, such as illiteracy, language barriers, poverty … which prevent persons entitled to vote from exercising their rights effectively”. It follows that Article 25 of the ICCPR requires such measures, also in relation to persons with any type of disability including impaired mental capacity and even for those deprived of their legal capacity IV.2. United Nations Convention on the Rights of Persons with Disabilities 14. Many international instruments to which the Czech Republic is a party guarantee the right to vote. The latest, and most relevant of these is United Nations Convention on the Rights of Persons with Disabilities (CRPD) which the Czech Republic signed on the day the treaty opened for signature (30 March 2007) and which it ratified on 28 September 2009. 15. The purpose of this Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities” (Article 1). The Convention includes within its remit persons who have mental health disabilities as well as persons who have intellectual disabilities. The definition of persons with disabilities according to the Convention is wide. The Convention does not take a medical approach which would list illnesses or diagnoses, but rather confirms that “[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” (Article 1). There is wide recognition and acceptance by the international human rights community that persons with disabilities related to depression (in Mr Hlaváč’s case) or schizophrenia (in Mr Soldán’s case) are entitled to the protection afforded by the Convention. 16. Article 12 of this Convention guarantees legal capacity of persons with disabilities on an equal basis with others, in all aspects of life, and without discrimination on the basis of disability. Disability must not be a ground for removing legal capacity, and any determinations to restrict a person’s right to vote made on this basis would be in violation of the Convention. The right to vote is fundamentally distinct from other ways in which people exercise their legal capacity that directly implicate other parties, like contractual and other agreements. As no other population group, and no non-disabled person is subject to capacity tests for voting, the imposition of such eligibility criteria solely on the basis of disability would be a violation of Article 12 of the CRPD – the right to legal capacity on an equal basis with others. 17. Article 29 of the UN Convention on the Rights of Persons with Disabilities is entitled “participation in political and public life”. The Article guarantees “to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others”. In order to achieve this goal, the Article goes on to list undertakings of States Parties: (a) Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by: (i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; (ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; (iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice. 18. The legal status of the UN Convention on the Rights of Persons with Disabilities is as follows: The Czech Republic ratified the treaty on 28 September 2009. According to Article 10 of the Czech Constitution, international laws and human rights treaties which have been ratified are immediately binding upon, and superior to, the domestic legal framework. The question for the Constitutional Court therefore is the following: Is Article 2(b) of the Czech Elections Law in compliance with Article 29 of the United Nations Convention on the Rights of Persons with Disabilities? 19. The UN Convention on the Rights of Persons with Disabilities adopts the approach that persons with disabilities are not a homogenous group. They are, similar to the population of any country, individuals who are diverse in needs, interests, desires and abilities. Unlike the Czech Elections Law which restricts the right of persons with psycho-social (mental health) or intellectual disabilities to vote, international human rights law, including the UN Convention on the Rights of Persons with Disabilities, takes the approach that human rights are not dependent on a person’s ability to exercise them. 20. Unlike the Czech Elections Law, the UN Convention on the Rights of Persons with Disabilities recognises the right to vote for all persons with disabilities, and in order to equalize the rights for persons with disabilities, places an obligation upon the State to provide assistance to a person with disabilities who wants to vote and needs some help in doing so. Specifically, the Convention contains an obligation on States to, “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (Article 12(4) of the Convention). The Czech Elections Law seems not to meet this treaty obligation, but instead imposes a voting ban on all people with disabilities who have been restricted or deprived of their legal capacity. 21. Moreover, the UN Convention on the Rights of Persons with Disabilities calls for equality and non-discrimination in Article 15. The impediment to the right to vote applied to all persons deprived of legal capacity constitutes discrimination on the basis of disability. Further, there is no provision in the Czech Elections Law to assist persons deprived of legal capacity to vote which appears not to comply with Article 29 of the UN Convention on the Rights of Persons with Disabilities. To promote equality and eliminate discrimination, the Czech Republic must “take all appropriate steps to ensure that reasonable accommodation is provided” (Article 5(3) of the Convention) including in the exercise of the right to vote. By not providing for assistance and reasonable accommodations, the current Czech law unlawfully discriminates against persons with disabilities. IV.3. European Convention on Human Rights 22. The right to vote is set out in Article 3 of Protocol No. 1 to the European Convention on Human Rights, which says: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. 23. In the case of Ždanoka v. Latvia, the Grand Chamber of the European Court of Human Rights had the opportunity to provide guidance on how courts should interpret Article 3 of Protocol 1 to the European Convention on Human Rights. In this case, the European Court of Human Rights stated that the provision differs from other rights guaranteed by the Convention and its Protocols as it is phrased in terms of the obligation of States to hold elections which ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. The European Court of Human Rights looked at the preparatory work to Article 3 of Protocol No. 1 and the interpretation of the provision in the context of the Convention as a whole and established that this provision also implies individual rights, including the right to vote and to stand for election. 