Poland, Supreme Court - Extraordinary Control and Public Affairs Chamber, 24 July 2020, I NSW 304/20
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Non-discrimination
- Electoral Law
Outcome of the decision
Link to the full text of the decision
General Summary
The case involved the lack of an electoral area in a hospital because of COVID-19. The Court concluded that due to patient having a law immune system residing in a hospital, as well as the continuing state of emergency resulting from COVID-19 pandemic, it was justified not to create a voting area in the hospital. According to the Court, such a decision, despite depriving voters of the right to vote, cannot be considered as a violation of electoral law.
Facts of the case
An Applicant submitted an election protest in presidential elections that took place on the 12th of July 2020. On the day of the elections an Applicant was in a hospital, where, because of COVID-19 restrictions, no electoral commission/voting area was organized. The Applicant was also not provided with a permit to leave the hospital in order to vote in these elections at the nearest voting site. The Applicant claimed that she was deprived of her liberty and the right to vote.
The representative of the hospital indicated that no in-person voting was organized. The fact was notified to the State Electoral Commission and published at the hospital’s website. According to the representative, patients residing in the hospital had low immune system, which, because of the state of the pandemic, they were prohibited from leaving the hospital and influenced the decision not to create an electoral commission/voting are there. Hospitalized voters still had the option of voting by mail.
Type of measure challenged
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
Due to procedural flaws, the Claim was not recognized by the Court.
The Court indicated that two circumstances justified non-creation of the electoral commission/voting area in the hospital, namely the presence of patients with low immune systems, and, secondly, the continuing COVID-19 pandemic. Therefore, despite depriving a hospitalized person of the right to vote, the decision cannot be considered as a violation of electoral law.
Conclusions of the deciding body
The case was dismissed.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to access to justice, to a fair trial and to jury trial
- Right to good administration
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom of association / public gathering
- Health v. freedom of expression / right to information
- Health (public) v. access to health services
- Health v. right to vote
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Reasonableness can be derived from the given explanation, namely that the right to vote can be limited because of special circumstances. They are as follow: residing patients with a low immunological system and the state of the pandemic following COVID-19 pandemic.
Impact on Legislation/Policy
The governmental measure has been upheld.
Impact on national case law
The case distinguished the situation of COVID-19 from others, as the state of the pandemic related to COVID-19 was one of the reasons for not creating an electoral commission/voting area in the hospital
