Establishing the fact of death during war: a painful and increasingly urgent issue

These data reflect only the number of civilian casualties officially established by the organization. In fact, there are many more, but it is impossible to establish an exact figure until the end of the war, because information from some places where intense fighting is going on is delayed, and many existing reports are still waiting for confirmation. From this point of view, there are places with numerous victims among the civilian population during direct hostilities, such as Mariupol or Popasna, as well as cases when a person ended up in a territory not controlled by Ukraine and after living there for some time, information about his death was received.

In connection with this, quite painful questions arise, which confuse an increasing number of Ukrainians – what to do in the event that, unfortunately, someone from relatives or close ones passed away under such circumstances? Many consequences are associated with this issue, such as opening and receiving inheritance, receiving appropriate payments (pensions, compensation), termination of marriage, deregistration, etc. The lawyers of the Repeshko and Partners Bar Association answer these questions.

In the case of the occurrence of this event on the territory of Ukraine and the receipt of a death certificate in the relevant bodies of registration of civil status acts, no questions arise, and a document confirming the death of a person is in hand. It is a completely different thing when it is not possible to get such a certificate for a number of reasons, or you have documents issued by the administration of the occupied territory.

In this regard, it is necessary to distinguish between two seemingly identical concepts that arise from slightly different legal situations, but in any case, the procedure goes through the court, and in these cases, a corresponding court decision is obtained from the beginning:

1. Recognition of a natural person as deceased
2. Establishing the fact of death.

Recognition of a natural person as deceased in accordance with Art. 46 of the Civil Code of Ukraine takes place in the following cases and in the following terms, the list of which is exhaustive:

• in the person’s place of permanent residence there is no information about his place of stay for 3 years
• the person went missing under circumstances that threatened him with death or gave reason to assume his death from a certain accident within 6 months
• the possibility to consider a natural person dead from a certain accident or other circumstances as a result of man-made and natural emergencies within the first month after the completion of the work of the special commission formed as a result of man-made and natural emergencies
• a natural person disappeared in connection with hostilities, armed conflict after 2 years from the end of hostilities. Taking into account the specific circumstances of the case, the court may declare a natural person dead even before the expiration of this term, but not before the expiration of six months.

According to Article 305 of the Civil Procedure Code of Ukraine, an application to declare a person deceased is submitted to the court at the applicant’s place of residence or at the last known place of residence (stay) of an individual whose whereabouts are unknown, or at the location of his property.

The court fee for submitting this category of applications is UAH 605.60 as of 2024 and changes every year.

After the court’s decision to declare a natural person dead enters into force, the court that made the decision sends it to the relevant body of state registration of civil status acts, which is located in the same territory as it, for registration of the death of the natural person. It is on the basis of the court’s decision to declare a citizen dead that the bodies of the National Register of Citizens of Ukraine issue a death certificate to interested persons.

The date of death of a citizen declared dead by a court decision is the day this decision enters into legal force, and it is this day that is indicated in the death certificate.

In the case of declaring a natural person dead, who went missing under circumstances that threatened him with death or give reason to assume his death from a certain accident, as well as in connection with military operations, the court has the right to recognize the day of death of this natural person as the day of his probable death , but this issue is considered in each specific situation, taking into account the available evidence and its weight.

As for the documents that could confirm the mentioned events and that you need to have in your hands in order to apply to the court, their list is quite long. The necessity of each of the documents is established depending on the situation, but the evidence in the case that will be presented to the court will be, for example, the following: a certificate from the pension fund that the person who has been assigned a pension has not received it for a significant period of time; act of the deputy with witnesses-neighbors (and preferably several with different time intervals) confirming the absence of persons at the place of registration of residence in the specified period; a certificate from the Administration of the State Border Service of Ukraine that the person has previously traveled outside of Ukraine; certificate from the hospital in which the citizen has a declaration with the family doctor that the person has not sought help for a considerable time; articles from the Internet or open sources about well-known events of a tragic nature that took place in the territory where the person lived or was during this period of time; acts and certificates of official authorities about the events that happened; certificate from the police about entering the event into the Unified Register of Pretrial Investigations, photographs of the person’s burial place with the name, first name, and dates of birth and death, video recordings, audio recordings, a collective act of death, and others. Be sure to get the consent of two or three witnesses for their appearance in court and giving testimony under oath under the specified circumstances.

This procedure is quite complicated and long, because there is no 100% proof that a person has died, or that the deceased person is exactly the one to whom it is necessary to establish the occurrence of death.

The caveat in this regard is contained in Art. 47 of the Civil Code of Ukraine, which stipulates that: “Heirs of a natural person who has been declared deceased do not have the right to alienate the immovable property transferred to them in connection with the opening of the inheritance within five years. The notary, who issued to the heir a certificate of the right to inherit real estate, imposes a prohibition of alienation on him.

