European Court: Widow of radiation victim entitled to compensation by Russian State

29 October 2015

Today, the European Court of Human Rights delivered a judgment in a case concerning the quashing, by way of supervisory review, of a binding and enforceable judgment awarding the applicant, Ms. Larisa Gayeva, social security following her husband’s death as a result of radiation.[1] The Court found that the Russian State had violated the right to a fair trial and the right to peaceful enjoyment of property, in light of the domestic courts’ unjustified use of the  ‘supervisory review’ mechanism to quash the initial judgment awarding Ms Gayeva monthly compensation. Sadly Ms. Gayeva passed away in 2010. Her application has been pursued by her daughter Elena Povazhina, who was represented by Nadezhda Kutepova, a lawyer and head of Planet of Hopes (a Russian NGO that promotes and protects the rights of victims of ecological disasters), and the European Human Rights Advocacy Centre (EHRAC), based at Middlesex University in London.

Ms Gayeva was the widow of Mr Lev Gayev, who participated in the clean-up operation at the industrial site of Mayak power plant between 30 September 1957 and 31 December 1958 and was exposed to radioactive emissions. [2] Mr Gayev died of cancer in 1985, aged 46, when Ms. Gayeva was 45 years old.

In 2005 Ms. Gayeva learned from her friend (whose husband had died in 2004) that she received monthly compensation for the loss of the breadwinner, under the 1991 Federal Law On Social Protection of Citizens Exposed to Radiation as a Result of the Accident at PA Mayak of 1957 and Radioactive Waste Discharges into the River Techa.[3] In August 2006 Ms Gayeva sued the Ozersk Social Security Office to obtain compensation in relation to the loss of her husband’s income. On 17 October 2006 the Ozersk Town Court of the Chelyabinsk region rejected her claim, finding, in particular, that she failed to show that she had been financially dependent on her husband at the time of his death. However, on 4 December 2006 the Chelyabinsk Regional Court quashed the Town Court’s judgment and held that the Ozersk Social Security Office should pay Ms Gayeva monthly compensation ‘to be determined in accordance with the law’.  Pursuant to a request for supervisory review lodged by the Mayak State Enterprise (which managed the Mayak power plant), the Presidium of the Chelyabinsk Regional Court quashed the judgment of 4 December 2006 and remitted the case to the appeal court on the ground that the lower instance court had not properly examined evidence and had wrongly applied the substantive law. On 27 August 2007, the Chelyabinsk Regional Court re-examined the case and dismissed Ms. Gayeva’s claim for compensation. On 1 September 2007 Social Services cancelled compensation payments, which Ms Gaveya had received between 1 March 2007 and 1 August 2007.

Ms. Gayeva complained that the quashing of a binding and enforceable judgment ordering the payment of monthly compensation violated her right to a fair trial and the right to peaceful enjoyment of property under Article 6 of the European Convention on Human Rights (ECHR) and Article 1, Protocol 1 ECHR respectively. She also complained of the lack of an effective domestic remedy (Article 13 EHCR) through which she could seek to challenge the judgment quashing the initial judgment in her favour.

In finding a violation of Article 6, the Court reiterated that the domestic court’s quashing, by way of supervisory review, of a final and binding judgment may violate the principle of legal certainty inherent in Article 6, and render the right to a court ‘illusory’. The Court emphasised that departures from this principle are only justified in ‘circumstances of a substantial and compelling character’. In this case, the grounds on which the binding judgment of 4 December 2006 had been set aside did not satisfy this test. The Court underlined that:

“in the absence of a fundamental defect in the previous proceedings, a party’s disagreement with the assessment made by the first-instance and appeal courts is not a circumstance of a substantial and compelling character warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant’s claim.”

The Russian Government had not provided any arguments which enabled the Court to reach a different conclusion. The Court also found a violation of Art.1 Protocol 1 ECHR. The judgment of 4 December 2006 was specific enough to create an ‘asset’ within the meaning of Art.1 Protocol 1, and the quashing of this judgment frustrated Ms Gayeva’s reliance on the judgment and  deprived her of the opportunity to receive compensation that she had legitimately expected to receive. The Court found the claim under Article 13 ECHR to be inadmissible.

Ms. Povazhina was awarded €2,000 in non-pecuniary damages. Speaking on her behalf after the judgment had been delivered, Nadezhda Kutepova said:

The most important thing has always been achieving justice for those who have suffered as a result of the Mayak disaster. This is an example of how important it is to keep fighting, even in the most seemingly hopeless situations.

[1] The case was joined to Mishura v Russia (No. 5941/06) by the European Court.

[2] On 29 September 1957 an explosion of an underground container at Mayak power plant which contained highly radioactive waste resulted in the spillage of 20 million curies of radioactivity and contamination of the 23,000 square kilometre area in Chelyabinsk and Sverdlovsk Regions. The highest amount of radioactive substances (80%) settled on the industrial site of the Mayak power plant. All information regarding the accident was classified until 1990. The participants in the clean-up operation after the accident were not aware of the environmental situation at their workplace and the hazard they were exposed to.

[3] Only in 1990 the information pertaining to the accident was made public and the Russian Federation began preparation of legislation for protection of its victims’ rights. The law was passed the following year.