Application to recognize a citizen as missing, legal consequences

Why is it necessary to recognize a person as missing?

Establishing a legal fact is necessary for various reasons. Here are some of them:

• receiving a pension or benefit from the state;
• deregistration of a deceased citizen;
• registration of a relative at the registration address (owner's consent is required);
• privatization of housing, which citizens use under a social rental agreement;
• distribution of housing to citizens registered on the housing register;
• assignment of orphan status;
• adoption of a child.

Important! Recognizing a citizen as missing is not a basis for his heirs to receive his property. Art. 1113 of the Civil Code of the Russian Federation establishes as the basis for opening an inheritance the death of the owner or recognition of him as dead in court.

Grounds for recognizing a citizen as missing

The main sign of the disappearance of a person is his absence from his last known place of residence for a year (Article 42 of the Civil Code of the Russian Federation). If it is impossible to establish the estimated date of disappearance, then the connection is made to the first day of the next month.

The starting point is the month when information about the disappearance of a citizen was last received. If it is impossible to determine the month, then the first day of the month of the next year is taken as a basis.

What factors are taken into account in court when considering a case of disappearance of an individual?

Courts pay attention to the presence/absence of:

1. Information about the deliberate concealment of a person from the investigation or creditors.
2. Intentions to leave for work or change place of residence to another region/country.
3. A serious illness that could lead to death or memory loss.
4. Personal documents at the residence address, without which the missing citizen cannot do without.
5. Serious conflicts in the family, which could provoke a person to move into rented housing and break off any relationships with relatives.
6. Statements regarding the search for a missing person.
7. Facts of hasty re-registration of property.

A new procedure for searching for missing persons (order No. 38/14/5 of the Ministry of Internal Affairs of Russia, the Prosecutor General's Office of the Russian Federation and the Investigative Committee of Russia dated January 16, 2015, approving the Instructions on the procedure for considering applications, reports of crimes, etc., was sent to the Ministry of Justice of Russia for state registration information about incidents related to the disappearance of persons).

Question : What was the reason for the development of the order?

Answer: The modern Russian police is a fundamentally new law enforcement structure, formed on the basis of a partnership model of relationships with society. Public trust and support of citizens is the most important principle of police activity. The key to its effectiveness is interaction and cooperation with other law enforcement agencies, public associations, organizations and citizens.

Reception, registration, verification of applications and reports of crimes, incidents and taking measures on them, provided for by the legislation of the Russian Federation, is the responsibility of the police. A similar power is vested in the preliminary investigation authorities.

Currently, the topic of searching for missing citizens is causing quite serious concern in society.

This issue is regularly discussed by the expert community on various discussion platforms. At the same time, special attention is rightly paid to the most vulnerable part of society - minors.

Structural and functional changes in the law enforcement system of the state in recent years, including the separation of the Investigative Committee of the Russian Federation from the Prosecutor's Office of the Russian Federation into an independent federal state body, have led to a certain legal vacuum in the regulation of activities related to the consideration of reports of missing citizens.

As a result, the regulatory legal act defining the procedure for work in this direction (Order of the Prosecutor General's Office of the Russian Federation and the Ministry of Internal Affairs of Russia dated February 27, 2010 No. 70/122) was actually not applied.

In this regard, there is an absolute need to issue an interdepartmental regulatory legal act that defines the procedure for interaction between authorized law enforcement agencies. Question: You noted that special importance is attached to the search for missing minors. Does this have anything to do with the need to issue an order?

Answer: Yes, of course, the priority for the activities of internal affairs bodies is the prevention of crimes and other offenses, neglect among minors. Moreover, committed both by minors themselves and in relation to them.

Any minor who is left without the attention of adults, including missing persons, is a potential victim of the most dangerous crimes (against life, health, sexual integrity).

Despite the fact that in 2014 there was a decrease in the number of minors put on the wanted list (7,806, 29.7% lower than in 2013), statistics show that over the past 4 years, on average, only 1 in 14 cases In case of unknown disappearance of a minor, a criminal case is initiated. The effectiveness of searching for a person is directly related to the immediate adoption of measures provided for by law, the entire complex of which can be carried out if a criminal case has been initiated.

