EHRM, 18-02-2009, nr. 55707/00

Mutual recognition of periods of employment to be taken into account in calculating State pensions is provided for in the cooperation agreements on social security which Latvia has concluded with Lithuania (in force since 31 January 1996), Estonia (in force since 29 January 1997), Ukraine (in force since 11 June 1999), Finland (in force since 1 June 2000) and Canada (in force since 1 November 2006). A similar agreement with the Netherlands (in force since 1 June 2005) prohibits any discrimination on the ground of place of residence. Lastly, on 12 June 2008 the Latvian Parliament approved the first reading of a bill concerning a similar agreement with Belarus.

The agreement with Ukraine provides in principle for mutual recognition of aggregate periods of employment in accordance with the relevant legislation of both parties (Article 16 § 1 of the agreement). With regard to the period before 1 January 1991, years of service in the territory of one or both parties are taken into account in the calculation of pensions by either party, and it is immaterial whether or not contributions have been paid in the territory in question (see paragraph 3 of the same Article).

The cooperation agreement on social security between Latvia and the Russian Federation was signed on 18 December 2007. The Latvian Parliament approved it in a law of 2 October 2008. On the following day, 3 October, it was approved by the State Duma (the lower house of the Russian Parliament), and on 15 October by the Federation Council (the upper house). Article 3 of the agreement expressly extends its scope to ‘permanently resident non-citizens’ of Latvia. Article 10 § 1 provides that, in calculating a retirement pension, each of the parties is to take into account the aggregate period of employment of the person concerned in both countries. Article 4 § 2 provides for an exception to the effect that the principle of equality between nationals and residents of both States does not apply to the specific arrangements for the calculation of Latvian citizens' periods of employment prior to 1991.

Article 25 of the agreement shares the financial burden of retirement pensions between the two States where the person concerned has become entitled to such a pension after the agreement's entry into force. The pension in respect of employment prior to 1 January 1991 is paid by the State in which the beneficiary is resident at the time of claiming the pension. However, in respect of the period after that date, each contracting party has undertaken to cover the periods of employment in its own territory. Article 26 states that a pension that has already been granted before the entry into force of the agreement may also be recalculated on that basis at the express request of the beneficiary; however, the recalculation cannot be applied until after the agreement has come into force.

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 of the Convention

Article 1 of Protocol No. 1

The applicant also alleged a violation of her rights under Article 6 § 1 of the Convention in that the Senate of the Supreme Court had held its hearing before the appointed time, thus preventing her from taking part in the examination of the appeal on points of law lodged by the public prosecutor on her behalf. The relevant parts of Article 6 § 1 provide:

Articles 41 and 46 of the Convention provide:

Article 41

Article 46

The majority, in their application of Article 14 together with Article 1 of Protocol No. 1 to the facts of the case and the observations of the parties, look at the transitional provisions of the Latvian State Pensions Act in isolation from the relevant international-law context. In interpreting the Convention in this case, a basic rule of treaty interpretation has not been followed. The rule has been summed up as follows: ‘A treaty cannot be considered in isolation. Not only is it anchored in social realities, but its provisions must be set against other legal norms with which they may be in competition’ (see D. Daillier and A. Pellet, Droit international public, Paris: Libraire générale de droit et de jurisprudence, 2002, 7^th ed., p. 266). This leads the majority to a series of mistakes, such as ignorance of the most comparable case-law. They do not examine properly the nature of the alleged property right that the transitional provisions set forth, although in all the case-law concerning welfare payments the Court has always done so.

In my view, there was nothing unreasonable in the transitional provisions of the Act since one cannot say that Latvia was responsible for the pension promises of the USSR or the fact that the USSR could not and the Russian Federation did not uphold them. Moreover, it was Latvia that was a victim of the Soviet aggression and the Court has normally drawn a distinction between States or regimes which have caused suffering and States which of their own good will, free from any obligation, have decided to compensate, at least partly, for the damage caused (see, mutatis mutandis, Associazione Nazionale Reduci dalla Prigionia dall'Internamento e dalla Guerra di Liberazione and Others v. Germany (dec.), no. 45563/04, 4 September 2007, in which Germany was not attributed responsibility for the damage caused by the German Reich, and Woś v. Poland (dec.), no. 22860/02, ECHR 2005-IV, in which partial compensation for slave labour during the Second World War did not create an additional obligation on Poland). In Epstein and Others v. Belgium ((dec.), no. 9717/05, ECHR 2008-…) it was precisely the distinction drawn in the 2003 Law on victims of war based on nationality that was at issue. The contested provision in the Belgian law stated:

