CASE OF NATALIYA MIKHAYLENKO v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
5. The applicant was born in 1971 and lives in Simferopol. 6. The applicant was born with congenital facial injury and was diagnosed with a “midline cranial cleft”. Between 1990 and 1997 she repeatedly underwent surgery in a clinic in the United States of America, following which her cranial disorders were mostly cured. However, owing to the extensive surgery, the applicant developed a mental illness. Since then she has needed regular supervision in the United States clinic. 7. In 2007 the applicant’s father applied to the Simferopol District Court of the Autonomous Republic of Crimea (“the District Court”), seeking to have her deprived of legal capacity on the ground that she suffered from serious mental illness. 8. Following a request by the District Court, on 5 June 2007 a forensic psychiatric expert issued an opinion stating that the applicant suffered from a chronic mental illness, namely paranoid schizophrenia, which prevented her from comprehending and controlling her actions. 9. On 10 July 2007 the District Court deprived the applicant of her legal capacity. The decision was not appealed against and became final. 10. On 21 November 2007 the applicant’s sister was assigned as the applicant’s guardian (опікун). 11. Gradually, the applicant’s mental health improved, so that on 3 April 2008 she took up a position at a local factory. 12. In 2009 the applicant’s guardian applied to the District Court for restoration of the applicant’s legal capacity. However, on 30 October 2009 the application was dismissed without being considered on the merits owing to the guardian’s repeated failure to appear in court. 13. On 1 November 2010 the applicant applied on her own to the District Court, seeking restoration of her legal capacity. She specified that Article 241 § 4 of the Code of Civil Procedure, which did not provide for the right for an incapacitated person to submit such an application, was not compatible with international legal standards and was discriminatory. 14. On 4 November 2010 the District Court returned the application to the applicant without considering it on the merits, noting that, by virtue of Article 121 § 3 and Article 241 § 4 of the Code of Civil Procedure, the applicant was not entitled to submit such an application. 15. On 12 January 2011 the court of appeal dismissed the applicant’s appeal against the decision of 4 November 2010 noting that Article 241 § 4 of the Code of Civil Procedure did not provide the applicant with the right to lodge an application for restoration of her legal capacity. The District Court had therefore lawfully returned the application without considering it on the merits, as required by Article 121 § 3 of that Code. On 12 March 2011 the court of cassation dismissed as unfounded the applicant’s appeal on points of law. 16. Article 67 of the Code provides that a guardian is obliged to take measures for the protection of the civil rights and interests of the person who is under his or her guardianship. 17. Article 121 § 3 of the Code provides that a court cannot accept a claim for consideration on the merits if it has been submitted by a person deprived of legal capacity. 18. Article 241 § 4 of the Code provides that a court decision declaring a physical person entirely incapable may be quashed and the legal capacity of that person may be restored by another court decision provided that the person has been cured or his or her mental state has significantly improved. Such a decision is to be taken upon an application submitted by the guardian or the guardianship authority (орган опіки та піклування) and must be supported by relevant conclusions by a forensic psychiatric expert. 19. This Order requires the guardianship authorities, among other things, to supervise the activities of guardians and to take measures for the protection of the rights of persons who have been placed under guardianship.