August 05, 2022
By Sarah Ganty and Dimitry V. Kochenov
Savickis and others v. Latvia is about pension rights. The Grand Chamber found that direct difference in treatment on the grounds of nationality in pensions is lawful if someone decided not to naturalize in the country of residence, in casu in the Latvian Republic. The majority innovates on two main points: it not only turns upside down the ‘very weighty reasons’ test by applying different degrees of scrutiny depending on the context and circumstances of the case in order to widen the margin of appreciation, but it also indirectly questions the very essence of anti-discrimination law by blaming the victims – second class citizens – for not making the effort of getting the Latvian citizenship. This judgment puts the Court to shame and constitutes a setback for the protection of minorities in Latvia and elsewhere in Europe,[1] by distorting the essence of the non-discrimination logic: the only reason behind the ‘non-citizen of Latvia’ status, which made a huge share of Latvian population stateless, is the state-mandated programme of discrimination against this group, not belonging to the ‘titular nation’. Requiring the stateless minority in possession of a status of statelessness introduced to discriminate them to naturalize in order to benefit from ECHR non-discrimination standards is among the most cynical acts of victim blaming the Court has engaged in its history.
For ‘non-citizens of Latvia’, employment periods accrued in the former republics of the USSR other than the former Latvian SSR are excluded from the length of employment in calculating retirement pensions. For those with Latvian citizenship, meaning ancestral connections predating the Soviet occupation, the situation is radically different: work elsewhere in the USSR is always counted. Latvian nationality is the only ground for the differentiation. Relying on the Grand Chamber judgment in Andrejeva v. Latvia, the applicants, who are in possession of the legal status of ‘non-citizens of Latvia’ (nepilsoņi) complained in front of the Court that they had been discriminated against (Article 14 taken in conjunction with Article 1 of Protocol 1) on grounds of their nationality (in casu statelessness) because their work outside of the borders of what used to be the Latvian SSR is not taken into account for the calculation of the pension as opposed to Latvian citizens.
The background is well known: upon restoration of independence, Latvian citizenship was granted to those who had been Latvian citizens up to 17 June 1940, when the Baltic States were incorporated into the USSR, as well as their descendants. All others became ‘non-citizens of Latvia’ (nepilsoņi) – an inheritable status of de facto second-rate citizenship, de jure amounting to statelessness as overwhelmingly recognized in international law.[2] To become Latvian citizens, all the ‘non-citizens’, the majority of whom are of Russian, Ukrainian and Belarusian descent (the unhelpful term ‘Russian-speaking minority’ is often used) have to naturalize in the state where their families were often settled for generations, exemplary of what citizenship does best: discrimination. At the beginning of 2022, the Latvian population counted 9,7 % ‘non-citizens of Latvia’, 2,1% citizens of Russia, and 1,2% citizens of other countries. Although their residence is secure, and the constitutional ties with Latvia de facto make them second-rate citizens of Latvia, ‘non-citizens’ are not European citizens and are chronically discriminated against. This discrimination in pensions is now lawful oppression following Savickis: it’s not discrimination, if someone decided not to naturalize in their country of residence.
On June 9, 2022, the Grand Chamber of the ECtHR found ‘very weighty reasons’ (§193) to uphold the practice in the exclusion of the discriminated minority from equality by 10 votes against 7. We now know that under ECHR law, years of employment being equal, not paying a pension to second-class citizens compared with the Latvians belonging to the ‘titular nation’ does not constitute discrimination.