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 Republic of Latvia, as an independent subject of international law, was under no obligation either to extend its social protection to, or repair the loss of Soviet social protection in respect of, persons who had worked in the Soviet Union, another subject of international law to which Latvia was not a successor State (see, with respect to Lithuania, Jasinskij and Others v. Lithuania, no. 38985/97, decision of the Commission, 9 September 1998, Decisions and Reports 94). However, since the dissolution of States is accompanied by significant difficulties, Latvia decided to guarantee a minimum pension to everyone living in the country, citizens and non-citizens alike, and additionally to compensate for losses incurred as a result of the demise of the USSR on the basis of the criteria of citizenship and territory. As far as Latvia was concerned, as is laid down in the transitional provisions of the 1995 State Pensions Act, the compensation took the form of a pension advantage that the State extended, subject to certain conditions. In other words, citizenship is not a criterion for having a pension; it is a criterion for further entitlement (see, mutatis mutandis, Kireev v. Moldova and Russia (dec.), no. 11375/05, 1 July 2008, in which only citizens of Moldova had the right to compensation).

In this regard, the majority make a mistake in saying that ‘the applicant was refused the pension in question solely because she did not have Latvian citizenship’ (see paragraph 78 of the judgment). The mistake is twofold. The applicant was granted a minimum State-guaranteed pension like everyone else. This right was not refused. Furthermore, the 1995 State Pensions Act is only one of the laws regulating social security in old age. The Social Security Act provides for benefits in the event that a person is not fully entitled to a State-guaranteed old age pension (as explained by the Constitutional Court — see paragraph 37 of the judgment). The majority assume that the applicant ought to enjoy the pension advantage without examining in detail the nature of transitional provisions and the context of their adoption. It should be pointed out in this connection that the Convention does not guarantee any right to compensation for damage if the initial cause does not constitute a violation of the Convention, nor does it regard as a possession old property over which it has been impossible to exercise effective control, or a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany[GC], no. 42527/98, §§ 83 and 93).

Furthermore, Latvia has engaged in active negotiations of relevant bilateral treaties with those States that under international law bore a priori direct responsibility for the years of employment accrued during the Soviet period. Suffice it to say that Latvia and the Russian Federation are in the final stages of concluding a treaty concerning their respective responsibilities in social-security matters, including the Soviet period.

The present case is different from Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, §§ 74 and 76, ECHR 2005-X), the admissibility decision in which has served as the guiding case-law to the majority, and Koua Poirrez v. France (no. 40892/98, ECHR 2003-X), because the interacting rules of international law in this case are different. Nevertheless, for the sake of a complete argument I will address the question of the application of the Stec and Others principles in this case. First of all, I believe that what the Court is saying in both the admissibility decision and the judgment in Stec and Others is perfectly in line with the approach of a human rights court, namely that where the State creates a system of benefits these should not be allocated on the basis of criteria that are discriminatory. However, and as is shown by the outcome in the Stec and Others case (no violation of Article 14), the Court did not abolish either the margin of the State in pursuing its social policies or the criterion of ‘manifestly without reasonable foundation’ for assessing the proportionality of distinctions drawn in the field of social and economic policies (see Stec and Others v. the United Kingdom[GC], no. 65731/01, § 52, ECHR 2006-VI). The situation is also different according to whether we are confronted with alleged discrimination based on sex, as in the Stec and Others case, or on residence or citizenship status. This distinction was correctly drawn in the Carson and Others case, where the Court stated that ‘the individual does not require the same high level of protection against differences in treatment based on this ground [residence] as is needed in relation to differences based on an inherent characteristic, such as gender or racial or ethnic origin’ (see Carson and Others v. the United Kingdom, no. 42184/05, § 80, 4 November 2008, and also point 37 below). In other words, the Court does not take an absolutist approach in its case-law on Article 14. Whereas the majority quote the standard for the application of Article 14 from the Stec admissibility decision (see paragraph 79 of the present judgment), which seems to indicate that any distinctions would automatically be discriminatory, I note that this was not the standard followed in the Stec and Others judgment.

