2.1.6 Voting rights 2.1 CONSTITUTIONAL RIGHTS Only four complaints (14 in 2014) concerning the right to vote were considered, three of which were founded. One of these, relating to the systemic issue of exercising the right to vote of persons with mental disorders, is mentioned in continuation. In 2015, the Ombudsman started to consider a case of exercising the right to vote of persons who were institutionalised in a hospital, detention or prison in the period between the tenth day before the voting date and the day of voting, whereby they could not express their intention to vote by post in the period stipulated by the National Assembly Elections Act (ZVDZ). The Ombudsman found that both cases involved a systemic violation of the right to vote. The Ombudsman will publish the case in the 2016 report; however, we can express our expectation that legal amendments to enable the effective exercise of the right to vote for persons who are institutionalised and are not able to express their intention to vote by post in time will be adopted as soon as possible. Right to vote of persons with mental disorders The father of an adult child with a mental disorder contacted the Human Rights Ombudsman, whose right to vote had been withdrawn in the procedure of extending parental rights. The father (complainant) found that such a withdrawal is in accordance with Slovenian legislation; however, he was interested in how such legislation could be harmonised with international conventions ratified by the Republic of Slovenia. The Ombudsman examined the valid internal legal regulation and international documents which are binding on the Republic of Slovenia. If was found that the internal legal regulation of voting rights of the disabled, especially those with mental disorders, could be contrary to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). With regard to the issue of the right to vote of persons with mental disorders, Article 29 of the UNCRPD is significant, since it deals with the engagement of the disabled in political and public life, and also determines: “States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: 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.” In Article 5, the UNCRPD prohibits disability-based discrimination; Article 12 obliges states parties to reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law, i.e. states parties shall in accordance with Article 12 of the UNCRPD recognise that persons with disabilities enjoy legal 32 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 capacity on an equal basis with others in all aspects of life. The Convention does not envisage any exceptions from equalities in the enforcement of the right to vote. So far, the European Court for Human Rights and Fundamental Freedoms has not interpreted the right to vote as widely as the Committee, i.e. that all persons, regardless of mental capacity, should be ensured equal enjoyment of their right to vote. Three categories of states exist in the European Union with regard to the right to vote. In Bulgaria, Portugal, Slovakia and Denmark, the right to vote is automatically withdrawn from all persons to whom protective measures such as partial or full custodianship apply. Slovenia, France, Spain and Estonia are in the category of states where the actual capacity of the individual to vote is separately assessed in the procedure of withdrawing full legal capacity. Considering the Committee’s standpoint and advanced regulations of some countries (e.g. Austria, Finland, the Netherlands), voting legislation is developing towards the full engagement of all persons in political processes. Thus, the Ombudsman found that there have been substantial changes in the development of understanding the right to vote of persons with mental disorders in the period from the adoption of the amended ZVDZ-B, and that the Republic of Slovenia is a signatory of the UNCRPD, in accordance with which the withdrawal of the right to vote as envisaged by paragraphs two and three of Article 7 of the ZVDZ could contravene the ratified international treaty, i.e. the provisions of Articles 29, 5 and 12 of the UNCRPD. The Ombudsman informed the Ministry of Public Administration of these findings. In its reply to the Ombudsman’s inquiry, the Ministry emphasised that the withdrawal of the right to vote as per Article 7 of the ZVDZ is not automatic, but the court must decide separately in each case. The Ministry continued that voting at elections has certain legal and actual consequences and that, like any other legal right, it can only be exercised if the person understands the meaning and consequences of voting. According to the Ministry, if this limitation on right to vote were to be abolished and persons who are incapable of understanding the meaning, purpose and effect of elections were able to enjoy their right to vote actively, there is a great possibility that such persons would submit a spoiled ballot, because the voting instructions on the voting ballot must be understood and considered in order to submit a valid voting ballot. The Ministry also stated that the secret ballot principle and personal ballot principle are enshrined in our voting legislation as in other similar systems. The Ministry also questioned the method of preventing potential misuse of the voting right, when a third person would seek to influence the wishes of persons with mental disorders in the exercise of their right to vote. The Ministry concluded that the limitations on the right to vote of persons with mental disorders are proportional and appropriate in Slovenian legislation and that they do not interfere with the right to vote as such. They emphasised that the withdrawal of the right to vote was not automatically implemented by withdrawing full legal capacity or the continuation of parental rights, but that the withdrawal of the right is decided on separately by the court. The Ministry’s argumentation did not fully convince the Ombudsman: as it stands, the text of the UNCRDP and the Committee’s comment do not indicate that the Convention permit exceptions from equality in the exercise of the right to vote. It seems that the Ministry is not entirely convinced that aforementioned provisions of paragraphs two and three of Article 7 of the ZVDZ are harmonised with the UNCRDP, since the Ministry announced in the conclusion of the reply to the Ombudsman’s inquiry that the Ombudsman’s warning would be re-examined in the preparation of amendments to the National Assembly Elections Act. The Ombudsman welcomes the Ministry’s decision to reconsider this issue. 2.1.7 Protection of privacy and personal data Many complainants contacted the Human Rights Ombudsman in 2015 with various questions relating to the invasion of privacy or violation of regulations on the protection of personal data. We discussed 61 cases, which is slightly fewer than in 2014 (66); however, the share of justified complaints was somewhat higher. In most cases, the complainants sought explanations about their rights or the legal means with which they could protect their rights to privacy and personal data protection. The complainants were usually provided with specifications of their rights or instructions on the use of legal methods to protect their rights and interests. On most occasions, we referred them to the Information Commissioner of the Republic of Slovenia (IC) or to the national supervisory bodies for the protection of personal data. If necessary, we contacted the IC for explanations about procedures. We were pleased with their response. ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 33 2.1 CONSTITUTIONAL RIGHTS In the Ombudsman’s opinion, a law should be passed to determine the content of the right to petition and the obligations of petition addressees. The adopted act could unify the way in which authorities handle petitions or provide the authorities with a legal basis for considering individual petitions in different ways. In relation to petitions which the complainant may address to the National Assembly, the Government and a ministry, only one state authority could be determined (e.g. competent ministry) to answer complainants. Furthermore, the act could also determine when the authority should not consider a petition (e.g. a petition is not in the jurisdiction of the authority, the content of the petition is not clear, it is offensive etc.); it would eliminate uncertainties with regard to the question of what happens to a petition if the authority’s term of office is terminated during the petition’s consideration; and it would determine the deadline for responding to petitions.