Declaration of a Citizen as Missing

📘 1. General Characteristics of the Legal Norm

Article 28 of the Civil Code of the Republic of Kazakhstan regulates the legal institution of missing persons. It applies when a person’s whereabouts have been unknown for at least one year, and there is no information about whether the person is alive or dead. This legal mechanism serves to:

·        protect the property interests of individuals and organizations;

·        ensure legal certainty;

·        regulate inheritance, family, housing, and other relationships in cases of prolonged absence.

📌 This institution is not equivalent to declaring a person deceased (which is covered by Article 29 of the Civil Code of the RK).

⚖️ 2. Legal Conditions for Declaring a Person as Missing

To declare a citizen missing, the following conditions must be met:

📌 Important: the absence must be inexplicable and prolonged.

🏛️ 3. Procedural Procedure for Declaring a Person as Missing

Regulated by the Civil Procedure Code of the RK (Articles 312–316):

🔹 Procedure:

1.    The application is filed with the court at the person’s last known place of residence;

2.    The court requests:

• information from the Ministry of Internal Affairs (registration, migration);
• data from banks, civil registry offices, and medical institutions;
• publication of notices in the media and search measures;

3.    If necessary, the police are instructed to conduct a search;

4.    If the absence of information is confirmed, the court issues a ruling declaring the person missing;

5.    The court determines the starting date of the absence (see Part 2, Article 28 of the Civil Code).

🧭 4. Determining the Start Date of Absence (Part 2)

If the exact date of the last known communication is unknown:

📌 This is important for:

·        calculating inheritance timelines;

·        determining when legal consequences take effect;

·        possible future declaration of death (Article 29 of the Civil Code — after 3 or 5 years).

👥 5. Legal Consequences of Being Declared Missing

Once declared missing by the court:

📚 6. Related Legal Norms

🌍 7. International Norms

✅ Convention on the Legal Status of Missing Persons (Strasbourg, 1950) (not ratified by Kazakhstan, but considered in legal practice):

·        Establishes that declaring a person missing has limited legal effects and does not automatically terminate rights and obligations, except as provided by law.

✅ International Covenant on Civil and Political Rights (UN):

·        Article 16 – every person has the right to recognition as a legal person before the law, which requires a clear legal status — including in cases of disappearance.

🏢 8. Examples from Judicial Practice

🔹 Example 1: Pavlodar, 2021

A wife filed an application to have her husband declared missing. He had gone to work in Russia and lost contact in January 2020. The application was filed in March 2021. 🔍 After search measures and a response from the Ministry of Internal Affairs, the court declared him missing as of February 1, 2020. A guardian was appointed over his property.

🔹 Example 2: Karaganda, 2022

A mother petitioned the court to declare her son missing. The last known contact was in November 2019, but the exact date was unknown. 📜 The court ruled that the date of disappearance began on December 1, 2019, in accordance with Part 2, Article 28 of the Civil Code. This affected the inheritance opening date.

📌 9. Important to Note

·        Declaring a person missing does not terminate their legal capacity, unlike being declared deceased.

·        If the person reappears:

o   their rights are fully restored;

o   guardianship is lifted;

o   transactions made by the guardian may be challenged if they violated the person’s interests.

✅ 10. Conclusion

Article 28 of the Civil Code of the RK is a vital legal mechanism that protects the interests of families, creditors, and the state in cases of a citizen’s unexplained disappearance. It:

·        establishes the legal status of the person;

·        ensures the legal circulation of property;

·        serves as the basis for appointing guardianship and managing the consequences of the absence.

🔹 The procedure requires judicial control, solid evidentiary support, and a balance between the interests of the missing person and those around them.

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

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