These deaths are they legally dead?
By: Jean-Robert Fleury, The Daily News ...
Hundreds of thousands of missing persons leaving bank accounts, safes, cars, properties, loans, debt ... How to legally address these problems? The Journal met with Mr. Samuel Madistin.
The earthquake of January 12 has claimed hundreds of thousands of deaths. In the aftermath of the disaster, dead bodies littered the streets of the metropolitan area. The government had to resort to mass graves to avoid a worsening health situation.
Many bodies are still under the rubble. The people buried in mass graves have not been identified, pictures were not taken. What is the legal consequence of the decision by the government on families and relationships between individuals on the one hand, and individuals with public or private institutions in society other?
This government decision is likely to cause legal trouble for many.
notice of me Samuel Madistin on the issue: the departure of an individual for the afterlife must be held by a legal document known as "death certificate". This document gives access to the estate of the deceased will be recorded by the registrar of civil status on the declaration of two witnesses. It is therefore necessary, he says, that the deceased's body was found and identified for such a declaration. When the individual disappears, that is not heard from him and we do not know if he is alive or dead, is speaks in legalese, "absentee."
The word "absent" in the law differs from the missing word used in everyday language. The man who abandoned his home, but on the existence of which was no doubt, is a "non-present" and not "absent," noted the lawyer.
Absence is a presumption of death is not a certainty of death. Therefore it endangers the interests of many of the absent spouse, minor children and those who dealt with him. The absence has effects on the rights of family and property.
The law divides the state of the three absent periods in order to protect his property. The first period: one speaks of presumption. There is a waiting period during which the presumption outweighs that of death. And during this period, we can not take any measure of protection for property of the alleged absent. This period lasts one year if the absentee has left no specific mandate to someone to manage his property and five years otherwise.
Second Period: At the end of that period, the persons concerned (spouses, adult children, brothers, mothers, partners ...) may be filled civil court of the domicile of the absentee to declare the absence. This is the so-called declaration of absence during which the presumption of death is at least equal to that of life.
The court shall, after investigation contradict the prosecution, within six months, a decree of declaration of freedom. The ruling ordered the sequestration of the legal property of the absentee, so the vesting tentative. The administration of such property is vested in the Director General of Taxes. This period lasts twenty years after the sequestration of property or a hundred years since the birth of the absentee, if these property was not legal receivership.
The third period, called period of vesting ultimately is where the presumption of death far outweighs that of life. The court, without the certainty of death, will make a ruling ordering the shipment final possession. This decision puts an end to the community if the absentee was married, the heirs can take as owners. It is only then that the property of the absentee may be mortgaged or sold, that spouse can legally remarry, said Mr Samuel Madistin.
This is a complex situation, if the procedure of absence must be applied for hundreds of thousands missing. The impact on household living on the commercial and banking and other contractual relationships, can have serious consequences. From
declaration of death
Besides the regulation of absence, the lawyer pointed out instances legally distinct species. These are cases where no uncertainty can not continue. The individual, for example, was inside a public or private building that collapsed. There is no chance that there are survivors, but the body has been found. The death is certain in this case. It is not necessary to resort to the procedure for declaration of death provided by the Decree of 24 November 1977 on the death certificate of the missing in Haiti and from Haiti, published in the Moniteur # 85 of 15 December 1977 .
The decree allows the dean of the civil court of the place of the alleged death or disappearance of judicially declare the death of any individual that are certain, based on analysis of facts, despite the fact that the body has not found for burial. This action may be brought by any person establishing an interest and certain current or by the government commissioner of the place of jurisdiction.
The declaration of death takes the place of death certificate and will be applicable to third parties. The operative part of that decision will be at the behest of the government commissioner, transcribed the records that intended by the registrar of vital statistics of the actual location of the alleged event.
This procedure has been successfully implemented by my office in the jurisdiction of St. Mark to establish the deaths of those killed in the massacre of the sawmill whose bodies had been found for the reasons that we know. The declaration of death gives rise to the estate and avoids the crazy time of the procedure of absence.
The decree authorizing the judicial declaration of death can serve as a tool for parents of many missing for the regulation of property of persons killed in the earthquake of January 12, 2010 and whose bodies were not recovered. The government could put a core of lawyers available to victims for the fulfillment of these legal procedures without charge, if the welfare of the community is one of its major concerns.
Jean-Robert Fleury
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