Search for missing persons in special circumstances: guarantees cannot be narrowed

Legislative changes may under no circumstances worsen the situation of persons missing in special circumstances or complicate the procedure for their search. Therefore, the interpretation and application of the rules should be free of ambiguity and conflict.

This was emphasized by the Committee of the Ukrainian National Bar Association on Human Rights Protection following the analysis of the draft Law No. 11093 of 19.03.2024 «On Amendments to Article 11 of the Law of Ukraine «On the Legal Status of Persons Missing in Special Circumstances», which was adopted by the Verkhovna Rada as a basis.

The draft law defines the powers of the General Staff of the Armed Forces of Ukraine to create search groups in coordination with the Coordination Headquarters for the Treatment of Prisoners of War, to determine the personnel of search groups, and to determine the procedure for conducting search operations. The headquarters is granted the right to organize and conduct negotiations with humanitarian missions, public associations and individuals operating or staying in the temporarily occupied territories in order to search for persons missing under special circumstances.

It is also proposed that for the period of martial law and within one year from the date of its termination or cancellation, the powers of the Commissioner for Persons Missing in Special Circumstances to establish and coordinate the work of search groups (humanitarian missions), as well as to negotiate, should be exercised by bodies designated by the Cabinet of Ministers of Ukraine.

The UNBA Committee pointed out that by this provision the authors intended to facilitate the procedure for exercising such powers under martial law, given the current situation in the country. In general, such an idea is absolutely justified and indeed necessary.

At the same time, martial law does not cover emergency situations. Therefore, in case of their occurrence, the guarantees provided by the Law «On the Legal Status of Persons Missing in Special Circumstances» will be absent. In general, a subjective assessment of the level of negative impact on a missing person and the circumstances that led to the introduction of martial law or a state of emergency is unjustified. After all, human life and health, as well as taking actions to ensure them, are the main focus of the state and its bodies both under martial law and under a state of emergency. Therefore, the amendments to the law in this part require editorial revision.

The full list of UNBA 's comments and proposals to the Draft Law No. 11093 is available by the link.