On judicial practice in cases of recognizing a citizen as missing or declaring him dead

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 31, 2019 No. 2

     In order to ensure the uniform application of legislation by courts when considering cases on recognizing a citizen as missing or declaring deceased, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications:

In accordance with articles 28, 31 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) and part two of Article 317 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), a case on declaring a citizen missing or dead may be initiated at the request of his family members, the prosecutor, public associations, the guardianship authority and others. interested parties.

    Applicants in this category of cases are family members (spouse, parents, children, and others). The courts should bear in mind that the subject composition of individual applicants is not limited to persons who are in family and kinship relationships.

     Interested persons are individuals and legal entities, state bodies that, in accordance with the second part of Article 8 of the CPC, have the right to apply to the court for the protection of violated or disputed rights and freedoms or legitimate interests of other persons or an indefinite circle of persons in cases provided for by law, and for which recognition as missing or declaring deceased person entails the emergence, termination, or modification of personal non-property and property rights.

Courts should keep in mind that an application for recognizing a citizen as missing or declaring him dead, along with complying with the requirements of Article 148 of the CPC in form and content, must comply with the norms of Article 318 of the CPC.

    The application must specify for what purpose it is necessary for the applicant to recognize the citizen as missing or to declare him dead, as well as the circumstances confirming the unknown absence of the person, or the circumstances threatening the missing person with death or giving grounds to assume his death from a certain accident. In respect of military personnel or other citizens who have gone missing in connection with military operations, the statement indicates the date of the end of hostilities.

     If the applicant fails to comply with these requirements, the application in accordance with subparagraph 3) of the first part of Article 152 of the CPC is subject to return, with an explanation of the shortcomings of the application for subsequent alignment with the CPC.

    Cases of this category are subject to the jurisdiction of courts of general jurisdiction and are considered in a special procedure. The application may be submitted at the applicant's place of residence or at the last known place of residence of an unknown missing citizen.

According to the first part of Article 319 of the CPC, the judge is obliged to establish a circle of persons who can provide information about the missing person and the factual circumstances relevant for the proper resolution of the case.

    Depending on the amount of information provided by the applicant, based on the specific circumstances of the case, the judge requests information from the relevant organizations at the last known place of residence and place of work of the missing person, at the place of birth, residence of the parents and close relatives of the missing person.

    Courts should demand from the internal affairs bodies information on the registration of persons in respect of whom claims have been made to declare a citizen missing or deceased, on the existence of wanted cases against them; request information from the authorized body on the receipt of pensions and benefits, the availability and flow of funds in individual pension accounts; information from the judicial authorities about changing the surname, first name, patronymic; in the authorized body for legal statistics of special records – information about the presence of these persons among those convicted, brought to criminal or administrative responsibility, put on the wanted list; in health authorities, information about treatment; in organizations engaged in national transportation, information about the purchase of travel tickets; in other authorized bodies that have information about the treatment of the missing person in the year preceding the filing of an application to the court for the provision of public services, as well as other information about the missing person, including departure from the Republic of Kazakhstan, change of citizenship, death, the presence of enforcement proceedings against him, etc.

    Courts should make requests through the automated information and analytical system (AIAS) "Torelik" to the information exchange system of law enforcement, special state and other bodies of the Prosecutor General's Office of the Republic of Kazakhstan (SIOPSO).

Taking into account the provisions of the second part of Article 319 of the CPC on the publication of the case initiation in the ruling on the preparation of the case for trial, the judge must:

    indicate the applicant's obligation to publish at his own expense in the mass media (district, regional, republican level, on the Internet, on television) about the initiation of the case;

    determine the period during which the publication should be carried out, listing the media in which the publication is to be published.

    Courts should keep in mind the need for strict compliance with the following requirements of the procedural legislation for publication:

     the content of the publication must comply with the provisions of paragraphs 1), 2), 3) and 4) of the second part of Article 319 of the CPC;

    the publication must be posted in both Kazakh and Russian languages in periodicals that have received the right to officially publish legal acts in accordance with the established procedure, Internet resources that have been registered with the authorized body, television channels, respectively, distributed or broadcast throughout the Republic of Kazakhstan and the relevant administrative-territorial unit at the applicant's location.

    In the order of execution of the judge's ruling on the preparation of the case for trial, the applicant must post the publication within the time limit set by the court and provide the court with confirmation of the publication no later than three working days from the date of its posting.

     In the absence of evidence confirming publication in any of the media outlets listed by the court, the application must be dismissed without consideration in accordance with subparagraph 12) of Article 279 of the CPC.

     If, during the preparation of the case for trial, the applicant applies for the appointment of a guardian for the protection and management of property, the judge issues an appropriate ruling according to the rules of Articles 155, 156 of the CPC.

