According to RPO, this idea is so appealing that can justify making necessary amendments to the Constitution and relevant laws. The trouble is that such a proposal may be discriminative against many people and contrary to the European standards.

The RPO’s idea is not a new one. A similar proposal had been brought by Janusz Palikot, a Sejm Deputy. At the first glance, limiting the eligibility to be elected only for mentally healthy persons may appear attractive. After all, voters should choose only healthy representatives as opposed to unhealthy ones who, as we may presume, would be unable to take rational decisions and effectively represent their constituents; consequently, the risk of electing the latter should be minimised. Yet in reality, implementation of the RPO’s proposal could undermine the very principles of democracy and result in widespread discrimination. Furthermore, it may be deemed contrary to the European standards.

At the theoretical level, the following reservations should be raised: First, it is not uncommon in democracy that elections are won by persons who later fail to fully meet the voters’ expectations. As a consequence, the mechanisms minimising effects of such “mistakes” are put in place. They include, among other things, setting terms of office for the elected bodies or establishing a possibility to dismiss elected representatives before the end of their term of office for health reasons. In the latter situation, various procedural guarantees are implemented to avoid potential abuse (which may occur during political struggles) ensuring that a dismissal decision is taken after an actual consideration is given to all circumstances of a given case. Also, in democracy it is assumed that every several years the voters make an elective correction choosing new people and eliminating those who failed for various reasons, including health-related ones. Taking into account the above, it must be noted that the possibility of making a mistake as to a representative elected in universal suffrage is an inherent element of the democratic system.

Second, any introduction of a duty to produce mental condition certificates can be extremely discriminatory against the candidates. Even if the mental condition of a given candidate allows a candidate to run (and we presume that the duty to disclose it serves only the purpose of making the elections more transparent), imposing the duty to disclose it may constitute an infringement of the right to privacy and informational autonomy of an individual. Indeed, such a requirement may force potential candidates to disclose different, but always extremely sensitive, information. A fear of making those available to the public may bring the “freezing effect”, preventing the candidate from taking a decision to run.

Third, a legal regulation providing that the persons with any mental condition are disqualified from running in elections is unfair for those who have been or are suffering from the same. Mental diseases can have different intensity, course and symptoms. Including them into a single category is discriminatory against the mentally incapacitated people.

In examining the proposal of candidates producing mental health certificates, we should also remember that already existing constitutional and statutory regulations appear to protect the system against the risks indicated by RPO.

Pursuant to the Constitution of the Republic of Poland, the right to vote and be elected, enshrined in Articles 62, 99 and 127 of the Constitution, may be limited only in strictly designated cases of the incapacitation or deprivation of public/electoral rights under a court decision.

Members of the Council of Europe adopt different solutions in respect of limiting electoral rights. An universal European standard is set forth in the recommendations of the European Commission for Democracy through Law (commonly known as the “Venice Commission”) included in the 2002 Code of Good Practice in Electoral Matters. In accordance with the Code, electoral rights may be limited solely in the cases recognised by law. Although mental incapacity can be a basis for limiting electoral rights, such a limitation can be imposed only by virtue of an express decision of a court of law.

Polish regulations comply with these standards. A mentally sick person who has been legally incapacitated by a judicial decision may not participate (as a voter or a candidate) in elections. Decisions on incapacitation are rendered by a Circuit Court (sąd okręgowy) sitting in the panel of three professional judges. Pursuant to the Polish Civil Code, a person can be incapacitated if, due to mental illness, mental retardation or other kind of psychological disturbance, he or she is incapable to control his or her behaviour. Polish law allows for a total or partial incapacitation (Civil Code, Articles 13 and 16, respectively). Deprivation of electoral rights pertains to both types of incapacitation. An example of the regulations depriving the incapacitated persons of their electoral rights are Articles 7(3) and 8(1) of the Sejm and Senate Electoral Law.

In light of the above, any further consideration on the RPO’s proposal seems to be a pointless exercise since (1) any legal changes in that respect would be contrary with the European standards; (2) Polish law excludes ability of the incapacitated persons (a majority of whom are mentally ill) to benefit from the right to stand election.

Besides, it is surprising that RPO has shown no interest in another issue, namely the reason of depriving all the incapacitated persons (with no exceptions!) of their electoral rights. After all, a person unable to control, for instance, his or her gambling habits, may have sufficiently clear judgement in electoral matters. In other words, there can be various reasons for incapacitation but not all of them should automatically result in depriving a person of his or her right to vote. A renown non-governmental organisation, Mental Disability Advocacy Center, acts for abolishing such automatic approach to the incapacitated persons. It may be expected that before long Mental Disability Advocacy Center succeeds and its actions results in landmark judgements of the European Court of Human Rights.

Since RPO is so much interested in the issue of the mentally disabled, he should rather focus his attention on ways of increasing a number of voters. The attempt of limiting the circle of persons holding the right to be elected is in fact a road leading nowhere. 

By Adam Bodnar

I would like to thank Katarzyna Wiśniewska, an intern with the Helsinki Foundation for Human Rights, for her help in writing this article.

Translation: Piotr Mleczko