TrustHLT/LaCour huggingface dataset:
UNK (Announcer): La Cour!
Robert Spano (JudgeP): Good morning.
Robert Spano (JudgeP): I welcome all participants to this public hearing organized by the European Court of Human Rights with the use of video conferencing technology which has been made necessary due to the COVID-19 health crisis.
Robert Spano (JudgeP): I wish to begin by thanking the applicants and the respondent government, as well as the third party intervener for their cooperation in preparing this hearing on the admissibility and merits in the case of Savickis and others versus Latvia, which I now declare open.
Robert Spano (JudgeP): The application was lodged with the court on 4 August 2011 under Article 34 of the convention by permanently resident non-citizens of the Republic of Latvia.
Robert Spano (JudgeP): Mr. Jurij Savickis, Mr. Gennadijs Nezdarovs,
Robert Spano (JudgeP): Mr. Vladimir Spodokalo, Ms. Asia Zivicka,
Robert Spano (JudgeP): as well as by Ms. Marzia Vagapova, who
Robert Spano (JudgeP): now holds Russian nationality.
Robert Spano (JudgeP): The application was allocated to the fifth section of the court pursuant to Rule 52, paragraph 1 of the rules of court.
Robert Spano (JudgeP): The application was communicated to the government on 22 June 2015.
Robert Spano (JudgeP): On 1 December 2020, the chamber decided to relinquish jurisdiction in favor of the grand chamber.
Robert Spano (JudgeP): On 5 February 2021, the Russian government expressed their intention to make use of their right to take part in the written and oral proceedings as a third party in conformity with Article 36, paragraph 1 of the convention.
Robert Spano (JudgeP): The respondent government are represented by their agent, Kristīne Līce,
Robert Spano (JudgeP): assisted by Ms. Elīna Luīze Vītola, Ms. Sandra
Robert Spano (JudgeP): Kauliņa, and Ms. Baiba Felsberga, advisors.
Robert Spano (JudgeP): The applicants are represented by Ms. Inese Nikuļceva,
Robert Spano (JudgeP): attorney at law, and Mr. Aleksandrs Kuzmins's advisor.
Robert Spano (JudgeP): The Russian government are represented by Mr. Mikhail Galperin, representative
Robert Spano (JudgeP): of the Russian Federation at the European Court of Human Rights, assisted by Ms. Alana Dzutseva, counsel, Mr. Sergey  Andreyev,
Robert Spano (JudgeP): Mr. Sergey  Toropov, and Mr. Oleg Polokhov, advisors.
Robert Spano (JudgeP): I welcome the representatives of the parties in the name of the court.
Robert Spano (JudgeP): Having consulted the agent of the respondent government and the representatives of the applicant and of the third party, I've determined the order of address as follows, Ms. Kristīne Līce for the Latvian government
Robert Spano (JudgeP): will speak first, then Ms. Nikuļceva and Mr. Aleksandrs
Robert Spano (JudgeP): Kuzmins for the applicants, and finally, Mr. Mikhail Galperin for the Russian government.
Robert Spano (JudgeP): Ms. Līce, you have the floor.
GR1 (Government): Thank you and good morning. Mr. President, distinguished members of the Court,
GR1 (Government): in today's hearing, the Court is examining the case of Savitsky-Svendadas v Latvia.
GR1 (Government): The Court has asked a number of questions on various aspects of this case.
GR1 (Government): As I address the admissibility and merits of the applicants' complaints, I will also provide the Government's responses to these questions, insofar as they have not yet been answered in the Government's written submissions. My statement today will likewise address
GR1 (Government): the main arguments of the applicants and the third party intervener, the Russian Government.
GR1 (Government): Also, I wish to note that the Government maintains its position, as submitted in its memorial on 5 February this year.
GR1 (Government): Before I turn to the Government's arguments regarding the admissibility and merits of the case, I wish to address two issues that repeatedly appear in the arguments of the applicants and the third party intervener, and that are crucial in the examination of the present case. The first issue is the scope of the applicants' complaints before the Court
GR1 (Government): and the public international law principles relevant for determining this scope.
GR1 (Government): The second issue is the unsubstantiated equation of the present case to the case of Andreeva v Latvia. As to the first issue, in other words, the scope of the case, it is important to bear in mind
GR1 (Government): what this case is not about. This case is not about the right to receive old-age pension,
GR1 (Government): as all applicants are insured and receive old-age pension. The case is also not about any difference
GR1 (Government): between the treatment of the applicants and the treatment of the Latvian citizens for the period since the restoration of Latvia's independence in 1990-1991. Instead, the dispute in the present
GR1 (Government): case is whether, in calculating supplements to the applicants' pensions as paid by Latvia, the Latvian authorities should take into account the periods of time the applicants have spent working or serving military service not in the territory of Latvia, which at the time was illegally occupied by the Soviet Union, but in another former USSR republic. In other words,
GR1 (Government): the dispute in the present case is whether Latvia is the state that must assume the obligation to compensate in a form of supplements to the applicants' pensions for the work and service carried out during Latvia's illegal occupation outside the territory of Latvia. For the ease
GR1 (Government): of reference, in my statement I will use the term disputed years to refer to the periods of time when the applicants worked or served mandatory military service outside the territory of Latvia.
