TrustHLT/LaCour huggingface dataset:
GR1 (Government): Latvia who objectively had legitimate expectations that she would receive pensions for work carried out within the territory of Latvia, the applicants in the present case would not have had legitimate expectations that they would be granted social benefits for employment periods outside the territory of Latvia. Accordingly, the government is of a strong belief that the present case should
GR1 (Government): be dismissed because the applicants in the particular circumstances of this case could not have had legitimate expectation that they would receive pension for the disputed employment periods.
GR1 (Government): As to the second argument on admissibility, the government notes that since the first applicant's death for almost two years, none of his relatives or heirs have come forward to pursue his initial application. Therefore, in the light of the court's case law, the application in this part should be
GR1 (Government): found inadmissible due to the loss of victim status. Turning to the third argument regarding
GR1 (Government): the admissibility, the government submits that the first, second, fourth and fifth applicant submitted their complaints outside the six months' time limit, contrary to Article 35, paragraph 1 of the Convention. While the Constitutional Court initiated proceedings in the
GR1 (Government): applicant's case, noting that they did not have other remedies against alleged discrimination, this decision was taken following the request of the applicants to reopen proceedings before domestic administrative courts. In this regard, the government submits that according to the
GR1 (Government): court's case law, as illustrated, for example, by the cases of Pechteina v Latvia, Iksandada v Latvia, the submission of the applicants to reopen proceedings at the domestic level and the subsequent constitutional complaints must be considered as extraordinary remedies and therefore cannot be taken into account for the calculation of the six months' time period.
GR1 (Government): Moreover, even if this could be considered a continuing situation, it still remains unexplained why the first, second, fourth and fifth applicants were inactive for a period ranging from one and a half to 10 years before once again raising their complaints before domestic authorities and then before the court. This court, even in cases relating to investigation of missing persons,
GR1 (Government): has concluded that where there has been excessive or unexplained delay on the part of the applicants, their applications can be rejected as submitted out of time.
GR1 (Government): Finally, as regards the third applicant's complaints, the government underlines that the third applicant has not exhausted domestic remedies available to him. Namely, the applicant
GR1 (Government): has not used the opportunity to seek recalculation of his pension based on the agreement concluded between the government of Latvia and Russia on social security matters. Therefore, if the
GR1 (Government): applicant served his military service in Russia prior to the restoration of Latvia's independence, he should have relied on the bilateral agreement concluded between the two states.
GR1 (Government): I will very briefly address the merits of the applicant's complaints.
GR1 (Government): As noted previously, the doctrine of state continuity is at the core of the restoration of Latvia's independence. Thus, the decisions made with respect to the creation of the status
GR1 (Government): of non-citizen of Latvia are also based on this doctrine. Following the well-established
GR1 (Government): principles of international law and the case law of the ICJ and this court, the responsibility for payments of social benefits that the applicants accrued during the occupation should in principle fall onto the state that exercised effective control and jurisdiction over the persons and territory concerns. However, considering the special ties of its citizens
GR1 (Government): with the state, Latvia undertook additional responsibilities with regard to its citizens.
GR1 (Government): When it comes to non-citizens, Latvia decided to compensate those individuals who contributed to the development of the national economy of Latvia, that is, those non-nationals who were employed and resided in the territory of Latvia during the occupation. Seeing that the applicants
GR1 (Government): in the present case complain about the disputed years that they lived and worked or served military service in another former USSR republic, they are in a manifestly different situation compared to the applicants in the case of Andreeva versus Latvia, who, I repeat, worked and resided her entire life in the territory of Latvia during the disputed years. Also, it must be emphasized
GR1 (Government): that the applicants are not in a similar or relevantly comparable situation with Latvian citizens for the following reasons. As noted previously, the status of a non-citizen was
GR1 (Government): created for humanitarian reasons. Non-citizens enjoy several rights ex lege, however, in the
GR1 (Government): light of violation of international law, these rights, including the right to receive supplements for additional pension seniority, are not applicable retroactively. It must also be
GR1 (Government): emphasized that from the restoration of Latvia's independence, non-citizens, just like citizens, are paid for all employment periods equally. That is, when old age pensions are calculated
GR1 (Government): employment periods after 1 January 1991, both citizens and non-citizens enjoy the same rights.
