Communicated on 28 January 2021
Published on 15 February 2021
FIFTH SECTION
Applications nos. 72982/17 and 74407/17
Oleksandr Volodymyrovych CHERKASOV against Ukraine
and Sergiy Volodymyrovych KUZIN against Ukraine
lodged on 25 September 2017 and 11 October 2017 respectively
STATEMENT OF FACTS
1. The applicant in the first case, Mr Oleksandr Volodymyrovych Cherkasov, is a Ukrainian national who was born in 1958 and lives in Stari Bogorodchany. He is represented before the Court by Mr O.V. Fomichov, a lawyer practising in Ivano-Frankivsk.
2. The applicant in the second case, Mr Sergiy Volodymyrovych Kuzin, is a Ukrainian national who was born in 1952 and lives in Kyiv. He is represented before the Court by his son, Mr D.S. Kuzin.The circumstances of the case
3. The facts of the present cases, as submitted by the applicants, may be summarised as follows.Background information
4. Due to the military conflict in the eastern regions of Ukraine and the occupation of the Crimean peninsula in 2014, a number of residents of those regions had to leave their homes and move to the Government-controlled territories. Those people who had moved received the status of internally displaced persons (“IDPs”) which has been regulated by a number of legal acts. In particular, the legislation provided that IDPs were entitled to all the same social benefits as other Ukrainian citizens, as well as to some special benefits to support them after the move. According to the Cabinet of Ministers of Ukraine, Resolution no. 637 of 5 November 2014 on welfare payments to persons displaced from the temporarily occupied territory of Ukraine and the anti-terrorist operation area (“Resolution no. 637”), as worded at the time of adoption, all of the social benefits due to IDPs had to be paid at their new place of residence as confirmed by the certificate of an IDP (see paragraph 27 below).
5. On 14 March and 8 June 2016 the Cabinet of Ministers of Ukraine adopted two resolutions amending Resolution no. 637: i) Resolution no. 167 on amendments to some resolutions of the Cabinet of Ministers (“Resolution no. 67”), and ii) Resolution no. 365 on some issues of social benefits for internally displaced persons (“Resolution no. 365”). Section 1 of Resolution no. 637 was amended by these resolutions in order to provide that, from 1 July 2016, all social benefits due to IDPs were to be paid solely through the accounts and the network of offices and devices of the Derzhavnyy Oschchadnyy Bank of Ukraine (the State Savings Bank, hereafter – “the Oshchadbank”). IDPs had to be issued with the relevant bank cards and had to undergo identity verification every six months (on the first two occasions), and every twelve months thereafter. It was further established that until 1 July 2016 Oshchadbank had to open bank accounts for those IDPs who did not already have accounts there (see paragraph 27 below). It followed that if a person failed to open such an account, his or her social benefits were suspended. Application no. 72982/17
6. The applicant is an IDP and is entitled to a State retirement pension. After he moved to the Government-controlled territory in July 2014 he had been receiving his pension via the post office at his place of residence.
7. In July 2016 the payment of his pension was suspended.
8. By letter of 28 August 2016 the applicant requested the Bogorodchany Department of the Pension Fund in the Ivano-Frankivsk Region (hereafter – “the Department”) to resume the payment of his pension and transfer it to his bank account opened with a private bank, Pryvatbank.
9. In reply the Department informed him by letter of 31 August 2016 that this was not possible as the legislation clearly envisaged that the payment of social benefits to IDPs could only be made to accounts opened with the Oshchadbank.
10. The applicant instituted court proceedings against the Department, requesting that his pension be paid into his account opened with the private bank. The applicant relied, in particular, on Article 47 of the Law of Ukraine on Compulsory State Pension Insurance which provided that pension payments were to be transferred, inter alia, to bank accounts designated by the pensioner (see paragraph 24 below). He claimed that as the law had higher legal force, the Cabinet of Ministers by its resolution could not limit the rights of pensioners.
11. On 18 October 2016 the Bogorodchany Local Court of the Ivano‑Frankivsk Region found for the applicant. The court agreed with the applicant’s reasoning and noted that, based on Article 47 of the Law on Compulsory State Pension Insurance, it was up to the pensioner and not for the State to decide which bank account should be used to receive pension payments. It further noted that the suspension of payment of the applicant’s pension was not based on the law and was in breach of his constitutional rights.
12. On 24 January 2017 the above judgment was upheld by the Lviv Administrative Court of Appeal which essentially endorsed the local court’s reasoning. It also noted that Article 49 of the above-mentioned Law contained an exhaustive list of grounds for suspension of pension payments (for the list of reasons see paragraph 24 below) and that none of them applied to the applicant.
