JUDGMENT
ON BEHALF OF THE
Case No. 2010-20-0106
The Constitutional Court of the
according to Article 85 of the Satversme
(Constitution) of the Republic of Latvia, Article 16 1st indent,
Article 17 (1), 11th indent, and Article 19.2 and
28.1 of the Constitutional Court Law
having regard to a constitutional complaint of
Ms. Asija Sivicka, Ms. Marzija Vagapova, Mr. Genâdijs Ňesterovs and Mr. Vladimirs Podoďako
in
writing examined the case
“On Compliance of Para 1 of the Transitional Provisions of the Law “On
State Pensions” (the Part Regulating Making Equivalent of the Accrued Work and
the Equivalent Period thereof for Non-citizens of Latvia to Length of Period of
Insurance) with Article 14 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms in Conjunction with Article 1 of Protocol
No. 1 thereof and Article 91 of the Satversme of the Republic of Latvia”.
The Facts
1. On 2 November 1995, the Saeima adopted the Law “On State Pensions”
(hereinafter – the Pension Law) that came into force on 1 January 1996. Para 1
of Transitional Provisions of the Pension Law provided the following:
“The accrued work and
the equivalent periods thereof of citizens of the
On 6 November 1996, the Saeima introduced
amendments into the above mentioned norm by establishing the following wording
thereof:
“The
accrued work and the equivalent periods thereof of citizens of the
By the Law of 20 October 2005, the Saeima
established the following wording of the said norm:
“The accrued work and the
equivalent periods thereof for Latvian citizens in the territory of Latvia and
the territory of the former USSR up to 31 December 1990, as well as the periods
accrued outside of Latvia as prescribed by Sub-paragraph 10 of this Paragraph
shall be equivalent to length of period of insurance. The length of period of insurance of aliens and
stateless persons is equivalent to the work and the equivalent periods thereof
accrued in the territory of Latvia, as well the work and the equivalent periods
thereof accrued in the territory of the former USSR, that are referred to in
Sub-paragraphs 4 and 5 of this Paragraph, and the periods accrued outside of
Latvia referred to in Sub-paragraph 10 of this Paragraph. [..]”
By means of the Law of 19 June 2008, the Saeima
again amended the said norm by replacing the words of the second sentence
thereof “foreign citizens and stateless persons” by the words “foreign
citizens, stateless persons and non-citizens of
“The accrued work
and the equivalent periods thereof for Latvian citizens in the territory of
Latvia and the terreritory of the former USSR up to 31 December 1990, as well
as the periods accrued outside of Latvia as prescribed by Sub-paragraph 10 of
this Paragraph shall be equivalent to length of period of insurance. The length of period of insurance of aliens, stateless
persons and non-citizens of Latvia is equivalent to the work and the equivalent
periods thereof accrued in the territory of Latvia, as well the work and the
equivalent periods thereof accrued in the territory of the former USSR, that
are referred to in Sub-paragraphs 4 and 5 of this Paragraph, and the periods
accrued outside of Latvia referred to in Sub-paragraph 10 of this Paragraph.
Up to 31 December 1990 [..] the length of period
of insurance shall be equated to the following work equivalent periods [..]:
4) periods of
study at institutions of higher education, as well as at other educational
institutions after the acquisition of secondary education, but not longer than
five years in relation to specialisation, in which the acquisition of an
education was specified as not more than five years, and not longer than six
years in relation to a specialisation, in which the acquisition of an education
was specified as more than five years;
5) the period of
time of full time doctoral studies, but not longer than three years, the period
of post-graduate education and the period when qualifications were raised; [..]
10) politically repressed
persons’ in places of imprisonment, included during the deportation period is
the work done during deportation and other work done under the supervision of
the USSR Interior Ministry Administration for Industry and Building Provision
No. 907, as well as the time spent while
escaping from such places is to be multiplied by the amount of three, but that
spent in the Far North or the equivalent districts thereof – multiplied by the
amount of five. The Cabinet shall
determine the districts that are classified as being the Far North and the
equivalent districts thereof. The
calculated length of period shall remain in effect, for those persons, for whom
such length of period has been specified as six times the amount [..].”