I regret that the majority failed to address the key question that the present case raises. In circumstances where the occupation and control of a territory have been contrary to rules of international law and there is an obligation under international law to put an end to the illegality that results from a State having been in physical control of that territory (see Namibia (South-West Africa), Advisory Opinion, ICJ Reports 1971, §§ 117–18), can the Convention require the injured State to bear responsibility for amounts of pensions that had allegedly been earned in the service of a wrongdoing State where

The Government raised a preliminary objection as concerns the years during which the applicant had worked for an all-Union enterprise, Orghim with its registered office in the Ukrainian Soviet Socialist Republic (Ukrainian SSR). The Government argued that by the time of the lodging of the application, the facts submitted by both parties showed that since the bilateral treaty between Latvia and Ukraine had been signed in 1999, the applicant had become eligible to have her pension recalculated taking into consideration the years of work during which the enterprise based in the Ukrainian SSR had paid relevant contributions to the Soviet budget (see paragraph 25 of the judgment). In her 2002 observations, the applicant had already rebutted the Government's submission regarding the treaty with Ukraine, saying that the existence of this treaty had allowed an increase of the amount of her pension but had not allowed a retrospective repayment (paragraph 48).

The majority consider that the Government are estopped from raising the preliminary objection at this stage since it was raised for the first time in their observations on the merits submitted on 20 October 2006 after the decision on admissibility had been adopted on 11 July 2006 (see paragraphs 46 and 49 of the judgment). It is to be noted that in these submissions, as reiterated in their submissions to the Grand Chamber, the Government repeated that the fact concerning the treaty with Ukraine had been known all along to the Court and should have been part of the Court's initial assessment of the scope of the case since it related to the question of whether the applicant could claim to be a victim in this part of her application. Normally, the Court assesses the victim status of applicants as part of the initial establishment of its jurisdiction. Of course, if the issue is closely linked to the merits of the case, the Court may indeed say so.

I consider that the majority's approach in this case is both too formalistic as concerns the doctrine of estoppel (contrast Blečić v. Croatia[GC], no. 59532/00, §§ 65–66, ECHR 2006-III) and avoids the issue of the ex nunc or ex tunc character of the pecuniary right which was raised by the applicant. Moreover, the parties were asked before the Grand Chamber to elaborate on the victim status of the applicant with respect to her employment for an entity based in the Ukrainian SSR. The Grand Chamber has the power to reassess the Government's preliminary objections. It could have decided that they are linked to the merits, which, in its turn, would have required that the Court rule on the ex nunc or ex tunc character of the right claimed. The judgment of the Grand Chamber does not give a clear answer to that question, except by saying that the issue will be dealt with under Article 41. Under this heading, the Court notes that the applicant has suffered both pecuniary and non-pecuniary damage and awards an amount to cover all ‘heads of damage’. It is now the reader who is left to speculate about the Court's view on the nature of the right.

The judgment treats the submissions concerning the ‘jurisdiction’ of Latvia for the acts complained of by the applicant as a question relating to the Government's objections to the admissibility of the case (see paragraph 55). The Government, having explained that neither the former Latvian SSR nor the Republic of Latvia had any control over all-Union enterprises based in the former Ukrainian SSR and the Russian Socialist Federative Soviet Republic (RSFSR) for which the applicant worked, invited the Court ‘to conclude that the present case falls outside the jurisdiction of the Republic of Latvia within the meaning of Article 1 of the Convention’ (see the Government's observations, § 19). Of course, this is not a question of jurisdiction strictly speaking, as the Court demonstrates to the Government in this part of the judgment, but it is one of responsibility for events that took place in the USSR. It is clearly an argument on the merits, the conclusion at which the majority finally arrive two paragraphs later (paragraph 57), only to dismiss it without any elaboration as irrelevant in paragraph 78 (see point 16 below).

