On July 10, 2018 representatives of the Ukrainian Helsinki Human Rights Union spoke about a successful court case started by human rights activist and IDP Mykola Kozyrev and aimed at having the regulations of the Cabinet of Ministers that require IDPs to pass checks declared unlawful.
The Administrative District Court of Kyiv, with its decision of June 26, 2017, satisfied UHHRU’s lawsuit and abolished regulations of the Cabinet of Ministers of Ukraine (CMU) that require IDPs to undergo inspections. However, the CMU launched an appeal against the above decision.
With its decision of July 4, 2018, the Kyiv Administrative Court of Appeals left the appeal without satisfaction and made no changes to the decision of the first instance court. The appellate court’s decision came into force. In light of part 2, Article 19 of the Constitution of Ukraine, this means that neither the social protection bodies nor other authorities, local self-government bodies, or any institutions, organizations and enterprises have the right to conduct Inspections of IDPs since July 5, 2018.
UHHRU Program Director Maksym Shcherbatyuk called the decision of the appellate court a great victory for civil society in the protection of IDPs, which demonstrates the discriminatory approach the government has adopted toward this issue. “This reflects the current state of affairs so vividly that it allows us to talk about very specific things that the state needs to change in order to ensure the rights of people to their pensions,” he said. The lawyer also added that the victory was achieved due to the persistence of the applicants, the involvement of civil society, and the Ombudsperson’s support for the plaintiffs in this endeavor. He stressed that the fact that the decision had already come into force provides a certain degree of consistency, so even if it were to be further challenged in higher courts, it would remain valid.
In June 2016, the CMU made it even more difficult for IDPs to obtain pensions. On June 8, 2016 the CMU passed a number of regulative acts that made it impossible for IDP pensioners to receive their pensions, and for any IDPs – to get material aid, unless they would undergo a verification procedure. The procedure would involve a visit from representatives of social security bodies or other authorities or institutions to the homes of IDPs, to verify the person’s presence at the registered place of residence. In case of absence, that IDP would be deprived of his/her pension (in case of retired persons) and material aid intended for IDPs.
According to lawyer of UHHRU Strategic Litigation Center Yevhen Chekaryov, who was representing the plaintiff in court, making pensions dependent on checks presented a huge problem for retired IDPs, forcing them to stay at home. “This violates, firstly, the European Convention, secondly, the Constitution, and thirdly, the Law on Freedom of Movement,” commented the lawyer. “And the most important thing is, in accordance with clause 13 of the Procedure for the Assigning of Social Benefits, if a person does not pass a check, this gives sufficient grounds for depriving that person of pension. Thus, the regulations in question could justify denying of pensions to those who have passed the checks.”
Adoption of the above-mentioned regulations made IDPs and activists indignant due to their obvious unlawfulness. Said regulations effectively made it impossible for IDPs to travel within Ukraine or abroad, attaching them to their place of residence. Many IDP pensioners were deprived of their pensions, which they had earned by many years of hard work and contributions to the Pension Fund of Ukraine.
According to Maksym Shcherbatyuk, this situation was violating the right to freedom of movement and freedom to choose one’s place of residence. “It essentially made people prisoners in their own homes and apartments, keeping them from travelling abroad, even to represent Ukraine in important issues,” said the lawyer. “The situation with Igor Kozlovskyi so clearly demonstrates this approach that it is actually possible to see how seriously those rights have been violated.” He also stressed that the decision raised the question of violation of the right to pension – how common it is for the government to take a discriminatory stance when granting or withholding pensions.
The scale of the problem is staggering. According to government statistics, there are about 1.5 million IDPs registered in Ukraine. Of these, about 0.5 million are pensioners. According to NGOs Donbas SOS and Right to Protection, in April 2018 pensions were blocked: in Luhansk Oblast – for 65 thousand people; in Zaporizhia Oblast – for almost 11 thousand pensioners; in other oblasts – for 500 people to several thousand in each rayon.” All these people were left without their livelihood.
Moreover, the Office of the United Nations High Commissioner for Human Rights, in its report published on September 15, 2016, stresses the need to abolish regulations that link IDP registration and social benefits that have nothing to do with the IDPs’ situation, including pensions. Clause 208 of the above report contains the following recommendation: “To the Government of Ukraine: to change the recently introduced IDP residence verification system ensuring IDPs’ right to freedom of movement and free choice of residence”.
PACE with its resolution of October 12, 2016 urged the Ukrainian government to make the lives of residents of non-government-controlled territories and of displaced persons from these territories easier, if possible, by simplifying the administrative procedures required for access to pensions and social aid.
In light of the above, representatives of NGO “Public Committee for the Protection of Constitutional Rights and Freedoms of Citizens”, which is a member of the UHHRU, filed a lawsuit on behalf of Mykola Kozyrev – IDP, pensioner, head of the Public Committee for the Protection of Constitutional Rights and Freedoms of Citizens, and former head of the Ukrainian Helsinki Human Rights Union – to have the CMU regulations on IDP checks declared unlawful. The plaintiff was represented by attorney Yevhen Chekaryov. According to Mykola Kozyrev, this case is but one manifestation of a wide range of problems concerning the rights of IDPs in Ukraine.
The plaintiff requested that the court declare unlawful and incompatible with a legislative act of the highest legal force: the procedure for exercising control over the payment of social benefits to internally displaced persons based on the place of their actual residence/stay, adopted by the CMU Resolution No. 365 of June 8, 2016; clauses 7, 8, 9, 13 of the Procedure for the assigning (restoring) of social benefits to internally displaced persons, adopted by the CMU Resolution No. 365 of June 8, 2016; paragraph 10, clause 1 of the CMU Resolution No. 637 on the provision of social benefits to internally displaced persons of November 5, 2014.
The District Administrative Court of Kyiv, with its decision of June 26, 2017, satisfied the lawsuit and revoked CMU regulations that require IDPs to undergo inspections. Nevertheless, the CMU appealed against that decision.
With its decision of July 4, 2018, the Kyiv Administrative Court of Appeals dismissed the appeal and left the decision of the trial court unchanged. The appeals court’s decision came into force.
This means that, in light of part 2, Article 19 of the Constitution of Ukraine, neither the social protection bodes nor other authorities, local governments, institutions, organizations or enterprises have the right to conduct inspection of IDPs as of July 5, 2018.
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