CASE OF ANDREJEVA v. LATVIA
(Application no. 55707/00)
18 February 2009
This judgment is final but may be subject to editorial revision.
In the case of Andrejeva v. Latvia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Ireneu Cabral Barreto,
David Thór Björgvinsson,
Zdravka Kalaydjieva, judges,
and Michael O'Boyle, Deputy Registrar,
Having deliberated in private on 25 June 2008 and on 14 January 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
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.
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. Facts relating to the calculation of the applicant's pension
“Since you had an employment relationship with an employer based outside Latvian territory – although you carried out your work in Latvian territory – this period cannot be taken into account [in the calculation of your pension] as the employer did not pay our Republic's taxes.”
“... On the basis of the documents at its disposal, the appellate court observed that from 2 January 1973 to 21 November 1990 Ms Natālija Andrejeva had been employed by enterprises based outside Latvia.
The appellate court was therefore correct in finding that the period during which Ms Natālija Andrejeva had been employed by enterprises based in Ukraine and Russia could not be taken into account in calculating her pension.
In accordance with paragraph 1 of the transitional provisions of the State Pensions Act, pensions of foreign nationals or stateless persons who were resident in Latvia on 1 January 1991 are calculated in respect of periods of employment ... in Latvia ...
A period of employment within Ukrainian and Russian enterprises cannot be treated as a period of employment in Latvia within the meaning of the aforementioned Act.
Section 1 of the State Pensions Act defines socially insured persons as [persons] who have paid, or whose employer has paid on their behalf, social-insurance contributions towards a State pension, in accordance with the State Social Insurance Act.
By virtue of ... the State Social Insurance Act, all employees of entities subject to tax in Latvia are covered by the compulsory social-insurance scheme.
Ms Natālija Andrejeva's employers, being based in Ukraine and Russia, did not pay contributions in Latvia. Accordingly, there is no reason to conclude that, having worked for enterprises situated outside Latvia, Ms Natālija Andrejeva was covered by the Latvian social-insurance scheme.
The Senate considers that the cooperation agreement on social security between the Republic of Latvia and Ukraine, which was signed in Kyiv on 26 February 1998 and came into force on 11 June 1999 – after the date of the judgment appealed against – is not a sufficient basis for a court to find that the public authorities acted unlawfully ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions on the calculation of State pensions
1. Soviet law (before 1991)
“Contributions by enterprises, institutions and organisations for the purposes of social insurance are calculated on the basis of a set percentage of the wage fund and distributed among the various trade unions according to the nature and importance of work in the sector concerned. These contributions form the social-insurance budget, which is part of the USSR State budget. The State social-insurance budget is approved by [the All-Union Central Council of Trade Unions] and is managed by trade unions. ... Retirement pensions for pensioners who continue to work are likewise paid from the social-insurance budget (those who no longer work receive their pensions from the State social-insurance budget constituted through funds allocated by the State and kolkhozes). ...”
“All workers and civil servants shall be covered by compulsory State social insurance.
Compulsory social insurance ... for workers and civil servants shall be provided at the State's expense. Social-insurance contributions shall be paid by enterprises, institutions and organisations without any deductions from the salaries of workers and civil servants. Failure by an enterprise, institution or organisation to pay social-insurance contributions shall not deprive workers and civil servants of their entitlement to State social insurance.”
“Pensions shall be paid by the State from the means allocated annually from the USSR State budget, including the means from the State social-insurance budget deriving from the contributions of enterprises, institutions and organisations, without any deduction from salaries.”
“Pensions shall be calculated on the basis of the average monthly wage ... This includes all types of wages in respect of which insurance contributions are paid, except remuneration for overtime, for discharging additional functions, and any other types of occasional payment.
The average monthly wage shall be calculated in respect of the last twelve months of employment, or, where the person claiming the pension so requests, for any five consecutive years in the ten-year period preceding the pension claim.
“Enterprises, institutions and organisations employing workers, civil servants and other categories of employees subject to compulsory State social insurance shall pay social-insurance contributions ...”
“Enterprises, institutions and organisations shall pay insurance contributions in accordance with the rates approved by the USSR Council of Ministers ...”
