Problems with pensions for IDPs appeared in 2016 with the adoption of scandalous Resolution 365 and the appearance of the "SBU lists". And since then, the internally displaced persons have to go through constant checks and verification in order not to lose their pensions. But even this does not guarantee them that payments would not be stopped, and each time the government comes up with new restrictions (getting pensions only in Oschadbank, stopping payments of pension debts for previous periods, and so on). At present, an IDP may lose his pension even for being in the hospital just at the moment when the inspection was held. And even hospital record is not an argument for the Pension Fund – IDPs have to go to court to restore payments.
Recently, there were already two serious decisions, when the court took the side of displaced persons and recognized discriminatory government policy against IDPs as illegal.
So, on July 4, 2018, the Kyiv Court of Appeal abolished the normative acts of the Cabinet of Ministers, which oblige IDPs to undergo inspections to get pensions. But the officials still found a loophole for the checks to continue.
Most recently, the Grand Chamber of the Supreme Court rejected the appeal of the Pension Fund and upheld the exemplary decision of the Supreme Court as a court of first instance, according to which the termination of payment of pensions to IDPs on grounds not provided for in the Law of Ukraine "On Compulsory State Pension Insurance" (including so-called "SBU lists") is considered illegal.
But despite the court decisions, the IDPs are in constant fear, because the Pension Fund can stop paying at any time for fictitious reasons.
OstroV talked with Yulia Tralo, legal aid coordinator of Right to Protection charity fund, about what problems the settlers continue to face in getting pensions and how to cope with them.
- How relevant is the issue of termination of pensions for IDPs?
- Unfortunately, the latest decision of the Supreme Court to recognize the practice of the Pension Fund to suspend payments of pensions to internally displaced persons as illegal is not a panacea for everyone. This does not mean that everyone will immediately feel good and that they will cancel inspections, the SBU lists and so on. This is just opening the way to simplified protection of their rights in court for those people who faced a similar situation.
We classify several categories of pension cases for ourselves. Firstly, these are cases related to special pensions: the appointment of preferential pensions for those who worked in special conditions (heavy, underground labor and so on). Secondly, people who never left the occupied territory and did not register as IDPs, although until 2014 they received a pension. There are few such cases, because these are people with low mobility (disabled, elderly people). Thirdly, ex-IDPs: people who moved to the controlled territory, changed their registration to "local" and refused the IDP status. On the one hand, they can even participate in local elections; on the other hand, for the Pension Fund they are considered to be residents of uncontrolled territories and can only receive pensions as IDPs. Fourthly, this is actually the problem of pensioners who are registered as IDPs and due to various circumstances (got to the SBU list, failed verification and so on) they stopped paying their pensions. This is the most numerous category.
- How the problem is solved for the less mobile people who cannot leave the uncontrolled territories?
- This is a very complex category of court cases, but they do exist. And in about 80% of such cases the results are negative. At the moment, the only way in which the law provides for the restoration of their payments is to register as an IDP. Therefore, it is very common practice for relatives to take their parents to controlled territory in various ways to apply for a pension. You can see terrible scenes when people are being transported on stretchers. It's scary, but for them it's the only way to register as an IDP and restore their pension. But those people who do not have relatives or financial opportunities to carry out such transfers or they cannot do it because of illness, they cannot get this pension in any way.
Unfortunately, for citizens there is no special legal mechanism for the restoration of a pension. And if such a case gets into the court, then it will proceed from the existing regulatory framework. Despite the negative judicial practice with respect to such cases, we still had precedents when the court made positive decisions. But after that there was a question how to get this money. We continue to work on these matters - that is, on the implementation of the court decision.
- How can a person living in uncontrolled territory and unable to leave, go to court?
- The lawyer appeals to the court on their behalf. The essence of the claim is to restore the payment of the pension together with the debt for the previous period (starting from 2014). So even after a positive court decision in favor of the plaintiff there is a problem how to get this money. In all cases, a person must come to the controlled territory, because an IDP does not even have the opportunity to make a power of attorney for a relative, since documents drawn up on an uncontrolled territory are not recognized. That is, we have a situation where a person has a court decision in his favor that cannot be executed.
- Previously, there was an initiative of public organizations to organize the delivery of pensions to the occupied territory through international organizations (International Committee of the Red Cross, the UN). How do you feel about this? How realistic is this?
- Different organizations (international and national) did discuss such a mechanism with the involvement of the UN and ICRC structures, but the number of people is huge and the organizations will need to verify these all people, to deliver money and so on. We must understand that this question does not concern ten or even a thousand people. According to various estimates, at the end of 2014, 160,000 pensioners remained on uncontrolled territory, who never left it and did not restore their payments. Even to transport such amounts of money on a daily basis can be unsafe. It seems to me that this option can be considered, but it will not be applied.
- Tell us about the problems faced by resettlers, who refused the IDP's certificate.
- It is worthwhile to understand that initially the law on IDPs, and, consequently, the certificate of an internally displaced person, was created so that people who escape from military operations and are in a vulnerable condition can receive some kind of support, benefits, the right to participate in any programs and so on. But this certificate actually became a pass to their basic rights. And now there are people who moved to the controlled territory, integrated into local communities and consider the IDP's certificate an anchor that drags them back from this integration, so they refuse it. But the departments of the Pension Fund informs these people that, in order to receive pensions, they still need to receive the IDP's certificate again so that the pension is allocated as to the displaced person.
- Why does it happen?
