ECtHR judgment in Andrejeva v. Latvia (excerpts), 2009

PROCEDURE

1. The case originated in an application (no. 55707/00) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a “permanently resident non-citizen” (nepilsone) of Latvia who was previously a national of the former Union of Soviet Socialist Republics (USSR), Ms Natālija Andrejeva (“the applicant”), on 27 February 2000.

2. The applicant was represented before the Court by Mr V. Buzajevs, Member of Parliament. The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine.

3. The applicant alleged, in particular, that by refusing to grant her a State pension in respect of her employment in the former Soviet Union prior to 1991 on the ground that she did not have Latvian citizenship, the national authorities had discriminated against her in the exercise of her pecuniary rights. She relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The applicant also claimed to be the victim of a violation of Article 6 § 1 of the Convention in that she had not been able to attend the hearing of her appeal on points of law.

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6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. It was also decided to give notice of the application to the Government of Ukraine and the Government of the Russian Federation and to invite them to submit their observations (Article 36 § 2 of the Convention and Rule 44). However, neither government wished to exercise that right.

7. The applicant and the Government each filed observations on the merits.

8. A hearing took place in public in the Human Rights Building, Strasbourg, on 25 June 2008 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
Ms S. Kauliņa, Co-Agent,
Mr E. Plaksins,
Ms D. Trušinska, Advisers;

(b) for the applicant
Mr V. Buzajevs, Counsel,
Mr A. Dimitrovs, Adviser.

The Court heard addresses by Mr Buzajevs and Ms Kauliņa.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

10. The applicant was born in Kazakhstan and came to Latvia in 1954, at the age of 12, when it was one of the fifteen Soviet Socialist Republics (SSRs) of the Soviet Union. She has been permanently resident there ever since. In 1966, after finishing her studies at Riga Polytechnic Institute, she obtained a job at the chemical complex in Olaine (Latvia), working in a laboratory at a recycling plant.

11. In 1973 the applicant was assigned to the regional division of the Environmental Protection Monitoring Department, which was part of the USSR Ministry of Chemical Industry. Until 1981 she worked for a State enterprise attached to the Ministry, with its head office in Kyiv (Ukraine). She was subsequently placed under the authority of a subdivision of the same enterprise, which was based in Belorussia (present-day Belarus) and was itself subordinate to a division with its head office in Dolgoprudnyy (in the Moscow Region, Russia). The enterprise in question was an all-Union enterprise (предприятие всесоюзного значения) and was thus governed by federal law and under the authority of the USSR central government. The applicant’s salary was paid by monthly post-office giro transfer, from Kyiv and Moscow. Notwithstanding her successive reassignments, the applicant continued to work at the recycling plant in Olaine. Furthermore, throughout this period she remained affiliated to the same local unit of the centralised Soviet trade union for workers in the chemical industry.

12. On 4 May 1990 the Supreme Council (the legislative assembly at the time) adopted the Declaration on the Restoration of the Independence of the Republic of Latvia. On 21 November 1990 the Environmental Protection Monitoring Department was abolished. As the enterprise had become autonomous, the applicant came under the direct authority of the plant’s management.

13. In August 1991 Latvia’s independence was fully restored. Subsequently, in December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, ceased to exist. The applicant therefore became stateless. Following the enactment on 12 April 1995 of the Act on the status of former USSR citizens without Latvian or other citizenship, the applicant was granted the status of “permanently resident non-citizen” (nepilsone).

14. In September 1993 the applicant was made redundant as a result of staff cutbacks. She immediately signed a contract with another employer, based in Riga, for which she worked until her retirement in 1997.

B. Facts relating to the calculation of the applicant’s pension

15. In August 1997, after reaching the age of 55, the applicant retired and asked the Social-Insurance Board for the Kurzeme District of Riga (Rīgas Kurzemes rajona Sociālās apdrošināšanas pārvalde) to calculate the amount of her retirement pension (vecuma pensija). In a letter of 21 August 1997, the Board notified her that, in accordance with paragraph 1 of the transitional provisions of the State Pensions Act, only periods of work in Latvia could be taken into account in calculating the pensions of foreign nationals or stateless persons who had been resident in Latvia on 1 January 1991. It appeared from the applicant’s employment record (darba grāmatiņa) that from 1 January 1973 to 21 November 1990 she had been employed by entities based in Kyiv and Moscow. The Board therefore calculated the applicant’s pension solely in respect of her years of service before and after that period. As a result, the applicant was awarded a monthly pension of only 20 Latvian lati (LVL – approximately 35 euros (EUR)).

