Fact of death in temporarily occupied territories or during the war: The Supreme Court explained which court to apply to

According to Article 317 of the Civil Procedure Code of Ukraine, an application to establish the fact of death of a person in a territory where martial law or a state of emergency is introduced, or in temporarily occupied territories of Ukraine, may be submitted by the applicant to any local court of Ukraine that administers justice, regardless of their place of residence (stay).

According to this provision of the Civil Procedure Code of Ukraine, the court does not have the right to transfer the application of a person to establish the fact of death in a territory where martial law is introduced or in temporarily occupied territories to another court based on jurisdiction.

In general, courts of Ukraine, when considering applications to establish the fact of death in a territory where martial law is introduced or in temporarily occupied territories, adhere to the provisions of the second paragraph of part one of Article 317 of the Civil Procedure Code of Ukraine regarding their consideration regardless of the applicant's place of residence (stay).

At the same time, there are cases of transferring cases of this category by jurisdiction to another court at the place of residence of the applicant.

Courts should pay attention that territorial jurisdiction of cases in occupied territories is determined by the Supreme Court's order on determining the territorial jurisdiction of cases, which also reflects the list of courts whose territorial jurisdiction was changed due to the impossibility of administering justice during martial law, and the list of courts whose territorial jurisdiction has been restored.

For example, in case No. 758/5855/22, the Podilskyi District Court of Kyiv city transferred the application of a grandson, the interested party being the Podilskyi Department of the Civil Registry Office in Kyiv city of the Central Interregional Department of the Ministry of Justice, to establish the fact of death of the applicant's grandmother in temporarily occupied territories, by jurisdiction to another court – the Holosiivskyi District Court of Kyiv city. According to the court's conclusion, in this case, the decisive factor is the applicant's place of residence, which territorially belongs to the Holosiivskyi district of Kyiv city (ruling of the Podilskyi District Court of Kyiv city dated July 26, 2022, in case No. 758/5855/22).

For example, in case No. 381/3750/22, by the ruling of the city district court, the case was transferred by jurisdiction to another city district court on the application of a military unit, the interested parties being the Fastiv Department of the Civil Registry Office in the Fastiv district of Kyiv region of the Central Interregional Department of the Ministry of Justice (Kyiv city), to establish the fact of death of a serviceman. The conclusion about the lack of jurisdiction of the court to which the application was submitted was based on the provisions of part one of Article 316 of the Civil Procedure Code of Ukraine, according to which an application of an individual to establish a fact of legal significance is submitted to the court at the place of residence of that person. Since the location of the military unit is a settlement in the Boryspil district of Kyiv region, the Fastiv City District Court of Kyiv region transferred the case for consideration to the Boryspil City District Court of Kyiv region (ruling of the Fastiv City District Court of Kyiv region dated December 2, 2022, in case No. 381/3750/22).

Such cases are rare; mostly, courts generally take into account the recommendations of the Supreme Court and the relevant court decisions and orders of the Supreme Court on determining the territorial jurisdiction of cases.

Thus, in case No. 462/1469/23, by the ruling of the judge of the Zaliznychnyi District Court of Lviv city, the application of a daughter to establish the fact of death of her father in temporarily occupied territories was transferred for consideration to the Mezhivskyi District Court of Dnipropetrovsk region. When transferring the case by jurisdiction, the court noted that the applicant's registered place of residence in the prescribed manner is the city of Kreminna, Luhansk region, which territorially belongs to the jurisdiction of the Kreminskyi District Court of Luhansk region. By the Supreme Court's order, the territorial jurisdiction of cases of the Kreminskyi District Court of Luhansk region was assigned to the Mezhivskyi District Court of Dnipropetrovsk region (ruling of the Zaliznychnyi District Court of Lviv city dated February 28, 2023, in case No. 462/1469/23).

In case No. 462/1486/23, by the ruling of the Zaliznychnyi District Court of Lviv city, the application of a daughter to establish the fact of death of her father in temporarily occupied territories was transferred for consideration to the Krasnohvardiiskyi District Court of Dnipro city on the grounds that the applicant's registered place of residence in the prescribed manner is the urban-type settlement Donske, Volnovakha district, Donetsk region, which territorially belongs to the jurisdiction of the Volnovakha District Court of Donetsk region. However, by the Supreme Court's order, the territorial jurisdiction of cases of the Volnovakha District Court of Donetsk region was assigned to the Krasnohvardiiskyi District Court of Dnipro city (ruling of the Zaliznychnyi District Court of Lviv city dated March 1, 2023, in case No. 462/1486/23).

In the summary of judicial practice sent by the Lviv Court of Appeal regarding the establishment of the fact of death of a person during martial law or in temporarily occupied territories, it is noted that one of the problematic issues arising during the consideration of applications to establish the fact of death is "unlimited" jurisdiction, which may be a basis for abuse and requires regulation.

The Supreme Court draws courts' attention to the fact that unlimited jurisdiction, on the contrary, has advantages as it allows a person initiating the issue of establishing the fact of death of an individual in a territory uncontrolled by Ukraine to exercise their right regardless of their place of residence.

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