- According to the explanations provided by employees of the PFU departments, when the pension is being calculated and paid, it is calculated taking into account the information that is available in electronic and paper pension files. There is a mechanism only for displaced persons now that pensions can be paid to them solely according to the electronic file. If the person refuses the status, then in order to resume the pension, he must provide a paper file.
Many people address us with such questions. But only the most principled ones agree to go to court. And the courts make basically favorable decision (at least in our practice, 100% of cases were completed in favor of pensioners), saying "to pay the pension on the usual terms". Employees of the Pension Fund departments face to face agree that they have all the possibilities to pay pensions to the displaced persons who refused the IDP's certificate according to the electronic pension file, but a reason is needed for this - decision of the court (or to receive an IDP's certificate again).
- What is your recommendation for the displaced pensioners who, nevertheless, refused the certificate?
- During the consultations, we always say what the options for solving the problem and their consequences are. If a person needs to receive a pension and is ready to undergo inspections and verification, we recommend him/her to re-register the IDP's certificate. If a person wants to receive a pension in the future on the usual terms (without reference to the IDP's certificate), but he is ready to suffer for a while without a pension (and it may take up to six months), then he/she can go to the court.
- What does the Ministry of Social Policy say about this?
- Unlike other issues, on the one hand, it does not cause opposition from representatives of the Ministry of Social Policy and Pension Fund, on the other - nothing is being done to resolve it. This problem appeared about a year ago, and before that, the displaced persons who registered in the controlled territory were paid their pensions on the usual terms.
- Are there any problems with pensions' payment for previous periods (arrears)?
- Until mid-2016, there were no problems with the payment of pensions for previous periods. Often a pensioner applied for the restoration of pension payment and received both current payments and arrears. If there were any problems, they were of a one-off nature. Since mid-2016, such one-off nature cases appeared to be more and more. And more and more people addressed lawyers to defend their rights in court. Now everything has become much more complicated. On April 25, 2018, regular changes were introduced to the by-laws, which stipulate that a person who applies for the pension payments accrues a pension from the moment of appeal, and all the arrears for the previous periods are considered separately and will be paid in the order that will be developed in the future. As of today, it has not been developed yet.
If earlier, we were mostly addressed by people with arrears for a year or two, now we have a large number of people who were suspended payments in May-June of this year, and until they were restored, a debt was formed for two or three months. That is, people cannot even get a debt for such a short period as one month.
- How difficult is it today to come from the uncontrolled territory and begin the process of obtaining (restoring) Ukrainian pension?
- You need to come to the controlled territory and get the IDP's certificate in the Labour and Social Protection Department. Next, you need to apply to the Pension Fund. Then you need to pass a commission, according to the results of which the data are being transferred to the Pension Fund, and the pension is being allocated.
- What is happening now with the commissions and checks after on July 4, 2018, the Kyiv Court of Appeal has abolished the legally enforceable enactments of the Cabinet of Ministers, which oblige internally displaced persons to undergo checks?
- There was a catch-22 when the court recognized separate regulations of Resolution No. 365 of the Cabinet of Ministers as illegal, but at the same time, left the other part in force. The checks themselves were found to be illegal, but the rules on drawing up the compliance audit report on housing conditions of a displaced person and carrying out of commissions on the renewal of payments remained in effect. That is, the bodies have no right to carry out a check, but they must draw up an act.
Some social security departments offer a displaced person to come to their office, sometimes the IDPs are advised to apply for an in-home check. Everyone interprets this decision in a different way, that is why there is a different practice in each region, certainly difficult for an elderly person to understand.
- The fact of crossing the line of demarcation is basis to suspend the payment of pension, isn't it?
- Since our pension payments are linked to the IDP's certificate, it is worth taking into account. According to the Ukrainian legislation, if a person travels to the occupied territory for more than 60 days, this is the basis for abolition of the IDP's certificate, and accordingly, the pension will be suspended. But in practice, 60 is quite a conditional term. The fact of crossing the line of demarcation (in the direction of the uncontrolled territory) is recorded by the Arkan system, and with some certain periodicity and logic (which even the Pension Fund staff do not understand), the lists of people who are recorded as such who went to the uncontrolled territory come to the Pension Fund's departments. But the peculiarity of the system is that only the fact of departure is recorded. Any person who goes to Donetsk, for example, even for 10 days, can get on this list, which will receive the Pension Fund and immediately suspend the payment of pension.
- What were other cases of suspending the pension payment?
- People who were stopped paying pensions because they allegedly did not pass the checks addressed us. As a rule, they were simply not at home at the time of the commissions. There were stories when people were lying at the hospital, respectively, they were not at home at the time of the check, so they were deprived of pensions. Even hospitalization records were not an argument for the restoration of pension and such people had to go to the court. We had a case recently when a displaced person who lived in Dnipro went to Poltava for her friend's birthday. At that moment, the commission did not find her at home and suspended the payment of her pension. After that, the woman decided to restore the pension and provided railway tickets, photos from Poltava, friend's testimony and so on to the Pension Fund to prove that she did not leave for the occupied territory. The Pension Fund did not even want to listen these arguments, whereas the court proved them to be a sufficient reason for the pension to be restored.
- In your opinion, why are the problems with the payment of pensions to IDPs not being solved, but only new ones are being created?
- Of course, there are many opinions about the reasons – both political and financial. But from our point of view – there should be a clearly formulated procedure in legislation that would be understandable to an ordinary person. So that everyone can clearly understand what to do and what rules to follow.
Interviewed by Vladyslav Bulatchyk, OstroV