In February 2020, the world faced the SARS-Cov-2 coronavirus pandemic. States began to quickly take measures to prevent the virus, which necessitated the making of adjustments in all areas of life. The process of interaction with state authorities, including an appeal to the court within the limitation period, was no exception.
What has happened to the limitation periods during the pandemic? This question is answered by Review No. 1 of certain issues of litigation practice associated with the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the Russian Federation dated April 21, 2020 (the “Russian Supreme Court’s Review No. 1 of litigation practice”). In this article for “Raschet” magazine, Alla Kipriyanova, Acsour’s Senior Lawyer, will take a look at what cases can affect the course of the period in the opinion of the Supreme Court and subordinate courts.
The limitation period is a period established by law for applying to the court in order to protect a violated right. The main purpose for the legislature to establish a limitation period is to ensure the stability of civil commerce: a person whose right is violated should apply to the court within a reasonable time, otherwise it is impossible to say that such a person is interested in protecting their violated right.
According to clause 1 of article 196 and clause 1 of article 200 of the Civil Code, the limitation period is 3 years from the date when the person found out or should have found out about the violation of his or her right and about who is the proper defendant in the claim. In addition, the law establishes special limitation periods for certain claims:
This limitation period is called general or subjective, since it starts to run when the person whose right is violated finds out about the violation, as well as about who is the proper defendant.
There is also an objective limitation period, which does not depend on the moment when the person is aware of the fact of the violation and the identity of the proper defendant. As stated in clause 2 of article 196 of the Civil Code, the limitation period may not exceed ten years from the date of the violation of a right for the protection of which the relevant period is established. The 10-year limitation period begins at the time of the violation. Consequently, the general or subjective limitation period (3 years) cannot begin and end beyond the objective limitation period (10 years).
It should be remembered that according to clause 2 of article 199 of the Civil Code, the limitation period is applied by the court not independently upon expiration, but only at the request of the second party to the dispute. According to paragraph 2, clause 2, article 199 of the Civil Code and clause 15 of the Resolution No. 43 of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 “On certain issues associated with the application of the norms of the Civil Code of the Russian Federation on the limitation period”, if a party to a dispute declares that the plaintiff has missed the limitation period, and there are no valid reasons for missing the period, the court has the right to dismiss the claims on these grounds alone, without studying other circumstances of the case.
Let us take a look at the issues of suspending limitation period and restoring a missed limitation period.
SUSPENSION OF THE LIMITATION PERIOD
In accordance with article 193 of the Civil Code, if the last day of a period that includes the limitation period falls on a non-working day, the day on which the period ends is considered the next working day following such non-working day.
As explained in the Russian Supreme Court’s Review No. 1 of litigation practice, the rules of article 193 of the Civil Code are not applied to a situation where the limitation period has expired on a non-working day, since non-working days declared by a Presidential Decree are not weekends or public holidays.
By Decree No. 206 of the President of the Russian Federation dated March 25, 2020 (the “Presidential Decree”), the days from March 30 to April 30, 2020 were declared non-working days with the retention of salary. As follows from the interpretation of the Presidential Decree, as well as articles 11, 12, and 107 of the Labour Code, non-working days established by the Presidential Decree are not equated with weekends and public holidays specified in the Labour Code and Civil Code.
Based on article 11 of the Labour Code, weekends are intended for working persons to have uninterrupted weekly rest, and public holidays are intended for the celebration of socially significant holidays. At the same time, non-working days were declared by the Presidential Decree not in order to establish rest time, but in order to ensure the sanitary and epidemiological welfare of the population. Therefore, the “designated” purpose of non-working days, weekends, and public holidays is different.
The Ministry of Labour, in its Letter No. 990-TZ dated March 31, 2020, confirmed this position, emphasizing the difference between these concepts, and drawing attention to the fact that only those organizations listed in the Presidential Decree are able to carry out labour activities during non-working days. Therefore, we can conclude that non-working days are days when only certain categories of organizations are allowed to work.
Taking into account this difference between non-working days, weekends and public holidays, the Supreme Court of the Russian Federation stated that if the limitation period expires on a non-working day, the limitation period is considered to have expired. This is not an obstacle to applying to the court, since the court has the right to dismiss the claim only at the request of a party to the dispute with respect to the missed limitation period.
The suspension of the limitation period, according to sub-clause 1, clause 1 and clause 2 of article 202 of the Civil Code, takes the place if the filing of a claim was prevented by extraordinary circumstances that were unavoidable under the given conditions (force majeure), provided that such circumstances arose or continued to exist within the last 6 months of the limitation period, and if this period is equal to 6 months or less than 6 months during the limitation period.
The criteria for force majeure circumstances are established by article 401 of the Civil Code, as well as formed by litigation practice and customs, and are that such circumstances must be:
In practice, natural disasters, hurricanes, avalanches, and similar, as well as military actions, epidemics, large-scale strikes, and governmental bans are recognized as force majeure circumstances.
In the Russian Supreme Court’s Review No. 1 of litigation practice, the court draws attention to the fact that the burden of proof that circumstances existed indicating that the period should be suspended is vested in the person who filed the claim.