GR1 (Government): So, let me reiterate that the present case is not about the right to receive retirement pension, but about supplements for additional pension seniority accrued outside the territory of Latvia, which also means that the present case is about the limits to the obligations that, under international law, can be placed on Latvia, taking into account a lawful occupation by a foreign power for 50 years and also the wide margin of appreciation states enjoy when dealing with questions of economic and social policy. As to the second issue, that is to say the comparison
GR1 (Government): of the present case and the case of Andreeva versus Latvia previously decided by this Court, I wish to recall that in the Andreeva case the Grand Chamber found a violation of Article 1 of Protocol 1 in conjunction with Article 14 of the Convention, because the applicants in the Andreeva case resided in the territory of Latvia for all the years that constituted the disputed years and for that period of time forming legal and also actual ties only with Latvia.
GR1 (Government): In the present case, however, the disputed years consist of the time when the applicants worked or served the mandatory military service in Russia, Ukraine, Belarus, Turkmenistan, Tajikistan and Azerbaijan. Namely, during the disputed years relevance in the present case,
GR1 (Government): the applicants, unlike the applicants in the Andreeva case, did not reside in the territory of Latvia and had no legal ties with Latvia during the disputed years. This distinction
GR1 (Government): is the crux of the present case for a number of reasons that I will emphasize during my statement.
GR1 (Government): Mr. President, turning to the admissibility and merits of the case, I first wish to emphasize
GR1 (Government): that the case is set against complex historical backgrounds and raises a number of questions related to the obligations of states under international law. I will therefore begin
GR1 (Government): my statement with the assessment of the applicable principles of international law.
GR1 (Government): As noted by this court in the case of Zdanoka versus Latvia, following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 16th and 17th June 1940, the Soviet army invaded Latvia. The sitting government of Latvia at that time
GR1 (Government): was removed from the office and a new government was formed under the direction of the Communist Party of the Soviet Union. From 21st July to 3rd August 1940, the Soviet Union completed
GR1 (Government): the annexation of Latvia, forcing Latvia to become a part of the USSR. Thus, for 50 years
GR1 (Government): until 1990, when Latvia restored its independence, the entire territory of Latvia was under unlawful occupation and effective control by the USSR. This act constituted a violation of international law
GR1 (Government): and in the light of the customary rules of state responsibility under international law, any legal obligations, including those related to payments of social security benefits, directly emanating from this occupation, fall on the occupying power. The International Court
GR1 (Government): of Justice in its 1971 advisory opinion in the Namibia case, underlined that not sovereignty or legitimacy to title, but the physical control over the territory is the basis for state liability and for acts affecting other states. This principle has consistently been applied also by this court
GR1 (Government): in cases related to illegal occupation and exercise of effective and overall control over foreign territories. For example, in the cases of Cyprus versus Turkey, Catan versus Moldova and
GR1 (Government): Russia, and most recently in the decision in the case of Ukraine versus Russia regarding Crimea.
GR1 (Government): Considering that for 50 years of Latvia's occupation, including the disputed years, the USSR exercised effective control over the territory of Latvia, the same conclusions are equally applicable in the present case. In other words, the legal obligations in the field of
GR1 (Government): social security that have a reason towards the former citizens of the USSR, under international law, fall on the state that exercised effective control and jurisdiction over those territories and persons during their respective years. Latvia did not exercise such jurisdiction
GR1 (Government): or effective control, therefore no obligation in the field of social security for the disputed years can fall on Latvia. Concluding otherwise, would lead to a situation where a legal benefit
GR1 (Government): is derived from an illegal act, thus clearly going against the principle of ex injuria just non oritor. It would also lead to a manifestly unreasonable interpretation of the Convention,
GR1 (Government): as it would allow invoking Article 1 of Protocol 1 to the Convention to claim the obligation of any contracting party to provide social security benefits for years of work or service outside the territory of that contracting party and entirely unrelated to this contracting party in any other way. Furthermore, when assessing whether the applicants as non-citizens in the
GR1 (Government): present case are a group of individuals that are in a similar or relatively comparable situation with Latvian citizens, the government submits that for this question as well the historical context of the creation of the status of non-citizens should be considered.