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21. In a letter of 13 December 1999, the Ukrainian embassy in Latvia informed the applicant that, by virtue of the agreement between the two States which had entered into force on 11 June 1999, she was entitled to have her pension recalculated to take account of her work for the Ukrainian enterprise. The embassy therefore invited the applicant to apply to the relevant social-insurance department to recalculate her pension. However, the embassy informed her that the pension “in respect of the Ukrainian period of employment” would not be paid “until the conclusion of inter-State negotiations on the arrangements for payment of pensions”.

22. In a letter of 4 February 2000, the Social-Insurance Agency informed the applicant that with effect from 1 November 1999, on the basis of the above-mentioned agreement, her pension had been recalculated ex nunc to take account of her years of service for employers based in Ukraine. As a result, the monthly amount of her pension, adjusted in accordance with the applicable scales, was LVL 30.21 (approximately EUR 43).

23. In June 2008 the monthly pension received by the applicant amounted to LVL 98.35 (approximately EUR 140), consisting of the principal sum (approximately EUR 125) – corresponding to the minimum subsistence level guaranteed by the State – and a supplement (approximately EUR 15). These amounts are index-linked and adjusted every six months to take account of inflation and the increase in the guaranteed minimum wage.

24. On 2 and 3 October 2008 respectively the Latvian Parliament and the lower house of the Russian Parliament approved the cooperation agreement on social security, signed on 18 December 2007 (see paragraphs 44-45 below). According to the calculations supplied by the applicant, if the agreement were in force and her years of service “in Russia” were taken into account today, her basic pension would be increased by 15% and the supplement by 35%. The Government stated that the total monthly amount received by the applicant would be LVL 115.48 (approximately EUR 164) in that event.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions on the calculation of State pensions

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3. The 1990 and 1995 State Pensions Acts

34. The main instrument governing pensions is the State Pensions Act of 2 November 1995 (Likums « Par valsts pensijām »), which came into force on 1 January 1996, repealing the previous Act passed in 1990. Section 3(1) of the Act provides that persons who have been covered by the compulsory insurance scheme are entitled to a State social-insurance pension. As a rule, the amount of the pension in each particular case depends on the period during which the entitled person, the employer or both paid, or are presumed to have paid, insurance contributions in respect of State pensions (section 9(1) and (2)). Evidence of this period is provided by data at the disposal of the State Social-Insurance Agency (section 10).

35. Matters relating to the reckoning of years of employment under the Soviet regime (prior to 1991) are governed by the transitional provisions of the Act. Before 2006 the relevant parts of the transitional provisions read as follows:

Paragraph 1

“In the case of Latvian citizens, repatriated persons, their family members and their descendants, the period to be taken into account in the calculation … of the State pension shall consist of the aggregate years of employment … up to 1 January 1991, both within and outside Latvia, regardless of prior payment of social-insurance contributions. In the case of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, aggregate periods of employment and periods treated as such in Latvia shall be taken into account, as well as aggregate periods treated as such outside Latvia in the cases specified in sub-paragraphs (4), (5) and (10) of this paragraph. Up to 1 January 1991 … the following periods treated as equivalent to employment shall be taken into account in calculating the pension:

(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level;

(5) periods of doctoral studies … postgraduate education or ongoing vocational training;

(10) time spent in places of detention by victims of political persecution … in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. …”

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36. In order to clarify the application of the provisions cited above, on 23 April 2002 the Cabinet adopted a set of rules (no. 165) on the procedure for certifying, calculating and monitoring insurance periods (Apdrošināšanas periodu pierādīšanas, aprēķināšanas un uzskaites kārtība). Rule 21 of the rules states that any work carried out for entities situated in Latvian territory is to be treated as “employment in Latvia”.