24. In its Ždanoka judgment, the European Court of Human Rights clarified that in examining compliance with Article 3 of Protocol No. 1, will focus mainly on two criteria: (i) whether there has been arbitrariness or a lack of proportionality, and (ii) whether the restriction has interfered with the free expression of the opinion of the people. Analysing the two instant cases before the Constitutional Court, the signatories to this amicus curiae brief are of the opinion that both of these criteria have been fulfilled negatively in both of the cases for the following reasons, and therefore the impediment to the right to vote for both applicants is likely to be a violation of the European Convention on Human Rights. IV.3.i. Arbitrariness and a lack of proportionality 25. There are approximately 25,000 people in the Czech Republic who have been deprived of their legal capacity according to the Czech Ministry of Interior. This constitutes a considerable number of voters who are denied their right to participate in elections. It is not within the usual practice of the courts when examining legal capacity to specifically consider the person’s voting capacity. There are no professional guidelines or standards by which it is possible to measure capacity to vote. Thus there is a blanket impediment on all people deprived of legal capacity from voting: this is arbitrary since it indiscriminately applies to everyone in the ‘group’. 26. An analogous situation was found by the European Court of Human Rights in the case of Hirst v. the United Kingdom, where it was held that the UK authorities had automatically disqualified all people serving a prison sentence from the right to vote without having due regard to relevant matters such as the length of the prisoner’s sentence or the nature and gravity of their offence. A general, automatic and indiscriminate restriction of the right to vote for everyone holding a certain status – in this case people serving a prison sentence – was considered by the European Court of Human Rights as falling outside the State’s acceptable margin of appreciation, and the Court found a violation of Article 3 of Protocol 1 to the European Convention on Human Rights. 27. In a case about legal capacity (although not about the right to vote), the European Court of Human Rights has demonstrated the trend away from the status approach which justifies deprivation of rights based on a real or perceived status, such as disability. In the case of Shtukaturov v. Russia, the European Court of Human Rights stated that the existence of a mental disorder, even a serious one, cannot be the sole reason to justify deprivation of legal capacity. The Court further emphasised that the national legislation did not provide for a “tailor-made response” to the applicant’s situation, and that as a result the applicant’s rights were limited more than strictly necessary. 28. In Shtukaturov the European Court of Human Rights held that a deprivation of legal capacity would seldom be deemed proportionate: or put another way, a deprivation of legal capacity could only satisfy the requirements of reasonableness in unusual and context-specific situations. Accordingly to disenfranchise a whole sector of disabled people on the basis of no ‘voting specific’ mental capacity assessment, would not satisfy the requirements of the European Convention on Human Rights. This view accords with the view that the core principle articulated in judgments of the European Court of Human Rights, such as in the Ždanoka case, is that States “may not create 'clusters' of disenfranchised persons by excluding groups or categories of the general population”. As the European Court of Human Rights asserted in Aziz v Cyprus, State policies of this nature should not “exclude some persons or groups of persons from participating in the political life of the country”. IV.3.ii. Interference with the free expression of the opinion of the people 29. The European Court of Human Rights has said that “any conditions on the right to vote must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage”. The signatories of this amicus curiae brief submit to the Constitutional Court that the integrity and effectiveness of the electoral procedure is strengthened by the inclusion of persons with disabilities. Their exclusion from the electoral process, on the other hand, jeopardises the hallmark fundamental values of modern democratic societies. 30. The positive contribution by persons with disabilities is highlighted in preambulatory paragraph (n) of the UN Convention on the Rights of Persons with Disabilities, which recognises “the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices”. Preambulatory paragraph (m) is a celebration of the diversity of persons with disabilities, which would be missing if people with disabilities are continued to be denied the right to vote. This paragraph recognises: the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty. 31. The CRPD aims to address the historic disadvantage of people with disabilities, and their social, economic, cultural and political invisibility in societies around the world. Recognition of political equality of this population requires an unequivocal extension of universal suffrage, without exception. Arguments like limited capacity have been used to restrict extension of political rights to indigenous peoples, women, and particular ethno-racial-cultural groups. On reflection, and after extension of suffrage to these groups, such arguments are revealed for what they are: signs of the limitations in democratic culture and principle that only a full extension of universal suffrage can address. IV.4. Other Legal Instruments 32. Intergovernmental political bodies – in which the Czech Republic plays an active part – have also adopted the approach contained within the UN Convention on the Rights of Persons with Disabilities. The Committee of Ministers of the Council of Europe (which is comprised of the Foreign Ministers of all Member States of the Council of Europe) addressed the issues of legal capacity and the right to vote in a Recommendation of 1999 (Recommendation No. R(99)4). This is a legal instrument which the European Court of Human Rights considers to “define a common European standard” in the area of legal capacity. Recommendation No. R(99)4 contains Principle 3 entitled “[m]aximum reservation of capacity” and sets out the following in paragraph 2: [A] measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. [emphasis added] 33. At the beginning of 2009, the Parliamentary Assembly of the Council of Europe adopted a resolution on access to rights for people with disabilities, and especially those previously deprived of full legal capacity, and to ensure their full and active participation in society. The resolution calls on Member States to take: the necessary measures to ensure that persons deprived of their legal capacity are not deprived of their fundamental rights (not least the rights to own property, to work, to a family life, to marry, to vote, to form and join associations, to bring legal proceedings and to draw up a will), and, where they need external assistance so as to exercise those rights, that they are afforded appropriate support, without their wishes or intentions being superseded. [emphasis added] 34. Furthermore, the Council of Europe has adopted a “Disability Action Plan 2006–2015”. This action plan is a legal instrument which was voted upon unanimously by all Member States of the Council of Europe in 2006. The Disability Action Plan advocates that all Member States of the Council of Europe should take actions to: Ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability. 35. Finally in this outline of the international legal standards, we wish to draw the attention of the Constitutional Court to the opinion of Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe. His “Viewpoint” dedicated to the rights of people with mental disabilities published on 29 September 2009, stated that: persons with mental health and intellectual disabilities should have the right to vote in elections and stand for election. Though this is stated clearly in the UN Convention [on the Rights of Persons with Disabilities] (Article 29), individuals in a number of European countries are excluded. Being deprived or restricted of their legal capacity they have been denied these rights as well. This has further exacerbated their political invisibility. 