2. The applicants Mr. Jurijs Savickis, Ms. Asija Sivicka, Ms. Marzija Vagapova, Mr. Genâdijs Ňesterovs and Mr. Vladimirs Podoďako (hereinafter
also referred to as the Applicants) contest compliance of Para 1 of
Transitional Provisions of the Pension Law in the part regulating making
equivalent of the accrued work and the equivalent period thereof for
non-citizens of Latvia to length of period of insurance (hereinafter – the
Contested Norm) with Article 14 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms in Conjunction with Article 1 of
Protocol No. 1 thereof.
The Applicants are non-citizens of
The Applicants indicate that the Contested Norm
discriminates the rights of non-citizens of
The Applicants hold that they enjoy comparable
situation with that of citizens of
The Applicants indicate that the aim of the
Contested Norm has not been clearly established because the Pension Law does
not contain any norm regarding different attitude towards non-citizens.
Likewise, the restriction included in the
Contested Norm is not proportional since there are no substantial reasons to
treat persons differently based on their citizenship. It is not possible to
regard the requirement by way of naturalisation in order to avoid
discrimination as proportional. Likewise, discrimination is not excluded by
international agreements in the field of social security because agreements
concluded by
After having got acquainted with the court file,
Mr. Vladimirs Buzajevs, a
representative of the Applicants Mr. J. Savickis, Ms.
A. Savicka, Ms. M. Vagapova
and Mr. G. Ňesterovs, submitted his opinion, wherein
he provided commentaries on the Saeima reply in the present case, as well as
opinions the Ombudsman and a representative of the Cabinet of Ministers
submitted to international institutions on human rights.
It has been indicated in the above mentioned
opinion that the Contested Norm fails to comply with Article 91 of the
Satversme, as well as Article 14 of the Convention in conjunction with Article
1 of the Protocol No. 1. International agreements in the field of social
security cannot guarantee prevention of different attitude. Consequently, the
only possibility to ensure restoration of such status of the Applicant that
they would have in case if Article 14 of the Convention were not breached is to
recognize the Contested Norm as anticonstitutional
and non-compliant with the Convention as from the date when the Convention came
into effect in the Republic of Latvia.
3. The institution that adopted the
contested act, the Saeima has
indicated in its reply to the Constitutional Court that the Contested norm envisages
making equivalent of the all work and the equivalent period thereof
accrued before 31 December 1990 in the former territory if the USSR for
citizens of Latvia to length of period of insurance. However, the length of period of insurance for non-citizens
includes only certain work and the equivalent period thereof accrued in the
former territory of the
The Saeima does not agree with the claim of the
Applicants to declare the Contested Norm as null and void with retroactive
force because no duty of the State to take into account certain work periods or
to guarantee social protection follows from Article 14 of the Convention in
conjunction with Article 1 of the Protocol No. 1, provided that the attitude
towards persons complies with the principle of legal equality. According to the
Saeima, the right to property protects disbursement of pension; however, this
does not commit the State to certain actions in the field of social rights, for
instance, it does not define the content of the right to social security that
would determine whether respective work periods should be taken into account or
not.
4. The summoned person, the Ombudsman
of the Republic of Latvia (hereinafter
– the Ombudsman) holds that the Contested Norm, insofar as it applies to
non-citizens of Latvia and provided its present wording, cannot be regarded as
compliant with Article 91 of the Satversme.
Since
5. The
summoned person, Ms. Inga Reine, a representative of
the Cabinet of Ministers before international institutions of human rights based her opinion mainly on analysis of the judgment
of the Grand Chamber of the ECHR in the case “Andrejeva
v.
The peculiarity of the
regulatory framework of the Contested Norm is that it applies to cases when
work period is accrued in one state, whilst pension is requested in another.
