Pensioners queuing in front of a state bank branch in government-controlled Stanitsa Luhanska. March 22, 2018.
© 2018 Tanya Cooper
(Kyiv) – Ukraine’s policy requiring pensioners from separatist-controlled parts of eastern Ukraine to leave and register as displaced persons in government-controlled areas to receive their pension is discriminatory, Human Rights Watch said today. It violates these older people’s rights and Ukraine’s legal obligations. Human Rights Watch urged the Ukrainian government to drop the requirement and create a fair process for older people living in eastern Ukraine to get their pensions.
“When the government demands older people in separatist areas abandon their homes to receive their pensions, they forget or ignore that these payments aren’t a gift, but a right,” said Tanya Cooper, Ukraine researcher at Human Rights Watch. “This policy is unjustified and discriminatory. It also creates needless hardships for older people, many of whom are among the most vulnerable affected by the conflict in eastern Ukraine.”
Ukraine’s Supreme Court will hear an appeal on September 4 over the treatment of pensioners in the separatist-controlled parts of Donetsk and Luhansk regions. In two cases, including the one under appeal, lower courts found unlawful and discriminatory aspects of the policy requiring registration as displaced persons to receive pensions.
Since 2014, the Ukrainian government has required pensioners from separatist-controlled areas of Donetsk and Luhansk to register as internally displaced in government-controlled areas of Ukraine to receive pensions and other entitlements. If they spend more than 60 consecutive days at home in separatist-controlled territories, they risk losing their displaced person registration and pensions. In practice, this means older people face repeated, long journeys across the separation line that expose them to health and safety risks, or leave their homes for the foreseeable future if they want their pensions.
Unlike older people living elsewhere in Ukraine, those in separatist-controlled areas may not appoint an authorized representative to collect their pensions at the state bank.
The discriminatory requirement is a clear interference with their pension rights, which are recognized as protected property rights under human rights law. It also violates their rights to home and family life in eastern Ukraine.
Humanitarian and legal assistance organizations in eastern Ukraine told Human Rights Watch that the pension policy has led to a marked increase in the number of people crossing the line of contact. According to a UN refugee agency survey, more than half of those surveyed who crossed in May 2018 did so to withdraw their pension and complete procedures to maintain pension payments.
Cabinet of Ministers’ decrees issued in 2014 and 2016 require people from separatist-held areas to prove and maintain residency in government-controlled territories to receive pensions and other social payments and established state inspections and other systems to ensure that pensioners live at these addresses.
These systems include the ARKAN database, which combines the Ukraine State Border Guard Service’s database and a database of displaced persons. Authorities at crossing points send information to the pension service about pensioners who cross into separatist-held areas. A lawyer with Right to Protection, a charity foundation that conducts monitoring and provides legal assistance for displaced persons in eastern Ukraine, told Human Rights Watch that it was impossible to seek clarification or redress if such information was incorrect.
Under the decrees, social protection officials can visit a registered address at any time if they believe the displaced person might not live there. If the person is not at home, officials leave a notice instructing them to come in person to verify their address within three days, or the pension services can stop paying pensions and other social benefits. Pensioners and local activists told Human Rights Watch that in practice, the authorities suspend pension or other welfare payments after the first visit without waiting for the individual to appear.
Once a pension has been suspended, the individual has to reapply for it to be reinstated, an onerous process which takes months. Right to Protection told Human Rights Watch that pensions may be jeopardized whether the pensioner has returned to separatist-held areas or is just visiting family in another city.
In June 2018, the UN’s human rights office said that a “significant number of pensioners had their pensions suspended due to the verification and identification procedure linking pensions to [internally displaced person] registration.”
In July 2018, the Kyiv Administrative Court of Appeal upheld a lower court decision that several provisions of the cabinet decrees contravene Ukrainian law. The court found that the cabinet should have submitted the decrees for expert review to determine if they created any risk of discrimination, rejecting the government’s claim that the decrees posed no such risks. It also found the decrees indirectly discriminate on territorial and displacement grounds, violating the constitutional principle of equality and freedom of movement.
The court did not address the ban on the appointment of an authorized representative to collect pensions for pensioners registered as displaced persons or living in separatist-controlled areas.
In response to the court ruling, the Ministry of Social Policy stated it would continue to verify displaced persons’ residence prior to granting them pensions or social benefits, but would stop inspection visits to their homes. However, Evgeny Chekarev, a lawyer with a Ukrainian public association, Human Rights Protection, told Human Rights Watch that the ministry continues to inspect these residences.
In another case in May 2018, the Supreme Court ruled to restore a woman’s pension after it had been suspended due to wrong information about her whereabouts. The court found that the cabinet decrees put additional burdens on access to pensions for the displaced.
If the Supreme Court confirms the findings of the lower courts in September, it will create a precedent and set the stage for consideration of similar complaints, Right to Protection told Human Rights Watch.
Ukraine is a party to the European Convention on Human Rights (ECHR) and pension rights are protected property rights under article 1 of Protocol 1 of the Convention. Accordingly, interferences with pension rights must have a proper legal basis, pursue a legitimate aim and must not be discriminatory, or impose an excessive and disproportionate burden on individuals. As the government does not exercise control over parts of eastern Ukraine, it is within its rights to amend the process by which pensioners in non-government-controlled areas can collect their pensions. However, the process which they have introduced treats pensioners in Donetsk and Luhansk differently, imposes an excessive burden that creates hardship for them and therefore falls outside the scope of permitted interferences. It is also unjustified in that it violates other rights, such as family and home life, protected under article 8 of the ECHR.
“The Ukrainian government can require people to collect their pensions in areas under government control,” Cooper said. “But it can’t do so by violating the rights of some of Ukraine’s most vulnerable citizens. The government should immediately ensure that all pensioners can get their benefits without facing undue burdens.”