When resolving cases on recognizing a citizen as missing or declaring him dead, the courts do not have the right to jointly consider other claims to be considered in civil proceedings (disputes over law, statements on the establishment of facts of legal significance, etc.).

A prerequisite for recognizing a citizen as missing is the absence of information about him in his place of residence for one year.

    The period of a citizen's absence should be calculated not from the day of his departure from the settlement, but from the moment of receiving the latest information about him.

    The date of receipt of the latest information may be confirmed by the presentation of a written message, telephone message, e-mail from an absent citizen or in any other way from another source, or established by the testimony of witnesses.

    If it is impossible to establish the date of receipt of the latest information, the beginning of an unknown absence is considered to be the first day of the month following the one in which the latest information was received, and if it is impossible to establish this month, January 1 of the following year (paragraph 2 of Article 28 of the Civil Code).

The provisions of the Law of the Republic of Kazakhstan dated June 16, 1997 No. 126 "On State social benefits for disability and loss of breadwinner in the Republic of Kazakhstan" concerning the families of the deceased, respectively, apply to the families of the missing or declared deceased (paragraph 6 of Article 13 of the Law).

     In accordance with Article 170 of the Civil Code, the power of attorney issued in the name of the missing person, as well as issued by him, is terminated.

     The spouse of a citizen recognized as missing has the right to terminate the marriage in a simplified manner through the civil registration authority (subparagraph 1) of paragraph 2 of Article 17 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family").

If there is evidence of a citizen's death at a certain time and under certain circumstances, the courts should decide whether to establish the fact of death, rather than declaring the citizen deceased.

    Establishing the fact of death does not require the expiration of a certain period of time, or the absence of any information about the person's last stay.

Declaring a citizen dead does not require prior recognition of him as missing, therefore, when considering an application for recognition of a citizen as missing, the court, subject to the conditions provided for in paragraph 1 of Article 31 of the Civil Code, with the consent of the applicant, has the right to declare him dead.

    The conditions for declaring a citizen dead are:

    the absence of information about him at his place of residence for three years, and if he went missing under circumstances threatening death or giving grounds to assume his death from an accident, for six months.;

    failure to receive information about the citizen's place of residence within the specified period and the inability, despite the measures taken, to establish whether he is alive.

The law defines the conditions for declaring a citizen missing in connection with military operations dead: such a person may be declared dead no earlier than two years after the end of hostilities (paragraph 2 of Article 31 of the Civil Code).

     In accordance with paragraph 3 of Article 31 of the Civil Code, the date of death of a person declared deceased is considered to be the date of entry into force of a court decision declaring him dead. In cases where a missing person has been declared dead under circumstances threatening death or giving grounds to assume his death from an accident, the court may recognize the day of death of this person as the day of his alleged death.

In the event of the appearance or discovery of the place of residence of a person recognized as missing or declared dead, the court, at the request of the person concerned, the person recognized as missing or declared dead, or the prosecutor, cancels its earlier decision with a new decision. A new case is not required. The application is considered at a court hearing within one month from the date of its receipt by the court.

    Such a decision is the basis for removing custody of the property and canceling the record of his death in the civil registry book.

     The consequences of the appearance of a person declared dead are provided for in Article 32 of the Civil Code.

A person who intentionally hides or is wanted in connection with the commission of a criminal offense, while evading the fulfillment of legal duties assigned to him, cannot be recognized as missing or deceased. In this regard, the courts should clarify the issues of the person's wanted list, travel outside the Republic of Kazakhstan and other circumstances of his absence, while preventing unfair actions by applicants, including those aimed at obtaining benefits and other material benefits.

In the operative part of the decision, in addition to the surname, first name and patronymic of the person recognized as missing or declared dead, it is necessary to indicate the date and place of his birth, individual identification number.

    The court's decision must contain information about the beginning of the person's unknown absence, that is, the day on which the citizen is considered missing.

    Upon the entry into force of the decision to recognize a citizen as missing, a copy of the judicial act is sent to the guardianship and guardianship authority at the location of the missing person's property for the purpose of assigning custody of the property.

Invalidate them:

     1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated September 25, 1968 No. 9 "On judicial practice in cases of recognizing a person as missing or declaring a person dead";

     2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 14 "On Amendments to the Resolution of the Plenum of the Supreme Court of the Kazakh SSR dated September 25, 1968 No. 9 "On Judicial practice in Cases of recognizing a citizen as missing or Declaring a citizen deceased";

     3) Paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 6 "On Amendments and additions to certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";

     4) Paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 2 "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation";

     5) Paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 7 "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

     Chairman of the Supreme Court of the Republic of Kazakhstan

J. Asanov  

     Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

G. Almagambetova  

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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