The Court applied the well-known four-step analysis of proportionality (grounds for the difference in treatment; relevantly similar situations; legitimate aim; proportionality) as well as the ‘very weighty reasons’ test (reduced margin of appreciation) which is required by a direct difference of treatment on the sole ground of nationality. The Grand Chamber, however, diverged from well-established case-law in the way it applied the ‘very weighty reasons’ test: it used a set of circumstances to apply different ‘degrees’ of the test (§206). In fact, the Court put forward four justifications to widen the margin of appreciation and simultaneously conclude to the existence of very weighty reasons which justifies that minorities excluded from citizenship by law can be treated differently, allowing the Court to overrule Andrejeva:
1. Those discriminated against on the basis of the lack of Latvian citizenship did not make an effort to naturalize, upgrading the status of ‘non-citizen of Latvia’ to ‘Latvian citizen’ (§215)
2. The choices made by the Latvian legislature were directly linked to the particular historical, economic and demographic circumstances, implying that constitutional identity and state continuity require that ethnic Latvians get a higher pension (§§208-209; §216);
3. The difference in treatment was limited to periods of employment outside the Latvian SSR – as opposed to Ms. Andrejeva – before they settled in the territory of what is now the Latvian Republic or had any other links with what is now the Latvian Republic (§§209-210, 216-217) – the main argument used by the Latvian Constitutional Court to depart from Andrejeva;
4. And lastly ‘trade-offs in social welfare systems generally call for a wide margin of appreciation’ (§218).
Judge Wojtyczek delivered a brief concurring opinion while all the judges of the minority expressed their dissents through two opinions: a joint dissenting opinion of Judges O’Leary, Grozev and Lemmens and a dissenting opinion of Judge Seibert-Fohr, joined by Judges Turković, Lubarda and Chanturia.
The majority in Savickis flushes the idea of non-discrimination down the drain by implicitly overruling the settled case-law: Andrejeva v. Latvia. It schizophrenically boasts the importance of legal certainty at the same time. Those who decided not to naturalize in the country of residence are not entitled to non-discrimination: the lack of citizenship – i.e. the differentiation introduced by the Latvian state to bring down precisely the group in question – emerges as sufficient justification. The meaning of ‘discrimination’ in ECHR law became less clear as a result.
Having chosen a ‘weighty reasons test’ (reduced margin of appreciation) required by settled case-law in instances of a direct difference of treatment on the sole ground of nationality, the Grand Chamber innovates by opting for different ‘degrees’ of the test depending on the circumstances of the case (§206). The application of what emerges as a new ‘weighty reasons to enlarge the margin of appreciation’ test results in victim-blaming and the disappearance of the very idea of non-discrimination as a value: a classical example of interpreting the rights away in spirit of the late Prof. Tsakyrakis’ thinking.
Savickis relies on Bah, which concerned discrimination based on a legal status other than nationality in access to social benefits and remains controversial (in Bah, the Court did not apply the very weighty reason test and relied heavily on the fact that the legal status of Ms. Bah was her choice in the absence of discrimination). The Grand Chamber adjudged that ‘in the context of difference in treatment based on nationality there may be certain situations where the element of personal choice linked with the legal status in question may be of significance’, like in Bah, observing that it ‘does not appear from the case file that any of the applicants has ever tried to obtain citizenship of Latvia’ (§215). In other words, since the applicants did not apply for Latvian citizenship, formally deployed by their state of residence precisely to discriminate against them, what were they complaining about?
Where do we begin? It is settled case law that a difference of treatment on grounds of nationality calls for ‘very weighty reasons’. It seems really dodgy that the Court would undermine the ‘very weighty reasons’ test only because the applicants did not try to change the characteristic used to treat them differently. It should be recalled that in Andrejeva the Grand Chamber made clear that the fact that the applicant did not apply for Latvian citizenship should not play any role in the proportionality assessment. Indeed, 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’ (§91).
The majority in Savickis disagreed, by ignoring the very ratio legis of the ‘very weighty reasons’ test in the case of discrimination on grounds of nationality. This test aims precisely to avoid situations where a lack of citizenship constitutes the core factor to enable the systematic different treatment of permanently settled non-citizens. As explained by the dissenters, the position of the majority also implies that ‘the possibility of acquiring citizenship is an implicit assumption that it is primarily, or perhaps even exclusively, through citizenship that ties leading to the grant of socio-economic rights are established with a given State. This belies the Court’s long-standing case-law’ (joint dissenting opinion of Judges O’Leary, Grozev and Lemmens, §20).