4. The Constitutional Court’s judgment of 26 June 2001

37. On 20 February 2001 twenty members of parliament applied to the Constitutional Court (Satversmes tiesa), seeking a ruling that paragraph 1 of the transitional provisions of the State Pensions Act, which made a distinction on the ground of nationality, was incompatible with Articles 91 and 109 of the Constitution and Article 14 of the Convention, taken together with Article 1 of Protocol No. 1. In a judgment of 26 June 2001 (case no. 2001-02-0106), the Constitutional Court held that there had been no breach of the provisions cited. It made the following observations, in particular:

“… [T]he applicants’ authorised representative … argues that, in view of their legal status, non-citizens are not connected to any State other than Latvia; accordingly, they are not able to exercise individually their right to social security … The representative … further submits that the distinction established in the provision in issue is not based on any economic or social factors; that, furthermore, the distinction is not founded on the legal status of citizens and non-citizens, as defined in Latvian legislation; and that the above argument is corroborated in particular by the fact that, once they are granted citizenship by means of naturalisation, non-citizens automatically become entitled to social security in respect of their years of employment outside Latvia.

(1) On 4 May 1990 the Supreme Council … adopted the Declaration on the Restoration of the Independence of the Republic of Latvia (‘the Declaration’). Paragraph 8 of the Declaration contains an undertaking ‘to guarantee social, economic and cultural rights, as well as political freedoms corresponding to the universally recognised provisions of international human rights instruments, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall fully apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality’.

On 29 November 1990, six months after adopting the Declaration, the Supreme Council … passed the State Pensions Act. Entitlement to a State pension was granted to all persons residing in the Republic of Latvia whose place of residence at the time of the Act’s entry into force on 1 January 1991 was in Latvia. The Act provided for the right to social cover in old age. It referred to two types of State pension: employment pensions ([including] retirement pensions …) and social welfare pensions. Anyone covered by the social-insurance scheme of the Republic of Latvia was entitled to an employment pension. Anyone not entitled to an employment pension was guaranteed the right to a social welfare pension under the Act. Accordingly, for the purposes of the Act, the terms ‘State pension’ and ‘social cover in old age’ were identical. By section 44 of the Act, … stateless persons who had arrived in Latvia from another country and had not been employed by enterprises or institutions of the Republic of Latvia received their pensions in accordance with agreements signed with the State concerned; in the absence of such an agreement, they were to be granted a social welfare pension. Thus, pensions were calculated according to the same rules for both of the above-mentioned categories …

The pension system established by the Act was based on … the principle of redistribution (solidarity), which did not encourage any interest on the workers’ part in ensuring their own old-age cover. As Latvia strengthened its independence as a State, it soon became necessary to develop a new pension system complying with the principles of the European Union.

Having assessed the country’s economic and demographic situation, the available resources and other circumstances, on 2 November 1995 Parliament passed a new Act with the same title … which came into force on 1 January 1996. Paragraph 1 of the transitional provisions of the Act provides that the period to be taken into account in calculating the State pensions of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991 comprises their aggregate periods of employment in Latvia or periods treated as such. Periods of employment outside Latvia before 1 January 1991 and periods treated as such are not taken into account in determining the relevant period for pension calculations …

The pension scheme introduced in Latvia has been favourably received at international level. There has been a positive assessment of the radical change in relation to the traditional principle of solidarity between generations: money earned by the working generation is paid to current pensioners, but at the same time the insurance principle is applied, whereby people build up their own funds towards their pension. … International experts acknowledge that it is not possible to resolve all social issues by means of the pension system, as any effort to do so will only create problems endangering the system’s long-term stability …

In passing the State Pensions Act, Latvia has adopted principles based on insurance premium payments in respect of … State pensions, including the rule that the amount of the pension depends on the period of employment … [This] consists of periods of employment as defined by the Act and periods treated as such, irrespective of the person’s nationality.

(2) … In its case-law the European Court of Human Rights determines the compatibility of any claim with [Article 1 of Protocol No. 1], defining new criteria in each case. Not all claims automatically come under the concept of a ‘possession’ within the meaning of the Convention. To determine this issue, it is necessary to assess the correlation between the entitlement to the pension or benefit in question and the obligation to pay taxes and other contributions. [The existence of a] right or legitimate expectation must be duly demonstrated. A person complaining of interference with the exercise of the right of property must show that he or she has such a right.

