Lawyer Dmytro Zharyi is a person with disabilities and is unable to walk without a special wheelchair. However, this does not prevent him from being a successful person. In 2013, Dmytro won a case of discrimination against persons with disabilitiesby a network of pharmacies.
As a result, the question to cancel the license from the entire network of pharmacies was raised. The case was so high-profile that it was discussed at the UN Assembly. After that, the Council of Europe invited the lawyer to a study visit to the European Court of Human Rights.
“It was my first visit to ECHR, so it was especially important,” recalls Dmytro.
‘Unfortunately, we would like to inform you that according to the rules of insurance p. 4.4.2 and under p. 12.1.3 of Part B (Conditions of Insurance), people with disabilities of groups I or II traveling abroad cannot be insured.’
‘I realized that I could not get a visa and travel without insurance, so I decided to defend my rights in court,’ recalls Dmytro.
As it turned out later in the trial, the AXA Insurance company has discriminative provisions in their insurance policies. The company is not the only one. Unfortunately, thorough research was not conducted, but Dmytro was sure that most (if not all) insurance companies, operating in Ukraine, would have failed to provide him with their services.
According to the lawyer, it happened because of unclear requirements of Ukrainian legislation to issue licenses for insurance companies.
‘The state requires insurers to comply only with a few mandatory requirements, and most of them are financial guarantees. The insurance company can determine the remaining provisions by themselves. So they set that they will not insure people with disabilities,’ says Dmytro.
Interestingly, the Court implicitly mentioned these factors in the decision: ‘Since in Ukraine, a general prohibition of discrimination is declared and is in force, and p. 2.25 of the License Conditions also stresses the necessary compliance of internal rules of the insurer with the Law of Ukraine, the presence of discriminatory provisions in insurance policies of the defendant constitutes a violation of rights of the disabled.’
Of course, this line is not immediately apparent because it has not been stated directly in the License Conditions. The insurance companies use the gap.
‘There is such a term as underwriting. In this case, it means insurance risk assessment on certain individuals. Companies have the right to limit itself to certain areas of insurance to make sense of their commercial activities. For example, they do not insure the life of seriously ill people. But when not insuring the lives of people with disabilities, companies explain it not by the increased risk (and it might just increase the insurance premium), but the notion that people with disabilities just do not worth to be insured,’ says Dmytro.
The lawyer believes that the actions of the AXA Insurance company are restricting his freedom of movement. If Donald Trump restricts the movement of people from disadvantaged countries to the United States, he explains that he wanted to stop the illegal migration. But actions of the representative of AXA Group in Ukraine were totally illegal, according to the lawyer.
On March 14, 2017, Zhovtnevyi District Court considered the claim of Dmytro Zharyi to JSC “Insurance Company “AXA Insurance”. The third parties were the Council of Europe Office in Ukraine, the National Commission, which performs state regulation of financial services markets and the Visa Center of the French Embassy.
As a result, the court decided to oblige JSC “Insurance Company “AXA Insurance” to amend the Rules of voluntary insurance of medical expenses and the voluntary insurance contracts for people, traveling abroad.
This is the decision of only the court of first instance, which could still be reviewed in courts of appeal and cassation. But it can already be considered as a precedent not only in Ukraine but throughout the former Soviet Union and the European Union. The case of Dmytro is unique, because he is a lawyer with extensive experience in courts. In addition, his colleague – lawyer Oksana Kopiova from Dnipro, and the Strategic Litigations Center of the Ukrainian Helsinki Human Rights Union helped him. What should people without legal training do? Dmytro Zharyi says that some people ask a relative or a friend to buy insurance for them, because their IDs contain no indication that the holder has certain features. But if an accident occurs, the owner of the insurance would not be able to get the reimbursement. Then it becomes obvious that he has disabilities and that the documents had been issued in violation of insurance regulations.
“This is like our contribution to insurance companies to obtain a Schengen visa. Because, even having the insurance, we cannot use it. I hope that now my legal precedent put an end to this,’ ironically says Dmytro Zharyi.
Trying to find a solution to this problem, the lawyer turned to Paralympic athletes of Ukraine, who often travel abroad. It turned out that they all buy their insurances as fictitious by the method described above.
‘It is a paradox. A healthy person can be compensated up to 30 thousand dollars in the case of an insured event. A person with a disability is totally unprotected. This practice is common not only in Ukraine but also in the EU. There it is also difficult to find a company that agrees to insure a person with disabilities,’ Dmytro says.
Prepared by Oleh Shynkarenko specially for the Left Bank [Livyi Bereh]
Photos provided by the author
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