On 30 May, the European Court of Human Rights (ECtHR), in Nataliya Mikhaylenko v Ukraine, found that Ukrainian guardianship laws violate the European Convention on Human Rights (ECHR). This is the first case to question Ukraine’s guardianship system.
In 2007 the applicant, Nataliya, was placed under guardianship on the grounds that she had a serious mental illness, namely paranoid schizophrenia. Ukrainian law provides that guardianship orders are not automatically subject to judicial review and here the order was not limited in time. This effectively denied Nataliya her legal capacity indefinitely. Under guardianship Nataliya lost her parental rights meaning that her newborn baby was put up for adoption. She was also forced to live with her sister, her court appointed guardian, who physically and verbally abused her.
In 2009, as Nataliya’s mental health improved, her sister applied for a court order to restore Nataliya’s legal capacity. However, this application was dismissed as the sister repeatedly failed to appear in court. In 2010 Nataliya herself applied to have the guardianship order reversed. The domestic court ruled that Nataliya did not have standing to make such an application as under Ukrainian law only the guardian or the guardianship authority can apply to reverse a guardianship order.
The applicant submitted the claim to the ECtHR to review the Ukraine’s guardianship system as well as her individual right to access the court. Nataliya was represented by the Mental Disability Advocacy Center (MDAC), an organisation aiming to advance the rights of people with mental disabilities through progressive jurisprudence and law reform. MDAC uses strategic litigation to instigate reform of national law which does not comply with international human rights.
The ECtHR held that the Ukrainian guardianship laws violated Article 6.1 (right of access to court) of the ECHR. While contracting States have a margin of appreciation in respect of this right, the limitation placed on Nataliya could not be justified. Nataliya was denied her right to ask the court to review the guardianship order. The ECtHR felt this right was crucially important as such a review will be decisive for the exercise of all rights and freedoms affected by the guardianship. Given the importance of this right, the Court said that the limitation placed on Nataliya was not legitimate or proportionate.
Following this judgment, under Article 46.2 of the ECHR, it falls to the Committee of Ministers to supervise the execution of the judgment by Ukrainian Government. If the Committee believes the Ukraine are refusing to implement the judgment it has the power, under Article 46.4, after serving final notice on the Ukrainian Government, to refer to the ECtHR the question of whether Ukraine has violated its obligations under paragraph 1 of the Convention. If the ECtHR finds a violation, under Article 46.5, it will refer the case back to the Committee of Ministers who will decide what measures will be taken.
Click here to read an MDAC article on this case.