The ongoing war against Russia leads to the fact that a large number of families lose contact with their loved ones due to hostilities or occupation. Human Rights Commissioner of the Verkhovna Rada of Ukraine Lyudmila Denisova said that as of April 9, there were already more than 15,000 missing persons in Ukraine. The question of creating an effective mechanism for searching for such people has become extremely urgent since the beginning of the invasion of the Russian Federation in the territory of Donetsk and Luhansk regions.
On April 14, 2022, the Verkhovna Rada of Ukraine adopted the draft Law on Amendments to the Law of Ukraine “On the Legal Status of Missing Persons”, reg. No. 7244, the title of which was changed to ” On the legal status of persons who have disappeared under special circumstances .” The law, in particular, provides for the creation of the Commissioner for the Issues of Persons Disappeared Under Special Circumstances, the functioning of the register of such persons, clarification of their legal status, registration and search, as well as social protection of their close relatives and family members. The law entered into force on April 27, 2022.
Read more about the legal status of persons who have disappeared under special circumstances and the relevant changes in the legislation.
- The concept of a person missing under special circumstances and the procedure for acquiring such status.
According to the Law of Ukraine ” On the Legal Status of Persons Missing in Special Circumstances ” (hereinafter referred to as the Law), a missing person is a natural person whose whereabouts are unknown at the time the applicant submits a search application.
- Armed conflict, military operations, temporary occupation of part of the territory of Ukraine, emergency situations of natural or man-made nature are considered special circumstances.
Thus, from the moment the new version of the Law enters into force, it will regulate the issue of the legal status of persons who have disappeared precisely under the circumstances listed above.
A person acquires the status of missing under special circumstances, from the moment of entering information about him in the Unified Register of Persons Missing under Special Circumstances (hereinafter also referred to as the Register), based on a statement about the fact of the person’s disappearance.
The application is submitted to the relevant territorial body of the National Police of Ukraine . Relatives of a missing person, a representative of a military formation, a state authority, a local self-government body, a public association or any other person who has become aware of the disappearance have the right to submit an application.
Yes, statements and notifications about missing persons, their abduction or capture can be submitted:
- by sending such information by mail;
- by phone 102 (round the clock);
- on the hotline phone number 0894201867 (round the clock);
- by directly contacting the territorial division of the police.
In the application, it is necessary to indicate all known information about the missing person and the circumstances of his disappearance, as well as special signs of the person, etc.
In addition, in some cases, the investigator may find it necessary to take biological samples from the biological parents or children of the missing person to derive a DNA profile for the purpose of further comparison. This is done to confirm family ties with missing people who cannot be identified. Therefore, the indicated persons must have a passport with them (for a child, a birth certificate). The examination is carried out at the expense of the state.
The law also establishes that an application to search for a person missing under special circumstances may be submitted to the Commissioner for Missing Persons under Special Circumstances, if he is contacted with a report on the disappearance of a person.
A person is considered missing under special circumstances until the search for him is terminated.
- Rights of persons missing under special circumstances, their relatives and family members.
A person who has disappeared under special circumstances has all the rights guaranteed by the Constitution and laws of Ukraine , and also has the right to a comprehensive investigation of the circumstances of his disappearance and to establish his whereabouts.
The state undertakes to take all possible measures to search for such a person.
Close relatives and family members of a person who has gone missing under special circumstances have the right to know his fate, which includes obtaining reliable information about the whereabouts of the person, the circumstances of his death (death), and the place of burial (if known).
State authorities, which carry out registration and/or search for persons who have disappeared under special circumstances, are obliged to provide information about the progress and results of their search to close relatives and family members of such persons.
- Close relatives and family members of a person missing under special circumstances are: husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, grandfather, grandmother, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-great-granddaughter, adopter or adoptee, guardian or custodian, person under guardianship or guardianship, as well as persons who live together, are connected by common life and have mutual rights and obligations, including persons who live together but are not married.
Family members of a person who has gone missing under special circumstances have the right to be granted a pension in connection with the loss of a breadwinner , taking into account the following features:
- disabled family members of a missing person who were dependent on him, regardless of the missing person’s insurance (pension) experience, have the right to receive a pension in connection with the loss of a breadwinner in accordance with the procedure established by the Law of Ukraine ” On General Obligatory state pension insurance “. A survivor’s pension is granted to the children of a person who has disappeared under special circumstances, regardless of whether they were dependent on such a person.
