CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 novembre 2019

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UKRAINE   (Application no. 1848/16)                             JUDGMENT         STRASBOURG   7 November 2019       This judgment is final but it may be subject to editorial revision. In the case of Gorbatyuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Síofra O’Leary, President,   Ganna Yudkivska,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 15 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 1848/16) 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 Olena Volodymyrivna Gorbatyuk (“the applicant”), on 18 December 2015. 2.     The applicant, who had been granted legal aid, was represented by Mr   M.   Tarakhkalo, Ms   O.   Protsenko, Ms   V.   Lebid, Ms   N.   Volkova, and Ms   A.   Martynovska, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr   I.   Lishchyna. 3.     On 20   September 2016 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1976 and lives in Khmelnytskyy. 5.     In her childhood the applicant was diagnosed with infantile cerebral palsy. Subsequently she underwent inpatient psychiatric treatment. 6.     The applicant has two daughters who were born in 1996 and 2004. The fathers of both daughters were deprived of their parental rights. 7.     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 (дієздатність) . The guardianship office instituted court proceedings to have the applicant deprived of her legal capacity and to determine who should have guardianship of her daughters. 8.     On 30 April 2009 a forensic psychiatric expert found that the applicant was suffering from a chronic mental disorder caused by a brain impairment. The expert concluded that the applicant could not understand or control her actions. 9.     On 15 May 2009 the Kotovsk Town Court deprived the applicant of her legal capacity. It also found that the applicant’s 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 appointed the applicant’s father as the guardian of her daughters. 10.     On 25 May 2015 the applicant underwent another forensic psychiatric examination. According to the ensuing report, she was suffering from a mental disorder but was capable of understanding and controlling her actions. 11.     The applicant works as a cleaner and lives independently. II.     RELEVANT DOMESTIC LAW 12.     Relevant domestic law, applicable at the relevant time, can be found in Nataliya Mikhaylenko v. Ukraine (no. 49069/11, §§ 16-19, 30 May 2013). Notably, under the 2004 Code of Civil Procedure, as worded at the relevant time, a court decision declaring a physical person entirely incapable could be quashed, and the legal capacity of that person restored, by another court decision, provided that the person in question had either been cured or his or her mental state had significantly improved. Such a decision could be taken upon an application being submitted by the guardian or the guardianship authority (орган опіки та піклування), but not by the person who had been declared incapable, and had to be supported by relevant conclusions drawn by a forensic psychiatric expert (Article 241 § 4). Following amendments to the Code of Civil Procedure, which came into effect on 15   December 2017, Article 300 now provides, inter alia , that a court decision declaring a physical person incapable may be quashed upon an application submitted by, among others, the person who was declared incapable. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6   §   1 OF THE CONVENTION 13.     The applicant complained under Article 6 § 1 of the Convention that it had not been possible for her to apply directly to a court for the restoration of her legal capacity. 14.     Article 6 § 1 provides, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 15.     In their observations of 12 January 2017, the Government submitted that after the Court’s judgment in Nataliya Mikhaylenko (no. 49069/11, 30   May 2013), the Supreme Court quashed the decisions of the lower courts in respect of that applicant and remitted the case for a fresh consideration. This, according to the Government, began a positive trend in the domestic judicial practice of accepting applications lodged by legally incapable persons, despite the restrictive rules in the domestic law at the relevant time. The Government referred to one similar case in 2014 and to two similar cases in 2016 and contended that the applicant had failed to exhaust domestic remedies in respect of her complaint. 16.     The applicant disagreed and maintained that at the time of her application to this Court in 2015 there had been no prospects of success in respect of the remedy indicated by the Government. The applicant contended that, contrary to the Government’s examples, at that time there had been many more cases where the courts, following clear and precise requirements of the Code of Civil Procedure, had not entertained the applications submitted by legally incapable persons. In support of these contentions, the applicant referred to sixteen court decisions, delivered between 2014 and 2017. 17.     The Court reiterates that the applicant’s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see Mehmet Hasan Altan v. Turkey , no. 13237/17, §   107, 20 March 2018). The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness (see Salman v. Turkey [GC], no. 21986/93, § 81, ECHR   2000 ‑ VII). 18.     The Court notes that at the relevant time the applicable rules of domestic law explicitly excluded the possibility of legally incapable persons applying directly to a court (see Nataliya Mikhaylenko , cited above, §§ 17, 18 and   34). Having regard to the applicant’s submissions showing numerous examples of domestic practice concordant with those legislative restrictions, the Court finds that the remedy referred to by the Government was not sufficiently certain in practice. Therefore, the applicant was not obliged to use it before lodging her application with the Court in 2015. The Government’s objection is therefore dismissed. 19.     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 20.     The applicant contended that her case was similar to the case of Nataliya Mikhaylenko (cited above) and that she had been deprived of access to a court to directly challenge the declaration of her incapacity. 21.     The Government maintained that there had been no violation of Article 6   §   1, relying on their submissions as to non-exhaustion of domestic remedies. 22.     The Court notes that in Nataliya Mikhaylenko it found that the inability of a legally incapable applicant to directly seek the restoration of her legal capacity constituted a violation of her right of access to a court under Article 6   §   1 of the Convention (ibid., §§ 39-   40). The facts of the instant case are similar. Even though legislative amendments were introduced in 2017, after the present application was lodged with the Court (see paragraph 12 above), it cannot be overlooked that the applicant had been deprived of her legal capacity since 2009 and therefore that domestic legislation had prevented her from having direct access to a court to challenge her legal incapacity for a prolonged period of time. 23.     Having regard to the duration and seriousness of the restriction, which affected many aspects of the applicant’s life, including her private and family life, the Court, as in Nataliya Mikhaylenko , finds that the restrictions on the applicant’s right of access to a court were not compatible with Article 6   §   1 of the Convention. 24.     There has accordingly been a violation of the above provision of the Convention. II.     ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION 25.     The applicant complained that depriving her of her legal capacity had further resulted in a violation of Articles 8 and 14 of the Convention, as she had been prevented from exercising her custody rights in relation to her two daughters and she was prevented from having contact with them. 26.     The Court considers that this complaint is admissible. It notes, however, that in finding a violation of Article 6   §   1, it has taken into account the consequences of the lack of access to a court for the applicant’s civil rights, including her custody rights. Moreover, it has not been shown that the applicant had been actually prevented from communicating with her children or that any alleged difficulties in such communication had been caused by the applicant’s legal incapacitation and not by the other factors existing in the family. In the circumstances of the case, the Court holds that it is not necessary to examine the present complaint separately (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 68, ECHR 2015 and Nataliya   Mikhaylenko, cited above, §   42). III.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 27.     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 28.     The applicant claimed 80,000 euros (EUR) in respect of non ‑ pecuniary damage. 29.     The Government maintained that the claim was unfounded. 30.     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   5,000 in respect of non-pecuniary damage. B.     Costs and expenses 31.     The applicant also claimed EUR 10,200 for the costs and expenses incurred before the Court. 32.     The Government submitted that this claim was unsubstantiated. 33.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award, in addition to the legal aid granted, the sum of EUR   500 for costs and expenses for the proceedings before the Court. This amount is to be paid directly into the bank account of the applicant’s representative, Mr   M.   Tarakhkalo, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no.   16483/12, § 288, 15 December 2016). C.     Default interest 34.     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 Articles 8 and 14 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR   500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of her representative, Mr   M. Tarakhkalo; (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 7 November 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   Síofra O’Leary Deputy Registrar   President