36. This section of the amicus curiae brief has outlined the international provisions which are legally binding on the Czech Republic and those which demonstrate the direction of travel of international law and policy. All point to the conclusion that in 2010 it is untenable for legal systems to deny the right to vote to people with disabilities, including those deprived of legal capacity. V. De-Coupling the Right to Vote from a Person’s Legal Capacity Status 37. Human rights are not dependent on a person‘s desire or ability to utilize them. Examples of this include the following: a person has the right to freedom of expression even if they have no intention or ability to publish a newspaper article; a person has the right to property even if they have none, and a person has the right to work even if they have no intention of finding a job. In the same way, it is a sensible starting point to assume that the right to vote exists irrespective of a person’s ability or desire to utilise the right. In the two cases before the Constitutional Court the applicants, however, do want to vote and have been prevented from doing so. 38. There are common assumptions about the legal capacity to hold rights and capacity to exercise those rights for people with psycho-social (mental health) disabilities or intellectual disabilities. These assumptions are part of the package of stigma which persons with disabilities face in their daily lives. Such stigma has resulted in discriminatory laws and practices. Such stigma and discrimination is the reason why the UN Convention on the Rights of Persons with Disabilities came into being. There are three arguments which are sometimes advanced to justify restricting or depriving the right to vote by persons with disabilities. These are the impulse of the State to prevent (1) an “irrational” vote, (2) an “incompetent” vote, and (3) a “manipulated” vote. In this section, the amicus curiae brief addresses these arguments in turn, and lays out for the Constitutional Court the empirical evidence as well as human rights and moral arguments in order to expose the myths behind these impulses. V.1. The State’s Impulse to Prevent an “Irrational” Vote 39. It is widely believed that persons with psycho-social (mental health) disabilities or intellectual disabilities are not in touch with reality. It is assumed that mad people make mad and irrational decisions, and that such irrationality extends to the ballot box. The proposition is that democratic processes are pure/clean, that is they are populated by people who make informed, well-thought through, and rational choices at the ballot box. The fear is that the democracy itself will be corrupted if mad people are allowed to cast mad votes. 40. The reality is that most votes cast are a mix of the rational and the irrational, and it would be impossible – not to mention impermissible - to read the mind of the electorate to screen out votes that were in part or wholly founded on an irrational basis. Such a level of scrutiny would certainly chill political expression, impact negatively on levels of political participation and turn the polis inwards as was the case under the socialist regime of Czechoslovakia and neighbouring countries. The fact that no system does this reflects a concern that to do so would dramatically rupture the integrity of the political process. Set against this, the lingering anachronism of depriving persons with disabilities their right to vote simply on the basis of their status or on the basis of presumed higher levels of irrationality is testament more to history than to logic. This history did not take seriously the preservation of the integrity and openness of the political process nor the historical islands of exclusion. V.2. The State’s Impulse to Prevent an “Incompetent” Vote 41. The common assumption behind the State’s impulse to prevent the “incompetent” vote is that people who are restricted or deprived of legal capacity have decreased intellect and ability to make choices. 42. Empirical evidence shows that the competence of persons with psycho-social (mental health) or intellectual disabilities is much higher than it was previously believed and “measured” by medical assessment tools. Several research studies have shown that many persons with psycho-social (mental health) disabilities (including schizophrenia and depression) were later found to be competent to give informed consent and to demonstrate insight into various issues than previously believed. Research also indicates that people understand more if they have the information presented in various format (visual images), simple language, or by someone who they know. 43. There is no voting competence test that would assess all potential voters’ competency to vote, so having a blanket prohibition on a category of persons (i.e. people restricted or deprived of legal capacity) is inherently discriminatory. If it is the intention of the State to decide to confine the right to vote only to those who have a fully developed rational capacity and democratic consciousness, how would this rational capacity be determined? What would such a test look like? A fully developed democracy enables all citizens on an equal basis with others to participate in political life. Disability should not be equated with incapacity or incompetence. V.3. The State’s Impulse to Prevent a “Manipulated” Vote 44. There are common assumptions about people with disabilities, and especially those with intellectual disabilities, that they are more easily influenced by the opinions of others and that it would be impossible for the law to protect against such manipulations. Both are manifestly ill-founded arguments. 45. In a pluralist democratic society, all citizens are exposed to a wide range of opinions and it cannot be guaranteed that they are not influenced by others. No one is truly independent; we all live in dependence and interdependence with others. Although the law may prescribe some safeguards to protect the society from some groups of individuals, the truth is that the society will always be influenced by decision-makers and power-holders. 