GR1 (Government): However, the same approach cannot be applied to periods when Latvia was occupied by the USSR.
GR1 (Government): In other words, Latvia, as a state that was illegally occupied as a result of the aggression, would not assume responsibility for individuals that entered its territory as a result of immigration policies exercised by the occupying power.
GR1 (Government): In the light of these principles, and together with the fact that the applicants, like many other individuals, arrived to Latvia as a result of the immigration policies of the USSR, Latvia cannot be obliged to assume responsibility for other additional payments for persons who were neither the citizens of Latvia nor carried out their work in the territory of the USSR.
GR1 (Government): I wish to recall that when the government adopted the citizenship law in 1994, applicants obtained the possibility to naturalize, to establish a bond with the state of Latvia, and their pensions would have been recalculated.
GR1 (Government): In light of these arguments, and given the wide margin of appreciation afforded to states with respect to measures of economic and social policy, the government concludes that in the circumstances of the present case, the underlying distinction is linked to the fact that the applicants were not citizens of Latvia, but were citizens of the USSR.
GR1 (Government): In the circumstances of the present case, the underlying distinction is linked to the fact that the applicants worked and lived outside the territory of Latvia for the disputed years, and the different treatment of the applicants, if compared to the citizens, was reasonable, necessary and proportionate. Therefore, the government considers that this application
GR1 (Government): is inadmissible and requests the court to reject it.
Robert Spano (JudgeP): Thank you very much indeed, Mrs. Līce.
Robert Spano (JudgeP): I confirm that both audio and video was sufficient.
Robert Spano (JudgeP): We heard you loud and clear.
Robert Spano (JudgeP): I now turn to the representative of the applicants, Ms. Nikuļceva.
Robert Spano (JudgeP): You have the floor.
AP1 (Applicant): Thank you, Mr President, honourable members of the court. In the present case,
AP1 (Applicant): four remaining applicants are elderly so-called non-citizens of Latvia. Mr Nesterovs, Mr Podoliako,
AP1 (Applicant): Mrs Sivitska and Mrs Vagapova. All the applicants are living in Latvia for a very long time already,
AP1 (Applicant): from 1979, 1968, 1951 and 1987 respectively. For all the applicants, certain periods of time
AP1 (Applicant): of their service before 1991 were not taken into account in calculation of their retirement pensions. Those are years of work in Azerbaijan, Uzbekistan, Russia, Belarus, Turkmenistan,
AP1 (Applicant): Tajikistan and also military service in the Soviet army. According to the Latvian law
AP1 (Applicant): on state pensions, in principle, these periods up to 1991 shall be equivalent to periods of social insurance. However, the law provides for different treatment for citizens on one hand and, on the
AP1 (Applicant): other hand, for foreigners, stateless persons and also for non-citizens. Had those periods been
AP1 (Applicant): included, the applicants would receive higher retirement pensions. We are speaking here about
AP1 (Applicant): retirement pensions and not only for supplements to those pensions.
AP1 (Applicant): We would now like to answer the questions of the Court and express our opinion. Firstly,
AP1 (Applicant): I would like to address the issue of the exhaustion of domestic remedies and the six-month time limit. The applicants consider that all domestic remedies are exhausted.
AP1 (Applicant): According to well-established case law of the Latvian Supreme Court, if in respect of a person an unfavourable administrative act has been issued, that person may at any time apply again to that institution and request a favourable decision. Thus, after the court's judgment on 18 February
AP1 (Applicant): 2009, in the case Andreeva v Latvia, all the applicants applied to the state social insurance agency, requesting recalculation of their pensions. Then, they went to an administrative court,
AP1 (Applicant): which dismissed their claim. Then, the applicants applied to the constitutional court.
