FIFTH SECTION
CASE OF
NATALIYA MIKHAYLENKO v. UKRAINE
(Application no.
49069/11)
JUDGMENT
STRASBOURG
30 May 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Nataliya Mikhaylenko v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 30 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
49069/11) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Nataliya Petrovna Mikhaylenko (“the
applicant”), on 29 July 2011.
The applicant, who had been granted legal aid,
was represented by Ms A. Ivanković Tamamović, a lawyer from the Mental Disability Advocacy Center, a non-governmental organisation based in Budapest. The Ukrainian
Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.
The applicant alleged under Article 6 of the
Convention that it had not been possible for her to apply directly to a court
for restoration of her legal capacity. She further complained under Article 14
of the Convention that she had been subjected to discriminatory treatment on
account of having no direct access to a court.
On 27 April 2012 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Simferopol.
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.
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.
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.
On 10 July 2007 the District Court deprived the
applicant of her legal capacity. The decision was not appealed against and
became final.
On 21 November 2007 the applicant’s sister was
assigned as the applicant’s guardian (опікун).
Gradually, the applicant’s mental health
improved, so that on 3 April 2008 she took up a position at a local
factory.
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.
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.
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.
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.
II. RELEVANT DOMESTIC LAW
A. Civil Code of 16 January 2003
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.
B. Code of Civil Procedure of 18 March 2004
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.
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.
C. Order of 26 May 1999 (No. 34/166/131/88) approved by
the State Committee on Family and Youth Matters, the Ministry of Education, the
Ministry of Health and the Ministry of Labour and Social Policy
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained under Article 6 § 1 and
Article 13 of the Convention that it had not been possible for her to apply directly
to a court for restoration of her legal capacity.
The Court considers that this complaint should
be examined solely under Article 6 § 1, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
1. The parties’ submissions
The Government contended that the applicant’s complaint
had been submitted outside the six-month period laid down in Article 35 § 1 of
the Convention. They noted that the range of persons entitled to apply to a
court for restoration of legal capacity was clearly defined by provisions of
domestic law and that the courts could not act contrary to those provisions.
The Government further submitted that the applicant had had no other effective
remedies. They therefore suggested that the six-month period had started to run
from the date when she had become aware that her application for restoration of
legal capacity had been dismissed by the District Court.
The applicant submitted that the six-month rule
did not apply as her complaint referred to a continuing situation created as a
result of the domestic legislation.
2. The Court’s assessment
According to the Court’s settled
case-law, where no domestic remedy is available the six-month period runs from
the act alleged to constitute a violation of the Convention; however, where it
concerns a continuing situation, it runs from the end of that situation (see, for example, Kucheruk
v. Ukraine, no. 2570/04, § 171, 6 September 2007).
The Government have admitted that the applicant
had no direct access to a court as a result of the domestic procedural rules
and that there was no effective remedy in respect of her complaint. The
procedural rules in question remained in force on the date on which she lodged
her application with the Court. It follows that the applicant’s complaint concerned
a continuing situation which did not come to an end as a result of her
unsuccessful attempt to secure access to a court. The Government’s objection is
therefore dismissed.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant asserted that her right of access
to a court had been restricted, in breach of Article 6 § 1 of the Convention.
The Government maintained that the application
was inadmissible.
The Court notes that 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 was dismissed without being considered on
the merits as the guardian did not appear before the court. The applicant had
no procedural status in those proceedings and could not influence them.
Subsequently, the applicant’s 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. At the same time, 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 was ordered in respect of the applicant
was not limited in time.
The Court reiterates
that Article 6 § 1 secures to everyone the right to have any claim relating to
his or her civil rights and obligations brought before a court or tribunal (see
Golder v. the United Kingdom, 21 February 1975, § 36, Series A
no. 18). This “right to a court”, of which the right of access is an aspect,
may be relied on by anyone who considers on arguable grounds that an
interference with the exercise of his or her civil rights is unlawful and complains
that no possibility was afforded to submit that claim to a court meeting the
requirements of Article 6 § 1 (see, inter alia, Roche v. the United
Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak
v. Serbia, no. 36500/05, § 132, 13 October 2009).