The main reason for this state of affairs was the lack of normative regulation of interaction between law enforcement agencies.

The situation has changed. Paragraph 10 of the new Instructions provides a detailed list of signs indicating the possibility of committing a crime in relation to a missing person, which provides grounds for immediate operational search efforts. One of these signs is minor age (clause 10.14.).

Question: What is the fundamental difference between the new procedure for considering reports of missing citizens?

Answer: An undoubted advantage of the new Instructions is the clear regulation of the actions of police officers and investigators of the Investigative Committee of the Russian Federation when receiving, considering a report about a missing person and making a decision on it. The competence of the investigator of the Investigative Committee of Russia and the employee of the operational unit of the internal affairs bodies of the Russian Federation is delimited. The list of circumstances that indicate the commission of a crime against a missing person has been significantly expanded and clarified.

For example, such circumstances are considered to be minor age, the unknown disappearance of a person with a vehicle or mobile communications equipment, the presence of significant cash or other valuables with the missing person, etc. The mechanism of departmental control and prosecutorial supervision over these activities has been determined.

These innovations will ensure high-quality consideration of reports of unknown disappearances of citizens, timely implementation of the entire range of search measures and establishment of the whereabouts of the person. Question: What categories of missing citizens are covered by the Instruction?

Answer: Article 2 of the Constitution of the Russian Federation proclaims that a person, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.

The purpose of the police is to immediately come to the aid of everyone who needs its protection from criminal and other unlawful attacks, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, affiliation public associations. That is, without dividing people into any categories.

In this regard, the provisions of the Instruction will ensure proper consideration by police officers and investigators of the Investigative Committee of the Russian Federation of statements, reports of crimes, as well as other information about incidents related to the unknown disappearance of citizens of the Russian Federation, foreign citizens, and stateless persons.

In the context of this issue, it should be noted that the police are searching for persons who have gone missing or have lost contact with relatives; minors who voluntarily left their families or specialized institutions for minors in need of social rehabilitation; minors who voluntarily left special closed educational institutions.

Question: You noted that the priority is the timeliness of taking investigative measures. How does this fit with the prevailing opinion that a complaint about the unknown disappearance of a citizen can be filed with the police only after three days? Another question is related to this: who should act as an applicant so that the application is not refused. How legitimate is the requirement that a relative should make such a statement?

Answer: Regarding the first part of the question, I will say right away that the judgments regarding the three days are fictitious, they have no legal basis. That is why the Instruction establishes, I quote its paragraph 3: “a message about the unknown disappearance of a person is subject to acceptance, registration and resolution in the prescribed manner, regardless of the age and place of his disappearance, the presence or absence of information about the place of permanent or temporary residence or stay, complete questionnaires data and photographs of the missing person, information about previous cases of his unknown disappearance.” This provision follows from the requirements of the Federal Law “On Police” and other regulatory legal acts.

Thus, in accordance with the Instructions on the procedure for receiving, registering and resolving in the territorial bodies of the Ministry of Internal Affairs of the Russian Federation statements and reports of crimes, administrative offenses, incidents, approved by order of the Ministry of Internal Affairs of Russia dated August 29, 2014 No. 736, statements and reports about crimes and incidents are subject to mandatory reception in all territorial bodies of the Ministry of Internal Affairs of Russia. It is very important to note that reports of crimes and incidents are received around the clock. Actions to respond to such messages are taken immediately.

Regarding the second part of the question. What happens in life is that it is often relatives or other close people who file a missing persons report. But this does not mean that another person (neighbor, colleague, acquaintance, etc.) is deprived of the right to declare this. In this sense, the legislation does not establish any list of persons, therefore, any person can apply with the applications under consideration, as well as with a statement about any offense.

Question: Where should a citizen turn if his loved one has disappeared?