46. The right to vote – and just as important, the equal weighting of votes regardless of the intelligence, gender, social status, literacy, intelligence and other factors of the voter – reflects a core understanding of the basis of legitimacy in liberal democracies. Power rests ultimately on the consent of the people. No power has the right to peer behind or question the validity of a vote if cast according to the proper procedures laid down by law. It follows that a vote may be based on a mix of influences, some personal, some cultural, and some traditional. Most voters are manipulated through campaigns, which form a core part of elections in democracies. Ultimately a vote expresses a preference. No system has ever purported to overturn the will of the people on the basis that its decision lacked rationality or was “manipulated” by personal preferences. VI. Comparative Legal Analysis 47. Having set out the relevant international law and standards, then exposed and dismissed myths about people with disabilities, the amicus curiae brief now sets of some positive examples of countries which do not restrict the voting rights of people with disabilities. Many countries have laws which guarantee the right to vote to persons with psycho-social (mental health) disabilities or intellectual disabilities. The right to vote of persons under guardianship is not restricted for example in the Netherlands, Sweden, United Kingdom, or South Africa. There has been significant law reform in Canada and the United States. The picture painted in this section interns to provide the Constitutional Court a vision of alternative and workable systems. VI.1. The Netherlands 48. In 2003, the Administrative Jurisdiction Department of the Council of State held that the 1983 Constitutional provision to deprive the right to vote of the persons who were placed under guardianship (“curatele”) because of their psycho-social (mental health) or intellectual disability (Article 54 Paragraph 2 of the Constitution), was in violation of the International Covenant on Civil and Political Rights. A similar restriction did not (and does not) apply to persons placed under the two other forms of guardianship foreseen in the Civil Code, “bewindvoering” (aimed at protecting the property and financial interests of the person) and “mentorschap” (aimed at protecting the interests of people regarding care and treatment). 49. Following this decision the Constitution was changed in 2008. The offending provision was taken out of the Constitution as a result of which individuals with psycho-social (mental health) disabilities or intellectual disabilities placed under guardianship can now enjoy the right to vote on an equal basis with others. VI.2. Slovenia 50. In Slovenia, the right to vote has been dealt with by the Slovenian Constitutional Court which in 2003 reviewed whether the requirements of the Law on Elections for Slovenian Parliament, the Law on Presidential Elections and the Law on Local Elections for registering only people with full legal capacity were in compliance with the Constitution. The Constitutional Court declared that “the capacity to exercise suffrage is impossible to be identified with legal capacity”, and thus the provisions of the above-mentioned electoral laws were found to be unconstitutional. 51. The Constitutional Court considered that with regard to people with intellectual disabilities, the law should establish a special procedure which would determine in each specific situation whether the person is capable of understanding the meaning of elections (Official Journal of RS, no. 73/29 July 2003, p. 11212). The Constitutional Court gave the Government and the Parliament six months to conform its electoral laws with its judgment. Since the Parliament did not proceed, the decision of the Constitutional Court came into effect automatically upon the expiry of six months, namely on 29 January 2004. Since that day over 3,700 persons with disabilities have been allowed to vote. VI.4. Sweden 52. Sweden has developed policies that reinforce rather than disregard a person’s capacity for self-determination and by doing so has embraced the essence of the trend towards capacity law movement. Concern regarding the continued marginalisation of persons with disabilities in addition to the fear of their further stigmatisation has led Sweden to completely abolish the guardianship system for adults. It replaced guardianship with two systems focusing on support: the “mentor” system and the “trustee” system. The mentor system is the preferred and predominant system as well as the less restrictive of the two systems. This system has numerous procedures in place to ensure that the mentor is supportive. In both systems, the adult retains the right to vote. VI.5. United Kingdom 53. With regard to voting, the Representation of the People Act 2000 extended the right to vote to some people who are detained and to all non-detained patients resident in psychiatric hospitals. Patients residing in hospital may now be entered in the electoral register giving the hospital address or any other address with which they have a local connection. However, the 2000 Act provides that those patients detained under the Mental Health Act who wish to vote may only do so by post or proxy with the exception of patients who are able to get to the polling station and thus may vote there . There is no legal provision to restrict the voting rights of any other people with disabilities. VI.6. South Africa 54. Article 19(3) of the South African Constitution (1996) guarantees the right to vote and to stand for public office and, if elected, to hold office to every adult citizen. Article 9(3) of the Constitution further prohibits the State to “unfairly discriminate directly or indirectly against anyone on one or more grounds”, including disability. Article 39(2) of the Electoral Law of 1996 provides assistance in voting for anyone who requests it. The only exemption based on disability allowed by the Constitution or the Electoral law is Article 47(1) of the Constitution in which persons declared by a court to be of “unsound mind” are not allowed to become a member of the National Assembly although they still can vote in elections. VII. Conclusions This amicus curiae brief has provided a summary of relevant international law and jurisprudence. It has set out examples of countries which have undergone law reform to abolish a restriction on the right to vote for people with psycho-social (mental health) disabilities or intellectual disabilities. By doing so, the twenty-five signatories of the amicus brief wish to assist the Constitutional Court in its decision in the cases of Mr. Hlaváč and Mr. Soldán, cases of particular importance given that the issue is one of interpreting the United Nations Convention on the Rights of Persons with Disabilities for the first time. The signatories to this amicus curiae brief respectfully encourage and ask the Constitutional Court to take into account the following recommendations when deciding these cases: • International law binding upon the Czech Republic, particularly the International Covenant on Civil and Political Rights, and the United Nations Convention on the Rights of Persons with Disabilities, makes clear that people with disabilities should enjoy legal rights and freedoms on an equal basis with others; • A blanket provision which restricts a ‘group’ of people such as those deprived of legal capacity is unlikely to meet the requirements of proportionality inherent in the European Convention of Human Rights. • Restricting the right to vote of people with psycho-social (mental health) disabilities or intellectual disabilities constitutes illegal discrimination, unjustified on any public policy ground; • The Czech Republic is under an international treaty obligation to annul laws which deny the right to vote for persons with disabilities; • Czech law should provide assistance in exercising political rights, as detailed by Article 29 in the United Nations Convention on the Rights of Persons with Disabilities. VIII: Appendix 1: Interest, Expertise and Contact Details of Signatories • Dr. Michael Bach, Executive Vice-President, Canadian Association for Community Living For over twenty years, Michael Bach has undertaken research and development on law, policies and programs in Canada and