The right of access to the courts is not
absolute but may be subject to limitations; these are permitted by implication
since the right of access “by its very nature calls for regulation by the
State, regulation which may vary in time and in place according to the needs
and resources of the community and of individuals” (see Ashingdane v. the
United Kingdom, 28 May 1985, § 57, Series A no. 93). In laying down
such regulation, the Contracting States enjoy a certain margin of appreciation.
Whilst the final decision as to observance of the Convention’s requirements
rests with the Court, it is no part of the Court’s function to substitute for
the assessment of the national authorities any other assessment of what might
be the best policy in this field. Nonetheless, the limitations applied must not
restrict the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired. Furthermore, a limitation will
not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and
if there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (ibid.; see also, among many other
authorities, Cordova v. Italy (no. 1), no. 40877/98, § 54, ECHR 2003-I,
and the recapitulation of the relevant principles in Fayed v. the United
Kingdom, 21 September 1994, § 65, Series A no. 294-B).
Furthermore, the Convention is intended to
guarantee not rights that are theoretical or illusory but rights that are
practical and effective. This is particularly true for the guarantees enshrined
in Article 6, in view of the prominent place held in a democratic society by
the right to a fair trial with all the guarantees under that Article (see Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45,
ECHR 2001-VIII).
The Court observes at the outset that none of
the parties disputed the applicability of Article 6 in the present case. The
applicant, who has been deprived of legal capacity, complained that she did not
have access to a court with regard to the restoration of her legal capacity, a
matter which was directly decisive for the determination of her “civil rights
and obligations” (see Stanev v. Bulgaria [GC], no. 36760/06, § 233, ECHR 2012). Article 6 § 1 of the Convention is therefore
applicable in the instant case.
It also appears to be common ground that, 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. It remains
to be determined whether the restriction on the applicant’s right of access to
court pursued a legitimate aim and was proportionate to it.
As noted above, the right of access to the
courts is not absolute and requires by its very nature that the State should
enjoy a certain margin of appreciation in regulating the sphere under
examination (see Ashingdane, cited above, § 57). The Court
acknowledges that restrictions on the procedural rights of a person who has
been deprived of legal capacity may be justified for that person’s own
protection, the protection of the interests of others and the proper
administration of justice.
The Court further notes that it is for the State
to decide how the procedural rights of a person who has been deprived of legal
capacity should be ensured at domestic level. In this context, States should be
able to take restrictive measures in order to achieve the aims identified in
the preceding paragraph.
On the other hand, the Court has stated that the importance of exercising procedural rights will vary according
to the purpose of the action which the person concerned intends to bring before
the courts. In particular, the right to ask a court to review a declaration of
incapacity is one of the most important rights for the person concerned since
such a procedure, once initiated, will be decisive for the exercise of all the
rights and freedoms affected by the declaration of incapacity (see Stanev,
cited above, § 241).
. The
Court notes that the approach pursued by domestic law, according to which an
incapacitated person has no right of direct access to a court with a view to
having his or her legal capacity restored, is not in line with the general
trend at European level. In particular, the comparative analysis
conducted in the case of Stanev (cited above, §§ 88-90) shows that
seventeen of the twenty national legal systems studied provided at the time for
direct access to the courts for persons who have been declared fully incapable
(ibid., § 243).
. Moreover,
as regards the situation in Ukraine, the general prohibition on direct access
to a court by that category of individuals does not leave any room for exception.
At the same time, the domestic law does not provide safeguards to the effect
that the matter of restoration of legal capacity is to be reviewed by a court at
reasonable intervals. Lastly, in the present case it has not been shown that
the relevant domestic authorities effectively supervised the applicant’s
situation, including the performance of duties by her guardian, or that they took
the requisite steps for the protection of the applicant’s interests.