Answer: Taking into account the established competence of law enforcement agencies, I would advise you to contact the internal affairs bodies of the Russian Federation or the investigative bodies of the Investigative Committee of Russia. But this does not exclude the possibility of contacting any other law enforcement agency. However, it must be taken into account that in this case the promptness of response to the application may suffer, since an unauthorized law enforcement agency will ultimately send it under jurisdiction to the internal affairs bodies or the Investigative Committee of Russia.

Question: What is the algorithm for responding to reports of a missing citizen?

Answer: It should be noted that the activity of searching for a missing person is regulated not only by the Instruction in question, but by legislative and other by-laws (for example, the Criminal Procedure Code of the Russian Federation, the Federal Law “On Operational Investigative Activities”, order of the Ministry of Internal Affairs of Russia dated August 29 2014 No. 736 “On approval of the Instructions on the procedure for receiving, registering and resolving in the territorial bodies of the Ministry of Internal Affairs of the Russian Federation statements and reports of crimes, administrative offenses, and incidents”, order of the Investigative Committee of the Russian Federation dated October 11, 2012 No. 72 “On organizing the reception, registration and verification of reports of a crime in the investigative bodies (investigative units) of the system of the Investigative Committee of the Russian Federation.”

In general terms, the algorithm for responding to reports of a missing person is as follows. When a message is received, the circumstances of his disappearance, age, lifestyle, circle of acquaintances, relatives, place of work, probable location, ownership of real estate, vehicles and other circumstances are clarified. Particular attention is paid to clarifying the circumstances that indicate the commission of a crime against a missing person.

Such circumstances, along with those mentioned above, include, for example, the absence of objective data indicating the intention of the missing person to leave for an unknown direction for no reason and for a long time or change his place of residence or stay, the absence of a disease in the missing person that may cause his sudden death, loss of memory, orientation in time and space, the presence at the place of residence of the missing person of personal documents, things (clothing) and money, which he cannot do without in the event of a long absence, the presence of the missing person events in which participation is important for him (passing an exam, defending a dissertation, etc.), the unknown disappearance of a person associated with the alienation of his property, the absence of a missing person report from law enforcement agencies (or a belated or untimely submission) from another person , which, due to family or other relationships, should have filed it, sudden (urgent) repairs at the place of residence or stay of the missing person, hasty resolution by family members of the missing person and (or) other persons of various issues that can only be resolved with confidence that the missing person will not return (re-registration or sale of his property, conversion of his savings for his own benefit, entry of a spouse into cohabitation with another person), unknown disappearance of persons engaged in prostitution, etc.

An investigative and operational (operational) group from among employees of the internal affairs bodies is sent to the scene of the incident, and if the specified circumstances exist, also an investigator from the investigative body of the Investigative Committee of Russia, who supervises this group.

The verification of a report of the unknown disappearance of a person, in which there are no circumstances indicating the commission of a crime against this person, is entrusted to an employee of the operational unit of the internal affairs bodies.

Question: What to do if a dispute arises regarding the competence of various law enforcement agencies?

Answer: Interaction is based on the principle of delimiting the competence of the investigative bodies of the Investigative Committee of Russia and the internal affairs bodies, the criteria of which are sufficiently defined by the Instructions. If there are circumstances indicating that a crime has been committed, the investigation of the report of the unknown disappearance of a person should be handled by the investigative body of the Investigative Committee of Russia, and in the absence - by the internal affairs bodies. At the same time, even if at the time of receiving the message there is no information indicating these circumstances, but they are subsequently established during the search, the internal affairs body transfers the relevant materials to the investigative body of the Investigative Committee of Russia.

Personal responsibility for ensuring compliance with the requirements of the Instructions within the framework of departmental control is assigned to the heads of internal affairs bodies and investigative bodies of the Investigative Committee of Russia.

At the same time, the Instruction stipulates that the resolution of disputes between departments falls within the competence of the prosecutor, who exercises overall supervision over this activity.

Question: When will the order come into force?

Answer: We hope that the order will successfully undergo state registration with the Russian Ministry of Justice, after which it will be published in the prescribed manner and will enter into force after ten days.