“Enterprises, institutions and organisations shall transfer insurance contributions (after deduction of the expenditure they have incurred for social-insurance purposes) to the social-insurance current accounts [opened by] the appropriate trade unions.”
“The sums allocated for the purpose of State social insurance shall be deposited in the current accounts of the institutions of the State Bank of the USSR.”
2. The Constitution of the Republic of Latvia
“All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.”
“Everyone has the right to social assistance in the event of old age, incapacity to work, unemployment and in other cases provided for by law.”
3. The 1990 and 1995 State Pensions Acts
“ 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. ...”
“The procedures for calculating, certifying and classifying the periods referred to in paragraphs 1 and 2 of these transitional provisions shall be determined by the Cabinet.”
“Expenses incurred in connection with the reckoning of the periods referred to in [paragraph 1 of] these transitional provisions in the calculation of State pensions shall be covered by the special State pension budget.”
“The following shall be deemed to constitute evidence of periods of employment during the transitional period:
(1) an employment record [darba grāmatiņa];
(2) a record of employment contracts [darba līgumu grāmatiņa];
(3) a document certifying payment of social-insurance contributions;
(4) any other evidence of periods of employment (such as certificates, contracts of employment or documents certifying performance of work).”
4. The Constitutional Court's judgment of 26 June 2001
“... [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 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 case of Gaygusuz v. Austria, 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)
“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. ...”
“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.
B. Provisions concerning civil procedure and the role of the public prosecutor
“Applications challenging conduct by the central or local administrative authorities that has adversely affected the rights of a natural person or other legal entity shall be compulsorily examined by a court in the presence of the public prosecutor.”
“(1) Public prosecutors shall be entitled to participate in the examination of a case where they have brought an action or application or where their participation is compulsory.
(3) The participation of the public prosecutor in the examination of a case shall be compulsory where it is prescribed by law or deemed necessary by the court.
(4) A public prosecutor who participates in the examination of a case shall be entitled to inspect material in the case file, to challenge judges, to adduce evidence and take part in examining it, to make [procedural] applications [to the court], to submit observations on issues arising in the course of the examination of the case and on the merits of the case in general, to appeal against court decisions, judgments and orders, to receive copies of the court's decision or of documents in the file, and to perform other procedural steps as determined by law.
(6) The withdrawal by a public prosecutor of an action or application he or she has brought before a court shall not deprive the person in whose interests the prosecutor was acting of the right to request the court to examine the case on the merits.”
“(1) After hearing the report by the senator [judge of the Senate], the court shall hear the observations of the parties or their representatives. It may set a limited time for making submissions; however, both parties shall be allotted equal time.
(2) The person who lodged the appeal on points of law, or the public prosecutor where it was the latter who lodged the appeal, shall address the court first. ...
(3) Senators may put questions to the parties.
(4) Each party shall have the right to one reply.
(5) If the public prosecutor takes part in the examination of a case where the appeal on points of law was not lodged by him or her, he or she shall give an opinion after the parties have presented their observations and their replies.”
“The Public Prosecutor's Office is an institution belonging to the legal service which shall independently supervise compliance with the law, within the limits of the powers defined in this Act.”
“The public prosecutor's office
(6) shall protect the legitimate rights and interests of individuals and the State in accordance with procedures established by law;
(7) shall bring applications or actions before the courts in accordance with procedures established by law;
(8) shall take part in the examination of cases by a court, in the circumstances provided for by law.”
III. INTERNATIONAL AGREEMENTS ON SOCIAL SECURITY
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. The applicant's “victim” status
B. As to the respondent State's jurisdiction under Article 1 of the Convention
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
The Court notes, nevertheless, that the parties' arguments as set out above are closely linked to the merits of the complaint under Article 14 of the Convention. It will therefore have regard to them in determining whether there has been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
Article 14 of the Convention
“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.”