13. On 21 March 2017 the Higher Administrative Court, acting upon the respondent’s cassation appeal, quashed the lower courts’ judgments and rejected the applicant’s claims. The court found that in the case of IDPs there existed special legal provisions that governed the modalities of the pension payments due to them, in particular, Resolution no. 637. As at the time of events that legislation clearly provided for payment only into accounts opened with the Oshchadbank, the actions of the Department in the suspension of the applicant’s pension were lawful.
14. The applicant submitted that in December 2016 he had opened an account with Oshchadbank and his pension payments had been resumed.Application no. 74407/17
15. The applicant is an IDP and is entitled to a State retirement pension. Since January 2015 he had been receiving it on his bank account opened with a private bank, Pryvatbank.
16. In July 2016 the payment of the applicant’s pension was suspended.
17. In reply to the applicant’s complaints and requests to renew the payment of his pension to his existing account, the Pension Fund of Ukraine informed him by letter of 2 July 2016 that this was not possible as the legislation clearly envisaged that the payment of social benefits to IDPs could only be made to accounts opened with the Oshchadbank.
18. The applicant instituted proceedings against the Pension Fund and its Livoberezhne Department in the city of Kyiv, asking for the suspension of payment of his pension to be acknowledged as unlawful and seeking the renewal of its payment to his account with the private bank. He claimed that the requirement that IDPs’ pensions be paid only into Oshchadbank accounts was discriminatory as compared to other categories of pensioners who were free to choose a bank. In this respect he referred to the Constitution of Ukraine, the Law on Ensuring the Rights and Freedoms of Internally Displaced Persons and the Law on Prevention of and Fight against Discrimination in Ukraine as well as Article 14 of the Convention and Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 to the Convention.
19. On 18 October 2016 the Pecherskyy District Court of Kyiv, hearing the case in abridged proceedings[1], rejected the applicant’s claims. It reasoned that the Pension Fund acted in line with the respective legislative provisions and therefore its actions could not be found unlawful. In respect of the applicant’s references to the international instruments the court noted that they applied in times of peace but, in view of the military conflict in the east of Ukraine, some limitations on rights and freedoms were possible. In this context it referred to the Resolution of the Verkhovna Rada of Ukraine (the Parliament of Ukraine) of 21 May 2015 no. 462-VIII on Ukraine’s departure from certain obligations set out in the International Covenant on Civil and Political Rights and the Convention on Human Rights and Fundamental Freedoms.
20. The applicant appealed; he repeated his arguments as to the discriminatory nature of the legislative provisions applied to him.
21. On 13 March 2017 the Kyiv Administrative Court of Appeal upheld the judgment of the local court, fully endorsing its findings. It was noted in the appellate court’s decision that it was subject to further appeal.
22. The applicant filed a cassation appeal, but on 11 April 2017 the Higher Administrative Court, referring to Article 183-2 of the Code of Administrative Procedure, refused to open cassation proceedings as no cassation appeal was possible under legislation against decisions adopted in abridged proceedings.
23. As transpires from the documents available, in November 2016 the applicant opened an account with the Oshchadbank and his pension payments were resumed.Relevant domestic lawLaw of 2003 on Compulsory State Pension Insurance
24. The relevant provisions of the Law as worded at the time of submission of the applicants’ claims to the domestic courts read as follows:
Article 47. Payment of pension
“1. The pension shall be paid monthly (...) at the pensioner’s (...) actual place of residence in Ukraine or transferred to a bank account designated by the pensioner according to the procedure established by law...”
Article 49. Suspension of pension payment and its renewal
“1. The payment of pension under the decisions of the local Pension Fund authorities or court judgments shall be suspended:
1) in case the pension was allocated based on falsified documents;
2) during the period the pensioner resides in a foreign country if otherwise not envisaged by an international agreement of Ukraine (...);
3) in case of death;
4) in case of non-receipt of pension during 6 months consecutively;
5) in other cases provided for by the law ...”Law of 2015 on Ensuring the Rights and Freedoms of Internally Displaced Persons
25. The relevant provisions of the law in force at the material time read as follows:
Article 1. Definition of [an] Internally Displaced Person
“1. An internally displaced person is a citizen of Ukraine who permanently resides in Ukraine, [and] who was forced or who voluntarily left his or her place of residence as a result of, or in order to avoid, the negative consequences of the armed conflict, temporary occupation, widespread manifestations of violence, violations of human rights and emergency situations of natural or anthropogenic origin.”
