The necessity of extrajudicial information retrieval can be explained by the impossibility of court to establish the fact of persons` birth if the absence of this information in civil registry offices or in archives would not be confirmed. Besides, it shall be confirmed that applicant has taken all measures in order to establish this fact. As well, applicant shall have another evidence which confirm the fact of this person`s birth in Ukraine.
In this case, he/she shall apply to the territorial subdivisions of State Archives and Registry Offices. To be precise, they shall apply to that subdivision, which is territorially relevant to the place of these relatives` birth. In order to identify this person, in application should be indicated all the data, known to applicant.
Usually, the research in state archives or bodies of the Registry Office is unsuccessful. This is because of the fact that during the First World War and the Second World War a huge number of documents were lost and destroyed. In such case, archives inform applicant about absence of such information. Having used all possibilities of extrajudicial procedure, applicant can apply to the court.
If it is impossible to find the information in State archives, there is another way prescribed by the law of establishing the persons` origin – the application to the court in special proceeding about the establishment of a fact that has a legal significance.
In practice, there are many cases when individuals applied to court in order to determine where their grandparents were born. Such applications were submitted in order to change their nationality, obtain citizenship, establish membership of a certain nationality due to certain family ties, and in many cases the result was in favour of the applicant. Taking in account that this practice is quite widespread, we would like to focus more specifically on the applying to the court, especially in which court to apply, how to prepare the application correctly and which documents to add as confirmation of the facts.
Firstly, what is a special proceeding? In accordance with the law – this is a kind of ex parte civil proceeding. In a special proceeding, civil cases are considered to confirm the presence or absence of legal facts relevant to the protection of the rights, freedoms and interests of the individual, or the creation of conditions for the exercise of her personal non-property rights or property rights or confirmation of the presence or absence of uncontested rights. In other words, this is a way of establishing some facts in a court with a minimal amount of time.
It is important to decide in which court to apply and how to prepare the application.
First of all, you need to determine the jurisdiction. There are several points to consider while determining the jurisdiction.
Secondly, the question is how to apply to the court correctly in this case. The law describes this moment very narrowly, therefore, it is worthwhile examining in detail the correctness of writing such an application.
- If applicant`s , then he/she shall apply to the court at his/her place of residence.
- If applicant lives , he/she shall apply to the Supreme Court to determine the jurisdiction.
- Jurisdiction in accordance with the Law of Ukraine “About International Private Law”. This means that applicant could apply to any court in Ukraine.
According to the statements of the Civil Procedure Code, there are four points that applicant should note while writing the application, in particular:
- To indicate the fact which should be established and justify the purpose of such establishment.
- Indicate why it is impossible to obtain or renew the documents which certify this fact.
- Indicate evidence that prove it.
- Add a document to the application that confirms impossibility of recovering the lost documents.
In case of applying to a court to establish the fact of the person’s birth on the territory of Ukraine the application should include the next information.
Firstly, it is necessary to structure the application and determine such facts:
- What kind of is between the applicant and the person about whom he/she is trying to establish a legal fact? It is important to confirm everything by the documents (birth/marriage certificates, extracts from state registers, etc.).
- Why the and which measures were taken by the applicant in order to restore or find them? Applicant shall add the confirmation that all measures that were taken earlier are not sufficient to establish the legal fact and the only possible way is applying to the court.
- How did applicant found out about the Ukrainian without documents that confirm it? In confirmation of it should be submitted evidence.
- Why do you need to establish this fact?
The next thing to keep in mind is that the modern territory of Ukraine does not always correspond to that which was even 50 years ago. According to this fact, at the documents of your relatives may be noted that they were born in Russia, Romania or Moldova, and so on. This is in no way an obstacle while establishing the fact of their birth in Ukraine. Just the fact that it is a modern territory of Ukraine is important. For example, the city of Khmelnitsky. Previously, it was called Proskuriv and appeared in documents as Russia, but now it is a modern territory of Ukraine.
Such facts should not be proved. It is even impossible to prove. In accordance with the law, there is no such an expertise as “historical” or “historical-legal”. In case of need applicant can appeal to a historian or competent persons for scientific conclusion.
The last what is worth special attention – term. Due to the existing problem of determining jurisdiction, it is impossible to predict exactly how long the process of establishing the fact of person`s birth in the territory of Ukraine would proceed.