internationally on ways to advance the full inclusion and human rights of people with intellectual disabilities. He has written extensively in the area, his most recent publication being The Journey to Inclusive Education in the Indian Sub-Continent, with co-author Mithu Alur, and published by Routledge Press. He holds a PhD in Sociology and Equity Studies from the Ontario Institute for Studies in Education of the University of Toronto. His dissertation critically examines the usual equation between intellectual disability and legal incapacity. The Canadian Association for Community Living is a national association of 40,000 members, 400 local, family led Associations for Community Living and 13 provincial/territorial Associations. Its mission is to advance the human rights, citizenship and full inclusion of people with intellectual disabilities. Founded in 1958, CACL provides leadership on the issue of inclusion and human rights of people with intellectual disabilities through public awareness, family leadership, community partnerships, research and information, and policy dialogue. Address: Canadian Association for Community Living, Kinsmen Building, York University, 4700 Keele St, North York, ON, M3J 1P3. Phone: 416 661 961. Fax: 416 661 5701. Email: mbach@cacl.ca. Website: www.cacl.ca • Prof. Peter Bartlett, Professor of Mental Health Law, University of Nottingham, United Kingdom Peter Bartlett is Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law in the School of Law at the University of Nottingham. He is author or co-author of Blackstone’s Guide to the Mental Capacity Act 2005 (Oxford University Press, 2nd ed., 2007), Mental Health Law: Policy and Practice (Oxford University Press, 3rd ed., 2008), Principles of Mental Health Law (Oxford University Press, forthcoming 2010), and Mental Disability and the European Convention on Human Rights (Brill/Martinus Nijoff, 2006). Address: Nottinghamshire Healthcare NHS, School of Law, University of Nottingham, Nottingham NG7 2RD, United Kingdom. Phone: +44 [0]115 951-5709. Email: Peter.Barlett@nottingham.ac.uk. • Center on Human Policy, Law, and Disability Studies, Syracuse University, New York, USA The Center on Human Policy, Law, and Disability Studies (CHPLDS) is one of the first university-based, multidisciplinary disability centers in the world. Founded in 1971 as the Center on Human Policy, it expanded to become the CHPLDS as a network of multidisciplinary academic programs, centers, student organizations, and affiliated faculty whose research, teaching, and advocacy seeks to promote the rights of people with disabilities locally, nationally, and globally. It also houses Disability Studies Masters and PhD. programmes that facilitate a critical examination of disability as a valued aspect of diversity in society. It is co-directed by Professors Arlene Kanter and Steve Taylor of the School of Education. Address: Center on Human Policy, Law, and Disability Studies, Syracuse University, Syracuse, NY 13210. Website: http://disabilitystudies.syr.edu/. • Prof. Luke Clements, Professor and Director, Centre for Health and Social Care Law, Cardiff Law School, Cardiff University, Wales, and Solicitor to the Supreme Court of England and Wales Professor Clements has written extensively on human rights and equality law including Disabled People and the Right to Life (2008) Oxford: Routledge; Disabled People and European Human Rights; (2003) Bristol: Policy Press and European Human Rights: Taking a case under the Convention (1999 and 1994) London: Sweet & Maxwell. As a consultant solicitor Professor Clements has conducted and advised on many cases before the European Commission and Court of Human Rights. Address: Cardiff Law School, Museum Avenue, Cardiff CF10 3AX, United Kingdom. Telephone: 02920874 360. Email: clementslj@cf.ac.uk. Website http://www.law.cf.ac.uk/chscl/. • Prof. Theresia Degener, Protestant University of Applied Sciences in Bochum, Germany, Co-Director, Center for Disability Law and Policy, University of the Western Cape, Bellevile/ Cape Town, South Africa Professor Theresia Degener is professor of law and disability studies at the Protestant University of Applied Sciences in Bochum, Germany and Co-Director of the Center for Disability Law and Policy at the Law Faculty of the University of the Western Cape, Bellevile/ Cape Town, South Africa. She is an associated colleague at the Harvard Disability Project. Address: Hochschule Bochum, Lennershofstr. 140, D-44801 Bochum, Germany, Telephone: +49 (0)234 32-202. Fax: +49 (0)234 14312. Email: degener@efh-bochum.de. Website: http://www.hochschule-bochum.de/. • Prof. Amita Dhanda, Professor of Law, Head of Centre for Disability Studies, NALSAR University of Law, Hyderabad, India. Professor Dhanda has written extensively on the rights of persons with disabilities who in her book Legal Order and Mental Disorder set up an elaborate human rights argument for the political rights of persons with psychosocial disabilities. She is at present engaged in writing a handbook on Legal Capacity in the CRPD for the Office of the High Commissioner of Human Rights, Geneva. Centre for Disability Studies, NALSAR University of Law, Hyderabad, India was established in 2008 in order to : generating legal knowledge on disability issues; create a rights based discourse on disability; advocate for the rights of persons with disabilities; catalyze civil society understanding on disability rights and document current developments in disability law and policy. The expertise of the centre is accessed by both governmental and non governmental bodies. Thus the Centre has been commissioned by the National Trust a statutory body to draft the Amendments to the National Trust Act to bring it in harmony with the CRPD. It has also formulated the Status Paper on the Rights of Persons with Disabilities in India for a consortium of civil society organisations. Address: NALSAR University of Law, Justice City, Shameerpet, Rangareddy District Hyderabad 500012, AP, India. Telephone: 91-8418-245160. Fax: 91-8418-245161. Email: amitadhanda@gmail.com. • Prof. Robert D. Dinerstein, Professor of Law, Director of Clinical Program and Director, Disability Rights Law Clinic at American University, Washington College of Law, USA Robert D. Dinerstein is professor of law, director of the clinical program and director of the Disability Rights Law Clinic at American University’s Washington College of Law. He is the author of many publications and has made numerous presentations related to the field of disability law (in particular intellectual disabilities and mental health law), mental disability and the criminal justice system, issues of consent, choice and guardianship for people with disabilities, international human rights and disability, and other subjects. Professor Dinerstein served on the President’s Committee on Mental Retardation (now the President’s Committee for People with Intellectual Disabilities) from 1994-2001, and was a member of the Clinton Transition Team, Civil Rights Cluster, in 1992. He is former president of the Legal Process and Advocacy Division of the American Association on Mental Retardation (now the American Association on Intellectual and Developmental Disabilities). His international work in disability law and clinical legal education has taken him to Argentina, Canada, Chile, China, Columbia, Ghana, Peru, Hungary, Israel, Malawi, Poland, Montenegro, Japan, Slovenia, and