Ukrainians will be able to appeal against „legal death”

The European Court of Human Rights has just issued an important judgment for Ukrainian making it possible to appeal against “legal death”.  This term is used by lawyers to describe a ruling which deprives a person of their legal capacity on health grounds. Effectively, until this judgment, Ukrainians deprived of legal capacity lost all rights for good. They were prohibited from working; marrying; receiving an inheritance; having any say in their treatment, etc. They were appointed a guardian who became the main person in their life. Without his or her consent they couldn’t get the question of restoration of legal capacity raised. This situation was extremely convenient for the guardian.

This happened in the case of Nataliya Mikhaylenko v. Ukraine  Since she suffered from a serious psychological illness, her father back in 2007 applied to the court to have her deprived of her legal capacity. On the basis of a court psychiatric assessment the court allowed the father’s application.

When her health improved, she asked the court to reinstate her legal capacity however the courts at all levels refused to even consider her application on its merits. She then applied to the European Court of Human Rights.

The Court in its judgment stated that the possibility of reviewing a ruling on legal capacity is one of the most important human rights. A situation where a person does not have the right to appeal against it is in breach of general trends at European level.

The Court found that lack of opportunity for a person to reinstate their legal capacity violates Ukraine’s international obligations. In order to enforce the judgment, Ukraine must now make amendments to legislation in order to safeguard the rights of these people.

Natalya Mykhaylenko has also been awarded over three and a half thousand EUR in compensation. However the right to receive this is presently held by her guardian who did not give his consent to the reinstatement of her legal capacity.

It should be noted that Ukraine does not presently have a systematic approach to protecting the rights of people with limited possibilities linked with psychological disorders or mental retardation based on respect for a person and his or her dignity, and not excluding the person from decision-making for example the system recommended by the UN for supported decision-making.

Therefore it would be important for Ukraine to not only ensure the possibility of reinstating a person’s legal capacity, but also taking the appropriate measures so that the person was not excluded from taking decisions about his or her own life. Only then will it be possible to speak of building a system of protection based on respect for the person’s dignity. 

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