European Court of Human Rights

Information Note on the Court’s case-law No. 163

May 2013

Nataliya Mikhaylenko v. Ukraine - 49069/11

Judgment 30.5.2013 See: [2013] ECHR 484 [Section V]

Article 6

Civil proceedings

Article 6-1

Access to court

Lack of access to court for person seeking restoration of her legal capacity: violation

 

Facts - In 2007 the applicant was deprived of her legal capacity on the grounds that she was suffering from a serious mental illness. Gradually, her mental health improved. In 2009 her guardian applied for her legal capacity to be restored, but the application was dismissed without being considered on the merits owing to the guardian’s repeated failure to appear in court. In 2010 the applicant herself lodged an application for her legal capacity to be restored. However, both it and her subsequent appeals were dismissed on the grounds that the Code of Civil Procedure did not provide her with the right to lodge such an application.

Law - Article 6 § 1: Under the domestic legislation it was for the applicant’s guardian or the guardianship authority to raise the issue of restoration of her legal capacity before a court. However, the guardian’s application had been dismissed without being considered on the merits as the guardian had not appeared before the court. The applicant had had no procedural status in those proceedings and could not influence them. Her subsequent personal application for restoration of her legal capacity was not considered either because the Code of Civil Procedure did not afford her the right to lodge such an application. However, the Code did not indicate that a declaration of legal incapacity was subject to any automatic judicial review and the duration for which that measure had been ordered in respect of the applicant had not been limited in time. Thus, by virtue of clear and foreseeable rules of domestic law, the applicant could not personally apply to a court for restoration of her legal capacity.

Restrictions on the procedural rights of persons deprived of their legal capacity could be justified to protect their own or others’ interests or for the proper administration of justice. However, the approach pursued by the domestic law in the instant case, according to which incapacitated persons had no right of direct access to a court with a view to having their legal capacity restored, was not in line with the general trend at European level. Moreover, as regards the situation in Ukraine, the general prohibition on direct access to a court by that category of individuals did not leave any room for exception. Nor did the domestic law provide safeguards requiring the matter of restoration of legal capacity to be reviewed by a court at reasonable intervals. Lastly, it had not been shown that the domestic authorities had effectively supervised the applicant’s situation, including the performance of the guardian’s duties, or taken the requisite steps to protect her interests. Therefore, the applicant’s inability to directly seek the restoration of her legal capacity had resulted in that matter not being examined by the courts. The absence of judicial review of that issue, which had seriously affected many aspects of the applicant’s life, could not be justified by the legitimate aims underpinning the limitations on access to a court by incapacitated persons. The situation in which the applicant had been placed had amounted to a denial of justice as regards the possibility of securing a review of her legal capacity.

Conclusion: violation (unanimously).

Article 41: EUR 3,600 in respect of non-pecuniary damage.

(See also Stanev v. Bulgaria [GC], no. 36760/06, 17 January 2012, Information Note no. 148)

 

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