DPD of the Ministry of Internal Affairs of Russia

Reasons for refusing an application

Not every fact of disappearance is grounds for recognizing a person as missing. The court must establish the circumstances of the case that led to the disappearance.

If a person simply hides from the investigation or creditors, then the claims will be rejected.

If a person actually disappeared, but the relatives did not take the necessary measures and did not contact the police, then there are also no grounds for satisfying the claims.

Underwater rocks

Various difficulties may arise during the recognition process:

• After being declared missing, the spouse has no right to property. Inheritance is possible only after 5 years after the disappearance, as well as the recognition of the citizen as dead by the court.
• The situation can be complicated by the appearance of a citizen, which makes it possible to cancel a previously made court decision.
• Some citizens are hiding from justice or creditors for a long time, which affects the recognition procedure.
• In the absence of sufficient legal knowledge, it is difficult to contact the judicial authorities and draw up a statement of claim.

Who can initiate legal proceedings

The applicant can be any interested person . Most often, relatives of a missing person – a spouse or children – go to court. However, the application is often submitted by third parties - creditors, local authorities, co-owners of property, co-founders of an enterprise.

Since 2021, such an opportunity has appeared for alimony collectors. The legal representative of a child who has collected alimony from a relative of a minor may apply to the court to declare the payer missing if there is no information about him for more than 1 year.

This allows the child to receive a survivor's pension until the parent shows up.

Example. The court received an application from the City Administration to recognize the citizen as missing. The circumstances of the case are that the missing person is a tenant of social housing. The apartment is municipal property. During the citizen's absence, arrears for utility services arose. The maintenance of the residential premises is carried out at the expense of funds from the local budget. The administration conducted an inspection of the apartment. However, she has not identified persons who can confirm the absence of the missing person at the specified address for more than one year. A corresponding Act was drawn up regarding this. The register of corpses at the city morgue lists a man without documents. There is reason to believe that this is the user of the apartment. Establishment of a legal fact is required for the distribution of housing to citizens. The administration cannot resolve this issue on its own, since the missing citizen is registered in the apartment. The court recognized the claims (Decision of the Kalininsky District Court of Chelyabinsk dated September 14, 2012, case No. 2-3162/2012).

How much can you expect?

The size of the pension is determined by the Pension Fund and depends on whether the alimony debtor had at least one day of insurance coverage when he was officially employed and insurance premiums were paid for him to the Pension Fund.

We recommend! Minimum amount of alimony and methods of obtaining it

Insurance pension

If there was a length of service, then an insurance pension will be assigned in the event of the loss of a breadwinner (Clause 10, Article 10 of the Federal Law of December 28, 2013 No. 400-FZ “On Insurance Pensions”). The Pension Fund will calculate it.

According to official statistics on the standard of living of the population, published on the official website of Rosstat (rosstat.gov.ru), the average amount of pensions assigned in the event of the loss of a breadwinner (per disabled person) as of January 1, 2018 was 8,875.70 rubles .

Thus, a survivor's pension instead of alimony can become a significant source of maintenance for a child who does not receive alimony.

Social pension

If there is no experience, then a social pension will be assigned in case of loss of a breadwinner in accordance with Art. 18 of the Federal Law of December 15, 2001 No. 166-FZ “On state pension provision in the Russian Federation.”

According to Rosstat, the average size of social pensions as of January 1, 2018 was 8,806.60 rubles .

From April 1, 2021, the amount of the social pension for the loss of one of the parents (breadwinner), taking into account indexation at the rate of 2.9%, will be 5,180 rubles 24 kopecks per month (pension amount 5,034 rubles 25 kopecks * 1.029).

However, if the amount of the pension, together with other payments due (previously assigned pensions, and already received social payments, benefits and other social support measures) is below the subsistence level, then the recipient of the pension will be provided with a social federal or regional supplement to the pension.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

Ask a question

Note! Additional payments to the social pension are not established automatically. To receive them, you need to fill out the appropriate applications (including with the help of the Pension Fund or social protection departments, MFC, government services website).

