How many years have to pass before the presumed death of a disappeared person can be declared and what is the procedure?

The pain generated by the disappearance of a loved one runs deep in families. There is no consolation in these social groups until there is an answer about the whereabouts of the son, sister, father, uncle, nephew, etc. And in most cases it is not in their plans to stop searching and even worse seek a judicial resolution so that the death of their loved ones is declared.

However, Ecuadorian law includes this legal figure and the procedure for those who are interested.

“Relatives of the disappeared, what we least think about is their presumed death. However, it may be the case that due to legal procedures it is done, although that is not done right away”, says Lidia Rueda, president of the Association of Relatives and Friends of the Disappeared (Asfadec), about the circumstances that lead a person to promote a judicial process, in civil matters, so that the presumed death of a disappeared family member is declared, such as in cases related to inheritances or sale of assets.

Articles 64 to 80 of the Civil Code detail the conditions and other considerations related to the presumption of death due to disappearance.

The presumption of death must be declared by a judge. This resolution must be given after the possible steps to find out the whereabouts of the person reported as disappeared are exhausted -such as the publication of the case in the printed media- and only after at least two years have elapsed, “since the date of the last news of the existence of the disappeared person”, according to numeral 1 of article 67 of the Civil Code.

This statement may be requested by any person who has an interest in the missing citizen, provided that three months have elapsed, at least, from the last summons of the judge to the subject of the lawsuit.

“The judge will set the last day of the first year as the presumptive day of death, counted from the date of the latest news,” reads number 5 of that same article.

Special cases

Numeral 6 of article 67 and article 68 detail special cases of declarations of presumed deaths of disappeared: an individual whose whereabouts are unknown after an accident or circumstances constituting danger of death, such as a war, shipwreck, of which no information has been taken. news in six months; or, the missing person who has completed eighty years since his birth.

Possession of goods

In the analysis Legal relationship between presumed death and forced disappearance according to the Civil CodeRobert Friend Macías and María Cristina Naveda state that “once the presumed death has been declared, and in certain cases, beforehand, certain effects are produced that tend to protect the interests of the absent or disappeared person, the interests of third parties interested in the declaration and , if it is the case, those of the conjugal society”.

This means that the judge will also decide on the possession of the assets in favor of the presumptive heirs.

Lidia Rueda, president of the Association of Relatives and Friends of the Disappeared (Asfadec), clarifies that the search for a missing or missing person will not be suspended or terminated despite the fact that presumed death has been declared, according to article 22 of The Organic Law of Actions in Cases of Disappeared and Missing Persons.

“When a person is reported missing, that investigation continues until their whereabouts are known or their death is confirmed with samples in scientific processes,” adds Rueda.

According to Asfadec, from January to November 2021, 319 missing persons were reported. And in 2020, instead, there were 227.

Presumed Death Record

When the relatives of the disappeared person need to register their presumed death, they must go to one of the Civil Registry agencies.

“It will be registered before the competent authority, for which the corresponding duly executed sentence will be necessary. The request for registration of deaths may be made by a fully identified third party”, explains José Miguel Pérez, director of the Legal Department of the Municipal Civil Registry of Guayaquil.

The relative or interested in registering the presumed death, as a late death, must present a copy of the sentence, the copy of the citizenship card and pay a fee of $ 2.

In the municipal entity, indicates Pérez, no procedures of this type have been registered in recent years. This newspaper requested an interview with the Civil Registry of the central government, but there was no response. (I)