The Supreme Court told how to recognize a citizen as missing

News of the missing

He didn’t die, didn’t get sick, but simply disappeared somewhere - this can be said about citizens who left their home and never returned there. There are many more such cases than we think. According to official statistics, approximately 30-35 thousand people disappear every year - the population of a not very large provincial city. Some of the departed citizens will return home, some will sooner or later be found alive or dead, and the rest will be considered “unknown.”

According to official statistics, approximately 30-35 thousand people disappear every year - the population of a not very large provincial town

By the way, this is a rather large category of citizens that the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dealt with. In particular, she reviewed the results of an interesting legal dispute - a woman with three children in her arms asked to recognize her husband as missing. In court, the plaintiff, a resident of the Pskov region, said that her husband left for Ukraine in 2012, and since then there has been no word from him.

A month after his departure, concerned that her husband was not responding, the woman went to law enforcement agencies and wrote a statement - her husband had disappeared. Five years passed, and the citizen again went to the police with a similar statement - find the person. This time she received an answer that the police were looking for her husband because they suspected him of committing a crime. The letter ended with the police writing the following: all the measures they took did not produce results.

The plaintiff explained to the court that she had three girls in her arms, and she asks the court to establish the legal fact that her husband is “unknown.” This is necessary to arrange survivor’s pensions for children and resolve the issue of “appointing a trustee to manage and preserve her husband’s property.” The city court, after listening to the citizen, rejected her claim. And the regional court agreed with this conclusion.

The woman had to go to the Supreme Court of the Russian Federation.

There they checked the case materials, discussed the plaintiff’s arguments and stated that “there are grounds for canceling the court decisions.” According to the Supreme Court of the Russian Federation, both the city and regional courts committed violations of the law in this verdict.

A citizen may be recognized by the court as “missing” if during the course of a year no one at his place of residence has information about where he is.

Here are the Supreme Court's arguments. From the case materials it is clear that the plaintiff got married in 1998 and three daughters were born in the marriage. In the fall of 2012, a citizen contacted the local police department with a statement about the disappearance of her husband. Five years later she brought a similar statement there. The case contains a message from the investigative department of the Ministry of Internal Affairs for the Pskov region dated 2021. It says that in the summer of 2012 a criminal case was opened and the plaintiff’s husband is listed in it as a defendant who was put on the wanted list. First on the federal wanted list, then on the international wanted list. But since the citizen was not found, the criminal case was suspended. There are also other documents from the local police in the file. They say that “as part of the investigation, the whereabouts of the citizen have not yet been established.” The head of the operational-search department of the local police unit gave the same testimony in court. Refusing the citizen, the city court stated that the information she provided was not enough to recognize her husband as missing. In the court's opinion, “there are grounds to believe” that her husband is not missing, but is “deliberately hiding in order to evade punishment.” The regional court was satisfied with this argumentation. But the Supreme Court of the Russian Federation is not.

The high court began its evidence by recalling Article 42 of the Civil Code. It says that a citizen can be recognized by the court as missing at the request of “interested parties” if during the course of a year no one at his place of residence has information about where he is.

The Supreme Court emphasized: the institution of recognizing a citizen as missing is certification in court of the fact of “a long-term absence of a citizen from his place of permanent residence” if attempts to find where the person lives and obtain at least some information about him have been unsuccessful. The court recalled: the institution of recognizing a person as absent “has the goal of preventing” possible negative consequences. Moreover, both for the missing person himself and for “other persons, including those who have the right to receive maintenance from him.” This florid phrase says that recognizing a person as absent is important for citizens associated with such a missing person, because some “social guarantees in the property and non-property sphere” often depend on this.

The police must confirm in court that they searched for the missing person and did not find him. Photo: Sergey Mikheev

From the case materials it is clear that since the fall of 2012, relatives have had no information about the missing person. The family confirmed this in court. The operational search activities of the police also yielded nothing. In the city court, representatives of social security and the Pension Fund did not object to the citizen being declared absent.

In this case, the Supreme Court emphasized, it was legally significant, in relation to Article 42 of the Civil Code, for the court to find out whether there was any information about where the citizen was located. But the city court found it sufficient to refuse only that the spouse was wanted and could “deliberately hide.”

According to the Supreme Court of the Russian Federation, the mere fact of putting a person on the wanted list due to the initiation of a criminal case without assessing all the information obtained as a result of such a search cannot be grounds for refusing a request to recognize the citizen as missing. The courts did not take this into account, the Supreme Court said. So the Supreme Court called the refusal to the plaintiff “illegal.” All decisions in this case were canceled, and the Supreme Court ordered the dispute to be reconsidered taking into account its clarifications.