AP1 (Applicant): The Constitutional Court of Latvia can initiate proceedings on the basis of a constitutional complaint only if all options have been used to protect the rights with general remedies, or if such remedies do not exist. Thus, by initiating the proceedings, the Constitutional
AP1 (Applicant): Court of Latvia at this point approved that all general remedies had been exhausted.
AP1 (Applicant): In the case of Grishankova v Latvia, I referred to the decision in the case of Grishankova v Grishankovs. If the applicant calls into question a provision of Latvian legislation
AP1 (Applicant): as such, in being contrary to the Convention and the Constitution of Latvia, proceedings should be brought before the Constitutional Court prior to the European Court.
AP1 (Applicant): In the present case, the law on state pensions, paragraph 1 of the transitional provisions, directly regulates those periods that have to be taken into account in the calculation of retirement pensions. Thus, the applicants had to apply to the Constitutional Court.
AP1 (Applicant): The Constitutional Court adopted a judgment on 17 February 2011. This judgment is final,
AP1 (Applicant): and not only the judgment itself but also the interpretation of legal provisions by the Constitutional Court is binding for all persons, also for Latvian courts. Thus, the
AP1 (Applicant): Latvian courts cannot decide on the contrary to the judgment of the Constitutional Court.
AP1 (Applicant): This is why there are no effective domestic remedies following the Constitutional Court judgment. The applicants applied to the court within a six-month time limit from the date
AP1 (Applicant): of the judgment of the Constitutional Court.
AP1 (Applicant): Now, I would like to address the relevance of the state continuity doctrine. The applicants
AP1 (Applicant): consider that the state continuity doctrine explained in the judgment of the Constitutional Court of 17 February 2011 is not relevant for the purposes of the present case.
AP1 (Applicant): The government in the present case raises preliminary objections ratione personae. According
AP1 (Applicant): to the government, Latvia is not a successor of the former Soviet Union and did not undertake any obligation to provide any payments to individuals for work periods in the Soviet Union. And it corresponds with the explanation of the Constitutional Court judgment, which
AP1 (Applicant): also states that a state that has been occupied as a result of aggression carried out by another state does not have the duty to guarantee social security for persons who had arrived in its territory from the occupying state as a result of its immigration policy.
AP1 (Applicant): The applicants disagree with this statement of the Constitutional Court. Although the
AP1 (Applicant): Republic of Latvia indeed avoided responsibility for the former Soviet Union actions, it does not set Latvia free from obligations. Firstly, to take into account the real situation, interruption
AP1 (Applicant): of statehood for 50 years, lives and work of people during these times. And secondly,
AP1 (Applicant): to fulfill obligations Latvia itself has undertaken. The Republic of Latvia indeed was established
AP1 (Applicant): in 1918 and the Euro retains its legal personality during the occupation by the Soviet Union.