South Korea, among other places, and he has served as a consultant to WHO in its mental health legislation and human rights initiative within the Mental Health Policy and Service Development Agency of the Department of Mental Health and Substance Abuse. Professor Dinerstein is a signatory of the Montreal Declaration on Intellectual Disabilities (October 2004) and the Legal Opinion on Article 12. He is listed in “Who’s Who” in America. Address: American University, Washington College of Law, 4801 Massachusetts Avenue, NW, Washington, DC 20016. Email: rdiners@wcl.american.edu. Website: www.wcl.american.edu. • European Disability Forum The European Disability Forum (EDF) is the European umbrella organisation representing the interests of 65 million citizens with disabilities in Europe. EDF membership includes national umbrella organisations of disabled people from all EU/EEA countries, as well as European NGOs representing the different types of disabilities, organisations and individuals committed to disability issues. The mission of the European Disability Forum is to ensure disabled people full access to fundamental and human rights through their active involvement in policy development and implementation in Europe. EDF has participatory Status with the Council of Europe and is accredited to the UN ECOSOC. Address : Forum Européen des Personnes Handicapées, rue du Commerce - Handelstraat 41 1000 Brussels, Belgium. Phone: +32 2 2865181. Fax: +32 2 2824609. Email: carlotta.besozzi@edf-feph.org. Website: www.edf-feph.org. • The European Network of (ex-) Users and Survivors of Psychiatry The European Network of (ex-) Users and Survivors of Psychiatry (ENUSP) is the only independent network led by and for mental health service users and survivors of psychiatry at a European level. Our members are national and regional organisations and individuals from 39 countries united in the fight for human rights and self-determination. In addition to maintaining a Europe-wide support network, ENUSP has campaigned for the last nineteen years to end discriminatory and abusive treatment of users and survivors of psychiatry and advance accessible alternatives. Our efforts help to expose coercive psychiatric treatment as a major human rights issue which must be dealt with through changes to public law and policy. We are now consultants to the EU, UN, WHO and other major public and non-profit bodies. Address: European Network of (ex-) Users and Survivors of Psychiatry, Zabel-Krüger-Damm 183, D-13469 Berlin, Germany. Phone: +49 30 8596 3706. Email: debra.shulkes@gmail.com. Website: www.enusp.org. • The Harvard Law School Project on Disability, Cambridge, USA The Harvard Law School Project on Disability (HPOD) works to promote the human rights of people with disabilities worldwide by empowering all people to use the United Nations Convention on the Rights of Persons with Disabilities to develop fully equitable societies. HPOD supports the development of disability civil society, informs innovative legislative and policy development, provides legal advice and human rights training to persons with disabilities, their representative organisations, non-governmental organisations, National Human Rights Institutions, and governments. It enables inclusive development practices. As a global disability law and policy center, HPOD undertakes and encourages teaching and ground-breaking scholarship on disability rights. Address: Harvard Law School Project on Disability, 1563 Massachusetts Avenue, Pound Hall 423, Cambridge, MA 02138, USA. Email: info@hpod.org. • Prof. Aart Hendriks, Professor of Law, Leiden University, Faculty of Law and Leiden University Medical Centre, Leiden, the Netherlands Professor Aart Hendriks is professor of health law at Leiden University, the Netherlands and a member of several international human rights organisations. He serves as an advisor and is a member of numerous committees such as the Health Management Forum, Leiden; Health Council of the Netherlands, The Hague; Governmental Committee on Patients’ Rights, The Hague; Policy Advisory Board, Royal Dutch Medical Association (KNMG), Utrecht, the Netherlands; Group of specialists on predictivity, genetic testing and insurance, Council of Europe, Strasbourg, France. Prof. Hendriks has written and co-authored more than 300 national and international publications on such issues as human rights, patients’ rights, health law, minority rights, genetics, medical experiments with human beings, equality rights, HIV/AIDS, European integration and Eastern Europe. Address: Faculty of Law, Institute of Public Law, PO Box 9520, 2300 RA Leiden, the Netherlands, Telephone: + 31. 71. 527 7713. Email: aarthendriks@planet.nl. Website: http://www.law.leidenuniv.nl. • Human Rights Law Centre, University of Nottingham, United Kingdom The Human Rights Law Centre is committed to the promotion and protection of human rights and the establishment and strengthening of the rule of law worldwide. It carries out its work by means of research, training, publications and capacity building. It collaborates with governments, intergovernmental organisations, academics, students and civil society, and has implemented programs worldwide. The Centre is co-directed by Professor David Harris and Professor Michael O'Flaherty and supported by the University's 51-strong Faculty of Law and an international network of members and fellows. Please explore our website to find out about our latest news, events, research, projects and opportunities to get involved in our work. Address: University Park, Nottingham, NG7 2RD. Phone: +44 (0) 115 846 6309, +44 (0) 115 846 6309. Fax: +44 (0) 115 846 6579. Email: Michael.Oflaherty@nottingham.ac.uk, david.harris@nottingham.ac.uk. Website: http://www.nottingham.ac.uk/hrlc/index.aspx. • Hungarian Association for Persons with Intellectual Disabilities (ÉFOÉSZ) The Hungarian Association for Persons with Intellectual Disabilities (ÉFOÉSZ) - established in 1981 - is a national umbrella body of organisations concerned with the care and rehabilitation of people with intellectual disabilities in Hungary. At present time our Association represents 50 member organisations, 26 local branches and 22 000 individual members all over the country and we run 9 community based settings. We work with and for people with intellectual disabilities and one of our main goals is to support people with intellectual disabilities to have equal rights and equal opportunities and to live as active and full members of society. Address: 17 Lónyai utca, 1085 Budapest, Hungary. Telephone: +36-1-411-1356, +36-1-411-1357. Email: efoesz@efoesz.hu. Web: www.efoesz.hu. • Inclusion Europe Inclusion Europe is a non-profit umbrella organisation that campaigns for the rights and interests of people with intellectual disabilities and their families throughout Europe. Respect, Solidarity and Inclusion are the fundamental values shared by all members of our movement of and for people with intellectual disabilities and their families. Inclusion Europe co-ordinates activities in many European countries, including conferences, working groups and exchange meetings. It responds to European policy proposals and provides information about the needs of people with intellectual disabilities. Inclusion Europe advises the European Commission and members of the European Parliament on disability issues. Inclusion