Establishing the Fact of Death or Declaring a Person Deceased: How Families of Fallen Soldiers Can Properly Protect Their Rights

Establishing the fact of a person's death or declaring a person deceased are two distinct legal instruments. While seemingly similar, they differ in their grounds, standards of proof, and procedural consequences. An incorrect choice of method can lead to an application being refused, even when there are clear grounds to consider the person deceased. The Chernivtsi Court of Appeal has provided two illustrative rulings, made in consideration of Supreme Court practice.

In the first case (No. 723/1213/26), the applicant, the mother of a serviceman, sought to establish the fact of her son's death in a temporarily occupied territory (Article 317 of the Civil Procedure Code of Ukraine). Her son went missing during combat operations near a settlement in the Luhansk region on 30 March 2023 and was officially declared missing on 4 September 2023.

The court of first instance refused the application, a decision upheld by the appellate court.

The second case (No. 716/2031/25) involved a serviceman who went missing under similar circumstances near a settlement in the Donetsk region on 9 February 2024. The applicants (mother and sister) chose a different legal approach: declaring the person deceased.

The court of first instance refused the application, but the appellate court overturned this decision and granted the application, declaring the serviceman deceased from the date of his probable death.

Establishing the Fact of Death (Article 317 of the Civil Procedure Code of Ukraine)

This mechanism is applied when the family possesses indisputable evidence that the person died at a specific time and under specific circumstances. The date of death is precisely indicated as the actual date of death in battle.

In the first case, which resulted in the applicant's claim being refused, the courts noted that notifications regarding the serviceman's disappearance during combat and the order to establish the circumstances of his disappearance only confirmed his missing status. They did not, however, provide an unconditional basis for establishing his death. The applicant was advised that if there are assumptions about a person's death, particularly in connection with military actions, but without reliable evidence proving this fact, the correct approach would be to apply to the court with a request to declare the person deceased (Part 2 of Article 46 of the Civil Code of Ukraine), rather than establishing the fact of death (Paragraph 8, Part 1, Article 315 of the Civil Procedure Code of Ukraine).

The choice of protective method rests with the applicant, who determines the claim to be submitted to the court. Choosing an inappropriate or ineffective method for protecting one's rights is an independent ground for refusing the application.

Declaring a Person Deceased (Articles 46 of the Civil Code of Ukraine, 305-309 of the Civil Procedure Code of Ukraine)

Conversely, declaring a person deceased is applied precisely when there are grounds for a probable assumption of death, for instance, when a person goes missing under life-threatening circumstances (e.g., combat operations), but no exact information about their fate or whereabouts has been available within the established period.

Unlike the grounds for establishing the fact of death (which require reliable evidence proving death), the grounds for declaring a person deceased are not facts (evidence) that definitively prove death, but rather circumstances that give reason to assume the person's death. For this, the court must have sufficient proper and admissible evidence upon which a probable assumption of the citizen's death can be made. The absence of such evidence or contradictions within it makes it impossible to declare the person deceased (Supreme Court ruling dated 8 February 2024, case No. 148/1207/22).

In the case of declaring a person deceased, in addition to confirmed evidence from the official investigation into the serviceman's disappearance, the company commander's report, the military unit commander's statement, and other documents, the courts also established that the applicants had independently undertaken a number of actions over two years to search for the missing serviceman. The combination of this evidence and the absence of contradictions regarding the circumstances sufficiently confirmed the probability of his death.

Date and Place of Death

Special attention should be paid to the day from which the person is considered deceased. In case No. 716/2031/25, the Chernivtsi Court of Appeal declared the serviceman deceased from the day of his probable death (9 February 2024), not from the date of the court decision. The court recognised the place of death as the settlement near which he went missing during combat operations.

Calculating Terms in Temporarily Occupied Territories

Another important aspect is the procedure for calculating terms under conditions of temporary occupation of territories, which the appellate court addressed in its ruling.

Part 2 of Article 46 of the Civil Code of Ukraine stipulates that a person who went missing due to military actions or armed conflict can be declared deceased after two years from the end of hostilities. However, considering the specific circumstances of the case, the court may do so earlier, but not earlier than six months from the day the person went missing.

This raises the question of how to calculate this period if the territory where the disappearance occurred subsequently became temporarily occupied.

In the ruling of the Grand Chamber of the Supreme Court (case No. 755/11021/22 dated 11 December 2024), a general rule was established: the six-month period is calculated from the day active hostilities ended in the place of the person's probable death, not from the day martial law was lifted or cancelled in the country as a whole.

The appellate court noted that the local court, when considering the case of declaring the serviceman deceased, ignored this legal regulation and effectively linked the start of the period to the moment the temporary occupation of the respective territory ended. This error led to the refusal of the applicants' claim. The Chernivtsi Court of Appeal corrected this mistake by applying the legal position of the Supreme Court, as set out in the ruling dated 29 April 2026, in case No. 615/129/25, which detailed this approach specifically for such legal relations. In particular, the appellate court stated: if the territory became temporarily occupied after the end of active hostilities there, this circumstance does not change the established rule – the period is calculated from the day hostilities ended, and further occupation does not stop or delay its course.

Therefore, for protecting the rights of families of missing servicemen, the appropriate instrument is declaring the person deceased, rather than establishing the fact of death. This institution is based on the presumption (probability) of death and does not require direct proof of death, thereby removing unnecessary procedural obstacles for families.

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