A person may be declared dead by a court 6 months after the end of active hostilities at the place of his alleged death or from the date of the event that led to his death as a result of hostilities, but occurred outside the territory of active hostilitie

Taking into account the specific circumstances of the case, the court may, on the basis of part 2 of Article 46 of the Civil Code of Ukraine, declare an individual dead not earlier than six months from the date of the end of active hostilities at the place of the alleged death of an individual or from the date of the event that led to the death of an individual, if such an event, although a consequence of hostilities, did not occur on the territory of active hostilities.

This conclusion was made by the Grand Chamber of the Supreme Court.

On 1 November 2022, the applicant filed a petition with the court, in which she asked to declare her son dead, who was a volunteer of a volunteer unit and died while on duty at the territory of the Kyiv shopping mall, which was hit by a missile attack by the Russian armed forces on the night of 20-21 March 2022.

The court of first instance granted the application. The court of appeal changed the operative part of the decision of the court of first instance, indicating the date of death of the person: 20 March 2022.

The SC Grand Chamber changed the reasoning parts of the decisions of the courts of previous instances, indicating that in part 2 of Article 46 of the Civil Code of Ukraine the legislator provided two special rules: “an individual who went missing in connection with military operations, armed conflict may be declared dead by a court after two years from the date of the end of military operations” (sentence one) and “taking into account the specific circumstances of the case, the court may declare an individual dead before the expiry of this period, but not before the expiry of six months” (sentence two). 

The Grand Chamber of the Supreme Court took into account that the provisions of part 2 of Article 46 of the Civil Code of Ukraine link the declaration of an individual dead in connection with military operations, armed conflict, and not in connection with martial law as such. Therefore, there are no grounds to link the commencement of the period specified in part 2 of Article 46 of the Civil Code of Ukraine with the introduction, termination or cancellation of martial law in Ukraine.

The second sentence of part 2 of Article 46 of the Civil Code of Ukraine does not specify the circumstances under which the court may apply a shortened six-month period instead of the two-year period specified in the first sentence of this part. At the same time, the court may refer to the six-month period if there are substantial grounds for assuming that the individual died as a result of military operations or armed conflict, and there are no reasonable grounds to expect that the circumstances will change over time or that new information about the whereabouts of the individual will become available.

The phrase ‘from the day of the end of hostilities’, especially in the context of Russia's large-scale armed aggression against Ukraine, should be understood as a definition of a period of six months, which should be calculated primarily from the day of the end of active hostilities on a certain territory of Ukraine.

This will provide legal protection to people affected by the war and who have certain civil rights and legitimate interests in connection with the probable death of a missing person, and will ensure legal justice.

Specific hostilities have territorial and temporal characteristics. The source of official information on these characteristics is the List of territories where hostilities are (were) conducted or temporarily occupied by the Russian Federation, approved by the Order of the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine No. 309 dated 22 December 2022, which courts may use to determine the temporal characteristics of hostilities in a particular territory of Ukraine.

The Grand Chamber of the Supreme Court noted that, taking into account the specific circumstances of the case, the court may start the six-month period for declaring a person dead from the date of the event that caused the death of an individual, if this event occurred outside the territory of active hostilities, but is a consequence of hostilities.

At the same time, the courts of first instance and appellate courts incorrectly established the beginning of the six-month period specified in the second sentence of part 2 of Article 46 of the Civil Code of Ukraine from the moment of the possible death of the volunteer on 20 March 2022.

According to Order No. 309, the entire territory of Kyiv from 24 February to 30 April 2022 was the territory of active hostilities.

Therefore, it is from 30 April 2022 that the beginning of the six-month period specified in the second sentence of part 2 of Article 46 of the Civil Code of Ukraine as the date of the end of active hostilities in the territory of Kyiv should be calculated.

Resolution of the Grand Chamber of the Supreme Court of 11 December 2024 in case No. 755/11021/22 - https://reyestr.court.gov.ua/Review/123992364.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - lpd.court.gov.ua.