Europe actively fights for the respect and realisation of persons with intellectual disabilities, supporting the implementation of the UN Convention on the Rights of Persons with Disabilities. In December 2009, Inclusion Europe began a project to improve the accessibility of the European elections for people with intellectual disabilities. The project will analyse the current legal situation in the EU Member States regarding the accessibility of voting for people with intellectual disabilities and will assess the estimated participation of this group of citizens in the European elections. The recommendations and best practices developed as a result of the project aim to enable more people with intellectual disabilities in Europe to participate in European elections and to fully exercise their right to vote. Please do not hesitate to contact us if you would like further information about the project. Address: Galeries de la Toison d’Or, 29 Chaussée d’Ixelles #393/32, B-1050 Brussels – Belgium. Phone: +32-2-502 28 15. Fax : +32-2-502 80 10. Email: k.ward@inclusion-europe.org. Website: www.inclusion-europe.org. • Inclusion International Inclusion International is a global federation of family-based organizations advocating for the human rights of people with intellectual disabilities worldwide. Inclusion International promotes the rights of persons with intellectual disabilities by supporting our members and advocating at the global level. Inclusion International has consultative status with the United Nations and works closely with its agencies such as UNESCO, UNICEF and the World Health Organisation. Inclusion International was an active participant in the negotiations of the United Nations Convention of the Rights of Persons with Disabilities and is now working to promote its implementation and monitoring. Address: Inclusion International, KD.2.03 University of East London 4-6, University Way, Docklands Campus, London E16 2RD, United Kingdom. Telephone: 44 20 8223 7709. Fax: 44 208 2236081. Email: dianer@cacl.ca. Website: www.inclusion-international.org. • Prof. Arlene Kanter, Professor of Law and Director, Disability Law and Policy Program of Syracuse University College of Law, and Co-Director, Center on Human Policy, Law and Disability Studies, Syracuse University, Syracuse, NY, USA Professor Kanter is an internationally recognized expert on domestic and international disability laws. She worked with the United Nations on drafting the Convention on the Rights of People with Disabilities and has worked with several countries on developing their disability laws and policies, particularly in the Middle East. Co-author of the first legal casebook on international and comparative mental disability law, she lectures extensively throughout the world and has written numerous articles on the rights of people with disabilities, including on their right to vote. In 2009-10, she is a Fulbright Scholar at Tel Aviv University in Israel. She founded the first Disability Law and Policy Program in the US which grants a joint degree in law and disability studies and she co-directs the Center on Human Policy, Law, and Disability Studies (CHPLDS). Address: Disability Law and Policy Program, Syracuse University, College of Law, Syracuse, NY, U.S.A, 13244-1030. Phone: 001 315-443-9551. Email: kantera@law.syr.edu. Website: http://www.law.syr.edu/faculty/facultymember.aspx?fac=72. • Anna Lawson, Senior Lecturer, University of Leeds, Leeds, United Kingdom Anna Lawson is a senior lecturer at the School of Law, University of Leeds. Her primary research interest is disability discrimination and human rights law - a topic on which she has taught and published widely. She has acted as expert adviser to organisations such as the UK Disability Rights Commission, the European Disability Forum and the European Blind Union and is currently a trustee of the Mental Disability Advocacy Center and the Royal National Institute of Blind and Partially-Sighted People. Address: School of Law, 20 Lyddon Terrace, University of Leeds, Leeds, LS2 9JT, UK. Phone: +44 (0) 113 343 5033. Fax: +44 (0) 113 343 4400. Email: A.M.M.Lawson@leeds.ac.uk. Website: http://www.law.leeds.ac.uk. • Prof. Bernadette McSherry, Professor of Law, Rethinking Mental Health Laws Project, Monash University, Australia and Australian Research Council Federation Fellow The Australian Research Council Federation Fellowship Project, Rethinking Mental Health Laws is developing a research program into mental health laws over a five year period. The main aim of this research program is to explore the role the law has and should have in improving access to optimal mental health care and promoting and maintaining good mental health. The program is bringing together mental health experts from a range of disciplines as well as consumer representatives to develop model frameworks for both civil commitment laws for those with serious mental illnesses and sentencing laws for mentally ill offenders. Professor McSherry has written extensively in the field of mental health law and criminal law and has acted as a consultant to governments across Australia. She is a legal member of the Mental Health Review Board of Victoria and the Psychosurgery Review Board of Victoria. Address: Faculty of Law, Building 12, Monash University, Clayton 3800 Australia. Telephone: 613-9905-3353. Fax: 61-3 9905 5305. Email: Bernadette.McSherry@law.monash.edu.au. • The Mental Disability Advocacy Center (MDAC) The MDAC is an international non-governmental human rights organisation headquartered in Budapest, Hungary. Its mission is to advance the human rights of children and adults with actual or perceived intellectual or psycho-social (mental health) disabilities. Focusing on Europe and central Asia, MDAC uses a combination of law and advocacy to promote equality and social integration. MDAC has participatory status with the Council of Europe. Conflict of interest disclosure: MDAC works in partnership with the Czech NGO “League of Human Rights”, and was involved in advising lawyers from the “League of Human Rights” in developing the two cases which are now before the Constitutional Court. Address:Hercegprímás u. 11, 1051 Budapest, Hungary. Telephone: +361 413 2730. Fax: +361 413 2739. Email: mdac@mdac.org. Website: www.mdac.org. • Open Society Mental Health Initiative at Open Society Institute, Budapest, Hungary The Open Society Mental Health Initiative (MHI) seeks to ensure that people with mental disabilities (mental health problems and/or intellectual disabilities) are able to live in the community and to participate in society with full respect for their human rights. MHI promotes the social inclusion of people with mental disabilities by supporting the development of community-based alternatives to institutionalisation and by actively engaging in policy based advocacy. People with mental disabilities have the right to receive support in a manner that respects them as individuals and enables them to achieve self-determined and meaningful lives. This kind of support can only be provided in community settings. MHI works in Central and Eastern Europe and the former Soviet Union. Address: Open Society Institute Budapest, Oktober 6 u. 12, H-1051 Budapest, Hungary. Telephone: +361 327 3100. Fax: +361 327 310. Email: JKlein@osi.hu. Website: www.osmhi.org. • Dr. Torbjörn Odlöw, Director of Postgraduate Studies and Professor of