AP1 (Applicant): However, the de facto interruption of statehood and the period of 50 years of de facto existence as a part of the Soviet Union shall be taken into account. In the period of time from 1940
AP1 (Applicant): to 1990, when the restoration of Latvia's independence was declared, a large number of persons came to Latvia from other Soviet republics. After the dissolution of the Soviet
AP1 (Applicant): Union and the restoration of independence in Latvia, Latvia took responsibility for these people. By 4 May 1990 independence declaration, not only it was proclaimed that following
AP1 (Applicant): the restoration of independence the state created in 1918 had been preserved, but the Latvian state's commitment was declared to guarantee to those citizens of the Soviet Union who will express the desire to continue residing in the territory of Latvia without accepting its citizenship, their social, economic and cultural rights, as well as political freedoms. For these people, Latvia created a special status of non-citizens of Latvia,
AP1 (Applicant): who are not stateless persons, and whose status has many similarities with that of citizens of Latvia. Inter alia, Latvia granted permanent residence in Latvia to almost non-citizens
AP1 (Applicant): ex lega. Thus, on one hand, Latvia itself has undertaken obligation to provide to non-citizens
AP1 (Applicant): guarantees, including social guarantees, including retirement pensions. Latvia is the only state
AP1 (Applicant): that has responsibility for these persons. On the other hand, Latvia itself has undertaken
AP1 (Applicant): obligation to provide pensions for work periods in the Soviet Union, both in Latvia and outside Latvia, and for military service in the Soviet army. The Republic of Latvia is not the legal
AP1 (Applicant): successor not only of the former Soviet Union as a whole, but also of the Latvian Soviet Socialist Republic in particular. Thus, one should not make a distinction between work
AP1 (Applicant): periods in Soviet Latvia and in other Soviet republics. As to retirement pensions for work
AP1 (Applicant): periods in the Soviet Union before 1991, Latvian law on state pensions establishes that in principle these periods are taken into account in calculation of retirement pensions. Just
AP1 (Applicant): a list of those particular periods differs for citizens and for non-citizens. Besides
AP1 (Applicant): for non-citizens, also some periods, but not all, of work outside Latvia but in the Soviet Union are taken into account, for instance, higher education studies or the imprisonment of politically repressed persons.
AP1 (Applicant): In the case of Andreeva v Latvia, the government also stated that insofar as the application concerned Article 40, taken in conjunction with Article 1 of Protocol 1, its subject matter fell outside Latvia's jurisdiction. In that case, the Court already came to the
AP1 (Applicant): conclusion that the state continuity doctrine was irrelevant and Latvia has jurisdiction.
AP1 (Applicant): This reading is also supported by the following case law of the Court concerning discrimination on the grounds of nationality as regards pension rights. For example, in the judgments in the
AP1 (Applicant): cases Rybač v Slovenia and Aleksič v Slovenia. Given that the applicants in the present case
AP1 (Applicant): are in almost identical position to the applicant in the case Andreeva v Latvia, the applicants asked the Court to reaffirm its position on the relevance of the state continuity doctrine.
AP1 (Applicant): The government in the present case also raised preliminary objection to the rationale materia, arguing that Article 1 of Protocol 1 of the Convention is not applicable in the present case. However, where a state, even voluntarily, creates a system of benefits, these should
AP1 (Applicant): not be allocated on the basis of criteria that are discriminatory. Latvia has created
AP1 (Applicant): such system and in calculation of retirement pensions, in principle, recognises work periods in the Soviet Union. Thus, this calculation should be made on the basis of equitable criteria.
AP1 (Applicant): Also in the judgment in the case Andreeva v Latvia, the Court already concluded where a state decides on 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
AP1 (Applicant): 1. The applicants claim inclusion in their retirement pensions only of those periods
AP1 (Applicant): which are included in calculation of analogous pensions for citizens of Latvia. They do not
AP1 (Applicant): claim any additional benefits. Thus, a pecuniary interest falling within the ambit of Article
AP1 (Applicant): 1 of Protocol 1 exists and these rights shall be implemented without any discrimination.
AP1 (Applicant): Thank you.
AP1 (Applicant): I pass the floor to my colleague Mr Alexander Skuzmins.
AP2 (Applicant): Thank you.
AP2 (Applicant): The next question of the court was on whether the applicants are in a similar relevant situation to that of Latvian citizens.
AP2 (Applicant): As the court noted in Andreeva, the status of a permanently resident non-citizen of Latvia means that Latvia is the only state of which they have any legal stable ties, and thus the only state which objectively can assume responsibility for them in terms of social security.
AP2 (Applicant): This is very close to the situation of Latvian citizens, and it is the status of all the applicants now.
AP2 (Applicant): Their close connection of all non-citizens, including the applicants, with Latvia is confirmed by domestic laws, by international expertise, so it is not necessary to consider the degree of connection with Latvia for each applicant separately.