Complaints of the Applicants apply to the regulatory framework of the Contested
Norm concerning the work period accrued outside the territory of independent
The following has been indicated in the opinion: pursuant
to international legal norms regarding succession, the new state usually
inherits the rights and responsibilities of the former in case if it is able to
identify rights and duties directly applicable to its territory, although it is
not regarded as a successor of the “mother” state or liabilities thereof. Respectively,
in the Contested Norm,
Ms. I. Reine holds that
the position of
The Findings
6. On 4 May 1990, the Supreme Soviet of the Latvian SSR adopted the
declaration “On the Renewal of the
6.1. After reinstating independence of
On 29 November 1990, the Supreme Council of the
6.2. After having assessed economic and geographic situation of the State, as
well as available resources and other circumstances, on 2 November 1995, the
Saeima adopted the Law “On State Pensions” that came into force on 1 January
1996. With the adoption of this law, the principles of State
mandatory pension insurance system based on insurance The purpose of the first
level of State pension system is to guarantee the minimum income level to the
residents of retirement age. Since the first level is mandatory and based on
the principle of social insurance, there is a connection between the mandatory
social insurance contribution payments made by the residents and the level of
service attained as the end result (see:
Judgment of 21 December 2009 by the Constitutional Court in the case No. 2009-43-01, Para 23).
6.3. Meanwhile, the State had to solve the issue of calculating pension for
persons who had not made any social insurance payments into the budget of
Latvia due to having had reached the retirement age before the restoration of
independence of Latvia. A similar problem had to be solved in relation to those
pensioners whose length of period of insurance was accrued during the period of
occupation by the
On 6 November 1996, the legislator established a
new wording of this norm by providing that the
length of period of insurance of aliens and stateless persons whose place of
residence as on 1 January 1991 was Latvia is equivalent to the work and the equivalent
periods thereof accrued in the territory of Latvia, as well as to certain work
and the equivalent periods thereof accrued outside the territotry of Latvia before
1 January 1991.
6.4. On 26 June 2001, the Constitutional Court adopted a judgment in the Case
No. 2001-02-0106, wherein it assessed compliance of Para 1
of Transitional Provisions of the Law “On State Pensions (on length of
insurance of foreign citizens and stateless persons whose permanent place of
residence till January 1, 1991 has been the Republic of Latvia) with Articles
89, 91 and 109 of the Satversme (Constitution) of the Republic of Latvia as
well as with Article 14 of the November 4, 1950 European Convention for the
Protection of Human Rights and Fundamental Freedoms and Article 1 of the First
Protocol of the Convention. The
6.5. Since 1 July 2008, after the Law “Amendments to the Law “On State
Pensions” came into force on 19 June 2008, non-citizens of Latvia were also
included into Para 1 of Transitional Provisions of the Law “On State Pensions”
along with aliens and stateless persons.
Consequently,
all work periods accrued in the territory Latvia before 31 December 1990 by all
persons whose domicile at the moment of the law coming into force – 1 January
1991 – was the Republic of Latvia are made equivalent to length of period of
insurance. Work and equivalent periods thereof accrued outside the territory of
Latvia are made equivalent to length of period of insurance for citizens of the
Republic of Latvia, whilst periods equivalent to work period referred to in
Sub-paragraphs 4, 5 and 10 of Para 1 of Transitional Provisions of the Law “On
State Pensions” are made equivalent to length of period of insurance for
non-citizens, these periods being as follows:
1) periods of study at
institutions of higher education, as well as at other educational institutions
after the acquisition of secondary education;
5) the period of
time of full time doctoral studies, but not longer than three years, the period
of post-graduate education and the period when qualifications were raised; [..]
10) politically repressed persons’ in places of imprisonment,
included during the deportation period is the work done during deportation, as
well as the time spent while escaping from such places is to be multiplied by
the amount of three, but that spent in the Far North or the equivalent
districts thereof – multiplied by the amount of five.
7. Article 91 of the Satversme provides: “All human
beings in
Article 14 of the Convention provides: “The
enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as [..]
national or social origin, association with a national
minority, property, [..] or other status
Article 1 of Protocol No. 1 of the Convention
provides:
“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.”
The
Applicants hold that the Contested Norm envisages different attitude towards
citizens and non-citizens. Namely, work and equivalent periods thereto accrued
outside the territory of Latvia before 31 December 1990, including the period
of military service, are not made equivalent to length of period of insurance
for non –citizens.