Law, Department of Law, Handelshögskolan vid Göteborgs Universitet - School of Business, Economics and Law, University of Gothenburg, Sweden Torbjörn Odlöw is a Senior Lecturer and the Director of Postgraduate Studies at the Department of Law, School of Business, Economics and Law at the University of Gothenburg. His area of expertise is Swedish guardianship law and he is a consultant to public authorities and private citizens in Sweden in such matters. He wrote a dissertation entitled Ställföreträdare för vuxna – Kamrer eller handledare? (Guardian of Incapable Adults – Accountant or Supervisor?) in 2005. Address: Juridiska institutionen, Department of Law, Handelshögskolan vid Göteborgs universitet, School of Business, Economics and Law, University of Gothenburg, Vasagatan 1, Box 650, SE 405 30 Göteborg. Phone: +46 (0)31 786 58 40. Cell phone: +46 (0)735 033 806. Fax: +46 (0)31 786 44 54. Email: torbjorn.odlow@law.gu.se. • Prof. Michael L. Perlin, Professor of Law and Director, International Mental Disability Law Reform Project and Online Mental Disability Law Program The International Mental Disability Law Reform Project in the Justice Action Center at New York Law School promotes a wide range of advocacy initiatives in Europe, South America, Asia, and Africa. It is involved in legislative reform, lawyer and law student training, pro bono legal assistance, and the full range of law reform projects that relate to the practice of mental disability law in other nations, an involvement that has become all the more urgent since the ratification of the UN Convention on the Rights of Persons with Disabilities. Professor Perlin is the former director of the state of New Jersey Division of Mental Health Advocacy. In that role, he supervised the litigation - some 33 years ago - of Carroll v. Cobb, 139 N.J.Super. 439, 354 A.2d 355 (App. Div. 1976), holding that residence in a state institution for persons with mental disabilities did not render one unable to vote. Address: New York Law School, 185 West Broadway, New York, NY 10013. Telephone: 001 212-431-2183. Email: mperlin@nyls.edu. • Dr. Jan Pfeiffer, Psychiatrist and Advocate for Mental Health Care Reform, Czech Republic and United Kingdom Jan Pfeiffer is a Czech psychiatrist, psychotherapist, supervisor and a leading advocate of reform of mental health care. Dr. Pfeiffer has more than 28 years of clinical experience in mental heath care in different settings in the Czech Republic and the United Kingdom and more than 20 years of experience in developing community mental health service in Central an Eastern Europe. He has been an advocate for advancing human rights for adults and children with mental health disabilities and learning disabilities. Dr. Pfeiffer’s advocacy work in the Czech Republic includes the position of a consultant of the Czech Ministry of Health in mental health reforms. As the director of Centre for Mental Health Care Development, he has participated in developing a monitoring system of human rights in mental health hospitals and campaigning against physical restrains in institutions. Jan Pfeiffer is a member of Council for Human Rights and Biomedicine, a board member of Advocacy International, Mental Health Europe, and MDAC, consultant of GIP, and a Chair of EU commissioner Spidla Ad Hoc Expert Group on Transition of Institutional to Community Care. Dr. Pfeiffer was awarded the European Hero prize for his advocacy work by magazine Times in 2004. Address: Jan Pfeiffer, Director of Eternal Relationships, Children's High Level Group,12-14 Berry Street, London EC1V 0AU, United Kingdom. Phone: +44 20 7253 6565. E-mail: jan.pfeiffer@chlg.org. Website: http://chlg.org. • Prof. Gerard Quinn, Professor and Director, Centre for Disability Law and Policy at the National University of Galway, Ireland The Centre for Disability Law & Policy at the National University of Ireland (Galway) was established in 2008 and launched by Mary Robinson. It co-produces the European Yearbook on Disability Law (with Professor Waddington at Maastricht University) and it co-produced the first book in Europe on the UN Convention on the Rights of Persons with Disabilities (Quinn & Arnardottir, 2009). Its Director, Professor Gerard Quinn, was closely involved in the drafting of the UN Convention and services as a scientific director on the board of the Academic Network of Experts on Disability (ANED). Address: Centre for Disability Law and Policy, National University of Ireland, Galway, University Road, Galway, Ireland. Telephone: +353 (0)91 495888, +353 (0)91 495888. Fax: +353 (0) 91 495569. Email: gerard.quinn@nuigalway.ie. Website: http://www.nuigalway.ie/cdlp/. • Prof. Michael Stein, Professor of Law, Harvard Law School, Cambridge, USA An internationally recognised expert on disability rights, Michael Stein participated in the drafting of the United Nations Convention on the Rights of Persons with Disabilities, and actively consults with international governments on their disability laws and policies. He serves on disability rights advisory boards and blue ribbon research panels, and was an American Bar Association Commissioner on Mental and Physical Disability Law. Stein also acts as a legal advisor to Rehabilitation International, Disabled Peoples' International, and to Special Olympics International. Stein works with disabled persons organisations around the world, and advises a number of United Nations bodies, for example DESA and UNICEF. Address: Harvard Law School, Pound Hall, Room 423, 1563 Massachusetts Avenue, Cambridge, MA 02138 USA, Phone: (617) 495-1726. Email: mastein@law.harvard.edu. Website: www.hpod.org. • Prof. Renáta Uitz, Professor and Chair of Comparative Constitutional Law, Central European University, Budapest, Hungary Renáta Uitz is professor of comparative constitutional law, chair of the Comparative Constitutional Law program and co-director (with Károly Bárd) of the clinical specialization at CEU Legal Studies. She obtained her Doctor iuris degree (with summa cum laude) at Eotvos Lorant University, Faculty of Law in 1996 and received an LLM in Comparative Constitutional Law at CEU Legal studies in the following year. Her S.J.D. (summa cum laude) in comparative constitutional law earned in 2001 is also from CEU Legal Studies. She started teaching at CEU in 2001, and became chair of the Comparative Constitutional Law program in 2007. Her teaching covers subjects in comparative constitutional law in Europe and North America, transitional justice and human rights protection with special emphasis on the enforcement of constitutional rights and on issues of bodily privacy and sexuality. Theories and practices of good governance in and after democratic transition, and the role of courts in constructing the constitutional subject are at the center of her research interests. "Constitutions, Courts and History" (2004) was her first book, while her most recent is "Freedom of Religion in European Constitutional and International Case Law" (2007). In addition she is the author of over 30 articles and book chapters which appeared mainly in English, Hungarian and Russian. She regularly speaks at international conferences on comparative constitutional subjects. Address: Central European University, Legal Studies Department, Nador utca 9, H- 1051 Budapest, Hungary. Phone: +36 1 327 3201. Fax: +36 1 327 3198. Email: uitzren@ceu.hu. Website: http://web.ceu.hu/legal/uitz.htm.