Toplak and Mrak v. Slovenia (34591/19, 42545/19) of 26 October 2021, is the European Court of Human Rights judgment in which the court held that voters' rights were violated when they had no legal right to ask for accessible polling places in advance to achieve accessibility before the election day. The ruling is also significant because the court for the first time extended its jurisdiction to referendums.
Background
The applicants Franc Toplak and Iztok Mrak were both wheelchair users with muscular dystrophy. At least since 2006, several persons with disabilities and disability organizations have addressed the Slovenian authorities in order to facilitate accessible polling stations.
In 2008, the Convention on the Rights of Persons with Disabilities (CRPD) came into effect in Slovenia. On 20 May 2010, the European Court of Human Rights (ECtHR) ruled in Alajos Kiss v. Hungary (38832/06) that Hungary cannot restrict voting rights only on the basis of guardianship due to a psychosocial disability. The ECtHR awarded Mr. Kiss with EUR 3,000.
In 2010, the Constitutional Court of Slovenia rejected an appeal filed by five disabled voters, but explained that as many polling stations as possible should be accessible.
During the 2011 parliamentary elections there were 113 polling stations in Maribor and only one was designated as "accessible". All the persons with disabilities were invited to vote on this polling station. The applicant Franc Toplak came there on his wheelchair and learned that due to a mistake by the authorities, even this polling station was blocked by stairs and thus was not accessible. Electoral authorities and courts rejected his complaints. The Constitutional Court rejected his appeal and ruled that courts only deal with claims of violations that are of such magnitude to affect the overall election results.
The administrative courts, as well as the Supreme Court and the Constitutional Court all rejected a series of complaints and appeals filed by Toplak, Mrak, and several other voters and organizations. In 2012, the Supreme Court ruled that no court had jurisdiction over election-related appeals.
In 2014, the Constitutional Court ruled that the parliament should enact the legislation to require that all polling stations be accessible. It also ruled that all the complaints and appeals submitted on or after the day of elections should be rejected because "the election procedure was completed."
Four wheelchair users, including Franc Toplak and Iztok Mrak, in order to achieve accessible voting, requested accessible polling stations in advance of the 2015 referendum on gay marriage. Election authorities and courts, including the Supreme Court and the Constitutional Court, rejected their requests to decide on the issue before the voting day.
During the course of proceedings, in the week preceding the referendum, election authorities built a ramp at the entrance of Toplak's polling place. In the Mrak's polling place, they opened the back entry to the school in which was the polling place. The school had used the back entry primarily for trash disposal and had a ramp and narrow path used for the rubbish bin transport.
On the day of the referendum, both applicants voted. Toplak used the ramp. In the polling place, the area between the wall and the voting booth was too narrow for the wheelchair, and the staff did not allow the booth to be moved to assure Toplak's privacy during his voting. Consequently, he voted on a table in the middle of the room surrounded by several other persons.
Mrak used the school's back entrance. Due to a narrow rubbish bin path and steep ramp, he waited for passers-by to help him move up the ramp and open the door for him.
In 2016, in separate rulings, the Supreme Court ruled that voters had filed their requests for adaptations too early, and that they should have waited until after the election to complain, and that no court had jurisdiction over pre-election complaints. In 2017, the National Assembly amended the legislation to state that polling stations should be accessible for persons with disabilities. In 2019, the Constitutional Court rejected both plaintiffs' appeals, and they appealed to the ECtHR.
The Harvard Law School, NUI Galway, Equinet, disability organisations, and the Slovenian Equality Defender submitted their expert opinion to the court during the proceedings.