In addition, the European Court of Human Rights makes a distinction between a system involving individual contributions to a [pension] fund, where the amount to be paid [from the fund] can also be determined in each particular case, and a system in which there is only an indirect link between the contributions paid and the amount received. The latter system cannot be regarded as sufficiently tangible; yet the right of property, as such, must be tangible …

To establish whether the legislative provision in issue concerns the right of property, the nature of the pension system should be examined. The new pension scheme is a system that creates a ‘possession’. It is based on the principle that a person belonging to it has paid contributions into specific [pension] funds and that the contributions form a share of the funds’ overall capital. Furthermore, the amount [of this share of the capital] can be determined at any time. In such circumstances, the person acquires a ‘possession’ within the meaning of the Convention. In the Gaygusuz v. Austria case, cited by the applicants, the European Court of Human Rights found a link between the type of benefit in question, to which the applicant was not entitled under Austrian law, and the payment of contributions to the unemployment insurance fund. The Court therefore found that the claim fell within the scope of Article 1 of Protocol No. 1 …

However, the pension system which existed in Latvia until 1 January 1991 was based on the solidarity principle, entailing the responsibility of the community as a whole and not creating a direct link between contributions and the amount of the pension. Where the solidarity principle is applied, it is impossible to determine what share of the fund belongs to each of the participants. Accordingly, the right of property protected by Article 1 of Protocol No. 1 … does not arise in this case. This system does not confer on each individual any entitlement to an identifiable share of the fund, but rather the expectation of receiving material assistance according to the circumstances prevailing at the time the pension is to be paid. Pensions under this system are based on the so-called principle of collective security and cannot be granted on the basis of [each person’s] individual contribution. It is true that an entitlement to the payment of a certain amount of benefit arises where the system remains continuously in force and the individual satisfies the relevant conditions. However, even in those circumstances there is no entitlement to a specific amount, since the amount is subject to fluctuations and to legal regulation …

Accordingly, the provision in issue does not concern the right of property and is not at variance with Article 1 of Protocol No. 1 … The applicants’ submission that the provision in issue infringes Article 14 of the Convention is therefore likewise unfounded.

(4) … Welfare legislation, to which the impugned provision relates, is a specific field of human rights and, in constitutional laws of States and international human-rights instruments, is regarded as a general obligation of the State. The regulatory mechanism is left to the discretion of each State’s legislature. The exercise of social rights depends on the country’s economic situation and the resources available.

Since the entry into force of the Pensions Act, all persons residing in Latvia, regardless of nationality, are entitled to a State pension [in respect of] social insurance, provided that they are socially insured and have paid insurance contributions for the requisite number of years. Paragraph 1 of the transitional provisions of the Pensions Act in its current wording was introduced in order to settle the issue of the reckoning … of periods of employment prior to 1 January 1991 and periods treated as such in the new pension system. It should also be borne in mind that the impugned provision concerns only the category of persons who became entitled to a State pension from 1 January 1996.

With regard to foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, periods of employment within the territory of Latvia prior to that date are taken into account in calculating their pension, in the same way as for Latvian citizens. Accordingly, the Latvian State is responsible for the periods of employment in Latvian territory of all permanent residents of Latvia, regardless of nationality.

The distinction made by the provision in issue is objectively justified by the nature and principles of the Latvian pension system. It cannot therefore be regarded as constituting discrimination within the meaning of the Constitution.

The Constitutional Court considers that the question of aggregate periods of employment of foreign nationals and stateless persons outside Latvia before 1 January 1991 must be resolved by means of international agreements, and with due regard to the principles of fairness, proportionality, reciprocity and other general rules of law.

The opinion of [the representative of] Parliament that Latvia should not assume the obligations of another State as regards the guarantee of a retirement pension for a period of employment in the territory of another State is well-founded. …”

5. The State Pensions Act (new version)

38. In Laws of 20 October 2005 and 16 June 2008, which came into force on 1 January 2006 and 1 July 2008 respectively, Parliament amended a considerable number of the provisions of the State Pensions Act. The relevant paragraphs of the transitional provisions now read as follows:

