Is it possible to declare a missing soldier dead if the relatives object — court decision

The Cherkasy Court of Appeal upheld the decision to declare a serviceman of the National Guard of Ukraine dead, who went missing during a combat mission near Khromove in the Bakhmut district in April 2023.

The court confirmed that to declare a person dead, a combination of evidence sufficient to reasonably presume their death is enough, even if the remains have not been found. At the same time, the six-month period stipulated by part two of Article 46 of the Civil Code of Ukraine in such cases is calculated not from the day the person went missing, but from the day active hostilities ended in the area of their probable death.

The Court of Appeal also emphasized that the relatives' disagreement with the application to declare the person dead by itself does not indicate the existence of a dispute over rights and does not prevent the case from being considered in a separate proceeding. At the same time, even after declaring a person dead, the search does not stop if the remains have not been found.

Circumstances of the case

The mother of the serviceman of the National Guard of Ukraine applied to the court with a request to declare her son dead.

The son was mobilized in March 2022. In spring 2023, he was performing combat tasks in the area of the settlement of Khromove, Bakhmut district, Donetsk region.

On April 20, 2023, during a combat encounter and intense artillery shelling by the enemy, the serviceman went missing. According to the materials of the military unit’s official investigation, after the shelling, he did not return to the positions. Comrades explained that due to continuous enemy fire, search operations were impossible.

By order of the military unit, the serviceman was declared missing in action ("presumed dead") during the performance of a combat mission.

During the case consideration, the court also took into account that the serviceman was indeed in the area of active hostilities, after April 20, 2023, no information about his whereabouts appeared, no data on crossing the state border was established, there was no information about captivity, a criminal proceeding regarding his disappearance is ongoing, and the settlement of Khromove was in the zone of active hostilities until February 11, 2024, after which it came under temporary occupation by the Russian Federation.

The Sosnivskyi District Court of Cherkasy recognized this evidence as sufficient and declared the serviceman dead, determining the day of his death as the day of probable death during the combat mission.

What was appealed

The appeal was filed by the mother of the serviceman who has minor children.

She argued that there was insufficient evidence to declare the person dead, the court of first instance did not ensure proper procedural balance, and there was a dispute over rights between the parties, so the case could not be considered in a separate proceeding.

She also requested to cancel the decision or leave the application without consideration.

Position of the Court of Appeal

The Cherkasy Court of Appeal rejected these arguments.

The court noted that according to Article 46 of the Civil Code of Ukraine, a person who went missing due to military actions may be declared dead by the court even before two years have passed since the end of hostilities, if at least six months have passed and specific circumstances exist that provide grounds for a reasonable presumption of death.

At the same time, the Court of Appeal applied the legal conclusion of the Grand Chamber of the Supreme Court, according to which the six-month period stipulated by part two of Article 46 of the Civil Code of Ukraine in cases of declaring persons who went missing during hostilities dead is calculated from the day active hostilities ended in the area of their probable death.

Since active hostilities in Khromove ended on February 11, 2024, and the court application was filed more than six months after that, the legal requirements were met.

The Court of Appeal also noted that the serviceman was in an area of intense combat, disappeared after artillery shelling, for more than three years there has been no information about his whereabouts, and there is no information about captivity or other data that could indicate he is alive.

Under these circumstances, the combination of evidence provides grounds to reasonably presume the death of the serviceman, which is sufficient to declare him dead in court. The court specifically noted that the court decision does not establish the fact of death but declares a natural person dead based on the grounds provided by law.

Why the court rejected the arguments about a dispute between relatives

The Court of Appeal also disagreed with the argument about the existence of a dispute over rights.

The panel of judges noted that the mere fact of disagreement by one of the relatives with the application to declare a person dead or the possibility of future property consequences of such a decision does not indicate the existence of a dispute over a specific civil right or obligation.

In this case, the court considered the application to declare a natural person dead in a separate proceeding. Such a decision itself does not deprive interested persons of the right in the future to exercise or protect their property or other rights in the manner prescribed by law, including inheritance or receiving social benefits.

Court decision

The Cherkasy Court of Appeal dismissed the appeal and left the decision of the Sosnivskyi District Court of Cherkasy unchanged.

The court also noted that according to the Law "On the Legal Status of Persons Missing Under Special Circumstances," even after declaring a person dead, the search does not stop if the whereabouts, burial place, or location of remains have not been established.

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