The respondent Government explained that the reasons for the distinction drawn in the transitional provisions of the 1995 State Pensions Act had to do with the fact that Latvia had not succeeded to the rights or obligations of the Soviet Union. Latvia was not a successor State to the ex-USSR (see paragraphs 52 and 67 of the judgment). It was a State identical to that occupied by the Soviet Union in 1940 (see paragraph 52 and the Government's oral submissions before the Grand Chamber, § 23). It therefore follows that whatever rules of international law applied to domestic decisions after the restoration of independence, they came from the area of prohibition of the use of force and State continuity.1. The applicant did not challenge the State continuity argument but said that it was irrelevant since her life had been the same as that of any Latvian citizen during the Soviet times. ‘Latvia, Russia and Ukraine had formed part of the same State, the Soviet Union’ (see paragraph 59 of the judgment) and she should have the same amount of pension that a Latvian citizen in the same position would receive (paragraph 61).

It is a striking feature of this judgment that it chooses to ignore the context of the demise of the Soviet Union and the special status of the Baltic States in international law, namely their long but ultimately unsuccessful occupation, within which the dispute between the applicant and the respondent State arose (see, conversely, Kovačić and Others v. Slovenia[GC], nos. 44574/98, 45133/98 and 48316/99, § 256, 3 October 2008). It goes even further in stating that the respondent State's submission to the effect that it is not a successor to the rights and obligations of the former USSR as regards welfare benefits is misconceived (paragraph 78).

The reasoning that the majority offer is as follows: ‘Even assuming that the Government were correct on this point, the conclusion that has to be drawn in this case would be unaffected: where a State decides of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law, the presumed entitlement to such benefits falls within the scope of Article 1 of Protocol No. 1’ (paragraph 78). There are several problems with this statement. First of all, the phrase ‘even assuming that the Government were correct’ is incomprehensible. Are the majority suggesting that Latvia is a new successor State to the ex-USSR? The adoption of such a position by the Court would go against its own approach in several other cases (for example, Ždanoka v. Latvia[GC] no. 58278/00, ECHR 2006-IV) and in a more relevant pronouncement of the Commission in the Jasinskij and Others case (cited above). It would also go against the position of the majority of international-law actors. Whatever the meaning, it is here that the majority should have undertaken ‘an exercise in competent legal reasoning’, which for the purposes of the interpretation of an international treaty is ‘an effort at ‘systemic integration’ — namely integration in the system of principles and presumptions that underlie the idea of an inter-State legal order’ (ILC Study Group Report, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682, § 465). It should be pointed out that one of the general principles of international law relevant to this case is the principle of ex injuria non jus oritur as well as the obligation of non-recognition of an unlawful situation as legal (see point 22 below).

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; Hadžić v. Croatia (dec.) no. 48788/99, 13 September 2001; and Schwengel v. Germany (dec.), no. 52442/99, 2 March 2000).

The Court must take the demise of the Soviet Union and Latvia's continuity into account in adjudicating the present case. The Court's obligation derives from both its own case-law and general international law. The Court has long stated that one of the main principles of the application of the Convention provisions is that it does not apply them in a vacuum (see Loizidou v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI). Explaining in more detail its rules of interpretation, the Court has stated: ‘In addition, the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties’ (see Demir and Baykara v. Turkey[GC], no. 34503/97, § 67, 12 November 2008).

Indeed, since the Convention remains an international treaty, even with a special character, the rule of the 1969 Vienna Convention on the Law of Treaties (VCLT) provide the backbone for the interpretation of the Convention as a matter of international law. Article 31 of the VCLT provides that, in addition to the ordinary meaning of the term, their context has to be taken into account. Article 31 § 3 (c) explains: ‘There shall be taken into account, together with the context: … any relevant rules of international law applicable in the relations between the parties.’ It is to be noted that Article 31 has the heading ‘General rule of interpretation’. There is one single rule of interpretation with several parts. However, ‘… not all parts will always be relevant in all cases; but when they are, they must be utilized’ (D. French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’, International and Comparative Law Quarterly, 2006, p. 301). Of course, the case will not become one about the use of force between States or the law of State succession versus State continuity (see, mutatis mutandis, the Separate Opinion of Judge Higgins in the Oil Platforms case, judgment of 6 November 2003, ICJ, §§ 45–46). It is still a case about alleged discriminatory treatment in the enjoyment of the alleged right to property following the demise of a State.

In practice, the Court has regularly been mindful of the other applicable rules of international law when determining how the Convention provisions should apply. The cases of Prince Hans-Adam II of Liechtenstein (cited above) and Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001-XI), among others, are eminent examples. In all of these cases, even if they raise different questions under international law, the common feature is that other existing rules of international law have substantially affected the application of Articles of the Convention.