A. The parties' submissions
1. The applicant
2. The Government
B. The Court's assessment
1. Applicability of Article 14 of the Convention
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
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties' submissions
B. The Court's assessment
IV. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
(a) EUR 1,000 for the damage resulting from the alleged violation of Article 6 § 1 of the Convention;
(b) EUR 5,073 for the suffering and anxiety she had experienced during the proceedings between 2002 and 2005 for her divorce and the division of marital property;
(c) EUR 10,000 for the deterioration of her health during the period in question.
B. Costs and expenses
(a) LVL 307.05 (EUR 436.90) as reimbursement for the expenses incurred by her representative in the proceedings before the Grand Chamber. In support of that claim, the applicant produced two separate invoices handwritten in Latvian – for LVL 257.49 and LVL 49.56 – together with English versions. The two invoices were issued by a private limited company and mention the applicant's representative as the recipient of services. The Latvian versions of the invoices describe the services rendered as “translation” and “translation from Latvian into English”. The two English versions of the same invoices, however, refer to “preparation of documents for the European Court of Justice” (sic);
(b) LVL 37.88 (EUR 53.90) as reimbursement of postal expenses, attested by a bill from the Latvian Post Office;
(c) expenses incurred for the participation of her two representatives in the Grand Chamber hearing, consisting of LVL 820 (EUR 1166.80) for air tickets and EUR 189 for accommodation. These amounts were not substantiated by documentary evidence.
C. Default interest
FOR THESE REASONS, THE COURT
(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;
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 Jean-Paul Costa
Deputy Registrar 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.
PARTLY DISSENTING OPINION OF JUDGE ZIEMELE
Summary of the main reasons
“1. Persons who
(1) were resident in Belgium on 10 May 1940; and
(2) did not possess Belgian nationality on 10 May 1940, acquired it after that date and retained it on 1 January 2003 ...
shall, with effect from 1 January 2003, be entitled, subject to the same conditions and the same procedure, to the advantages secured to persons granted political prisoner status, in respect of pensions and war pensions.”
The Court held that there was no obligation under the Convention to repair the damage caused by a third State and that, even if the State decided to do something about it, it enjoyed a wide margin of appreciation in setting the criteria for the enjoyment of the right to compensation. The case was dismissed on ratione materiae grounds. It should also be noted that in Belgium the reparation of the damage caused took the form of pension advantages.
The scope of the case
Application of the Convention in isolation from international law
Furthermore, no doubt, once a law is enacted by the State party it has to comply with the Convention. No one disputes this principle. However, the principle per se does not lead very far, nor does it provide for specific solutions to concrete legal issues. The Government make the point that, for the purposes of interpreting the contested provision in national law, international law relevant to situations of State continuity ought to be taken into consideration since this context inspired the specific solutions that Latvia adopted. The Court does not have competence to interpret national law, but it does interpret the Convention and where applicable takes the international-law context into consideration. Of course, the transitional provisions of the 1995 Act have to comply with the Convention as interpreted in accordance with the general rule of interpretation of international treaties.
When a particular provision in national law is linked to the fact that a State has not taken over any obligations as regards welfare benefits promised by another State, it is contrary to both the taking of proper note of the facts of the case and the rules of interpretation used in applying the Convention to say that this is irrelevant. Certainly, other alleged property rights cases which have arisen in the context of the reunification of Germany and the dissolution of Yugoslavia have taken the particular context into consideration when applying the Convention (see, for example, Janković v. Croatia (dec.), no. 43440/98, ECHR 2000-X; HadZić v. Croatia (dec.) no. 48788/99, 13 September 2001; and Schwengel v. Germany (dec.), no. 52442/99, 2 March 2000).
The Court must take State continuity into consideration
Are there any relevant international obligations in a situation of illegal annexation?
The 1995 Act has one legitimate aim!
Does the distinction drawn amount to discrimination?
The Court could have paid attention to another principle in international law set forth by the ICJ in the Namibia case. It could have looked at the transitional provisions of the Latvian law with a view to determining whether the measure took the interests of the whole population sufficiently into consideration (see Namibia, cited above, § 125). Once again, it is important to keep in mind that everyone in Latvia receives a basic pension and that there is a scheme of other social benefits applicable to all, without any distinction on the basis of nationality.
