Exclusion from voting rights of persons placed under full guardianship and of offenders confined in a psychiatric hospital based on exemption from criminal responsibility is unconstitutional

Press Release No. 13/2019 of 21 February 2019

Order of 29 January 2019
2 BvC 62/14

The provisions on the exclusion from voting rights of persons placed under full guardianship pursuant to § 13 no. 2 of the Federal Elections Act (Bundeswahlgesetz – BWahlG) and of criminal offenders confined in a psychiatric hospital pursuant to § 13 no. 3 BWahlG are unconstitutional. This is what the Second Senate of the Federal Constitutional Court held in an order published today in respect of an electoral complaint brought by eight complainants, finding that the exclusion from voting in the elections to the 18th German Bundestag violates the rights of complainants nos. 1, 2 and 4 to 8, who are affected by these provisions. Exclusion from voting rights can be justified under constitutional law if a certain group of persons must be considered not sufficiently capable of participating in the communication process between the people and state organs. However, § 13 no. 2 BWahlG does not satisfy the requirements regarding statutory typification (Typisierung) given that the group of persons affected by the provision is determined in a manner that violates the right to equality without sufficient factual reasons. § 13 no. 3 BWahlG is not suitable for identifying persons who are generally incapable of participating in the democratic communication process.

Facts of the case:

§ 13 no. 2 BWahlG provides for the exclusion from exercising the right to vote of persons who are placed under full guardianship in cases where guardianship is not merely temporary following a preliminary injunction. § 13 no. 3 BWahlG excludes persons from exercising the right to vote who are confined in a psychiatric hospital pursuant to § 63 of the Criminal Code (Strafgesetzbuch – StGB), after having committed an offence in a state in which they were exempt from criminal responsibility within the meaning of § 20 StGB. Complainants nos. 1, 2 and 4 to 8 partly belong to the group of persons affected by § 13 no. 2 BWahlG, and partly to the group affected by § 13 no. 3 BWahlG, and, based on this fact, were not allowed to participate in the elections to the 18th German Bundestag on 22 September 2013. Following an unsuccessful complaint against the validity of the election lodged with the German Bundestag, they challenge their disenfranchisement in the electoral complaint under review here, claiming a violation of the principle of universal suffrage (Grundsatz der Allgemeinheit der Wahl) under Art. 38(1) first sentence of the Basic Law (Grundgesetz – GG) and the prohibition of discrimination under Art. 3(3) second sentence GG.

Key considerations of the Senate:

1. The exclusion from voting rights of persons who have an appointed guardian to attend to all their affairs, where this is not merely a temporary situation following a preliminary injunction (§ 13 no. 2 BWahlG) violates both the principle of universal suffrage under Art. 38(1) first sentence GG and the prohibition of discrimination on grounds of disability under Art. 3(3) second sentence GG.

a) § 13 no. 2 BWahlG restricts the principle of universal suffrage; yet this interference does not serve to protect equivalent constitutional interests in a manner that sufficiently satisfies the constitutional requirements for statutory typifications.

aa) § 13 no. 2 BWahlG provides for the exclusion from voting rights of persons who have an appointed guardian to attend to all their affairs, thus affecting the guarantee that any citizen can equally exercise their right to vote.

bb) This interference with the principle of universal suffrage is not justified.

(1) § 13 no. 2 BWahlG aims to protect a constitutional interest that is equivalent to universal suffrage. The aim of the provision is to ensure that elections are an integration process with regard to the formation of the political will of the people. The act of voting can only have an integrating effect when it is based on free and open communications between those governing and those governed. Therefore, it may be justified to exclude a certain group of persons from exercising the right to vote if they must be considered not sufficiently capable of participating in the communication process between the people and state organs.

(2) However, it is doubtful whether § 13 no. 2 BWahlG is at all suitable for achieving this aim. Yet ultimately, there is no need to decide on this issue, given that the provision does not satisfy the constitutional requirements regarding statutory typifications, since the group of persons affected by the exclusion from voting rights pursuant to § 13 no. 2 BWahlG is determined in a manner that violates the right to equality without sufficient factual reasons.

§ 13 no. 2 BWahlG provides for the exclusion from voting rights of persons who are unable to attend to their own affairs because of illness or disability and who have therefore been placed under full guardianship. Given the principle of necessity that applies universally to guardianship law, no guardian is appointed if the need for care of the person concerned can be met in another manner, in particular by power of attorney, advance directive or by sufficient care provided by family members. In this case, § 13 no. 2 BWahlG does not apply; the persons concerned retain their right to vote. Thus, whether persons are deprived of their right to vote ultimately depends on whether a guardian is appointed based on the specific need for guardianship, or whether such an appointment is not necessary in the individual case. Yet this circumstance, which is actually coincidental, does not constitute a reason inherent in the matter which could justify the unequal treatment under electoral law of persons who have an equal need for care.