Paragraph 1

“In the case of Latvian citizens, periods of employment and periods treated as such in the territory of Latvia and of the former USSR up to 31 December 1990, as well as the aggregate period spent outside Latvia in the case specified in sub-paragraph (10) of this paragraph, shall be counted towards the period of payment of social-insurance contributions for the purpose of calculating their pension. In the case of foreign nationals, stateless persons and non-citizens of Latvia [Latvijas nepilsoņi], periods of employment and periods treated as such in the territory of Latvia, periods treated as such in the territory of the former USSR, in the cases specified in sub-paragraphs (4) and (5) of this paragraph, and the aggregate period spent outside Latvia in the case specified in sub-paragraph (10), shall be counted towards the contribution period. Up to 31 December 1990 … the following periods treated as equivalent to employment shall be taken into account in calculating the pension:

(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level, subject to a limit of five years in the case of qualifications requiring up to five years of study at the relevant time, and a limit of six years in the case of qualifications requiring more than five years of study at the relevant time;

(5) periods of … doctoral studies, up to a maximum of three years, postgraduate education or ongoing vocational training;

(10) time spent in places of detention by victims of political persecution … in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. …”

Paragraph 45

“The amendments to the introductory part of paragraph 1 of these transitional provisions, concerning the reckoning of periods of employment and periods treated as such for the purpose of calculating pensions, shall take effect on 1 January 2007.”

Paragraphs 2-1, 3 and 7 of the transitional provisions (see paragraph 35 above) were not amended.

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THE LAW

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II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1

58. The applicant complained that the application in her case of paragraph 1 of the transitional provisions of the State Pensions Act, which made a distinction on the basis of nationality between those in receipt of retirement pensions, constituted discrimination prohibited by Article 14 of the Convention in the exercise of her right of property under Article 1 of Protocol No. 1. The relevant parts of those provisions read as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as … national or social origin, association with a national minority … birth or other status.”

Article 1 of Protocol No. 1

“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

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B. The Court’s assessment

1. Applicability of Article 14 of the Convention

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79. In the Stec and Others decision (cited above, § 55) the Court held as follows:

“In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question … Although [Article 1 of] Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.”

80. It follows that the applicant’s pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 of the Convention applicable.

2. Compliance with Article 14 of the Convention

81. According to the Court’s settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175 and 196, ECHR 2007‑IV, and the authorities cited therein).

82. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Gaygusuz, cited above, § 42, and Thlimmenos, cited above, § 40). The scope of this margin will vary according to the circumstances, the subject matter and its background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article (see Thlimmenos, cited above, § 44, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006‑VI).

83. Similarly, a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII, and the Grand Chamber judgment in Stec and Others, cited above, § 52). In more general terms, the Court has held that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006‑IV).

84. Lastly, as to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others, cited above, § 177).

85. In the circumstances of the present case, the Court observes at the outset that in their respective judgments of 4 May and 6 October 1999 the Riga Regional Court and the Senate of the Supreme Court found that the fact of having worked for an entity established outside Latvia despite having been physically in Latvian territory did not constitute “employment within the territory of Latvia” within the meaning of the State Pensions Act. The parties disagreed as to whether at that time such an interpretation could have appeared reasonable or whether, on the contrary, it was manifestly arbitrary, particularly as no regulatory instrument had contained an interpretation of the provision in issue until 2002 (see paragraphs 36 and 62 above). Having regard to the conclusions set out below, the Court does not consider it necessary to determine this issue separately.

86. The Court accepts that the difference in treatment complained of pursues at least one legitimate aim that is broadly compatible with the general objectives of the Convention, namely the protection of the country’s economic system. It is undisputed that after the restoration of Latvia’s independence and the subsequent break-up of the USSR, the Latvian authorities were confronted with an abundance of problems linked to both the need to set up a viable social security system and the reduced capacity of the national budget. Furthermore, the fact that the provision in issue was not introduced until 1995, four years after Latvia’s independence had been fully restored, is not decisive in the instant case. It is not surprising that a newly established democratic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures were required to ensure the country’s economic well-being. It cannot therefore be concluded that the fact that Latvia did not introduce the difference in treatment until 1995 showed that the State itself did not deem such a measure necessary to protect the national economy (see, mutatis mutandis, Ždanoka, cited above, § 131).