The Saeima also concludes in its reply that the
Contested Norm envisages a different attitude.
Consequently,
the Constitutional Court concludes that the legislator has established
different principles when making equivalent of work and equivalent periods
thereto to length of period of insurance in respect to citizens and
non-citizens of the Republic of Latvia when calculating their pensions;
therefore these two groups of persons are treated differently.
8. On 18 February
2009, the Grand Chamber of the ECHR adopted a judgment in the case “Andrejeva v.
The ECHR indicated that State has the duty to
secure “to everyone within [its] jurisdiction” equal attitude.
9. The
First, the
However, the total length of period of insurance
of the Applicant Mr. J. Savickis constitutes 37.2
years, 21.3 (57 percent) of which he was working outside the
10. Social
human rights are regarded as a specific sector of human rights, which in
constitutional laws and international instruments (for instance, the European
Social Charter) are defined as general obligations of the state.
The
The ECHR has also recognized in several its cases
that a wide margin of appreciation is usually allowed to the State under the
Convention when it comes to general measures of economic or social strategy.
Because of their direct knowledge of their society and its needs, the national
authorities are in principle better placed than the international judge to
appreciate what is in the public interest on social or economic grounds, and
the Court will generally respect the legislature's policy choice (see, e.g.: Judgment of 12 October 2000 by
the ECHR in the case „Jankovič v. Croatia”, application No.. 43440/98; Judgment
of 13 September 2001 in the case „Hadţič v. Croatia”,
application No.. 48788/99; Judgment of 28 January 2003 in the case „Saarinen
v. Finland”, application No.. 69136/01; Judgment of 4 November 2008 in the
case „Carson and Others v. the United Kingdom”, application No.. 42184/05,
Para 73 Judgment of the Grand Chamber of 18 February 2009 in the case „Andrejeva v. Latvia”, application No.. 55707/00,Para
83, Judgment of 12 January 2010 in the case „Zubczewski
v. Sweden”, application No.. 16149/08).
Consequently, the State enjoys a
broad freedom of action when establishing its social security system, including
pension system.
11. The ECHR has
referred to succession of states or significance of inheritance of liabilities
when adjudicating a case (see, e.g.:
Judgment of the ECHR of 9 September 1998 in the case „Jasinskij and Others v. Lithuania”, application
No.38985/97; Judgment of 10 April 2001 in the case „Kuna v. Germany”, application
No.. 52449/99; Judgment of 1 July 2008 in the case „Kireev
v. Moldova and Russia”, application No. 11375/05; Judgment of the Grand
Chamber of 3 October 2008 in the case„Kovačič
and Others v. Slovenia”, applications No.. 44574/98, 45133/98 and
48316/99, Para 256; Judgment of 29 October 2009 in the case „Si Amer c. France”, application No. 29137/06).
Although the ECHR has established,
in the above mentioned cases, applicability of Article 14 of the Convention and
Article 1 of Protocol No. 1, it has rejected complaints taking into account
particularly the aspect of freedom of action of the State or lack of
succession.
The Constitutional
Court also holds: in order to establish whether, when making equivalent work
periods to length of period of insurance, the different attitude towards
citizens and non-citizens can or cannot be regarded as objective and
proportional provided the context of historical, economical and social events,
in the present case it is important to assess social rights, the assessment
being made observing international rights and the doctrine of state continuity.
11.1. The
On 18 November 1918, the Latvian People’s Council
proclaimed the
Independence of Latvia was restored in 1990 based
on the doctrine of state continuity. If the state, independence of which has
been unlawfully discontinued, restores its statehood, it has the right to
recognize itself, based on the doctrine of State continuity, as the state
previously having been unlawfully liquidated (see: Ziemele I. State Continuity and Nationality: The
Baltic States and Russia. Past, Present and Future as Defined
by International Law. –
Continuity of
11.2. For the
determination of the identity of the State, one has to take into account the
claim to recognize that an illegal annexation of a State or a part thereof to
the territory of another State has no legal consequences. Law regulates not
only the mutual relations of States as existing subjects of international law,
but also the creation and termination of States. It is particularly important
in the cases when a State or its part is annexed to the territory of another
State in breach of the rules of international and domestic law. Under the
principle ex injuria ius
non oritur, States and parts thereof can be
annexed to the territory of other states on voluntary basis and by observing
the procedures established in international and national law (see: Judgment of 29 November 2007 by the
Constitutional Court in the case No. 2007-10-0102,
Para 32.1).
