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of May 31, 2019 No. 2

About court practice on cases on recognition of the citizen it is unknown absent or the announcement the dead

For the purpose of ensuring uniform application by courts of the legislation by hearing of cases on recognition of the citizen it is unknown absent or the announcement the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make to the dead the following explanations:

1. According to Articles 28, of 31 Civil code of the Republic of Kazakhstan (further - group of companies) and part two of Article 317 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) case on recognition of the citizen is unknown absent or the announcement can be begun by the dead according to the statement of members of his family, the prosecutor, public associations, guardianship and custody body and other interested persons.

Applicants on this category of cases are family members (the spouse (a), parents, children and other persons). Courts should mean that the subject list of applicants - physical persons is not limited by persons which are in the family and related relations.

Physical persons and legal entities, state bodies which according to Article part two 8 GPK have the right to take a legal action with the statement for protection of the violated or disputed rights and freedoms or legitimate interests of other persons or the uncertain group of people in the cases provided by the law and for which recognition is unknown absent or the announcement the dead of person are recognized interested attracts origin, the termination or change of personal non-property and property rights.

2. Courts should mean that the statement for recognition of the citizen is unknown absent or the announcement his dead, along with observance of requirements of Article 148 GPK on form and content, 318 GPK shall meet Article standards.

In the statement it shall be specified for what purpose it is necessary to recognize unknown to the applicant of the citizen absent or to declare him the dead, and also the circumstances confirming the unknown lack of face, or the circumstances threatening to the missing person with death or giving the grounds to assume his death from certain accident are stated. Concerning the military personnel or other citizens, missing persons in connection with military operations, day of the end of military operations is specified in the statement.

In case of failure to carry out by the applicant of these requirements the statement according to the subitem 3) of Article part one 152 GPK are subject to return, with explanation of shortcomings of the statement for its subsequent reduction in compliance with GPK.

Cases of this category are jurisdictional to courts of law and are considered according to the procedure of special proceeding. The application can be submitted at the place of residence of the applicant or at the last known place of residence is unknown the absent citizen.

3. According to Article part one 319 GPK the judge shall establish the group of people which can supply with the information about the absent person and the actual circumstances important for the correct permission of case.

Depending on amount of information provided by the applicant, proceeding from the specific facts of the case, the judge requests data in the relevant organizations for the last known residence and place of employment of the absent person, for the birthplace, residence of parents and close relatives of the absent person.

Courts should request from law-enforcement bodies of the data on registration of persons concerning which requirements about recognition of the citizen are declared it is unknown absent or the announcement the dead, about availability concerning them search cases; request in authorized body of the data on receipt of pensions and benefits, availability and cash flow on individual retirement accounts; in judicial authorities - data on change of surname, name, middle name; in authorized body on legal statistics of special accounting - about finding of these persons among the convicts, attraction to the criminal or administrative responsibility put on the wanted list; in bodies of health care of the data on treatment passing; in the organizations performing national transportations - data on acquisition of tickets; in other authorized bodies having data on the address of the absent person in the year preceding filing of application in court behind rendering the state services, and also other information on the gone person including about departure out of limits of the Republic of Kazakhstan, change of nationality, death, availability of enforcement proceedings concerning it, etc.

Courts should perform requests through the Torel_k automated information and analytical system (AIAS) in information exchange system of law enforcement, special state and other agencies of the Prosecutor General's Office of the Republic of Kazakhstan (SIOPSO).

4. Taking into account Article part two provisions 319 GPK about implementation of the publication about initiation of proceedings in determination about preparation of case for legal proceedings the judge shall:

specify about the applicant's obligation at own expense to make the publication in mass media (district, regional, republican level, on the Internet, on television) about initiation of proceedings;

determine the term during which the publication shall be performed, having listed mass media in which the publication is subject to placement.

Courts should mean need of strict observance of the following requirements of the procedural legislation to the publication:

contents of the publication shall correspond to provisions of subitems 1), 2), 3) and 4) of Article part two 319 GPK;

the publication shall be placed as in the Kazakh, and Russian languages in the periodic printing editions which acquired in accordance with the established procedure the right of official publication of legal acts the Internet resources which underwent the procedure of registration in authorized body, TV channels according to extended or performing release (broadcast) in all territory of the Republic of Kazakhstan and the corresponding administrative and territorial unit in the location of the applicant.

According to the procedure of execution of determination of the judge about preparation of case for legal proceedings the applicant shall place the publication in time, established by court and to provide to court confirmation about implementation of the publication no later than three working days from the date of its placement.

In case of failure of evidence, confirming the publication in any of the mass media listed by court, the statement is subject to leaving without consideration according to the subitem 12) of Article 279 GPK.


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