- the right to receive a pension in connection with the loss of a breadwinner arises one month after the date of entry of information about a person’s disappearance into the Unified Register of Pretrial Investigations or the Unified Register of Persons Disappeared Under Special Circumstances;
- a pension in connection with the loss of a breadwinner is paid to family members of a person who has disappeared under special circumstances, for the entire time during which the person who has disappeared under special circumstances retains this legal status;
- the payment of such a pension shall be terminated from the first day of the month following the month of entry into the Unified Register of Pre-Trial Investigations or the Unified Register of Persons Missing Under Special Circumstances, indicating the location, burial place, or location of the remains of a person missing under special circumstances;
- the death of a person who had the status of missing under special circumstances, or declaring him dead gives the relatives of such a person the right to apply for a pension in connection with the loss of a breadwinner on the general grounds provided for by the Law of Ukraine “On Mandatory State Pension Insurance”.
Granting a person the status of missing person under special circumstances does not deprive his relatives or other persons of the right to apply to the court to declare such a person missing or to declare him dead in the manner prescribed by current legislation.
- A natural person may be recognized by the court as missing if there is no information about his whereabouts in the place of his permanent residence for one year. A natural person is declared dead by a court if there is no information about his whereabouts for three years at his place of permanent residence, and if he disappeared under circumstances that threatened his life, then within a shorter period specified in Article 46 of the Civil Code of Ukraine.
III. Legal consequences of acquiring the status of a missing person under special circumstances.
Acquiring the legal status of a person who has disappeared under special circumstances does not reduce the scope of his civil legal capacity, that is, the ability to have civil rights and obligations like all natural persons. However, certain consequences can be identified, which may lead to recognition of a person as missing under special circumstances.
Custody of property. The rights and interests of a person missing under special circumstances, as well as his property, are subject to protection until the search for him is terminated or he is declared dead.
From the moment of entering data about a missing person into the Register, guardianship and guardianship may be established and a guardian appointed by a notary upon the application of an interested person or guardianship authority.
The guardian over the property of a person who has disappeared under special circumstances manages this property, and also ensures the fulfillment of the obligations of such a person at the expense of this property. At the request of the interested party, the guardian of the property of the missing person provides maintenance at the expense of this property to the persons whom they are obliged to maintain by law.
Custody over property is terminated in the event of the appearance of a missing person.
Custody or care of a child. In the event that both of the child’s parents are persons who have disappeared under special circumstances, guardianship/guardianship is established over such a child in accordance with the procedure provided for by the Civil Code of Ukraine.
Marital status. Acquiring the legal status of a person who has disappeared under special circumstances does not change his marital status until the moment of dissolution of marriage at the request of the second spouse due to the recognition of the person as missing or until the moment when such a person is declared dead.
Labor relations. For a person who has disappeared under special circumstances, the place of work and the position held are preserved, but not more than until the moment when he is recognized as missing or declared dead.
If, under special circumstances, the missing person is a person authorized to perform the functions of the state, then, in addition to the above, the average earnings at the enterprise, institution, or organization are preserved for him, but no more than until the moment when such a person is declared dead.
- Payments within the limits of average earnings in such cases are made at the expense of the state budget according to the procedure determined by the Cabinet of Ministers of Ukraine.
Persons who went missing under special circumstances during military service are provided with the guarantees provided for by the Law of Ukraine ” On Social and Legal Protection of Servicemen and Members of Their Families ” and other acts of Ukrainian legislation.
- Search for persons missing under special circumstances.
One of the novelties of the law is the creation of the position of the Commissioner for the Issues of Persons Disappeared Under Special Circumstances (hereinafter referred to as the Commissioner) instead of the Commission, which operated earlier. persons missing under special circumstances. In particular, he contacts relatives of missing persons and provides them with information on the state of the search and its results. Also, in agreement with the National Police, SBU and other bodies, he can form and coordinate the work of search groups (humanitarian missions) that search for persons who have gone missing under special circumstances, their remains, search and fix burial places.
It is worth noting that the Commissioner’s institute has not yet started functioning, and no one has been appointed to this position yet.
The search for a missing person under special circumstances is carried out by the National Police of Ukraine and other bodies that carry out operative and search activities, by conducting public and secret search activities within the limits of the powers granted to them. state authorities, local governments, public associations and international humanitarian organizations. Citizens, public associations, legal entities under private law may, with their consent, be involved by the National Police of Ukraine in the search for missing persons under special circumstances.
The search for a missing person under special circumstances shall be terminated no later than three days after the date of establishment of the person’s whereabouts, burial place, or the location of the remains of such a person, with notification of this to his close relatives and family members, as well as to the applicant, if the applicant is not is a close relative and family member.
Termination of the search for a missing person under special circumstances is immediately noted in the Register.
The court’s decision to recognize a person as missing is not a reason to stop searching for him.
If a person who has disappeared under special circumstances is declared dead, but his remains have not been found, the search shall not be stopped until his whereabouts, burial place, or the location of the remains of such a person are established.
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