Communicated on 20 September 2016

FIFTH SECTION

Application no. 1848/16 Olena Volodymyrivna GORBATYUK against Ukraine lodged on 18 December 2015

STATEMENT OF FACTS

The applicant, Ms Olena Volodymyrivna Gorbatyuk , is a Ukrainian national who was born in 1976 and lives in Khmelnytskyy . She is represented before the Court by Mr M. O. Tarakhkalo , a lawyer practising in Kyiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In her childhood , the applicant was diagnosed with infantile cerebral paralysis. Subsequently , she underwent inpatient psychiatric treatment.

The applicant has two daughters who were born in 1996 and 2004. The fathers of both daughters were deprived of their parental rights.

In September 2008 , the applicant ’ s parents applied to the guardianship office of Kotovsk Town Council seeking a declaration that the applicant lacked legal capacity. The guardianship office instituted court proceedings to have the applicant deprived of her legal capacity and to establish the guardianship of her daughters.

On 30 April 2009 , a forensic psychiatric expert found that the applicant was suffering from a chronic mental disorder caused by brain impairment. The expert concluded that the applicant could not understand and control her actions.

On 15 May 2009 , the Kotovsk Town Court deprived the applicant of her legal capacity and assigned her father as a guardian. It also found that the applicants ’ daughters had not been receiving any parental care as a result of the applicant ’ s mental disorder and the fact that the fathers of both daughters had been deprived of their parental rights. The court assigned the applicant ’ s father as the guardian of her daughters.

On 25 May 2015 , the applicant underwent another forensic psychiatric examination. According to the report, she was suffering from a mental disorder but was capable of understanding and controlling her actions.

On 13 July 2015 , the applicant requested the guardianship office and her guardian to apply to the court to have her legal capacity restored. She received no reply to her requests.

The applicant works as a cleaner and takes care of herself.

B. Relevant domestic law

Article 60 of the Civil Code of 2003 provides that at the request of the guardianship office, the court should assign a guardian for an individual who has been deprived of legal capacity (paragraph 1). If, during consideration of the case, the court finds that a child under the age of fourteen has been deprived of parental care, it should assign a guardian for that child on the basis of a request by the guardianship office (paragraph 3).

Other relevant domestic law can be found in Nataliya Mikhaylenko v. Ukraine (no. 49069/11 , §§ 16-19, 30 May 2013).

COMPLAINTS

1. The applicant complains under Article 6 § 1 and Article 14 of the Convention that it has not been possible for her to apply directly to a court for restoration of her legal capacity .

2. The applicant complains that the court decision depriving her of legal capacity and establishing the guardianship of her daughters has resulted in a violation of Articles 8 and 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 6 § 1 of the Convention as regards the applicant ’ s right of access to court (see Nataliya Mikhaylenko v. Ukraine, no. 49069/11 , 30 May 2013 )?

2. Has there been a violation of the applicant ’ s right to respect for her family life, contrary to Article 8 of the Convention? Does the domestic law contain sufficient safeguards to ensure the applicant ’ s rights under Article 8?