By Akanimo Sampson
Human Rights Watch, a global human rights group says pensioners with limited mobility due to illness, disability, or advancing age who live in nongovernment-controlled areas of eastern Ukraine are facing overwhelming difficulty accessing their pensions.
In November 2014, the Ukrainian government stopped funding government services in areas of eastern Ukraine controlled by Russia-backed armed groups. Since then, it has required people who live in these areas to register as displaced persons and cross the contact line to government-controlled areas to receive their pensions.
According to Ukraine’s ombudswoman, over 450,000 of the 1.2 million pensioners living in these areas do not receive their pensions. In December 2019, the United Nations also noted the impact of these discriminatory rules on hundreds of thousands of pensioners.
Senior Europe and Central Asia Researcher at Human Rights Watch, Yulia Gorbunova, said “Ukraine’s pension policies impose hardships on many older people in areas not controlled by the government. These policies are discriminatory, violate property rights, and simply cut off those who are physically unable to cross the line of contact from their pensions altogether.”
Parliament should approve a pending draft law that, among other reforms, would delink pension eligibility from displaced person status and make it easier to pay pension arrears to those who have been denied pension payments or have been unable to access them.
The draft law, if adopted, would end the discrimination that pensioners living in nongovernment-controlled areas have faced since 2014 but would not address other difficulties that pensioners who cannot travel due to limited mobility face in accessing their pensions.
For example, under current rules, pensioners from these areas have to appear in person every three months for an identity verification procedure at the only state bank, where pensions are paid. Unlike people living elsewhere in Ukraine, people living in areas not controlled by the government and registered as internally displaced may not appoint an authorized representative to collect their pensions.
To address these issues, the government should introduce further reforms, including a remote identity verification procedure and access to online notary services, Human Rights Watch said.
The Ukrainian government also requires residents of separatist-controlled Donetsk and Luhansk regions who wish to remain eligible for pensions to have a residential address in government-controlled areas and to travel to those areas at least once every 60 days. These requirements are discriminatory and create unnecessary hardship by forcing older people to regularly take an arduous and, at times dangerous, journey, Human Rights Watch said.
Between October and December 2019, Human Rights Watch said it interviewed several pensioners who have been unable to travel to government-controlled areas for several years due to limited mobility and have lost access to their pensions.
Two of them have not received their pensions since 2014 and one whose pension is being paid out by the government cannot get to the bank in person to access it. Human Rights Watch also interviewed their family members as well as lawyers and representatives of nongovernmental organisations (NGOs) that are advocating to restore pension rights and have interviewed many other pensioners in nongovernment-controlled areas who cannot travel at all.
While there is no data on how many pensioners unable to travel currently remain in areas not controlled by the government, Ukraine’s Pension Fund reportedly has accumulated a debt of 86 billion hryvnas (approximately $3.5 billion) which is owed to pensioners who live in non-government controlled areas. It is not known how much is owed to pensioners who can’t travel from those areas for mobility reasons, or how much is owed to others who may have fallen out of compliance with the discriminatory eligibility requirements or whose pensions were suspended for other reasons.
The United Nations, as well as numerous NGOs including Human Rights Watch, have repeatedly urged the Ukrainian government to repeal these requirements.
In a December 2019 report, the UN said that delinking “the payment of pensions from [internally displaced persons] registration (would) … contribute to social inclusiveness among the population affected by the conflict.”
“When it comes to pensions, older people in areas not controlled by the government who have limited mobility should be treated the same as other Ukrainian citizens”, Gorbunova said. “It is heartbreaking to imagine that some of them live in acute poverty but are not getting the pensions to which they are legally entitled.”
Impact on Especially Vulnerable Pensioners
Ukraine’s pension requirements discriminate against all pension-eligible Ukrainians who live in areas not controlled by the government, but they have an especially pernicious impact on those who cannot travel because of limited mobility due to illness, disability, or advancing age.
These include pensioners who have not been able to travel out of these areas since the armed conflict began in 2014 and have never established pension eligibility. They also include those who at some point traveled and registered as internally displaced but whose limited mobility prevented them from making subsequent trips required to maintain their pension eligibility. In some cases, their pensions have been suspended and in others, people can’t access pension payments from a bank in government-controlled Ukraine.