How to submit an application to recognize a citizen as deceased? Procedure for 2021

In 2021, an application for recognition as deceased can be sent to court:

Through the court office;

Using a courier service;

By mail (by registered mail with a list of attachments and acknowledgment of delivery).

If the application is accepted for processing, you will be informed of the date and time of the court hearing within a few days.

Consequences of the appearance of a citizen declared dead: we study the Civil Code and the Code of Civil Procedure of the Russian Federation

The legal consequences of the appearance of a citizen recognized as dead are established by Art. 46 of the Civil Code of the Russian Federation, and the procedure is Art. 280 of the Code of Civil Procedure of the Russian Federation, on the basis of which the court, with a new decision, cancels its previously adopted decision. The new court decision is the basis for canceling the death record in the state civil registration book.

The following is especially worth noting:

Firstly, the declared citizen has the right to demand from any person the return of the remaining property that was transferred to them free of charge after this citizen was declared dead (with the exception of money and bearer papers);

Secondly, civil registry authorities can restore a marriage upon a joint application of the spouses (of course, if the second spouse has not entered into a new marriage).

Reasons

In accordance with Article 42 of the Civil Code of the Russian Federation, the main sign of the disappearance of a citizen is his absence from his place of residence for a year.
If it is impossible to set a reference date, you need to focus on the first day of the next month. Courts take into account various factors in the disappearance of a person when considering a case.

They check the presence or absence of:

• information about the deliberate concealment of a person from creditors and investigative authorities;
• intentions to go to work in another country, region, or change place of residence;
• a serious illness that could cause memory loss or death;
• important documents that were left at the place of residence;
• family conflicts that provoked the citizen’s relocation;
• statements about searching for a missing person;
• procedures for rapid re-registration of property rights.

If a person was discovered

A citizen who has previously been declared missing regains all rights to his property and due payments. Moreover, if more than 5 years have passed since the disappearance and he is already declared dead, he is reinstated by government authorities and at the place of registration. Also, he can demand from the heirs all the property that has passed to them.

Example : Ivan Ivanovich returns home after a year and a half. As it turned out, he lost his memory as a result of an accident and all this time he lived in a remote village, sincerely believing that he came from somewhere in these places. A year and a half later, his memory has returned and he is going home. All previously acquired property is waiting for him there.

Preparing documents, working with the police and the court can be a serious problem for a non-specialist. We offer a free consultation where we will answer all difficult questions. We are also ready to take on all the problems of the process of recognizing a person as missing, including documentation and work with government agencies.

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Documents for the registry office

Now it is clear how a citizen is recognized as dead. What documents must be brought to the registry office to obtain a death certificate? The person brings with him:

• documents confirming relationship (if available);
• court decision;
• identification;
• passport of the deceased (if available).

There is no need to pay state duty. All previously listed papers are accompanied by a standard application for the issuance of a death certificate. There is no need to fill it out in advance. Everything will be done directly at the registry office. Now it is clear how a citizen is recognized as dead in Russia.

Consequences

The consequences of declaring a citizen dead are what play a very important role. After all, as already mentioned, from a legal point of view, this procedure entails particularly special, significant changes. Which ones exactly?

The point is that after a person is declared dead, his death is actually recognized. That is, all rights of a citizen are terminated. Potential heirs have the right of inheritance, and the marriage with the spouse automatically ends. In this case, the relatives will be given a death certificate of the person.

The legal consequences of declaring a citizen dead should also be clear. A person who is supposedly dead loses all of their civil rights. They are being liquidated. And there are consequences that relatives face when a person actually dies. But if someone suddenly declared dead turns up and proves that he is exactly him, then all his civil rights will be returned to him in full.

Proper plaintiff

Any person interested in the procedure for recognizing a citizen as missing can act as an applicant.
Wives often go to court if a current or former spouse has disappeared, as well as children in the event of the disappearance of a father or mother. But third parties can also submit an application:

• creditors;
• local authorities;
• co-owners of property;
• co-founders.

Before going to court, you need to determine your own status. Government authorities must understand what the applicant’s goal is.

Since 2021, alimony claimants have the opportunity to apply. The legal representative has the right to file a claim if the alimony has not appeared at his place of residence for a year. In this case, the child may be assigned a survivor's pension until the father or mother shows up.

Documentation

It’s clear what the statement might look like. And what documents may be useful to ensure that a citizen is recognized as dead? The thing is that the papers can be different. But there is a generally accepted list that will allow you to quickly collect the missing documents.

Regardless of the situation, the citizen must bring:

• statement of claim of the established form;
• identification;
• receipt of payment of state duty;
• Marriage certificate;
• birth certificate of a common child (if any);
• documents confirming relationship with the deceased (any, if the plaintiff is a relative);
• evidence of exposure to hazardous conditions (for example, newspaper clippings, etc.).