In the light of the above considerations, the
Court notes that in the present case the applicant’s inability to directly seek
the restoration of her legal capacity resulted in that
matter not being examined by the courts. The absence of judicial review of that
issue, which 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 facts of the present case lead the Court to
conclude that the situation in which the applicant was placed amounted to a
denial of justice as regards the possibility of securing a review of her legal
capacity. There has therefore been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
The applicant complained that she had been subjected
to discriminatory treatment on account of having no direct access to a court. She
relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
The Court notes that this complaint is closely linked
to the one examined above and must therefore likewise be declared admissible. However,
given the Court’s findings under Article 6 of the Convention, the present
complaint does not give rise to any separate issue. Consequently, the Court
holds that it is not necessary to examine the complaint under Article 14
of the Convention separately.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
The applicant claimed 16,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that the claim was
unsubstantiated.
The Court considers that the applicant must have
suffered distress and anxiety on account of the violation it has found. Ruling
on an equitable basis, as required by Article 41 of the Convention, it awards
the applicant EUR 3,600 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant claimed 398.21 Ukrainian hryvnias
(UAH) in respect of postal expenses and UAH 1,000 to cover expenses for local
travel and printing and copying material. She further claimed EUR 8,734.55, less
the amount already paid by way of legal aid, in respect of expenses incurred in
connection with her legal representation before the Court. The applicant asked that any award in respect of the latter
claim be paid directly to the bank account of the Mental Disability Advocacy Center.
The Government submitted that the claim for UAH 398.21
was not sufficiently substantiated and the claim for UAH 1,000 was not
supported by any evidence. As to the claim for EUR 8,734.55, it had to be
rejected as unfounded.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 38 in respect of postal expenses incurred
by the applicant and the sum of EUR 1,000 to reimburse the fees and
expenses of the applicant’s lawyer. The latter amount is to be paid directly
into the bank account of the Mental Disability Advocacy Center (see, for
example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski
and Others v. Bulgaria, no. 48284/07, §
54, 18 October 2011).
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds that there is no need to examine the
complaint under Article 14 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State
at the rate applicable at the date of settlement:
(i) EUR 3,600 (three thousand six hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 38 (thirty-eight euros), plus any tax that
may be chargeable, in respect of postal expenses;
(iii) EUR 1,000 (one thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses, to
be paid into the bank account of Mental Disability Advocacy Center;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark
Villiger
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge P. Lemmens is
annexed to this judgment.
M.V.
J.S.P.
CONCURRING OPINION OF JUDGE LEMMENS
1. I
agree with the conclusion that there has been a violation of Article 6 § 1 of
the Convention, but I would prefer to base that conclusion on a more narrow
reasoning.
Although
the applicant states that her complaint refers to a “continuing situation
created as a result of the domestic legislation” (paragraph 23), the application
of that legislation has resulted in the judicial determination of a concrete
claim. In cases arising from individual
petitions the Court’s task is not to review the
relevant legislation in the abstract. Instead, it must confine itself, as far
as possible, to examining the issues raised by the case before it (see, for a recent authority, Kotov v. Russia [GC], no.
54522/00, § 130, 3 April 2012). If we are to take subsidiarity
seriously, it is, in my opinion, the decisions of the courts, in particular
those of the court of appeal and the Court of Cassation, which should be the
starting point of this Court’s review.
2. On
the basis of that approach, the Government’s objection based on the six-month
rule should be answered differently than the majority does in paragraphs 24-25.
The majority rejects the objection on the ground “that the applicant’s
complaint concerned a continuing situation which did not come to an end as a
result of her unsuccessful attempt to secure access to a court”. In my opinion,
the reason for rejecting the objection should be that the final decision in her
case was delivered by the Court of Cassation on 12 March 2011, and
that therefore the application, filed on 29 July 2011, was within the six-month
time-limit.
3. As
a result of this interpretation, there are further a number of paragraphs that
I would prefer to draft with closer reference to the judgments handed down in
the applicant’s case, in light of my more limited understanding of the object
of the complaint.
I
should add that I agree with the majority that the general character of the
prohibition on direct access to a court and the absence of any regular review
by a court at reasonable intervals of the applicant’s legal capacity (or other
procedural safeguards) (see paragraph 39) are indicative of the
disproportionate character of the restriction applied in the applicant’s case,
as they result in the restriction being absolute and of indefinite duration.
