The Court of Appeal allowed an appeal by An tArd-Chláraitheoir and upheld the refusal to register Sergey Chesnokov’s birth as having occurred in Dublin in 1940.
In a judgment delivered on 3 February 2017, Ms Justice Irvine said the evidence submitted in support of the late registration application was not adequate to establish, on the balance of probabilities, that Mr Chesnokov was born at No. 5 Henrietta Street on 28 September 1940. The court therefore held that the High Court judge had erred in law in finding the evidence sufficient.
Mr Chesnokov had appealed to the High Court after the Registrar rejected his application under section 19(5) of the Civil Registration Act 2004. The High Court reversed that decision in July and August 2015. An tArd-Chláraitheoir appealed that ruling.
The Court of Appeal considered whether the High Court appeal was brought in time, the scope of that appeal, and whether the evidence justified registration. Justice Irvine agreed with the reasoning of Mr Justice Hogan that, if the appeal was late, the circumstances warranted extending time. She also agreed that the High Court could reach its own conclusion on the evidence and materials before the Registrar, rather than merely review the legality of the Registrar’s approach. The Court of Appeal’s role was to consider whether the High Court judge had erred in law.
The evidence included a 2010 declaration from Mr Chesnokov’s aunt, Nadezhda Zhirnova, who said she delivered him in Dublin at 8am on the stated date. She was treated under the Act as a qualified informant because she said she was present at the birth. Other material included statements based on what relatives had said, a Moscow birth registration document issued on 14 October 1940, and copies of Mr Chesnokov’s identity and membership documents, which recorded Dublin as his birthplace.
Justice Irvine said the Moscow document was prima facie evidence that Mr Chesnokov and his mother were in Moscow on 14 October, but, without evidence explaining the basis for the Soviet registration, it did not establish that he had been born in Dublin. The judgment also noted the absence of evidence about the circumstances that brought his mother and aunt to Ireland or the journey to Moscow, and said the aunt’s declaration was the only evidence supporting the mother’s presence in Ireland and the birth there.
The judge acknowledged that proving a birth decades later could be difficult, but said the applicant still had to provide evidence adequate for registration. She said the court did not rule out that Mr Chesnokov was born in Ireland; it concluded that the evidence did not establish that claim as probable.