11.3. The
doctrine of state continuity directly influences action of the State not only
in international law where it continues to fulfill the international
obligations undertaken before the de facto termination of independence
and it does not take over the international obligations of that state the part
which it had unlawfully been, but also in the internal affairs. The acts of the
illegally established public authorities of the other State in the field of
public law are not binding on the State that has re-established its
independence. The State that has restored its independence on the basis of the
doctrine of continuity is entitled to decide itself on all necessary issues
regarding existence of the State under its constitutional regime and legal
rules (see: Judgment of 29 November 2007 by the
Constitutional Court in the case No. 2007-10-0102,
Para 32.3).
Consequently,
the
12. In the field of social rights, different attitude is based on the idea
that the State undertakes care and responsibility for its citizens whose basic
needs it would satisfy. As to social rights that should be introduced according
to general procedure by observing maximal resources of a
particular state, no general standards have been established. However, certain
social rights can be ensured only partially. Application of absolute
prohibition of discrimination in relation to social rights might cause
substantial financial consequences. The fact that a person is denied the
possibility to enjoy certain social rights does not constitute infringement of
fundamental rights. Infringement is caused if there is no reasonable grounds
for such breach of the rights [see: Bossuyt M. Should the
Also the ECHR has indicated that the State enjoys
freedom if action when granting priority to persons whom it regards as
necessary taking into account a particular context (see: Judgment of the ECHR of 12 October 2000 in the case “Jankovič v.
Likewise, the ECHR established that different
attitude based on citizenship cab be regarded as consistent with norms of the
Convention provided that such attitude is based on substantial circumstances (see: Judgment of the ECHR of 16 September
1996 in the case “Gaygusuz v. Austria”, application
No.. 17371/90, Para 42, Judgment of 30 September 2003 in the case „Koua Poirrez v. France”, application
No. 40892/98, Para 46; Judgment of the Grand Chamber of
18 February 2009 in the case „Andrejeva v.
The following principle has been clearly
established in the case-law of the ECHR: even assuming
that Article 1 of Protocol No. 1 guarantees benefits to persons who have
contributed to a social insurance system, it cannot be interpreted as entitling
that person to a pension of a particular amount. An important consideration in
the assessment under this provision is whether the applicant’s right to derive
benefits from the social insurance scheme in question has been infringed in a
manner resulting in the impairment of the essence of his pension rights (see: Judgment of the ECHR of 12 October 2004
in the case „Kjartan Asmundsson v. Iceland”, application No.. 60669/00,
Para 39; as well as Judgmetn of 12 October 2000 in
the case „Jankovič v. Croatia”, application No. 43440/98).
Likewise, the ECHR has established
that the Convention does not guarantee the right to receive pension for work
done in another state (see: Judgment of the ECHR of 18 April 2002 in the
case „L.B. v.
12.1. The
Preamble of the Declaration of Independence imposes the obligation on the
authorities of the
12.2. After the
restoration of independence,
Considerable difficulties were encountered along
with the collapse of the
12.3. When forming
a new pension system, it was decided to include, into the length of period of
insurance, work periods accrued by persons outside the
13. In
June of 1940 the
After reinstitution of independence, the
legislator had to decide on establishing the body of Latvian citizens. Taking
into consideration continuity of
Latvian non-citizens cannot be compared with any
other status of a physical entity, which has been determined in international
legal acts, as the rate of rights, established for non-citizens, does not
comply with any other status. The status of a non-citizen is not and cannot be
regarded as a variety of Latvian citizenship (see: Judgment of 7 March 2005 by the
The present case does
not apply to long-term immigrants that came to the state pursuant to provisions
of regulated immigration procedure, as it takes place nowadays. The majority of
Latvian non-citizens travelled to the
The
Although the Applicants do not regard such
possibility as proportional, non-citizens of
Consequently,
different attitude, when calculating pensions for citizens and non-citizens of
14. In several judgments, the ECHR has drawn attention to the role of
bilateral international agreements regarding cooperation in the field of social
security when solving the problem of cross-border pensions (see, e.g.: Judgment of the Grand Chamber of
the ECHR of 16 March 2010 in the case „Carson and
Others v. the United Kingdom”, application No.. 42184/05, Para 88).