Pensioners living in areas not controlled by the government have to be registered as displaced to engage with Ukraine’s Pension Fund directly. If a pension is suspended for failure to comply with registration or verification requirements, filing a lawsuit is often the only way to reinstate it.
Representatives of Right to Protection, a Ukrainian group that has been a leader in strategic litigation and advocacy for the rights of pensioners in the conflict, told Human Rights Watch that in their experience, people who file such lawsuits have a strong chance of winning in domestic courts. Winning in court, however, does not guarantee the reinstatement of the pension or the payment of arrears as there is no clearly established mechanism for carrying out the judgments.
Cabinet of Ministers decrees № 335 and № 788 stipulate that all pensions and pension arrears will be paid through a “special procedure, established by the Cabinet of Ministers of Ukraine.” However, the government has not established this procedure.
In a November interview in Kyiv, Right to Protection’s legal assistance coordinator, Iuliia Tralo, told Human Rights Watch that Ukraine’s Pension Fund has relied on the lack of procedure as a loophole to avoid paying arrears, even when courts have ordered such payments. Tralo said that fewer than 10 percent of such judgments were implemented in 2019.
Lyubov Toporkova, 85, and her sister, Raisa Ostapova, 81, live in Vuhlehirsk, a town in eastern Ukraine that is not currently controlled by the government. Both lost their pensions because they could not obtain displaced person status.
Ostapova has been living in Vuhlehirsk since 1957. In a phone interview with Human Rights Watch in December, she said that for the past 15 years, she has been the sole caregiver for Toporkova, who cannot move from the waist down and is confined to bed. Toporkova’s immobility made it impossible for the sisters to evacuate from Vuhlehirsk in 2014 or even go to an underground bomb shelter when the city came under heavy shelling.
“There was shooting and explosions all around us, but we could not leave the house,” Ostapova said. “And there we were, (Lyubov) lying down and me sitting at the foot of her bed, both of us shaking with fear.”
The sisters’ lawyer, Olena Prihodko, said that they both stopped getting pension payments from the Ukrainian government in August 2014, a few months after the conflict began. Prihodko also said that the sisters have been living in poverty and have no other relatives to help them.
Both sisters sued to have their pensions reinstated.
In March 2018, the Donetsk District Administrative Court, now relocated to a government-controlled city, ruled against reinstating Toporkova’s pension, Prihodko said. The court held that she should have left Vuhlehirsk and moved to government-controlled area to continue receiving her pension.
“The court decided that since she didn’t relocate when the war began, that was reason enough not to protect her rights,” said Prihodko. “A bizarre argument, considering that for years she has been physically unable to get up, let alone undergo such complicated travel.”
Ostapova won her case against Ukraine’s Pension Fund in August 2018, but the Pension Fund has not paid her the money to which she is entitled. In October 2019, Ostpapova’s lawyers filed a complaint with the European Court of Human Rights (ECtHR).
Pensioners Who Could Not Maintain Displaced Person Status and Comply with Bank Verification Procedures
Agafia Nikolaevna Pidobid is a 92-year-old resident of Donetsk, a major city in eastern Ukraine that is currently not under government control. In a Skype interview on October 11, 2019, Pidobid said that she crossed the line of contact early in 2016 and registered as internally displaced, but has not been able to travel again since, due to her rapidly deteriorating health. Pidobid suffers from chronic heart disease and is nearly blind. Her daughter, Tatiana Maltseva, said that in the last year, for health reasons, Pidobid has not been able to leave her house.
In March 2016, Pidobid’s pension was discontinued because she was not permanently living in Mariupol, in government-controlled territory, where she was registered. Lawyers from the Right to Protection took her case to court, which recognized that her rights have been violated and ordered the Pension Fund to reinstate Pidobid’s pension payments from February 2019 and pay her the three years of pension arrears that had accumulated since 2016.
Pidobid’s pension payments resumed, but her bank card has been blocked because she was unable to travel to a government-controlled area to undergo the physical identification procedure at the bank, which requires her personal presence every three months.