If compliance with restrictive measures aimed at countering the spread of coronavirus lasted 6 months and was an obstacle to filing a claim, the limitation period should be considered to have been suspended. However, as indicated in the Russian Supreme Court’s Review No. 1 of litigation practice, only a court can recognize restrictive measures as force majeure in each specific case after they are classified. This means that the limitation period in the context of a pandemic is not automatically suspended for all categories of legal entities and individuals, but is recognized as suspended only by a court.
It should be recognized that it was genuinely difficult to file a claim when restrictive measures were in place: from March 19 to April 19, 2020, the courts restricted the personal receipt from individuals, as well as receipt in electronic form, while for some time, post offices were also closed for sending documents. At the same time, it cannot be said that the measures taken in the country completely limited the possibility of filing a claim, since it was possible to file a claim through the “My Judge” service (https://my.arbitr.ru).
Some courts refused to allow a party to apply a statutory missed limitation period, and also recognized the restrictions that developed in 2020 as force majeure. The Commercial (‘Arbitration’) Court of the City of Moscow in case No. A40-129664/2020, with regard to a claim of a state public institution against a commercial organization, took the view that the restrictive measures taken in Moscow, namely the restriction of the work of courts and post offices, prevented the filing of a claim. On the contrary, in the decision of the Commercial (‘Arbitration’) Court of Perm Territory dated February 20, 2021 in case No. A50-13024/2020, the court did not recognize the transition to remote work as a force majeure circumstance, and refused to suspend the limitation period during non-working days declared by the Presidential Decree.
RESTORATION OF A MISSED LIMITATION PERIOD
Along with the suspension of the limitation period, there is the institution of restoring a missed limitation period. According to article 205 of the Civil Code, in exceptional cases, when the court recognizes a valid reason for missing the limitation period owing to circumstances associated with the identity of the plaintiff (serious illness, a helpless state, illiteracy, etc.), the violated right of a citizen is subject to protection. The reasons for missing the limitation period may be considered valid if they occurred in the last 6 months of the limitation period, and if this period during the limitation period is equal to 6 months or less than 6 months.
Restrictive measures were established not only at the federal level – additional measures were also introduced at the level of the Russian Federation’s territorial entities. For example, in Kamchatka Territory, the isolation of employees of fishing organizations was introduced before laboratory testing for the coronavirus was conducted. In Khabarovsk Territory, the Republic of Adygeya and other territorial entities, until February 2021, a prohibition was established on citizens over 65 years of age leaving their place of residence. This means that in some regions, the introduction of restrictive measures that the applicant was obliged to comply with due to age or health status may be recognized by the court as a valid reason for restoring the limitation period.
If a person over 65 years of age intends to apply to the court, but does not have the right to leave his or her place of residence in accordance with a decree of the head of the territorial entity in which he or she lives, the limitation period expires at the request of such a person. But such a person has the right to apply to the court with a request to restore the missed limitation period.
At the same time, the restoration of the limitation period is available only to citizens and state authorities: according to clause 12 of the Plenum of the Russian Supreme Court’s Resolution No. 43 “On certain issues associated with the application of the norms of the Civil Code of the Russian Federation on a limitation period” dated September 29, 2015, the limitation period is not subject to restoration if it is missed by a legal entity or an individual entrepreneur for claims associated with the conduct of their business activities, regardless of the reasons for it to have been missed.
Litigation practice shows that the courts have different assessments of certain circumstances when deciding whether to restore the period in question. For example, the Commercial (‘Arbitration’) Court of Moscow Region in case No. A41-41323/2020 restored a period missed by a legal entity plaintiff for applying to the Commercial (‘Arbitration’) Court to have a decision of a state authority declared illegal, with reference to the Russian Supreme Court’s Review No. 1 of practice. At the same time, the Commercial (‘Arbitration’) Court of Novgorod Region on November 18, 2020, in case No. A44-2674/2020, also refused to restore a limitation period at the request of the plaintiff (a Homeowner Association), that had missed the period and applied for its restoration, citing that the managing head of the Homeowner Association had spent an extended period in self-isolation. The Commercial (‘Arbitration’) Court of Krasnoyarsk Territory in case No. A33-20684/2020 also refused to restore a missed limitation period, since the plaintiff did not duly substantiate that it had valid reasons for missing the limitation period.
Based on the analysis of litigation practice, it can be concluded that the court does not meet the plaintiff half-way in all cases when a person applies for the restoration of a missed limitation period or asserts that the limitation period was suspended for the period of restrictive measures aimed at preventing the spread of coronavirus infection,.
We recommend that all readers of this article do not rely on the possibility of restoring or suspending the limitation period in similar situations, and take all available measures to file a claim on a timely basis. If the period has already been missed, we recommend that you use all means to confirm that it is impossible to file a claim. Such evidence may include illness, the inability to file a claim in connection with post offices and courts working under a limited procedure, as well as the effect of restrictive measures introduced in a particular territorial entity.