87. It remains to be determined whether there was a reasonable relationship of proportionality between the above-mentioned legitimate aim and the means employed in the present case. The Court notes in this connection that as a “permanently resident non-citizen”, the applicant is lawfully resident in Latvia on a permanent basis and that she receives a retirement pension in respect of her employment “in Latvia”, that is, for entities based in Latvian territory. The national authorities’ refusal to take into account her years of employment “outside Latvia” is based exclusively on the consideration that she does not have Latvian citizenship. It was not disputed in the instant case that a Latvian citizen in the same position as the applicant, having worked in the same enterprise during the same period, would be granted the disputed portion of the retirement pension. Moreover, the parties agreed that if the applicant became a naturalised Latvian citizen she would automatically receive the pension in respect of her entire working life. Nationality is therefore the sole criterion for the distinction complained of. However, the Court has held that very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention (see Gaygusuz, cited above, § 42, and Koua Poirrez, cited above, § 46).

88. The Court cannot discern any such reasons in the present case. Firstly, it has not been established, or even alleged, that the applicant did not satisfy the other statutory conditions entitling her to a pension in respect of all her years of employment. She was therefore in an objectively similar situation to persons who had an identical or similar career but who, after 1991, were recognised as Latvian citizens. Secondly, there is no evidence that during the Soviet era there was any difference in treatment between nationals of the former USSR as regards pensions; indeed, the Government did not in any way dispute the applicant’s assertion that the Soviet social tax was paid and administered in the same way for all employees, regardless of national origin or place of birth (see, mutatis mutandis, Luczak v. Poland, no. 77782/01, §§ 49 and 55, 27 November 2007). Thirdly, the Court observes a notable difference between the applicant and Mr Gaygusuz and Mr Koua Poirrez in that she is not currently a national of any State. She has the status of a “permanently resident non-citizen” of Latvia, the only State with which she has any stable legal ties and thus the only State which, objectively, can assume responsibility for her in terms of social security.

89. In those circumstances, while being mindful of the broad margin of appreciation enjoyed by the State in the field of social security, the arguments submitted by the Government are not sufficient to satisfy the Court that there was a “reasonable relationship of proportionality” in the instant case that rendered the impugned difference of treatment compatible with the requirements of Article 14 of the Convention.

90. The Government took the view that the reckoning of periods of employment was essentially a matter to be addressed through bilateral inter-State agreements on social security. The Court, for its part, is fully aware of the importance of such agreements in the effective solution of problems such as those arising in the instant case. However, it reiterates that by ratifying the Convention, the respondent State undertook to secure “to everyone within [its] jurisdiction” the rights and freedoms guaranteed therein. Accordingly, in the present case the Latvian State cannot be absolved of its responsibility under Article 14 of the Convention on the ground that it is not or was not bound by inter-State agreements on social security with Ukraine and Russia (see Gaygusuz, cited above, § 51, and Koua Poirrez, cited above, § 46).

91. Lastly, the Court cannot accept the Government’s argument that it would be sufficient for the applicant to become a naturalised Latvian citizen in order to receive the full amount of the pension claimed. The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant’s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. To proceed otherwise in dismissing the victim’s claims on the ground that he or she could have avoided the discrimination by altering one of the factors in question – for example, by acquiring a nationality – would render Article 14 devoid of substance.

92. Having regard to the foregoing, the Court finds that in the present case there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

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FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government’s preliminary objections;

2. Holds by sixteen votes to one that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1;

3. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention;

4. Holds by sixteen votes to one

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Latvian lati at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of all damage sustained;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 February 2009.

Michael O’Boyle[,] Deputy Registrar

Jean-Paul Costa[,] President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Ziemele is annexed to this judgment.


Document data: adopted on 18.02.2009, application No. 55707/00 Links to the full version: http://hudoc.echr.coe.int/eng?i=001-91388 Also available in Russian at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-99512 and in Latvian at http://at.gov.lv/downloadetclawfile/448

Publisher’s note: afterwards, the Constitutional Court of Latvia still decided to uphold the relevant provisions in the case No. 2010-20-0106. This was criticized by ECRI in its 4th report on Latvia: “ECRI observes that the Constitutional Court’s decision, at best, gives a very narrow interpretation of the ECtHR’s judgement.” (CRI(2012)3, para. 130). The applicants who had applied to the Constitutional Court have turned to ECtHR (assisted by the Latvian Human Rights Committee), which has communicated their application, Savickis and Others v. Latvia (No. 49270/11).

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