Strøbye and rosenlind v denmark: A surprising departure from the european court of human rights’ disability voting rights jurisprudence

In Strøbye and Rosenlind v Denmark, the European Court of Human Rights decided that states may prevent persons with disabilities from voting based on legal capacity restrictions. The Court departed from three previous decisions, most notably Alajos Kiss v Hungary, where it decided similar legal capacity restriction-based voter disqualifications were impermissible under art.3 of Protocol No.1 to the ECHR. In contrast with Alajos Kiss, the Strøbye Court determined that Denmark warranted a wide margin of appreciation, gave greater weight to soft law instruments rather than the binding Convention on the Rights of Persons with Disabilities, considered voter disqualifications based on legal capacity restrictions non-discriminatory because not many persons with disabilities are affected, and did not require individualised assessments of voters’ capacity to justify their disqualification. Ultimately, the Strøbye Court’s justifications for departing from its precedents underwhelm and the decision is ripe for reconsideration by the Grand Chamber.