The special legal status of Latvia following the demise of the Soviet Union is relevant at least at two levels. First, the Court has to form an opinion as to whether Latvia's argument that it did not succeed to any obligations of the Soviet Union, including in the field of social rights, is correct under international law. This is necessary for the proper understanding of the transitional provisions of the 1995 Act, which, to the extent that they provide for proprietary rights, fall within the ambit of Article 1 of Protocol No. 1. Non-citizens, foreigners and stateless persons fall within the ambit of Article 1 only to the extent that the transitional provisions grant these groups a right. However, without assessing relevant international rules concerning acquired rights in situations involving the restoration of independence by a State, it is difficult to see whether Latvia is correct in arguing that it was under no obligation to do anything more. Even if Latvia passed legislation which might give rise to the recognition of an ‘asset’ for the purposes of Article 1 of Protocol No. 1 to certain groups of individuals and not to others, it is important in determining the scope of Latvia's obligations under the Convention to consider whether this was merely an expression of good will or whether it was because Latvia was obliged to offer the pension in the amount expected (see, mutatis mutandis, Epstein and Others, cited above). Secondly, the argument concerning the special status of Latvia in international law is relevant for the decision as to whether the distinction drawn was justified or not. Following the Court's case-law on Article 14, the two levels of reasoning are closely linked.

In this connection, it is important to keep in mind that international law remains the relevant legal system providing for rules for the determination of its subjects and changes therein, if necessary. In the Ilaşcu and Others case, the Court once again proved that it follows general principles of international law concerning the attribution of State responsibility for acts or omissions under the Convention (see Ilaşcu and Others v. Moldova and Russia[GC], no. 48787/99, §§ 320 and 322, ECHR 2004-VII). It is not for the Court, even through the special character of the Convention or implicitly, to develop new rules for the identification of entities that can have rights and obligations for the purposes of international law. The fact that the Latvian SSR was a former republic of the Soviet Union does not at all mean that the State of Latvia has some automatic obligations that appertain to the territory concerned during its illegal occupation. On the contrary, saying or implying that Latvia has some automatic obligations stemming from the Soviet period would defy the fact that the occupation and annexation of Latvia were illegal in international law and it would raise a question as to the Court's compliance with the general principle of ex injuria non jus oritur and the obligation of non-recognition in international law (see points 29 and 34–36 below).

The fact that Latvia may take some responsibility over what happened in the territory of the Latvian SSR does not mean that there was an obligation to do so. This is generally the case in situations involving the creation of new States and the disappearance of old States, where the responsible State has to be identified and where the ‘clean slate’ rule has dominated State practice. It is only through significant efforts that some rules challenging the ‘clean slate’ approach have emerged over the last two or three decades (see among many authorities, P. Dumberry, State Succession to International Responsibility, Leiden, Boston, Martinus Nijhoff Publishers, 2007, pp. 52–58). Given this complex area of international law, the principle of cooperation and inter-State negotiations has been seen as a key principle and was rightly supported by the Court in the Kovačić case while ignored in the present case (see point 8 above).

The Eritrea-Ethiopia Claims Commission, a very recent body dealing with particular State continuity/State succession claims, observed that as concerns obligations to pay pensions, State practice varied. In some cases, following the partition of a unitary State, each of the successors assumed the responsibility for pensions attributable to the predecessor State payable to persons in the successor's territory. The Claims Commission noted that the law stated in the Danzig Pension Case was still relevant. The court in that case allocated responsibility for pensions based on the nationality of the recipient, assigning responsibility for pensions to the successor State whose nationality the recipient had assumed (Danzig Pension Case, Ann. Dig. Vol. V, case no. 41). To the extent that the Danzig Pension Case might be relevant to situations of illegal annexation (for a clear exclusion of such situations from the scope of codification of the law of State succession, see Yearbook of the International Law Commission, 1999, vol. II (Part Two), p. 27; see also point 26 below), it involves an element which, especially in the modern world of human rights, has become somewhat less important. Nevertheless, it still holds true that having a nationality makes a considerable difference compared to being stateless. In situations of disappearance of States, nationality acquires particular importance. This explains the numerous efforts by the Council of Europe and the United Nations to codify some international rules on nationality in situations of State succession. In these situations more than ever, nationality is a basis for a clear entitlement to a number of important rights, including, as in the case of Latvia, the attribution of pension advantages to its citizens in the absence of any other likely contender.

