Judicial or extrajudicial procedure for establishing the fact of birth in temporarily occupied territories: advantages and disadvantages outlined by Supreme Court Judge

Judge of the Supreme Court in the Civil Cassation Court Olena Bilokon shared her views on the relevance, advantages, and disadvantages of introducing an administrative (extrajudicial) procedure for confirming the fact of birth in temporarily occupied territories during the session “Birth Registration in the Context of Temporary Occupation and Hostilities” at the expert roundtable “Risks of Statelessness for Residents of Crimea and Other Temporarily Occupied Territories of Ukraine”. The event was also attended by Rasim Babanly, First Deputy Chief of Staff and Head of the Department for Analytical and Legal Work of the Supreme Court.

Olena Bilokon recalled that establishing the fact of birth of children in the temporarily occupied territories of Ukraine (TOT) is an important tool for ensuring a child’s rights to citizenship, access to healthcare, education, and social benefits.

The judicial procedure for recording the fact of birth is secondary and is applied only in cases where establishing this fact is objectively impossible under the procedure provided by the Law of Ukraine “On State Registration of Civil Status Acts”.

After 2014, and especially since 2022, the number of applications submitted to courts to establish the fact of birth in TOT has significantly increased. Currently, the administrative procedure for civil status registration is not available to residents of TOT, so individuals are forced to rely on court proceedings.

Between 2022 and 2024, courts reviewed over 6,000 cases for establishing the fact of birth in TOT. The largest number of applications comes from frontline regions and areas hosting internally displaced persons.

The consideration of such cases requires consistent application of legal norms. To support courts and ensure uniform judicial practice, at the beginning of September 2025, the Supreme Court published a commented review of judicial practice regarding the establishment of legal facts during martial law, including birth in TOT (https://court.gov.ua/storage/portal/supreme/ogliady/Oglyad_KCS_fakt_voen_stan.pdf).  

In most cases, courts grant applications to establish the fact of birth based on documents issued by the occupation authorities, applying the “Namibian Exceptions” doctrine, according to which not all documents issued in occupied territories can be deemed invalid if this would harm the rights of the residents. In particular, invalidity does not apply to documents concerning birth, death, and marriage, since refusing to recognize them could result in serious restrictions or deprivation of fundamental rights of persons residing in these territories. At the same time, Olena Bilokon noted that the court makes its decision on the basis of all available evidence, including evidence it may obtain on its own in the special proceedings. Therefore, a court will grant such an application only when it has formed an internal conviction that the fact of the child’s birth indeed took place.

It cannot be stated unequivocally that the judicial procedure for establishing the fact of birth is excessively complicated. In July 2022, amendments were made to the legislation introducing a simplified procedure for considering applications to establish the fact of birth in temporarily occupied territories (TOT) under Article 317 of the Civil Procedure Code of Ukraine. Such applications may be submitted to any local court in Ukraine, regardless of the applicant’s place of residence, are considered by the court without delay, and the decision is executed immediately.

From July 2022 to February 2023, establishing the fact of birth through the courts was free of charge. Since February 2023, the court fee has been set at 0.2 of the subsistence minimum for able-bodied persons, except in cases where the application is submitted in connection with armed aggression, armed conflict, temporary occupation of Ukrainian territory, or natural or man-made emergencies that resulted in forced displacement from TOT. In such cases, the court is always prepared to take into account situations where the individual is unable to pay the fee.

In the context of a possible introduction of an administrative procedure, particularly for birth registration in TOT, the speaker noted that, besides the obvious advantages, such changes may increase risks related to insufficient verification of the authenticity of documents.

Courts have already responded to cases where materials submitted to confirm facts contained signs of forgery (cases № 596/178/24, № 596/177/24). Without proper control and verification of the authenticity of documents, there is a risk of falsification or incorrect certification, which may negatively affect the legal status of individuals. Therefore, it is important to carefully consider the implementation of such a procedure to ensure adequate oversight and protection of citizens’ rights.

The event was organized by the UNHCR with the support of the Mission of the President of Ukraine in the Autonomous Republic of Crimea / Office of the Crimean Platform.