The Supreme Court explained who can apply to the court to establish the fact of death of a serviceman in temporarily occupied territories or combat zones

The Supreme Court clarified who has the right to submit applications to establish the fact of death of an individual or serviceman in temporarily occupied territories or in areas where martial law or a state of emergency is in effect.

As noted by the court, until August 7, 2022, Article 317 of the Civil Procedure Code of Ukraine defined the specifics of proceedings in cases concerning the establishment of the fact of birth or death of a person in temporarily occupied territories of Ukraine, according to the second paragraph of the first part of which an application to establish the fact of death of a person in temporarily occupied territory of Ukraine, defined by the Verkhovna Rada, could be submitted by relatives of the deceased or their representatives to a court outside such territory of Ukraine.

By the Law of Ukraine dated July 1, 2022, No. 2345-IX, changes were made to Article 317 of the Civil Procedure Code of Ukraine, and the second paragraph of the first part of this article was restated as follows:

"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 territory of Ukraine, defined as such according to the legislation, may be submitted by family members of the deceased, their representatives, or other interested persons (if the establishment of the fact of death affects their rights, duties, or legitimate interests) to any local court of Ukraine exercising justice, regardless of the place of residence (stay) of the applicant."

The family consists of persons who live together, are connected by a common household, and have mutual rights and obligations (part two of Article 3 of the Family Code of Ukraine).

The family is formed on the basis of marriage, blood relation, adoption, as well as on other grounds not prohibited by law and not contrary to the moral principles of society (part four of Article 3 of the Family Code of Ukraine).

According to the third paragraph of point 1 of the operative part of the Decision of the Constitutional Court of Ukraine dated June 3, 1999, No. 5-rp/99, in the case of official interpretation of the term "family member," family members include, in particular, persons who permanently live with the person and maintain a common household. Such persons include not only close relatives (full brothers, sisters, grandchildren, grandfather, grandmother) but also other relatives or persons who are not in direct family ties with the person (half-brothers, half-sisters; son-in-law, daughter-in-law; stepfather, stepmother; guardians, trustees, stepsons, stepdaughters, etc.).

If a person who applied to the court based on the first part of Article 317 of the Civil Procedure Code of Ukraine is not a family member of the deceased, they must provide evidence that the establishment of the fact of death affects their rights, duties, or legitimate interests.

At the same time, the Supreme Court drew attention to the fact that when deciding on the opening of proceedings in a case to establish the fact of death of a person in a territory where martial law is introduced or in temporarily occupied territories, the court must verify whether the applicant has the right to initiate the establishment of the specified fact.

Considering the content of Article 317 of the Civil Procedure Code of Ukraine, failure to prove the right to apply with a statement 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 territory defined as such according to the legislation, is an independent ground for refusal to satisfy the application.

Applications to establish the fact of death of a person under Article 317 of the Civil Procedure Code of Ukraine were predominantly submitted by one of the deceased's parents, one of the children, or the spouse.

Applicants in such cases also included close and first cousins, grandfather, grandmother, grandchildren, daughter-in-law, nephews:

• Decision of Bobrynets District Court of Kirovohrad Region dated July 7, 2023, in case No. 383/1127/23;
• Decision of Svitlovodsk City District Court of Kirovohrad Region dated August 16, 2022, in case No. 401/1946/22;
• Decision of Ovruch District Court of Zhytomyr Region dated July 13, 2023, in case No. 286/1848/23;
• Decision of Kamianske District Court of Cherkasy Region dated April 23, 2024, in case No. 696/355/24;
• Decision of Novoarkhanhelsk District Court of Kirovohrad Region dated November 14, 2022, in case No. 394/686/22;
• Decision of Vinnytsia City Court of Vinnytsia Region dated November 6, 2023, in case No. 127/34175/23.

Separately, the Supreme Court noted that persons who are not relatives of the deceased also applied to courts with applications to establish the fact of death.

Analysis of cases considered by courts on establishing the fact of death under Article 317 of the Civil Procedure Code of Ukraine shows that such applications are submitted both by family members and close relatives, as well as persons entitled to inheritance after the death of the deceased, receipt of material assistance, etc.

For example, in case No. 486/1499/23, the applicant who was not a relative of the deceased applied to the city court, but was an heir under the will, stating that the testator died in temporarily occupied territory, and the establishment of this fact was necessary for the state registration of the death of the deceased and subsequent inheritance under the will. The city court satisfied the application based on its proven validity.

The specified subject composition does not contradict the norms of the legislation.

The Supreme Court also draws attention to the fact that the applicant in such cases was also a military unit requesting to establish the fact of death of a serviceman.

For instance, the Kitsman District Court of Chernivtsi Region in case No. 718/1463/24 satisfied the application of a military unit to establish the fact of death of a serviceman, reasoning that the death occurred in temporarily occupied territory during the performance of combat missions as part of the military unit under martial law conditions. The court concluded that there were legal grounds to satisfy the application to lawfully exclude the serviceman from the personnel lists of the Armed Forces of Ukraine.

In case No. 295/4812/23, a military unit requested to establish the fact of death of a serviceman who died while on military service during combat operations to ensure national security and defense of the homeland, its territorial integrity, repelling and deterring armed aggression by the Russian armed forces in Kyiv region. It was argued that establishing the fact was necessary to obtain a death certificate and further use this document to transfer the serviceman's property to disposal and to systematize the accounting of military property assigned to the serviceman. In addition, establishing the fact of death of the senior soldier would affect the administrative and economic relations of the military unit.

Refusing to open proceedings in case No. 295/4812/23, the local court indicated that a military unit cannot initiate the issue of establishing the fact of death of a serviceman for the purpose of transferring the serviceman's property to disposal and systematizing military accounting, since the procedure for accounting, use, and write-off of military property is established by law, and therefore the establishment of this fact itself does not create any legal consequences for the military unit and cannot be the subject of judicial proceedings.

The appellate court, upholding the local court's decision, also noted that the serviceman is considered missing in action. The applicant did not provide evidence of the impossibility of submitting a document of the established form about death (a healthcare institution document – medical death certificate, paramedic death certificate confirming the fact of death of the serviceman at a certain time, place, and circumstances, issued by a healthcare or forensic medical institution) to the civil registry office. Also, the applicant did not provide the court with evidence of refusal by the civil registry office to register the death event.

The Supreme Court, reviewing the case, agreed with the conclusions of the courts of first and appellate instances, noting that the legal consequences indicated by the applicant in the application to establish the fact of death of the serviceman can be achieved by other means — without applying to the court, namely through the implementation of provisions of local normative legal acts of the Ministry of Defense of Ukraine (Supreme Court ruling dated December 6, 2023, in case No. 295/4812/23).

When applying to the court with applications to establish the fact of death, applicants attach documents confirming kinship with the deceased, but in the vast majority of court decisions establishing the fact, it is stated that the applicant is the daughter, son, grandchild, wife, husband, mother, father, grandfather, grandmother, aunt, daughter-in-law, etc. of the deceased, without detailing the content of documents confirming kinship – who and when made the civil status record and issued the corresponding certificate, the content of the certificate – data about mother, father, wife, husband, etc.

The Supreme Court noted that when deciding such cases, courts must pay attention to the fact that the indication of these data in the court decision is mandatory.

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