In sum, there was no obligation under international law to take any responsibility for the years of employment accrued under the Soviet Union unless and until this was agreed through inter-State negotiations. However, in the special context of illegal annexation (see point 26 below), citizens of the injured State had a strong expectation that they would not have to suffer any more than they already had and that this might as well translate into their right to pension advantages. In other words, there is nothing unreasonable in the fact that after long years spent under an unlawful totalitarian regime the independent legislature decided to reward the citizens.

The particular context of illegal annexation distinguishes this case even from other cases decided by the Court in which the State succession element was taken into account. For fifty years Latvia was unlawfully subjugated by the Soviet Union (see Ždanoka, cited above). In terms of international law, with the restoration of the independence of Latvia in 1991, we are in the presence of a situation much closer to that known as decolonisation under UN law or sometimes referred to in the doctrine as a situation of disannexation, similar to what happened with Austria and Czechoslovakia in the context of the Second World War and following the Anschluss; the only difference is that unfortunately for the Baltic States, the restoration of their independence was only possible some four decades later (among many authorities, see A. Zimmermann, ‘Continuity of States’, in the online Max Planck Encyclopedia of Public International Law). It is to be recalled that in 1983 the European Parliament, noting that ‘the Soviet annexation … has still not been formally recognised by most European states and the USA, the United Kingdom, Australia and the Vatican still adhere to the concept of Baltic states’, suggested that the issue of the Baltic states be submitted to the Decolonisation Subcommittee of the United Nations (1982–1983 EUR.PARL.DOC (no.7.908) 432–33 (9183)).

In practice this meant that when the applicant moved to the Latvian SSR in 1954, for her it was just another corner of the Soviet Union, as she confirmed in her observations. Her situation is typical of many who were encouraged to move into the Baltic republics as part of the policy of Sovietisation and Russification of the Baltic States by the Soviet Communist Party after their unlawful incorporation into the Soviet Union.1. The Court ought to be able to draw a distinction between fundamentally different circumstances in fact and in international law. It is thus a very different setting when a person enters, let us say, France or the United Kingdom, which are in a position to decide whether to allow the person into their territory. Upon restoration of independence Latvia was faced with the issue of Soviet-era settlers, reaching numbers that came close to making Latvian citizens a minority in their own State, but Latvia had very limited choices in terms of its policies with respect to the Soviet-era immigrants.

It is curious that the text of the judgment does not seem to draw a distinction between the different legal entities concerned over the relevant period of time. Surely there is a difference for the purposes of law between the Latvian SSR, the USSR and the Republic of Latvia. One is left puzzled by the exact meaning of the use of terms ‘Latvia’ in the context of the year 1954 or ‘Ukraine’ in the context of the 1970s and 1980s (see paragraphs 10–11 of the judgment). Suggesting that the Republic of Latvia, as a subject of international law and thus a Party to the Convention, is a successor to the USSR, in terms of international law, does not make sense and goes against well-established State practice, as has been shown above.

Even worse, it may imply that, as far as the European Court of Human Rights is concerned, the obligation of international law not to accord recognition to unlawful entities is irrelevant (contrast Namibia (South-West Africa), Advisory Opinion, cited above, §§ 117–18). This is a departure from well-established case-law since the Court has consistently held that, for example, Turkey is responsible for the acts or omissions under the Convention taking place in the ‘Turkish Republic of Northern Cyprus’, a comparator to the Latvian SSR.

Whatever rights or privileges were granted to the applicant under Soviet law, they were granted by the Soviet Union, whose effective control over the Latvian SSR until 1991 is probably not questioned. Similarly it is not questioned that today the Russian Federation continues the rights and obligations of the Soviet Union (see Ilaşcu and Others, cited above, § 378; and also, for example, H. Hamant, Démembrement de l'URSS et problèmes de succession d'États, Editions Bruylant, 2007, p. 128). Even if views may differ on the modalities of continuity of the Baltic States, there is almost unanimity that they are not new successor States to the Soviet Union and that they are a case apart from the ex-Soviet republics proper in view of their unlawful occupation by the Soviet Union (see, among many authorities, H. Hamant, op. cit., p. 129; P. Dumberry, op. cit., p. 151; and I. Ziemele, State Continuity and Nationality: the Baltic States and Russia, Leiden, Boston, Martinus Nijhoff Publishers, 2005). Furthermore, both parties in their replies to the questions put forward during the public hearing noted that had the applicant retired in 1990 her pension would have been paid from the means usually assigned from the USSR State budget. The USSR national bank, and not the Soviet republics, kept control over the State and social-insurance budget. After the demise of the USSR these assets were not divided between the former republics. They were inherited by the Russian Federation.

