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The Legality of Termination of Pension Payment in Case of Moving Abroad | Law Center Podilsky

Unfortunately, Ukrainian pensioners quite often are unable to receive their pensions, since they have moved to a permanent place of residence in another country. The Pension Fund of Ukraine often decides to remove a person from the pension register and terminate the payment of pension for the entire period of residence (stay) of a pensioner abroad, referring to Art. 51 of the Law of Ukraine "On Compulsory State Pension Insurance" (hereinafter - Law No. 1058-IV).

Such a situation is a clear violation of fundamental human rights guaranteed by both national legislation and the European Convention on Human Rights.

By a decision of 07.10.2009 No. 25-rp / 2009, the Constitutional Court of Ukraine recognized clause 2 of part 1 of article 49 and the second paragraph of art. 51 of Law No. 1058-IV unconstitutional, which means that they have become invalid since the adoption of this Decision.

In the opinion of the Constitutional Court of Ukraine, by these provisions the State made the right to social protection dependent on the conclusion of an international treaty concerning pensions, which is contrary to the constitutional guarantees of social protection for all people. Taking into account the legal and social nature of pensions, the right of a citizen to receive the pension awarded to him should be guaranteed despite the residence abroad of the person to whom the pension is awarded.

According to the requirements of art. 2 of the Ukrainian Law on Freedom of Movement and Free Choice of Place of Residence in Ukraine, registration of a person's place of residence or stay or his absence cannot be a condition for the exercise of rights and freedoms provided for by the Constitution, laws or international treaties of Ukraine, or the basis for their restriction.

Therefore, a systematic analysis of the above legislative requirements indicates the absence of any grounds for the cessation of pension payments to persons who have left their permanent residence abroad, since the Ukrainian Constitution and the Ukrainian pension legislation allow no restrictions on the right to social protection, in particular the right to receive a pension on the basis of the place of residence of a Ukrainian citizen.

This right is also guaranteed by the fact that by acquiring the right to a pension and working in Ukraine, a person has legitimate hopes of receiving a pension in the future due to the deductions of monthly income taxes throughout the entire period of time.

In this regard, the European Court of Human Rights (hereinafter - the ECHR) has repeatedly expressed its position. For example, in its decision in the case "Peskar v. Ukraine" No. 10441/06 of 07.02.2014, the ECHR noted that the dependence of the right to receive a pension on the applicant's place of residence leads to a situation in which the applicant, having worked for many years in his country and having paid contributions to the pension system, he is completely deprived of the right to a pension only on the grounds that he no longer lives on the territory of Ukraine (paragraph 51 of this decision).

In paragraph 54 of the said decision, the ECHR concluded that such behavior on the part of the state is a violation of the Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to which the enjoyment of the rights and freedoms recognized in the Convention must be ensured without discrimination, as well as Article 1 of the Protocol, which provides for the right of every natural or legal person to the peaceful enjoyment of his possessions.

According to the legal position of the ECHR, the right to social benefits is a part of the right to property provided for in Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, and a decrease in the amount or termination of the payment of duly established social assistance may amount to interference with property rights (judgment in the case of Khonyakina v. Georgia ", No. 17767/08, paragraph 72, dated 19.06.2012). The inaction of the state on the adoption of a normative act that defines the mechanism for the implementation of the rights and freedoms of citizens enshrined in constitutional and other acts, keeping citizens in uncertainty is an unjustified interference with the rights provided for in Article 1 of the Protocol (decision in the case "Sukhanov and Ilchenko v. Ukraine" No. 68385 / 10 and 71378/10 dated 09/26/2014).

Thus, the payment of pensions to citizens who have left for permanent residence abroad is respected in any case, regardless of the place of residence of the pensioner, taking into account the norms of Law No. 1058-IV and the decision of the Constitutional Court of Ukraine dated 07.10.2009.

Considering the foregoing, by stopping the payment of a pension on the grounds of a person's departure for permanent residence abroad, the Pension Fund of Ukraine commits the unjustified discrimination in terms of depriving such a person of the opportunity to receive a pension, therefore such actions are considered clearly illegal.

In this case, the only efficient and effective way to protect the violated right and restore the payment of pensions is to file a lawsuit before the court.

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