Germany: Constitutional Court Landmark decision for all persons with disabilities are, without any exception, entitled to take part in federal elections and to execute their right to vote (January 2020)
In January 2019 the German Federal Constitutional Court decided that all persons with disabilities are, without any exceptions, entitled to take part in elections and to execute their right to vote.
The background is as follows: In 1992 the German Guardianship Act was abolished and replaced by a so- called Custodianship Law which on the one hand guarantees the legal capacity of persons under custodianship, but on the other hand states that some decisions taken by persons under custodianship with regard to financial issues, health and residence may be placed by the custodianship court under a reservation of consent by the custodian. Based on these restrictions Article 13 of the German Federal Elections Act (BWahlG) stated that all persons with disabilities whose decisions depend from consent given by the custodian in financial, health or residence matters are automatically deprived of their right to vote in Federal elections.
The Federal Constitutional Court decided on January 15, 2019 that Art. 13 BWahlG is not in line with Germany´s Constitution (Grundgesetz - GG) which in particular states in Art. 3 para. 3 GG that it is prohibited to disadvantage a person due to his/her disability.
As a result of that ruling by the Federal Constitutional Court the German Government decided that Article 13 of the German Federal Elections Act (BWahlG) should be treated as invalid not instantly, but starting at July 1, 2019 in order to enable the public authorities to prepare new election proceedings. According to this political decision about 80 000 persons with dementia, intellectual or psychosocial disabilities would still have been prevented from taking part in the European Parliament elections which were due to be held on May 23 - 26, 2019.
Some of them, therefore, went to the Federal Constitutional Court again and applied for a preliminary injunction declaring Art. 13 BWahlG null and void with immediate effect. And they succeeded and thus could take part in the European Parliament elections.
This was indeed a big success and there are negotiations now that the decision taken by the Federal Constitutional Court not only applies for federal elections, but also for the regional elections to be held in Germany's 16 provinces (Lander).
The European Disability Forum, which we are proud members of, is actively lobbying the other European countries in order to ensure that such a landmark decision is exported throughout all the jurisdictions and countries within the EU. Our European Grand Priories have been duly notified that they should also assist in pushing forward this agenda to the highest authorities of the land and jurisdiction in question.