In light of this, it cannot be asserted that the legislature ties its decision to a strictly formal criterion that is clear, simple to determine and particularly practical for organising elections. While the legislature may enact statutory typifications that do not have to take into account all special circumstances in order to ensure that elections, as mass events, remain feasible, it must realistically use the standard of typical cases as a basis for such typifications. In addition, the advantages of such typifications must be in adequate proportion to the inequalities necessarily linked to them. This requirement is only met where the hardship and injustices resulting from typifications can only be avoided with difficulty, merely affect a relatively small number of persons and where the extent of unequal treatment is limited. This is not the case here. For the 2013 elections to the Bundestag, a total of 81,220 persons under full guardianship were excluded from voting pursuant to § 13 no. 2 BWahlG. The proportion of this group of persons in relation to the overall number of persons incapable of attending to their own affairs is not ascertainable. The legislature did not address this issue. It cannot be ruled out that the group of those in need of full guardianship who do not have an appointed guardian as this is not required by their circumstances is not significantly smaller, or is even larger, than the group of those actually placed under full guardianship, who are excluded from exercising the right to vote. In this respect, the interference with the right to equality is not minor, given that, due to their exclusion from voting rights, the persons concerned are permanently deprived of the most noble right conferred on citizens in a democratic state.

b) Besides violating the principle of universal suffrage, § 13 no. 2 BWahlG also violates the prohibition of discrimination on grounds of disability pursuant to Art. 3(3) second sentence GG. The provision results in the disadvantaging of persons with disabilities. This interference with the regulatory content of the prohibition of discrimination pursuant to Art. 3(3) second sentence GG is not justified for the reasons set out above.

2. § 13 no. 3 BWahlG also violates constitutional requirements. The exclusion from voting rights of persons who are confined in a psychiatric hospital based on an order pursuant to § 63 in conjunction with § 20 StGB is neither compatible with the principle of universal suffrage under Art. 38(1) first sentence GG nor with the prohibition of discrimination on grounds of disability under Art. 3(3) second sentence GG.

a) § 13 no. 3 BWahlG interferes with the regulatory content of the principle of universal suffrage, yet this interference is not justified by compelling reasons.

aa) § 13 no. 3 BWahlG is not suitable for identifying persons who are generally incapable of participating in the democratic communication process. Mental capacity is required for exercising the right to vote and for the integration purpose of elections. A regular lack of mental capacity cannot be inferred from an exemption from criminal responsibility established for the time a crime was committed and from the illnesses underlying it, nor from the fact that the other requirements for ordering confinement in a psychiatric hospital pursuant to § 63 StGB are met. Under § 20 StGB persons are exempt from criminal responsibility if they are incapable of recognising the unlawfulness of their actions or of acting in accordance with any such recognition due to a pathological mental disorder, a severe consciousness disorder, mental deficiency or any other serious mental disorder. Given that the types of illness forming the basis of exemptions from criminal responsibility are not generally associated with an inability to participate in the democratic communication process, it is not evident that mental capacity, which would be required for exercising the right to vote, is regularly lacking under these circumstances. In addition, “exemption from criminal responsibility” within the meaning of § 20 StGB is not a permanent state independent of criminal offences, but only describes the mental state of a person at the time they committed the offence. The longer-term impairment of mental or emotional health also affecting the future, which is required for an order pursuant to § 63 StGB, does not alter the finding that the assumption of a regular lack of capacity to make electoral decisions cannot be based on the illnesses underlying such impairments.

bb) Furthermore, § 13 no. 3 BWahlG results in unequal treatment without discernible factual reasons. Ultimately, the group of persons affected by the provision is determined arbitrarily, without sufficiently taking into consideration their capacity to participate in the democratic communication process. Persons exempt from criminal responsibility retain their right to vote if confinement in a psychiatric hospital is not ordered merely because they do not pose a risk of significant criminal offences. Yet in those cases, it cannot be ruled out that mental capacity and capacity to make electoral decisions are limited to an equivalent degree or even to a higher degree than the capacity of persons excluded from exercising the right to vote pursuant to § 13 no. 3 BWahlG. The same applies to persons who are not the object of criminal proceedings and are confined because of harm to others or self-harm pursuant to the respective Land law provisions. In those cases, too, the right to vote remains unaffected, even though the diagnosis may be comparable. In cases in which the competent court orders both confinement in a psychiatric hospital and imprisonment, with all or part of the prison sentence served before the confinement measure pursuant to § 67(2) StGB, the persons concerned retain their right to vote during the prison sentence and are only deprived of it when their confinement in a psychiatric hospital begins, even though their mental capacity does not change and no sound justification under electoral law is discernible. The right to vote of persons exempt from criminal responsibility and confined in a psychiatric hospital is also restored if they are subsequently transferred to an addiction treatment facility pursuant to § 67a StGB. If they are afterwards retransferred to a psychiatric hospital, they are deprived of their right to vote again.

b) § 13 no. 3 BWahlG also violates the prohibition of discrimination on grounds of disability under Art. 3(3) second sentence GG. The exclusion from voting rights of persons confined in a psychiatric hospital due to a criminal offence committed while they were exempt from criminal responsibility deprives persons with disabilities of their essential democratic participation right. This interference with the scope of protection of Art. 3(3) second sentence GG is not justified for the reasons set out above.