“The fact that she [Pidobid] is still getting paid although she has not been crossing is striking” said Yanina Rebenkova, Maltseva’s lawyer. “In practice, as soon as the Pension Fund finds out that a pensioner has not been crossing, they issue a decision to suspend payment, which is then communicated to the bank. Her pension has not been suspended but that makes no difference, because she cannot access the payments.”
Oleg Tarasenko, senior strategic litigation lawyer with Right to Protection, said “People like Agafia Nikolaevna may be receiving pensions but there is no mechanism in place for them to withdraw it without their presence. When she dies, her daughter can inherit the money – that is pretty much the only way for her family to access [it].”
Government Actions and Rhetoric
The new draft law № 2083-d, submitted to Parliament on November 26 and scheduled for parliamentary consideration in January 2020, introduces a number of key provisions that could help improve the situation for pensioners living in nongovernment-controlled areas.
Specifically, the draft law: 1) permits the payment of pensions to be delinked from displaced person status; 2) provides that accumulated pension arrears should be paid in their entirety – current regulations limit that term to three years; 3) offers a concrete procedure for paying pension arrears; 4) simplifies verification procedures to establish pension eligibility; and 5) requires obligatory identity checks every six months, instead of every three months.
Ukrainian authorities have recently taken several important, practical steps to improve the situation for pensioners living in nongovernment-controlled territories. For example, in March, the authorities annulled expiration dates for electronic passes required to travel across the contact line. In August, an electric cart was provided to drive older people and people with disabilities across the Stanytsia Luhanska checkpoint. In November, the authorities completed much-needed repairs to the destroyed bridge at this crossing point, which will reduce some of the hazards of crossing.
Several landmark court decisions also safeguarded pensioners’ rights. For example, in May 2018, the Supreme Court ruled that requiring pensioners to register as displaced puts an improper burden on access to pensions. In December 2018, it found residency verifications for pensioners to be unlawful. In response, the Ministry of Social Policy stated that it would continue to verify displaced persons’ residences prior to granting them pensions or social benefits but that it would stop inspection visits to displaced persons’ homes.
However, resistance to easing the burden for older Ukrainians in separatist-controlled areas is reflected in the dismissive manner in which several former Ukrainian government officials have previously spoken about them, at times implying that they were disloyal to Ukraine. State officials also argued that pensioners living in these areas are also receiving social support payments from the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic.” That rhetoric was elevated in the spring of 2019 when the Russian government introduced a fast-track procedure for obtaining Russian citizenship for people living in areas controlled by Russia-backed armed groups.
Whether pensioners residing in those areas receive some sort of financial support from nongovernment-controlled areas has no bearing on the Ukrainian government’s obligations to pay these citizens’ pensions, which are a form of property rights. Such support would not annul their rights vested in the state pension.
Applicable Legal Standards
The right of Ukrainian citizens to social protection, including pensions, is guaranteed by Article 46 of the constitution of Ukraine, as well as the Law on State Pension Provision and the Law on Collection of Obligatory State Pension Insurance.
Additionally, Ukraine is a party to the European Convention on Human Rights and pension rights are protected property rights under Article 1 of Protocol 1 of the convention. Accordingly, any interference 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 areas it does not control can collect their pensions. However, the process the government has introduced treats pensioners in these areas differently than other pensioners and 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 European Convention.
Ukrainian authorities should, as a matter of urgency, resume pension payments to all pensioners, irrespective of their place of residence, and eliminate requirements for pensioners living in areas not controlled by the government to regularly travel into government-controlled areas and maintain residential addresses there. The authorities should adopt the draft law № 2083-d and carry out its main provisions, including delinking displaced person status from pension eligibility, canceling the current three-year limit for payment of pension arrears, and introduce a clear mechanism for paying the arrears.
The authorities should also take additional steps to address the current gap in regulations governing pension provision that do not accommodate pensioners with limited mobility who live in areas not controlled by the government.
These could include:
Amending current legislation to provide pensioners living in these areas with the option, at their request or at the request of relatives or other close persons, to use online notary services
Amending current legislation to allow pensioners in these areas to engage with the Pension Fund of Ukraine on pension-related issues, irrespective of their place of residence, through a representative authorized by power of attorney, notarized remotely
Introduce a remote identity verification procedure so that pensioners in these areas can freely access their pensions through banks in government-controlled territory either personally or via their representatives.