Sometimes happy cases also happen – a person who was declared dead turns out to be alive and well. How to act in this situation? In this case, according to Art. 48 of the Civil Code of Ukraine – “If a natural person who was declared dead appears or if information is received about his whereabouts, the court at the place of residence of this person or the court that made the decision to declare him dead, upon the application of this person or another of the interested person cancels the court’s decision to declare the natural person dead.”

In turn, the fact of death is established when the person’s death is reliably known and the date of this event is established by relevant documents. As a rule, most cases related to death in the temporarily occupied territory follow this procedure. How does it work in a specific example? On the territory of the Kharkiv region in the village of The Kharkiv Regional Psychiatric Hospital is located in Strelecha. The village is located near the border with Russia and was one of the first to be occupied. In connection with this fact, the hospital turned out to be cut off from the supply of necessary medicines and products, under heavy shelling, without a significant part of doctors and medical personnel who were not at work. A considerable number of patients, unfortunately, died. But according to this event, the doctors issued medical death certificates with hospital seals, and the dead patients were buried. Already after the occupation of this territory, many months later, when the relatives and friends received at least partial access to the hospital and the relevant medical documents about the death, they applied to the court with relevant statements specifically to establish the fact of death.

According to Art. 315 of the Civil Procedure Code of Ukraine, the court considers cases of establishing the fact:

• 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;
• the death of a person who went missing under circumstances that threatened him with death or give grounds to consider him dead from a certain accident as a result of man-made and natural emergencies.

According to Art. 317 of the Civil Procedure Code of Ukraine, an application to establish the fact of a person’s death must be submitted by family members of the deceased, their representatives, or other interested persons (if establishing the fact of a person’s death affects their rights, obligations, or legal interests). Thus, in addition to documents confirming the fact of the person’s death, it is necessary to add documents confirming family ties, authority or interest in the specified circumstances to the application. In the absence of the specified documents, the judge will leave the statement on establishing the fact of death without movement and offer to bring them to the court within the specified time. If such documents are still not provided, the opening of proceedings on the case will be refused.

Usually, according to the general rule, an individual’s application to establish a fact of legal significance is submitted to the court at his place of residence.

Law of Ukraine dated July 1, 2022 No. 2345-IX “On Amendments to Certain Legislative Acts of Ukraine Regarding the Peculiarities of Proceedings in Cases Establishing the Fact of Birth or Death of a Person in Conditions of Martial Law or a State of Emergency and in Temporarily Occupied Territories” (which entered into force on August 7 2022), amendments were made to Article 317 of the Civil Code of Ukraine. To establish the fact of death of a person who died in the temporarily occupied territory of Ukraine, it is possible to apply to any local court of Ukraine, regardless of the place of residence (stay) of the applicant.

The evidence of the fact of death in such a case will be the following documents: a medical death certificate, a paramedic’s death certificate, a medical certificate of perinatal death, a death certificate issued by the administration of the occupied territory, and some others.

According to the general rule, before applying to the court with the relevant application, it is necessary to receive a written refusal of the civil status registration body to perform the registration and why the body refuses to do so.

At the same time, the provision of Article 317 of the Civil Code of Ukraine, which regulates the very issue that before proceeding in cases on establishing the fact of birth or death of a person in the territory where a state of war or emergency has been introduced, or in the temporarily occupied territory of Ukraine, citizens who apply with an application are not required to the court on the establishment of the fact of death, submitting to the court a written refusal of the civil status registration body to register such facts.

As of 2024, the court fee for considering an application to establish the fact of death is usually UAH 605.60. However, in accordance with paragraph 21 of the first part of Article 5 of the Law of Ukraine “On Court Fees”, applicants are exempted from paying the court fee in cases of applications for the establishment of the fact of death submitted in connection with a state of war, a state of emergency, armed aggression, armed conflict, temporary occupation of the territory of Ukraine, submitted in connection with the state of war, state of emergency, armed aggression, armed conflict, temporary occupation of the territory of Ukraine, emergency situations of a natural or man-made nature.

The same norms of civil procedural legislation indicate that cases of establishing the fact of birth or death of a person in the territory where a state of war or emergency has been imposed, or 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 law does not decipher what exactly the term “urgently” means, but in fact everything depends on the workload of a particular court and judge. In practice, there were cases when a citizen submitted a relevant application to the court office (provided a properly prepared package of documents), and after 2-3 hours received a court decision. More often than not, the indicated procedure takes a couple of days – today I submitted the documents, tomorrow – I picked them up.

The decision of the court in cases establishing the fact of death of a person in the territory where a state of war or emergency has been imposed, or in the temporarily occupied territory of Ukraine, defined as such in accordance with the legislation, is subject to immediate execution. In practice, this means that immediately after receiving a copy of the court decision establishing the fact of death, a person can apply to the civil status registration authority to obtain a death certificate.

In turn, the court must also send a copy of the court’s decision to the RATS body on the territory of which the court is located, moreover, this body must be indicated as an interested person when submitting an application to establish the fact of death.

It is after receiving a death certificate based on a court decision that citizens have the right to apply to a notary to receive inheritance after the deceased. No notary will talk to you without this certificate.