FIFTH SECTION

Application no. 49069/11 Nataliya Petrovna MIKHAYLENKO against Ukraine lodged on 29 July 2011

STATEMENT OF FACTS

The applicant, Ms Nataliya Petrovna Mikhaylenko, is a Ukrainian national who was born in 1971 and lives in Simferopol .

A. The circumstances of the case

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

The applicant was born with congenital facial trauma and was diagnosed with ' medial skull cleft ' . Between 1990 and 1997 she was repeatedly provided with surgical treatment in a clinic of the United States of America following which the head injuries had been mostly cured. However, owing to the serious surgical interventions, the applicant developed a mental illness. Since then the applicant needs regular supervision at the US clinic.

In 2007 the applicant ' s father applied to the Simferopol District Court of the Autonomous Republic of Crimea (“the district court”) seeking the applicant ' s incapacitation on the ground that she suffered from serious mental illness.

Following the district court ' s request, 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 the applicant 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.

Gradually, the applicant ' s mental health improved so that on 3 April 2008 she took up a position at a local factory. She continues to work there.

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 due to the guardian ' s repeated failure to appear before 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 (“the CCvP”), providing no right to submit such an application by the incapacitated person, 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 after noting that, by virtue of Articles 121 § 3 and 241 § 4 of the CCvP, the applicant was not entitled to submit such an application.

On 12 January and 12 March 2011, respectively, the court of appeal and the court of cassation upheld the decision of the district court.

Despite medical necessity, the applicant is unable to visit the US clinic due to her status of incapacitated person.

B. Relevant domestic law

Code of Civil Procedure of 18 March 2004

According to Article 121 § 3 of the Code, a court shall not accept a claim for consideration on the merits if it has been submitted by a person without legal capacity.

Article 241 § 3 of the Code states that the court decision declaring a physical person partially incapable may be quashed and the legal capacity of that person may be restored by another court decision. Such a decision shall be taken on the basis of an application which may be submitted, among others, by the partially incapable person concerned.

Article 241 § 4 of the Code provides that the 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 her mental state has significantly improved. Such a decision shall be taken upon the application submitted by the guardian or the guardianship office and shall be supported by the relevant forensic psychiatric expert ' s conclusion.

COMPLAINTS

1. The applicant complains under Articles 6 and 13 of the Convention that she has no possibility to directly apply to the court for restoration of her legal capacity.

2. The applicant complains under Article 14 of the Convention that she has been subjected to discriminatory treatment on account of having no direct access to a court.

QUESTIONS

1. Having regard to the Court ' s case law (see Stanev v. Bulgaria [GC], no. 36760/06 , §§ 229-245, 1 7 January 2012 ), was the applicant ' s right of access to court violated in the present case?

2. Has the applicant suffered discrimination in the enjoyment of her Convention right of access to court on the ground that she was incapacitated person, contrary to Article 14 of the Convention?