Pretending that the acquisition of Latvian citizenship is ‘largely a matter of personal aspiration’(§215) is even more untenable in light of the fact that the majority considers that ‘non-citizen’ status was devised as a temporary instrument: the ‘non-citizen’ status was precisely conceived as a core building block of an ‘ethnic electorate’ in a multi-ethnic state pretending to be a mono-national democracy. When the only purpose of exclusion of a huge chunk of the population is punishment by association for the Soviet occupation, is it surprising that Latvian citizenship had so little takers among the citizens of the Latvian SSR who were not ethnically pure enough for the newly-restored state? Add to this the fact that the ‘temporary instrument’ is in fact an inheritable status of statelessness, and the glaring lack of understanding of the local context by the majority reaches alarming proportions.
Never before has the failure to naturalize been used by the Court against discriminated permanent residents, just as it would be unthinkable to greenlight the humiliation of Muslims by an Islamophobic government for failure to convert. The choice of acquiring a local citizenship is not a pure administrative step. It is unquestionable that presenting the desire to become Latvian (as the current Latvian Republic understands it) as ‘an individual aspiration’ is deeply dishonest. J.H.H. Weiler is right: ‘come, be one of us’ invites an alien to ‘be us’ – the worst of all assaults. There is a grain of truth in this, even though, symbolism aside, it of course does not work this way: administrative dances do not alter the language of the lullabies. All this is particularly grave, given that the citizenship in question is a world-renowned example of astonishing discrimination. Unlike the Latvian citizenship, which is one of the most high-quality citizenship statuses in the world, the second-rate status of the ‘non-citizens of Latvia’, which is reserved in the Latvian Republic exclusively for ethnic minorities permanently resident in the Latvian territory, is akin to the citizenships of the sub-Saharan countries in terms of the global rights it brings its bearers. It is precisely the deployment of citizenship to whitewash discrimination that is the problem in the eyes of European Human Rights Law – not the fact that a huge portion of the Latvian population does not want that citizenship. This is precisely why Bah, on which the Court relies, was so extensively criticized. As rightly put by Peroni and Timmer it shifts the focus away from what is really at issue in discrimination cases: ‘social stratification based on traits, not the nature of the traits themselves’.
In any case, it is difficult to determine what personal traits are an element of choice or immutable and what are not. Unquestionable is that the fact that the Court in Savickis presents the acquisition of Latvian citizenship as a ‘choice’ is highly problematic. Latvian citizenship was unreachable for those deprived of it as a result of the restoration of pre-occupation laws, and the conditions necessary to acquire it are still hard to comply with, especially for the elderly, like the applicants. What is worse, the Court overlooks the fact (on which it insisted in Andrejeva) that the applicants havethe status of´ ‘non-citizens of Latvia’, meaning that Latvia is the only State with which they have ‘any stable legal ties and thus the only State which, objectively, can assume responsibility for her in terms of social security’ (Andrejeva, §88). Moreover, as recalled by the dissenters, ‘even if the applicants were to obtain Latvian citizenship, they would be treated like other citizens only for the future. The difference in treatment in the years before their naturalisation would not be retrospectively abolished, as the amount of their pension would not be recalculated ex tunc’(joint dissenting opinion of Judges O’Leary, Grozev and Lemmens, §19). The ‘choice’ the Court insists upon is thus materially irrelevant in the circumstances of discrimination at issue in any case. In an ethnic democracy where ‘language police’ is not a sick joke, and the very constitutional design of the state is such that a large chunk of the population has to be bought down by citizenship laws – the core element of the system of oppression and discrimination in Latvia – citizenship as a condition sine qua non for benefiting from non-discrimination is an aberration of common sense putting the Court to shame. The very name of Mr. Savitsky, misspelled by the Latvian authorities, in a common practice of othering ‘ethnic’ names, is a silent reminder (not mentioned by the Court) of the success of the Latvian minority humiliation policy.
