How to establish the fact of the death of a person in the temporarily occupied territory (+ template statement on the recognition of the fact of death in the temporarily occupied territory (Donetsk, Luhansk region)

As you know, court consideration of cases on the establishment of facts of legal significance is regulated by Chapter 6   Section IV of SEPARATE PROCEEDINGS of the Civil Procedure Code of Ukraine (hereinafter referred to as the Code of Civil Procedure of Ukraine).

The need to establish the fact of the death of a person at a certain time in a certain place, namely in the temporarily occupied territory, arose after the occupation of part of the territory of Ukraine by the Russian Federation since 2014. At first, this order was not clear and the courts acted based on analogues, then such an order was introduced by law, the order changed. The last changes took place already during the full-scale invasion, namely in August 2022. So, let's consider the current procedure for recognizing such a fact, because the need for this mechanism is currently obvious.

So, the list of facts that can be established by the court is defined in Art. 315 of the Code of Civil Procedure. At the same time, this article does not mention the establishment of the fact of death in the temporarily occupied territory. However, Part 2 of Art. 315 of the Code of Criminal Procedure says that other facts may be established in a court of law, on which the emergence, change or termination of personal or property rights of individuals depends, unless another procedure for establishing them is determined by law.

This is specifically stated in Article 317 of the Code of Criminal Procedure, which, in fact, regulates the specifics of proceedings in cases of establishing the fact of birth or death of a person in the territory where a state of war or emergency has been declared, or in the temporarily occupied territory of Ukraine.

Therefore, the establishment of the fact of death in the temporarily occupied territory is not a lawsuit, but a separate proceeding and is one of the cases of establishment of facts that have legal significance. At the same time, according to Clause 8, Part 1, Art. 315 of the Code of Civil Procedure , the court considers cases of establishing the fact of death of a person at a certain time in case of impossibility of registration of the fact of death by the state registration body of acts of civil status.

Jurisdiction

An individual's application to establish a fact of legal significance is submitted to the court at his place of residence. Jurisdiction of cases based on the application of a citizen of Ukraine who lives outside its borders to establish a fact of legal significance is determined at his request by a decision of a judge of the Supreme Court ( Article 316 of the Code of Civil Procedure ).

Content of the application ( Article 318 of the Code of Civil Procedure )

The application must state:

1) what fact the applicant requests to establish and for what purpose;

2) the reasons for the impossibility of obtaining or restoring documents proving this fact;

3) evidence confirming the fact.

Evidence confirming the circumstances stated in the application and a certificate on the impossibility of restoring the lost documents are attached to the application.

Here it should be noted that according to Art. 17 of the Law of Ukraine "On State Registration of Civil Status Acts" , state registration of death is carried out by the state registration body of civil status acts on the basis of: 1) a document of the prescribed form on death, issued by a health care institution or a forensic medical institution; 2) a court decision to establish the fact of a person's death at a certain time or to declare him dead.

Thus, in accordance with the orders of the Ministry of Justice of Ukraine dated November 25, 2014 No. 246/7 , 247/7 "On the transfer of bodies and institutions of justice of the Luhansk region" and "On the transfer of bodies and institutions of justice of the Donetsk region", the departments of state registration of civil status acts of Donetsk and of the Luhansk region, which were temporarily not under the control of the territory, were moved to the territory under the control of Ukraine. Documents on state registration of civil status acts issued in this territory after December 1, 2014 are not documents of territorial bodies of the Ministry of Justice of Ukraine.

According to the Law of Ukraine "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine", any bodies, their officials and officials in the temporarily occupied territory and their activities are considered illegal if these bodies or persons were created, elected or appointed in accordance with the law. Any Act (Decision, Document) issued by these bodies and/or persons is invalid and does not create any legal consequences. Therefore, it is necessary to apply to the court with such requirements, due to the fact that the Applicant cannot prove the fact of death in any other way.

Therefore, before applying to the court with the relevant application, the person must apply to the interested person - the relevant department of the state registration of civil status acts for the state registration of the death of the person in respect of whom it is necessary to establish the fact of death and receive a refusal of such registration, in connection with that , that the documents confirming the death were issued in the territory where the state authorities of Ukraine do not exercise their powers. Such an interested person should be indicated when making a corresponding statement to the court.

Establishing the fact of death is necessary for state registration of death on the territory of Ukraine, and obtaining a state-style death certificate. this should be noted in the application.

Peculiarities of proceedings in cases of establishing the fact of the death of a person in the temporarily occupied territory of Ukraine ( Article 317 of the Civil Procedure Code )

An application to establish the fact of the death of a person in the temporarily occupied territory of Ukraine, defined as such in accordance with the legislation, may be submitted by members of the deceased's family, their representatives or other interested persons (if the establishment of the fact of the death of a person affects their rights, obligations or legitimate interests ) to any local court of Ukraine administering justice, regardless of the applicant's place of residence (stay).

Cases of establishing the fact of the death of a person in the temporarily occupied territory of Ukraine, defined as such in accordance with the legislation, are considered immediately from the date of receipt of the relevant application to the court.

The decision made by the court is subject to immediate execution.

Regarding the court fee

According to Clause 21 Part 1 of Art. 5 of the Administrative Law "On Court Fees", applicants are exempted from paying court fees during the consideration of the case in all court instances, in particular, applicants - in cases on applications to establish the fact of birth or death submitted in connection with martial law, state of emergency, armed aggression, armed conflict, temporary occupation of the territory of Ukraine, natural or man-made emergencies.

You can create a Statement of recognition of the fact of death in the temporarily occupied territory (Donetsk, Luhansk region) in the Instaco constructor by following the link . To create, you only need to enter the necessary data in the designer.

The application for the recognition of the fact of death in the temporarily occupied territory (Donetsk, Luhansk region) was prepared by lawyer Natalya Krasnokutska (Instagram @advocate_knn , Facebook instaADVOCATE ) .

The lawyer conducts legal consultations on issues of business support:

• in any messenger by calling +380969900861

• in Instagram direct @advocate_knn or in Facebook messenger   instaADVOCATE

• by e-mail advocate_knn@ukr.net