Article 7. Ensuring the Exercise of the Rights of the Registered Internally Displaced Persons for Employment, Pensions, Compulsory State Social Insurance, Social Services and Education
“1. The registered internally displaced persons shall enjoy the rights to employment, pension, compulsory state social insurance in case of unemployment, in connection with temporary disability, from industrial accidents and occupational diseases that caused disability and the right to receive social services in accordance with the legislation of Ukraine. ...
2. Ukraine takes all possible measures aimed at resolving issues related to the social protection of the internally displaced persons, including resuming of social benefits payments [due to them].
3. Elderly citizens, disabled people, disabled children and any other persons in difficulty who are registered as internally displaced persons are entitled to receive social benefits in accordance with the law currently in force at the place of registration of their actual place of residence. ...”
Article 14. Prohibition of discrimination
“1. Internally displaced persons shall enjoy the same rights and freedoms in accordance with the Constitution, laws and international treaties of Ukraine as other citizens of Ukraine resident in Ukraine. They shall not be discriminated against in the exercise of any rights and freedoms on the ground that they are internally displaced persons. ...”Law of 2013 on the Prevention of and the Fight against Discrimination in Ukraine
26. Article 6 of the law reads as follows:
Article 6. Prohibition of discrimination
“1. According to the Constitution of Ukraine, generally recognized principles and norms of the international law and the international treaties of Ukraine, all persons, regardless of their specific characteristics, have equal rights and freedoms, as well as equal opportunities for their exercise.
2. Any forms of discrimination on the part of the State authorities, the authorities of the Autonomous Republic of Crimea, local self-government authorities, their officials, legal entities of public and private law, as well as natural persons specified in Article 5 of this Law shall be prohibited.
3. As discrimination shall not be considered the actions that do not restrict the rights and freedoms of others and do not impede their implementation, as well as those that do not give undue advantage to persons and/or groups of persons on certain grounds, to which affirmative action applies, namely:
- special protection by the State of certain categories of persons in need of such protection;
- implementation of measures aimed at preserving the identity of separate groups of persons, if such measures are necessary;
- granting privileges and compensation to certain categories of persons in cases provided by law;
- imposing State social guarantees for certain categories of citizens;
- special requirements provided by the law as to the exercise of certain rights.”Resolution of the Cabinet of Ministers of Ukraine no. 637 of 5 November 2014 on welfare payments to persons displaced from the temporarily occupied territory of Ukraine and the anti-terrorist operation area and relevant amendments to it
27. Relevant provisions of Section 1 of Resolution no. 637 as worded at the time of its adoption in 2014 provided that social benefits due to IDPs were to be paid at the place of such persons’ registration, which should be confirmed by a certificate. After the amendments introduced by Resolutions no. 167 and 365 it was envisaged that, from 1 July 2016 onwards, all payments should be made solely through the accounts and the network of offices and devices of the Oshchadbank. The home delivery of payments via the Ukrainian post was also made possible under certain conditions. In order to identify the recipients of social benefits who are IDPs, and to ensure the payment of these benefits to them, payment cards were to be issued. For pension recipients, those cards were also to be pension certificates. It was provided that IDPs had to undergo physical identification at the Oshchadbank offices every six months on the first two occasions, and every twelve months subsequently. In the case of failure to undergo this identification, the bank should suspend outgoing transactions from the current account and inform the respective social security department that issued the certificate of registration of the internally displaced person, and the Ministry of Finance.
Resolution no. 389 amended Section 1 of Resolution no. 637 in order to provide that, while all payments were still to be made via the Oshchadbank, there was also a possibility of receiving cash and carrying out non-cash transactions through the network of offices and devices of any bank, but only in the territory where the State authorities exercise their powers.
COMPLAINTS
The applicants complained under Article 1 of Protocol No. 1 to the Convention taken alone and in conjunction with Article 14 on account of the alleged discriminatory nature of the respective legislative provisions limiting IDPs’ right to choose a bank through which to receive social benefits as compared to other persons without IDP status receiving similar payments, and that this created an excessive burden for them.
QUESTIONS TO THE PARTIES
1. Did the interference with the applicants’ right to the peaceful enjoyment of possessions comply with the requirements of Article 1 of Protocol No. 1?
2. In view of the fact that social benefits due to persons who are not IDPs can be paid into the bank account of their choice, does the requirement for IDPs to open accounts in a designated bank in order to receive their social benefits constitute discrimination in the exercise of the applicants’ rights guaranteed by Article 14 of the Convention, taken together with Article 1 of Protocol No. 1?
[1] According to Article 183-2 of the Code of Administrative Justice abridged proceedings are intended for simple and typical cases, in particular where a person challenges an action/decision of a State authority. No oral hearings are held by the courts and the appellate court’s decision is final and not subject to further appeal.
Full & Egal Universal Law Academy