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III. STATUS OF OBSERVANCE AND PROTECTION OF THE RIGHTS OF SPECIFIC CATEGORIES OF UKRAINIAN CITIZENS ABROAD

4. PENSION PROVISION OF UKRAINIAN CITIZENS ABROAD

Ever more Ukrainian citizens of pension age go abroad for permanent residence upon invitation of their relatives. In this connection there arises the problem of safeguarding the right to pensions of such people.

According to the information of the Pension Fund of Ukraine, in the period from 2000 to 2002, 34,460 pension files were sent to the CIS countries in connection with departure for domicile, which was twice as much than what Ukraine received from these countries in the same period.

In accordance with operative Ukrainian legislation, specifically Article 1 of the Law On Pension Provision, Ukrainian citizens who reside abroad are entitled to pensions on the basis of agreements (treaties) with other states.

To date Ukraine has concluded such treaties with most of the countries where Ukrainian citizens of pension age reside. Underlying the rules of the treaties for calculating and disbursing pensions are two principles: territorial and proportional.

Under the first principle, persons who reside in another state/party are pensionable in compliance with the legislation of the party on whose territory they reside. The job seniority gained in the other state/party is included in the overall seniority. When a pensioner resettles from the territory of one state/party to the territory of another state/party, disbursement of pensions for the previous month at his place of domicile is suspended and granted by a competent body at the new place of domicile, if such a type of pensions is provided by the legislation of this state/party. Ukraine concluded such treaties with Russia, Kyrgyzstan, Armenia, Tajikistan, Uzbekistan, Turkmenistan, Kazakhstan, Hungary, Moldova, Georgia, Belarus, Azerbaijan, Mongolia, Bulgaria and Romania.

In such countries as Latvia, Spain, Lithuania, Estonia and Slovakia pensions are granted under the proportional principle, i.e. each of the states/parties grants pensions according to the job seniority gained on its territory. Previously, if a pensioner resettled to another country, the party of his former domicile disbursed the pensions. The proportional principle is also the underlying basis of the bilateral treaties concluded with Bulgaria and the Czech Republic, which will soon come into force. But this principle causes a number of problems, especially in the Baltic countries where quite a few Ukrainians of pension age reside.

The problems become the more acute for the Ukrainian citizens in the countries with which Ukraine has not concluded treaties on pension provision.

The Commissioner for Human Rights is receiving a lot of petitions from Ukrainians domiciled in the Czech Republic, Germany, Israel, the US and other countries concerning disbursement of pensions they had earned in Ukraine.

Since such treaties are lacking, and taking into account the provisions of Article 92 of the Law of Ukraine On Pension Provisions, citizens who resettled to these countries for domicile are not granted pensions; the latter are paid them only once six months before their departure abroad.

In this connection the petitioners raise the question of Article 92 of the Law On Pension Provision not conforming to the provisions of articles 25 and 46 of the Ukrainian Constitution. This problem was brought to the attention of the Commissioner by the Kashtanovs (Poland), Zvolovyches (US), V.Boiko (Czech Republic), Gershenson (Germany), and R.Sverdlinskaya (Israel).

In the opinion of the Commissioner for Human Rights, this problem merits attention and needs to be additionally examined by Parliament, the Ministry of Labor and Social Policy, and the Pension Fund. It is also monitored by the Commissioner. One way of tackling the problem is for the Ministry of Labor to conclude bilateral treaties with the countries that attract Ukrainian citizens most of all, such as the Czech Republic, Israel, Germany, the US and Canada.

Petitions are also filed relative to pension provision of citizens who worked in Russia’s Far North. This issue is governed by the Provisional Treaty between the Government of Ukraine and the Government of the Russian Federation on Guarantee of the Rights to Pension Provision of Citizens who Worked in the Regions of the Far North and Localities Equated with the Far North signed on January 15, 1993.

Under the provisions of this treaty, persons who reside in Ukraine and worked 15 calendar years in the regions of the Far North or 20 calendar years in localities equated with the Far North are entitled to an old-age pension: men upon attaining the age of 55 years and a job seniority of not less than 25 years, and women upon attaining the age of 50 years and a job seniority of not less than 20 years. A part of the pensions – which corresponds to the job seniority gained in the regions of the Far North or localities equated with the Far North – is compensated according to the rules of Russia’s legislation from January 1, 1991 on.

According to the information of the Ministry of Social Policy of Ukraine, our country has been meeting its commitments throughout the entire period of effect of the Provisional Treaty and financing pensions ahead of schedule five years before the attainment of the generally established pension age. During the visit of the Russian Commissioner for Human Rights, Oleg Mironov, in September 2002 upon invitation of the Ukrainian Commissioner, the question was raised about an irregularity: of the 2,500 Ukrainian citizens who worked in the Far North and had their documents forwarded to Russia’s Pension Fund, only 955 persons were receiving pensions, while for the rest the pensions were delayed. At the present time this problem is under the examination of the Russian government.

Apart from that, the following issues have also to be regulated:

§ continuation of disbursement of pensions for employment in the Far North upon attainment of the generally established retirement age (currently, 50 to 55 years for women and 55 to 60 years for men);

§ requirement to apply (when granting pensions) the List of Far North Regions in effect in the Russian Federation to date (under the Provisional Treaty the List as of January 1, 1991 is applied).

As the Pension Fund of Ukraine informed, the Treaty between the Government of Ukraine and the Government of the Russian Federation on Guarantee of the Rights to Pension Provision of Citizens who Worked in the Regions of the Far North and Localities Equated with the Far North was forwarded to the Russian party.

The Commissioner believes that under the current circumstances the Pension Fund, the Ministry of Labor, and the Ministry of Foreign Affairs of Ukraine should take additional measures for protecting the rights of Ukrainian citizens to pension provision in accordance with the operative Provisional Treaty.

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