In other words, we are dealing with the consequences of illegal annexation when after the withdrawal of the sovereignty of the predecessor State a portion of the population, as transformed during the occupation, was left in a situation of uncertainty. I do not see why through the door of the Convention Latvia, an injured State, and its citizens should be made to compensate for a situation they did not create. However, unlike many other situations of a similar character known in history, the applicant was not stripped of social protection and pension rights, as she received the minimum pension available to all residents of Latvia. In addition, albeit of limited legal value, it should be mentioned that the applicant had two options available to acquire a higher amount of pension but she chose not to use them. She could have registered her Russian nationality or acquired Latvian nationality and her claim would have been taken care of. The majority's view on her legal status (see paragraph 88 of the judgment) is not entirely correct since it omits to take into consideration the special simplified procedure that the Citizenship Act of the Russian Federation applied to former USSR citizens if they decided to register their Russian citizenship. The statement in the judgment that the applicant had ‘stable legal ties’ with the Republic of Latvia appears without any explanation or elaboration as to the reasons for this view. Regrettably, the majority fail to appreciate the fact that the situation before them concerns the restoration of independence by a State following long years of incorporation that resulted from illegal threats or use of force. It follows that the argument about the possibility of acquiring a nationality in such a context is different as compared to any other normal situation (on this, see A. Eide, ‘The Rights of ‘Old’ versus ‘New’ Minorities’, European Yearbook of Minority Issues, Vol. 2, 2002/3, p. 377).

The majority limit themselves to accepting that the 1995 State Pensions Act pursued at least one legitimate aim, ‘namely the protection of the country's economic system’ (see paragraph 86 of the judgment). Interestingly, they cannot avoid the reference to the context of restoration of independence and the break-up of the USSR, despite stating earlier that reference to this context is misconceived in the present case. Naturally, since the legitimate aim is narrowed down to the protection of the country's economic system, the assessment of the proportionality of the means employed is quite simply different from what one could expect if the relevant international-law context were taken into consideration. This assessment has no connection whatsoever to the realities, the tasks and the aims that the independent Latvian authorities had to face when building a modern independent State in a post-conflict context.

In any event, even in accordance with the Court's case-law, States have a wide margin of appreciation when it comes to rebuilding or reforming their economic systems. Surely the margin should be taken seriously in a case where a State as such re-emerges on the world map.

The majority consider that there are no weighty reasons for the distinction based on nationality essentially for the following reasons. First, the applicant was in an objectively similar situation to persons who had an identical or similar career but who, after 1991, were recognized as Latvian citizens. Second, there is no evidence that during Soviet times there were any differences in treatment between Soviet nationals as regards pensions — in other words, the Soviet social tax was paid and administered in the same way for all employees. Third, the applicant does not have any other nationality. Her closest ties are with Latvia, ‘which, objectively, can assume responsibility for her in terms of social security’ (see paragraph 88 of the judgment and point 31 above).

I fail to see how these assumptions prove as a matter of law that a distinction was not justified. It is equally unclear to me why the majority find that the Soviet context is more relevant to their assessment of the proportionality of the distinction. It was not the alleged equality of all Soviet citizens on the basis of which the Latvian State Pensions Act was passed. First of all, I find that the majority contradict themselves in referring to some alleged facts from the Soviet past despite having just said that the explanations by the Government as to the legal context characterising Latvia during that period were irrelevant. In the absence of any explanation as to the choice of the relevant context, I find that decision to be arbitrary. Secondly, the majority confirm my earlier point that it is impossible to examine the compatibility of the contested provisions of the national law with the Convention in isolation from the wider context (see points 18 – 19 above). Finally, one wonders how the Court's choice to refer to the alleged Soviet realities in such a way as to arrive at the conclusion that the distinction was not justified complies with the general principle of ex injuria non jus oritur and the obligation of non-recognition of an unlawful situation as legal in international law.