Andrejeva used to provide the golden standard in mitigating the appetites of the Latvian state to discriminate. It was dismissed as precedent on the ground that Andrejeva worked for a company in what used to be the Latvian SSR, i.e. in the territory of what is now Latvia, while the applicants in Savickis had not resided and worked in the territory of Latvia – ‘forming legal and factual ties with Latvia only’ (§173). Given that all Latvian citizens are paid a pension for working anywhere in the USSR before the resurrection of Latvia, this argument is moot, since it is citizenship, not the territory where the work was performed, that plays the core role in justifying discrimination.
The only explanation of the majority was based on British Gurkha Welfare Society and Others: the Gurkhas in the British service were paid less for the time of work outside of British bases. This was ‘not because of their nationality, but because of the lower living expenses in their home countries’ (dissenting opinion Judge Seibert-Fohr, joined by Judges Turković, Lubarda and Chanturia, §10). There would be no objection, thus, ‘to a policy generally excluding periods of employment accrued while individuals were residing and working outside the Latvian territory’ (joint dissenting opinion of Judges O’Leary, Grozev and Lemmens, §3), but ‘if the State concerned decided, despite everything, to pay retirement pensions in respect of periods of employment outside national territory, it should do so without any discrimination (id., §12)’. These are some basics that the majority failed to understand. The continuity of the State doctrine and constitutional identity argument is therefore irrelevant and dangerous: ‘Europe knows only too well by now how some States may misuse or instrumentalise arguments relating to their constitutional identity for a variety of purposes’, recall the dissenters (id., §24).
As a cherry on top of a smelly pie comes the Savickis majority’s emphasis on legal certainty. Indeed, ‘it should not depart, without good reason, from precedents laid down in previous cases’ (§202). Besides the failure of the Court to provide any compelling explanation to depart from Andrejeva, it does not acknowledge its overruling impact and endangerment of legal certainty, as well as the tragedy of forgetting about human rights.
It is impossible to ignore the international context of the war in Ukraine looming large behind the U-turn of the Grand Chamber and its decision to engage the ‘weighty reasons to enlarge the margin of appreciation’ test against an oppressed minority of the elderly Russian-speaking de facto Latvians. The dissenters hinted at it, although they made is clear that it has not influenced the outcome of the case. Rather, it ‘illustrate[s] how acutely sensitive the relations between different communities in a given State may be […] which transcend the national borders of Latvia’ (joint dissenting opinion of Judges O’Leary, Grozev and Lemmens, §6). Non-discrimination law was created precisely, to allow for a careful navigation of such sensitivities, which the Court in Savickis chose to ignore.
The decision of the ECtHR Grand Chamber in Savickis will be remembered for its dissents, since the majority played a dangerous game by directly engaging in victim blaming and overturning a settled precedent against the spirit and the letter of the Convention. This was done in a manner which also contradicts the idea of non-discrimination as such. In order not to be discriminated against, according to the Grand Chamber, it is now necessary to naturalize in the state directly discriminating against you, however difficult this could be and whatever the victims of direct discrimination think about the procedure. Most crucially, the reasons for saying goodbye to foundations of non-discrimination law in Savickis are entirely unclear: the twists and turns of good old guilt by association are incapable of helping us make sense of this blow to the Court’s reputation.
[1] The earlier version of this text appeared in the Verfassungsblog: https://verfassungsblog.de/savickis/. We are grateful to Aleksejs Dimistrovs and Vadim Poleshchuk for helpful comments.
[2] Non-citizen status came with exclusion from countless professions and dignity and was decried by the Amnesty international and European Commission against Racism and intolerance, the Parliamentary assembly of the Council of Europe, the UN Committee on the Elimination of Racial Discrimination, the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minoritiesand scholars (see for instance here and here).
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