ESTABLISHMENT OF THE FACT OF DEATH AND BIRTH UNDER MARIAL LAW

ESTABLISHMENT OF THE FACT OF DEATH AND BIRTH UNDER MARIAL LAW

Author

Petryk Tetiana

The issue of documenting the death of an individual has taken on another dimension in connection with the full-scale invasion of Russia. A large number of people died in Ukraine as a result of hostilities, but the fact of their death is not registered due to the lack of access of state authorities to settlements where active hostilities are taking place, or which are de facto occupied.

The issue of the birth of children under martial law is regulated by the order of the Ministry of Health, which stipulates that during the period of martial law, if there is no possibility for a medical worker to fill out a medical birth certificate, the medical worker is obliged to write out a certificate of arbitrary form for each case of the birth of a live child in two copies without affixing a seal, which is equivalent to a medical birth certificate.

In addition, confirmation of the fact of the birth of a child outside a health care institution during the period of martial law on the territory of Ukraine is also possible by filling out a medical birth certificate by a doctor after an examination of the woman who gave birth and the child and on the condition of being in the primary registration medical documentation of a woman, including in the electronic health care system, information confirming the fact of pregnancy of such a woman.

At the same time, the law provides for a simplified procedure for establishing the fact of death/birth only for temporarily occupied territory, in other words, for parts of the Donetsk and Luhansk regions of the Autonomous Republic of Crimea, occupied until February 24, 2022. Currently, the list of temporarily occupied territory is determined by the decision of the National Security and Defense Council of Ukraine, put into effect by the decree of the President of Ukraine.

The application of the provisions of Article 317 of the Civil Code of Ukraine to the specified cases is left to the discretion of the judges. In many cases, the relatives of the dead cannot obtain any medical documents about births and deaths in war zones. Such facts can be confirmed only by testimony of witnesses, death certificates drawn up with the participation of witnesses, photographs from the burial place, etc.

As of today, the established fact of death on TOT can be established only in court. If we consider the judicial practice, then we have the following: In May 2022, the court of Dnipropetrovsk, based on the daughter's application, established the fact of the death of her parents in the area of ​​military (combat) operations in the city of Mariupol. The fact of death was established on the basis of letters from neighbors and acquaintances about the burial, photographs from the burial place using the norms of the article of the Civil Code of Ukraine. At the same time, the court did not apply Article 317 of the Civil Code of Ukraine, because the Verkhovna Rada of Ukraine did not define the city of Mariupol as a temporarily occupied territory of Ukraine at the time of the application.

However, in some cases, the courts refuse to accept applications to establish the fact of death on the territory of military (combat) operations, considering Article 317 of the Civil Code of Ukraine to be inapplicable. For example, in the court case of the same city of Dnipropetrovsk, it was refused to establish the fact of death in the territory of the city of Mariupol, because the Verkhovna Rada of Ukraine did not define the city of Mariupol as a temporarily occupied territory of Ukraine.

Under the above conditions, when thousands of people may be buried in mass graves, and active hostilities continue, it is also necessary to consider the judicial procedure for recognizing persons as dead or missing and the administrative procedure for recognizing persons missing under special circumstances.

A person is recognized as dead in court if there is no information about his whereabouts for three years. If a person has gone missing in connection with hostilities, armed conflict, he or she may be declared dead after two years have passed since 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.

A person for whom there is no reliable data on death can be immediately recognized only as a missing person. However, the recognition of a person as such gives his relatives and loved ones only a limited range of rights. At the same time, the long terms stipulated by the law are an obstacle to the realization of other rights of the relatives of such persons, in particular, one of the parents to take actions in the interests of the child without the consent of the other parent, to cross the border with the child, to receive a postponement of the draft during mobilization, to marry, for social benefits, inheritance, etc.

Moreover, cases of recognition of a natural person as missing or declared dead are considered by courts for a long time due to the lack of priority consideration of these cases and the need for courts to make numerous requests to state bodies, which is obviously much more difficult in the conditions of an armed conflict.

In order to prevent errors and quickly go through the procedure of establishing the fact of the death or birth of your loved ones, contact the specialized specialists of our company.