How to recognize a person or citizen as missing

Establishment of a legal fact is carried out in court. The hearing of the case takes place within the framework of special proceedings.

The hearing of the case takes place at the applicant’s place of residence (Article 276 of the Code of Civil Procedure of the Russian Federation). The key is to have indisputable evidence of the person's absence.

The applicant's assumptions are not taken into account. When submitting an application, you must pay a state fee. Based on the results of the trial, a decision is made to satisfy or reject the stated claims.

Recognition procedure

The applicant needs to prepare a package of documents and apply to the district/city court. The application is submitted at the place of residence of the plaintiff.

The application must consistently state the circumstances of the case and indicate the purpose of going to court. Additionally, you must attach evidence of the stated facts.

If necessary, you can invite witnesses who know about the circumstances of the person’s disappearance. Cases on recognition of citizens as missing are considered necessarily with the participation of a prosecutor (Article 278 of the Code of Civil Procedure of the Russian Federation).

Statement of claim

When drawing up a claim, it is necessary to take into account the provisions of Art. 131 Code of Civil Procedure of the Russian Federation. It establishes the form and content of the application.

At the same time, it is necessary to take into account the specifics of the application, which is submitted in a special proceeding. The key point is to display the reason for recognizing a citizen as missing (Article 277 of the Code of Civil Procedure of the Russian Federation).

The application must indicate:

1. Name of the district court.
2. Information about the applicant/interested parties.
3. Title of the document.
4. Circumstances of the case. For example, a person’s life was in danger or he found himself in a natural disaster area.
5. The purpose of recognizing a citizen as missing.
6. List of attached papers.
7. Date, signature of the applicant.

Sample statement of claim to recognize a citizen as missing

Attached documents

The list of documents depends on various circumstances. For example, how exactly a person disappeared, and where relatives went to find him.

Basic package of documents

Expenses

When filing an application with the court, you must pay a state fee. Its size is 300 rubles. (Article 333.19 of the Tax Code of the Russian Federation).

Additional costs are usually caused by the participation of a lawyer in court proceedings, the invitation of witnesses/interpreter, travel and accommodation costs for third parties (Article 94 of the Code of Civil Procedure of the Russian Federation).

Deadlines

You can file a claim at any time, but not earlier than 1 year after the disappearance of an individual (Article 42 of the Civil Code of the Russian Federation). However, if a person is absent for more than 5 years, then he is declared dead in court (Article 45 of the Civil Code of the Russian Federation).

The period for consideration of the claim should not exceed 2 months (Article 154 of the Code of Civil Procedure of the Russian Federation). However, quite often the hearing of the case is delayed for a longer period.

Adjudication

The hearing of the case ends with the adoption and announcement of a court decision. The procedural document comes into force 1 month after its announcement (Article 209 of the Code of Civil Procedure of the Russian Federation).

However, participants in the trial can challenge the judicial act by filing an appeal. In this case, the court decision comes into force after consideration of the appeal (Article 335 of the Code of Civil Procedure of the Russian Federation).

Declaring a citizen dead

In the event of a long-term absence of a citizen, if it is impossible to establish his place of residence, there is reason to assume that he has died. However, legal consequences cannot be associated with such an assumption until the facts giving rise to it are established officially, because an error in resolving this issue can lead to serious violations of the rights and interests of the individual.

According to paragraph 1 of Art. 45 of the Civil Code, a citizen may be declared dead by the court. In this case, it is not required that he was previously declared missing.

Conditions for declaring dead:

1. at the citizen’s place of residence there is no information about his place of stay for 5 years, and if he went missing under circumstances that threatened death or gave reason to assume his death from a certain accident - for 6 months;
2. a serviceman or other citizen who has gone missing in connection with hostilities may be declared dead by a court no earlier than 2 years from the date of the end of hostilities.

The day of death of a citizen declared dead is the day the court decision to declare him dead comes into force. If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death and indicate the moment of his expected death.

If it is known that a citizen was a passenger or crew member of a sunken sea vessel or an airplane that crashed, then six months are required to declare him dead, since the assumption of his death under such conditions is very reasonable. However, in this case the court does not recognize the fact of the citizen’s death, but declares him dead on the basis of the presumption of death during an accident.