It is to be noted that the International Convention on the Elimination of All Forms of Racial Discrimination specifically provides in Article 1 § 2 that it does not apply to “distinctions, exclusions, restrictions or preferences made by a State party to this Convention between citizens and non-citizens”. It is true that the Committee on the Elimination of Racial Discrimination has construed this exception strictly but none of the developments in human rights law, including the European Convention on Human Rights, have abolished the sovereign right of a State to impose distinctions between citizens and non-citizens in so far as their purpose or effect contains no element of discrimination based on race, colour, descent, or national or ethnic origin (see K. Boyle and A. Baldaccini, “A Critical Evaluation of International Human Rights Approaches to Racism” in S. Fredman, Discrimination and Human Rights. The Case of Racism, Oxford University Press, 2001, p. 155; see also point 9 above). There is certainly plenty of State practice where relevant distinctions are drawn in a number of areas of life. C. Tomuschat has noted that “concerning social rights, national laws normally draw many distinctions which a layperson in that field cannot easily review as to their justification” (see C. Tomuschat, “International Covenant on Civil and Political Rights (1966)”, in online Max Planck Encyclopedia of Public International Law, § 28). The Court has correctly been careful and has held that States enjoy a wide margin of appreciation in determining their social and economic policies.
40. In the circumstances of the present case, I do not see that the applicant has incurred a heavier burden than the rest of the generation that spent their life working in the Soviet Union. In 1992 Latvia experienced a total collapse of the national economy. The State had practically no money. At the end of 1992 a flat-rate pension was introduced in the entire country, whereby all individuals were entitled, without any distinction, to the amount of 15 Latvian lati (LVL – 21.34 euros). Four years later, even if the citizens in principle had to be compensated for their years of work during the Soviet period, the standard pension received by the majority of the population amounted to LVL 22. The State could not afford any more. Since the applicant was working at the time, this measure did not apply to her. The approach of Latvia was balanced with respect to different demands in a particularly complicated historical context.
What are the consequences of the approach taken in this case? It sends a strong message to all States parties as concerns their social-security laws since the chances are that whenever there is a distinction based on acquired characteristics (residence, nationality or other status) it will be contrary to Article 14 unless some truly weighty justifications are provided. Even if I believe that this goes way beyond the scope of the Convention ratione materiae, the fact remains that the Court has given its decision and all States parties will have to bear the consequences. The Court will have to ensure that in all similar cases it takes the same approach.
1 According to the Constitutional Court of Latvia, the status of a “non-citizen” in Latvia cannot be compared to any legal status known in international law documents. It is a special status created by national law in response to a special historical situation. In view of the range of rights that non-citizens have under national law, they cannot be equated with citizens, foreigners or stateless persons as commonly used in State practice (Case no. 2004-15-0106, 7 March 2005, §§ 15 et seq.).
1 On 26 August 2001 the Institute of International Law adopted guiding principles on State Succession in Matters of Property and Debts, defining State continuity as follows: “Continuity means that legal personality under international law subsists despite changes in territory, population, political and legal regime and name.”
1 The situation in the Latvian SSR has been described as follows: “Those members of the Latvian elite that had not fled to the West or perished in the Gulag were little trusted by the authorities. The Communist Party of Latvia was miniscule when the Soviets arrived … These factors pushed the authorities to import Russians and Soviet-born or Soviet-educated Russified Latvians to fill the leading posts in society. ... Thus, embedded in the Leninist political system was an ethnic hierarchy, with Russians and Russified Latvians ruling over the indigenous Latvians. ... The scale of the migration flow eventually led many Latvians to conclude that Moscow was attempting to dilute the Latvian population or assimilate it altogether. ... Only 21.1 percent of the Russians claimed knowledge of Latvian in the 1989 census. … [T]he regime … did politicize the language issue, often making the knowledge of Russian and willingness to speak it a sign of political loyalty.” See Nils MuiZnieks, “Latvia: origins, evolution and triumph” in I. Bremmer and R. Taras (eds.), Nations and Politics in the Soviet Successor States, Cambridge University Press, 1993, pp. 184-87.