If, as a matter of law, we take into account that

then references to the alleged equality of Soviet citizens, similarity of careers and the assumption that the applicant's closest ties are with Latvia simply do not meet the challenge of this case. It is true that there is not an international convention as concerns the content of the non-recognition obligation, especially as it may be relevant in the evaluation of claims to pensions put forward in circumstances similar to those at issue in this case. There are, however, important examples of State practice and judicial decisions, including the Court's own, which could serve as guidance.

In terms of international law it is commonly known that the Latvian SSR was an illegal creation and was subject to the non-recognition rule on the part of third States. There is an obligation not to recognise ‘official acts performed’ by the Soviet Union ‘on behalf or concerning’ the Latvian SSR. Such acts are illegal and invalid (see, mutatis mutandis, Namibia (South-West Africa), Advisory Opinion, cited above, § 125). One can also note several cases decided by the European Court of Justice in which it recognised that only acts of the Republic of Cyprus instead of the acts of the authorities in the northern part of Cyprus had legal consequences under Community law (see, for example, Case C-432/92, § 40). The pension for the applicant's work during the Soviet period was promised to her by the Soviet Union. This promise, the alleged equality of Soviet citizens and her move to the Latvian SSR for residence purposes cannot serve, if international law is taken seriously, as a basis for the Court's argument that the Republic of Latvia ought to have extended full pension advantages to non-citizens in Latvia.

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.

Furthermore, even as a matter of Convention law and general human rights law, the distinction in the Latvian State Pensions Act does not automatically mean that there is discrimination (see Carson and Others, cited in point 9 above).

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.

In cases which do not raise issues of State succession or State continuity, the Court's approach is that very weighty reasons should exist for any distinction based on nationality (see paragraph 87 of the judgment). It is certainly in line with the Court's role to maintain the same approach in instances which arise in State succession or State continuity contexts. However, in such cases, for all the above reasons, the Court has to accept that the particular context is an important justification for the necessary distinctions (see Kuna v. Germany (dec.), no. 52449/99, ECHR 2001-V). Justifications for the distinction, even if they go back to the history of the country, ought to be carefully examined as the Court has in fact done in other cases (see Epstein and Others, cited above).

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.

The issue that this case raised is many times more complicated and delicate than meets the eye and the rather simplistic approach of the majority is hard to understand. Not only is it a case where the Court should have addressed a complex area of international law but it is a case where questions of nation-building in a post-colonial context and frictions between a new titular nation and a new minority which had lost its former privileges are necessarily in the background. With this case the Court is placed in the midst of all that. The judgment will be read through these various perspectives, even if the Court was trying to avoid entering into any of these questions. Be that as it may, the Court cannot always avoid taking a position on complex matters and instead deal with issues in a narrow and isolated manner. The Court should not go against the general rule of interpretation as set forth in the Vienna Convention on the Law of Treaties and thus act ultra vires. In international law this raises a somewhat new challenge as concerns the value of such judicial decisions. The Court should not contribute to the fragmentation of international law in the name of alleged human rights, nor should it readily take decisions that may undermine State-building since the enforcement of human rights still requires strong and democratic State institutions (for an example where the Court follows this approach, see Ždanoka, cited above).

The majority indeed only focused on the distinction drawn on the basis of lack of nationality in the transitional provisions of the State Pensions Act and brought the prohibition of such a distinction close to having an absolute character. They did not contradict the arguments of the respondent State; they simply failed to see the relevance of such arguments. The Court therefore does not pronounce on any relevant issues under international law in this case. As a result, it does not contradict the fact of the unlawful occupation of Latvia and the continuity of the Latvian State in international law.

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.

I personally continue to see the case for what it is: a problem of responsibility for pensions accrued under the USSR following its demise. I do not think that this was the type of case where pronouncements of a fundamental character on the prohibition of discrimination in the enjoyment of social rights were appropriate. The case could nevertheless have been an important contribution to the clarification of the application of the Convention with respect to acquired rights in the complex context of State continuity following illegal annexation. In addition to some cases with respect to Turkey, it could have been a further example of the Court's approach to the question of the contents of the obligation of non-recognition of a situation as legal in international law. Unfortunately, the Court has missed this opportunity.