Legal consequences of declaring a citizen dead:

• termination or transfer to the heirs of all rights and obligations that belonged to him as a subject of law, i.e. in fact, these are the same consequences that the death of a person entails.

Arbitrage practice

When filing a claim, the key factor is the availability of undisputed evidence. Failure to provide proper documentation usually results in claims being denied.

One of the common reasons for refusal is that the missing person has not been put on the federal wanted list. At the same time, judicial practice contains many positive decisions.

Example. Citizen Zh. applied to the court to declare her husband missing. The circumstances of the case - the husband went to a neighboring area to harvest wood, but never returned from there. The woman contacted the police. The husband was put on the federal wanted list. Search efforts were unsuccessful. Establishing a legal fact is necessary to register a son in an apartment at the place of registration of the missing citizen. Third parties did not object to the claim. Witnesses confirmed the stated facts. The application was granted (Decision of the Leninsky District Court of Smolensk dated February 18, 2013, case No. 2-1319/13).

Grounds for reversing a decision

There are cases when, after alimony debtor was recognized as missing, he, after a long absence, announced himself or came to the attention of the competent authorities.

A citizen who shows up or is found, having learned about a decision taken against him to declare him missing, as a rule, goes to court with a demand to restore his rights.

Other interested parties whose interests are affected by the decision (PFR, social security authorities, guardianship and trusteeship authorities, alimony collector and other persons) can also apply to cancel the decision.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

Ask a question

By virtue of Art. 44 of the Civil Code of the Russian Federation and Art. 280 of the Code of Civil Procedure of the Russian Federation, in the event of the appearance or discovery of the location of a citizen recognized as missing, the court, with a new decision in the same case, cancels its previously adopted decision to recognize him as missing.

Legal consequences of recognizing a citizen as missing

The main consequences of recognizing a citizen as missing:

1. Transfer of property into trust management . If the property of a missing citizen requires trust management, then during the trial the court appoints a manager on the proposal of the guardianship authority (Article 43 of the Civil Code of the Russian Federation).

Property is transferred under a trust management agreement. If necessary, the guardianship authority can transfer the property to the manager before the expiration of 1 year . The trust management agreement is concluded taking into account the provisions of the law.

The transfer of property by agreement does not deprive the owner of the right of ownership (Article 1012 of the Civil Code of the Russian Federation). The trustee must take the necessary legally significant actions in the interests of the beneficiary.

1. Possibility of unilateral divorce . The spouse of a missing citizen can dissolve the marriage through the civil registry office in a simplified manner (Article 19 of the RF IC). The necessary registration actions are carried out by the registration authority at the request of the interested person. A divorce certificate is issued one month after filing the application.
2. Assignment of a survivor's pension . If the missing person had dependents, then such persons are entitled to a pension for their maintenance.

Questions from our readers

The process of being declared missing raises many questions. We answer the most popular ones below.

Is it possible to recognize a child support worker as missing and what will this give?

A person may disappear due to unwillingness to pay alimony. When contacting the Ministry of Internal Affairs, this fact must be taken into account.

In accordance with Law No. 229-FZ, when a court decision is made, proceedings for the payment of alimony are opened. A search procedure is also initiated.

The bailiff must send requests to:

• bodies of the Ministry of Internal Affairs;
• banking organizations;
• traffic police;
• Pension Fund;
• Federal Tax Service;
• Rosreestr.

The claimant submits an application to the FSSP. It reflects the details of the court decision, the payer’s data, the period of non-payment, and the amount of the debt.

If, after a search, a citizen is recognized as missing, on the basis of a court decision, you can submit an application to the Pension Fund for a survivor’s pension.

The ex-husband was declared missing, is it necessary to return his property?

Property that was transferred to trust management is subject to return. If the person appears, all rights to real estate are restored in court.

The survivor's pension is non-refundable. The ex-husband was declared absent by the court, so the fact of unjust enrichment is not seen.