Ukraine system of guardianship becomes the latest target of critique by the European Court of Human Rights

Today the European Court of Human Rights fired its first ever shot at the Ukrainian guardianship system, which abuses the rights of an estimated 48,000 people.

MDAC co-represented the applicant in the case of Nataliya Mikhailenko v. Ukraine. In its judgment, the Court highlighted the absurdity of a law which prohibits someone under guardianship from accessing a domestic court to challenge the guardianship. It found a violation of Article 6 of the European Convention on Human Rights, the right to fair trial. MDAC has previously described such absurd situations as “Kafka-esque”. This case follows a line of recent human rights test cases challenging the brutality of guardianship in Russia (in Strasbourg and in Moscow) , Bulgaria, Lithuania, Poland, Czech Republic, Slovakia, Latvia and Croatia.

“Strategic litigation is contributing to the toppling of abusive guardianship systems across Europe,” said Oliver Lewis, MDAC Executive Director, “The Ukrainian government, like all governments, should reform their laws to fully comply with the UN Convention on the Rights of Persons with Disabilities, which demands repatriation of autonomy to people with disabilities and access to supports for those who may need them.”


The facts of the Mikhailenko case are startling. In the 1990s she was diagnosed with schizophrenia. Following a period being homeless and then hospitalised, she managed to get better and start living a fulfilling life. In 2006 she became pregnant and was looking forward to become a mother, so she stopped taking her antipsychotic medication so as not to harm the baby. In October that year she gave birth to a healthy girl but the child was immediately removed from her – her sisters thought that because of her diagnosis she was unfit to be a mother. In July 2007 a Ukrainian court placed her under guardianship (in proceedings she did not have the opportunity to participate) in order to strip her of parental rights and put the child up for adoption. Under guardianship she was barred from protesting the adoption.

After her child and her personhood had been so brutally taken away from her Ms Mikhailenko was forced to live with her abusive sister, who is now her guardian. Sometimes her sister forces her to drink alcohol, verbally abuses her, hits her and breaks her belongings. Earlier this month Ms Mikhailenko complained to the police about being a victim of physical abuse, but was told there is nothing that can be done, because under guardianship she is effectively a non-person, prohibited from bringing complaints to the police. To this day she has to stay in that house and can only go where her sister allows her to go. She would like to go to the United States to visit her friends, but is prohibited from applying for a passport or a visa, and she cannot buy herself a ticket. MDAC has characterised guardianship systems as “civil death”.


Legal proceedings

In 2010 Ms Mikhailenko applied to a court to quash the guardianship order, but Ukrainian law does not allow the person under guardianship to do this. It allows the guardian to initiate a proceeding, but absurdly does not allow the person under guardianship to do so. In Ms Mikhailenko’s case, her abusive sister/guardian refused to initiate a proceeding.

The Ukrainian justice system having offered no remedy, Ms Mikhailenko turned to the European Court of Human Rights to review the system of guardianship in Ukraine in general, and her right of access to court in particular. As it is only people with disability who are caught by guardianship, she claimed to have been a victim of disability-based discrimination.

In the proceedings before the Court Ms Mikhailenko initially represented herself, with the help of a Ukrainian lawyer friend. MDAC learned about the case when it was communicated to the Ukrainian Government. With the help of Nadia Volkova, legal consultant in Ukraine, MDAC managed to get in contact with Ms Mikhailenko and she agreed to have MDAC represent her.



The Court also awarded 3,600 EUR non-pecuniary damages to Ms Mikhailenko. Given that she is under guardianship, it is actually her guardian who is entitled to spend this money. MDAC requested that the judgment specify that it is only Ms Mikhailenko who is allowed access to the compensation money, and not her sister. The Court failed to observe this request without giving any reasons. This has made MDAC’s work more difficult because its next task is to make sure that it is only Nataliya who has access to her money. MDAC asked the Court to cover its legal fees which amounted to 8,735 euros, but was awarded only 1,000.


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