AP2 (Applicant): The status of a non-citizen of Latvia is a quasi-citizenship of Latvia.
AP2 (Applicant): In terms of English-speaking countries distinguishing nationality and citizenship, this status can be termed a kind of nationality as opposed to citizenship as a narrower group.
AP2 (Applicant): The evidence comes both from international organizations and from Latvia itself.
AP2 (Applicant): Internationally, the UN High Commissioner for Refugees, in his statistics, makes a note under non-citizens of Latvia.
AP2 (Applicant): The note reads that non-citizens may currently be considered persons to whom the convention does not apply in accordance with Article 1, Paragraph 2, Subparagraph 2.
AP2 (Applicant): What does it mean?
AP2 (Applicant): That paragraph of the convention relating to the status of stateless persons refers to persons who are recognized by the competent authorities of the country in which they have taken residence as having the right and obligations which are attached to the possession of the nationality of that country.
AP2 (Applicant): Moreover, the international human rights community is quite critical of the status, and the essence of this criticism is that non-citizens do not have full rights of citizenship.
AP2 (Applicant): So the European Commission Against Racism and Indolence has noted that there is an urgent need to solve the problems linked to the status of non-citizens, which makes people concerned feel like second-class citizens.
AP2 (Applicant): The recommendations of the international community also are telling in their requirement for Latvia to recognize for non-citizens the voting rights traditionally foreseen for citizens.
AP2 (Applicant): Those requirements are expressed in the calls of the bodies on the Council of Europe, like the same Commission Against Racism and Intolerance, like the advisory committee of the Framework Convention on National Minorities, in the OSCE Parliamentary Assembly, and the High Commissioner on National Minority Documents, and the UN Human Rights Committee, which also explains that non-citizens are treated by law as distinct category of persons with long-lasting and effective ties to Latvia in many respects comparable to citizens, but in other respects, without the rights that come with full citizenship.
AP2 (Applicant): Moreover, the UN Committees on the Elimination of Racial Discrimination and on Economic, Social, and Cultural Rights urge Latvia to phase out the status of non-citizens.
AP2 (Applicant): As for Latvia itself, the Constitution provides that everyone having a Latvian passport shall be protected by the state when abroad and has the right to freely return to Latvia.
AP2 (Applicant): And the non-citizens of Latvia do hold Latvia's passport.
AP2 (Applicant): In those passports, it is written that the holder of this passport is under the protection of the Republic of Latvia.
AP2 (Applicant): According to the Foreign Ministry itself, the Latvian one, non-citizens have the same social guarantees as Latvian citizens, and they enjoy majority of political rights.
AP2 (Applicant): In particular, they have unconditional right to reside in Latvia without any residence permits or visas, to work in the country without any work permits.
AP2 (Applicant): And this has been the case since their status was codified in 1995.
AP2 (Applicant): They are not foreigners under the immigration law, unlike stateless persons under the 1954 Convention.
AP2 (Applicant): Latvia's Constitutional Court has recognized that the legal ties of non-citizens with Latvia are to a certain extent recognized, and mutual obligations and rights have been created on the basis of the above.
AP2 (Applicant): This is very close to the definition of nationality provided by the International Court of Justice in Nottebohm case, quote, a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties.
AP2 (Applicant): Besides, Latvia itself regularly recognizes, for the purposes of specific Council of Europe treaties, the non-citizens of Latvia to be Latvia's nationals, together with Latvian citizens, but in contrast to stateless persons.
AP2 (Applicant): This is the case with the criminal law convention on corruption, with convention on the transfer of sentenced persons, with the convention of extradition, with the convention on the transfer of proceedings in criminal matters, and with two agreements on social security schemes, those relating to old age, invalidity, and survivors, and to the rest of schemes.
AP2 (Applicant): Currently, it needs to be noted that according to official statistics, as of 2020, 45% of the non-citizens have been born in Latvia.
AP2 (Applicant): The next question begins from whether the applicants are discriminated based on national or social origin.