Also in the case “Anderejeva
v.
The
Latvia has concluded
agreements that envisage mutual recognition of length of period of insurance
with several states, namely, with the United States of America (effective as of
5 November 1992), Lithuania (effective as of 31 January 1995), Estonia
(effective as of 29 January 1997, another agreement – as of 1 September 2008),
Ukraine (effective as of 11 June 1999), Finland (effective as of 1 June 2000),
Norway (effective as of 18 November 2004), the Netherlands (effective as of 1
June 2005), Canada (effective as of 1 November 2006), Byelorussia (effective as
of 28 September 2010), Russia (effective as of 19 January 19). Consequently,
the states have mutually agreed on social protection of inhabitants by
concretizing rights and duties of each state.
Agreements concluded with states formed after the
collapse of the
Consequently, Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 should be interpreted pursuant to
Article 31 of the Vienna Convention on the Law of Treaties that establishes
that a principle that a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and
purpose, as well as by observing any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its
interpretation, and any relevant rules of international law applicable in the
relations between the parties. In the practice of international relations, a
principle that an international agreement cannot be assessed isolated has been
established. This is not only related with social facts but also the fact that
its norms should be assessed in relation to other legal norms that might
compete therewith (see: Dailler D., Pellet A.,
Droit international public. –
Consequently, when calculating length of period
of insurance for the Applicant. Ms. A. Savicka, the
agreement concluded between Latvia and Byelorussia regarding cooperation in the
social field should be taken into account; however, the work period accrued in
Germany shall be included into the length of period of insurance based on
normative acts of the European Union (see: European Parliament regulations No. 883/2004, Nr. 987/2009 and
Nr. 1231/2010).
Moreover, since 19 January 2011, the agreement on
collaboration in the field of social security concluded between the
Consequently,
the issue regarding making equivalent of work periods accrued outside the
15. In the
conception of the Pension Law the notion "the state pension" or
"social insurance pension", to which the disputable legal norm
refers, is just one of the types of old age social insurance. The right to
social security in old age are established by several laws. The Law “On Social
Security” establishes the framework for forming and functioning, as well as
principles of the social security system. The Pension Law establishes the
circle of persons who have the right to receive State pensions. However, the
Law “On Social Services and Social Assistance” establishes the order, according
to which each person having permanent domicile in Latvia may receive social
assistance in the case of need (see also:
Judgment of 26 June 2001 by the Constitutional Court in the case No. 2001-02-0106, Para 3 of
the Concluding Part).
The Applicants of the present case, like it is
the case in the matter “Tarkoev and Others v.
Estonia”, want to broaden their rights in respect to the amount of pension
granted (see: Judgment of the ECHR of 4
November 2010 in the case “Tarkoev and Others v.
Estonia”, applications No. 14480/08 and 47916/08). Namely, the Applicants
want that period up to 1 January 1991, when they were working outside the
The
Consequently,
the different attitude can be regarded as proportional, and the Contested Norm
does comply with Article 14 of the Convention in conjunction with Article 1 of
Protocol No. 1 thereof, as well as with Article 91 of the Satversme.
The
Based
on Article 30 – 32 of the
h o l d s:
Para 1 of the Transitional Provisions
of the Law “On State Pensions” (the part regulating making equivalent of the
accrued work and the equivalent period thereof for non-citizens of Latvia to
length of period of insurance) with Article 91 of the Satversme of the Republic
of Latvia and Article 14 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms in Conjunction with Article 1 of Protocol No. 1
thereof.
The
Judgment is final and not subject to appeal.
The
Judgment shall come into force on the date of publishing it.
Presiding
Judge
V. Skudra
Translated by Egija Labanovska, translator of
the