Communicated on 18 December 2019
SECOND SECTION
Applications nos. 34591/19 and 42545/19
Franc TOPLAK against Slovenia
and Iztok MRAK against Slovenia
lodged on 24 June 2019 and 5 August 2019 respectively
SUBJECT MATTER OF THE CASE
The applications concern the accessibility of polling stations to disabled persons in wheelchairs. The communicated complaints concern accessibility of the polling stations only as regards the European Parliament Elections of 26 May 2019 (complaints under Article 3 of Protocol No. 1, read alone and in conjunction with Article 14, Article 1 of Protocol No. 12 and Article 13 of the Convention) and the referendum of 20 December 2015 (complaints under Article 1 of Protocol No. 12 and Article 13 of the Convention).
The applicants suffer from muscular dystrophy. Before the referendum of 20 December 2015, they lodged separate legal actions under section 4 of the Administrative Dispute Act, asking that their polling stations be accessible for the disabled on the day of the referendum and for all future referenda and elections. The Administrative Court dismissed their actions finding that the polling stations should be accessible to the applicants on the day of the referendum. The applicants appealed. The Supreme Court rejected their appeals as inadmissible after the 2015 referendum had already taken place, noting that procedural requirements for the court to examine their actions on the merits had not been complied with. It noted that the protection of voting rights before the competent electoral bodies and courts was provided for under the Referendum and Popular Initiative Act. Moreover, an action could be lodged under section 4 of the Administrative Dispute Act only with respect to an alleged violation of human rights that had already taken place; an action seeking a preliminary ruling with respect to future State actions and future elections was therefore inadmissible. The Constitutional Court did not accept the applicants’ constitutional complaints for consideration.
On 21 February 2019 the Constitutional Court decided to examine, on the merits, a petition for constitutional review of the National Assembly Election Act regarding an alleged unconstitutional legislative gap concerning the execution of the voting rights of the disabled. The petition which was lodged, inter alia, by the applicants is currently pending.
The applicants complain under Article 3 of Protocol No. 1, read alone and in conjunction with Article 14, that their polling stations were not made accessible to them as disabled voters for the European Parliament Elections of 26 May 2019. In particular, they submit that they could not enter polling booths with a wheelchair, that the ballot boxes were set too high and that voting methods or equipment allowing the secrecy of voting were not available to them. They raise the same complaint, referring to the European Parliament Elections of 2019 and the referendum of 20 December 2015, under Article 1 of Protocol No. 12. Lastly, the applicants complain under Article 13 of the Convention that they have no effective remedy to claim a violation of their right to vote in respect of the inaccessible polling stations.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, could an administrative action on the basis of section 4 of the Administrative Dispute Act, a claim lodged in the context of an electoral dispute under the National Assembly Election Act and the Referendum and Popular Initiative Act and/or a petition for constitutional review be considered an effective remedy within the meaning of this provision in respect of the applicants’ complaints?
The Government are invited to submit any relevant domestic decisions in this regard.
2. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention as regards their complaint under Article 1 of Protocol No. 12 on the inaccessibility of the polling stations during the 2015 referendum?
3. With respect to the accessibility of the polling stations for the European Parliament Elections of 26 May 2019, has there been a breach of the applicants’ right under Article 3 of Protocol No. 1 to vote by secret ballot in free elections which have ensured the free expression of the opinion of the people in the choice of the legislature? Were the applicants able to vote at a fully accessible polling station? Were there alternative ways of voting available to the persons with disabilities such as the applicants? If so, would they allow the applicants to exercise their right to vote in accordance with Article 3 of Protocol No. 1?
4. Have the applicants suffered discrimination on the ground of their disability, contrary to Article 14 of the Convention read in conjunction with Article 3 of Protocol No. 1 and/or Article 1 of Protocol No. 12, as regards the accessibility of polling stations during the European Parliament Elections of 26 May 2019 (see Glor v. Switzerland, no. 13444/04, §§ 80 and 84, ECHR 2009)? Have they suffered discrimination on the ground of their disability, contrary to Article 1 of Protocol No. 12, as regards the accessibility of polling stations during the referendum of 20 December 2015 (ibid.)?
5. Did the applicants have at their disposal an effective domestic remedy for their above complaints, as required by Article 13 of the Convention?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Date of Birth
Place of Residence
Nationality
Represented by
1
34591/19
Toplak v. Slovenia
24/06/2019
Franc TOPLAK
01/10/1937
Maribor
Slovenian
Slavko VESENJAK
2
42545/19
Mrak v. Slovenia
05/08/2019
Iztok MRAK
19/09/1983
Ljubljana
Slovenian
Slavko VESENJAK
Full & Egal Universal Law Academy