GR1 (Government): The statistics show that in 1935, five years before the occupation, 76% of Latvia's population were Latvians. But in 1989, that is to say a year before the restoration of independence,
GR1 (Government): only 52% of the population were Latvians. The impact of Sovietization policies in the capital
GR1 (Government): figure was even bigger. It should be recalled that the International Court of Justice,
GR1 (Government): in its advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territories, reiterated the prohibition of the occupying power to take measures in order to organize or encourage transfers of parts of its own population into the occupied territory.
GR1 (Government): As regards the situation in Latvia, the extensive Sovietization policies carried out by the USSR during the occupation, whereby influx of workforce and military personnel in the territory of Latvia was artificially created, undoubtedly fall under the definition of measures prohibited under international law as defined by the ICJ. In 1990, Latvia restored its independence according
GR1 (Government): to the doctrine of state continuity, as Latvia considered and continued to exist de jure throughout the occupation, which was recognized by a number of other states. Therefore,
GR1 (Government): Latvian citizenship was not granted anew, but was restored to those individuals who held Latvian citizenship before the occupation and their descendants. As a result, a large number
GR1 (Government): of persons present in the territory of Latvia were not automatically granted citizenship, and these are the persons who moved to Latvia during Latvia's illegal occupation.
GR1 (Government): However, in order to protect those former USSR citizens who were brought to Latvia during the Sovietization process and who lost their USSR citizenship due to the collapse of the Soviet Union, to protect them from becoming stateless persons, Latvia, for humanitarian reasons, created the status of permanently resident non-citizen of Latvia. Therefore, the decision
GR1 (Government): of Latvia to introduce such a status has its roots in the doctrine of state continuity and, by extension, the general public international law. It must be emphasized that after the adoption
GR1 (Government): of the citizenship law in 1994, non-citizens were eligible to naturalize and acquire Latvian citizenship. In this context, it's important to underline that the status of non-citizen
GR1 (Government): was intended as a temporary status, and individuals with non-citizen status were expected to naturalize or obtain a citizenship of another state if they so choose. It should also be added that the
GR1 (Government): applicants could have naturalized and become the citizens of Latvia. Following the restoration of
GR1 (Government): independence, Latvia created a pension system based on the principle of contributions. However,
GR1 (Government): seeing that no pension funds existed at the moment of the restoration of its independence, Latvia decided to guarantee a minimal pension to all residents of Latvia. Therefore, as I noted
GR1 (Government): at the beginning of my statement, the present case does not raise issues with regard to the basic pension that is awarded to all residents of Latvia, including the applicants. The only question in the
GR1 (Government): present case is whether Latvia should pay supplements for additional pension seniority accrued during the disputed years, that is to say, for work and military service carried out in other former Soviet USSR republics outside Latvia's territory and before the restoration of Latvia's independence. Even though the obligation to pay pensions for work periods accrued during the
GR1 (Government): occupation primarily falls onto the state that exercised jurisdiction over the persons during the disputed years, Latvia nevertheless decided to extend full pension advantages based on two criteria. First, the citizenship of the beneficiaries and second, the territoriality,
GR1 (Government): meaning the employment or mandatory military service that was carried out in the territory of Latvia. Thus, a full pension benefits are awarded on the one hand to all Latvian citizens,
GR1 (Government): regardless of where in the former USSR they were employed and resided, and on the other hand, to all other persons, namely non-citizens of Latvia, stateless persons, foreigners, whose work periods have been accrued within the territory of Latvia, thereby contributing to the development of Latvia's economy. Therefore, while the applicants in the Andreeva case worked
GR1 (Government): in the territory of Latvia and therefore fell in the latter category under the criteria of territoriality, the applicants in the present case do not. The applicants were not only physically
GR1 (Government): employed in the territory of another former USSR republic, but their residence was registered in the respective republic as well. Moreover, the central issue in the case of Andreeva versus
GR1 (Government): Latvia was the definition of the concept of employment in Latvia, which is not the issue in the present case. In the present case, if compared to that of Andreeva versus Latvia,
GR1 (Government): there is no dispute over the fact that the applicants did not live, did not reside in the territory of Latvia during the disputed years. Therefore, unlike the case of Andreeva versus
GR1 (Government): Latvia, when it comes to the calculation of additional supplements to the pensions, the decisive factor is the territory in which the applicants were employed or served the mandatory military service and resided during the disputed years. To illustrate, one would hardly think of
GR1 (Government): a situation where a citizen of a former Yugoslavia, for example, having worked and resided for most of his or her life in one of the constituent states, decided to move to Latvia or France, and having done that, invoked responsibility of Latvia or France for the retirement pension entitlements for the employment carried out when residing in the former Yugoslavia.
GR1 (Government): In other words, the government believes that the situation of the applicants in the present case is comparable to that of the applicants in the case of LV versus Austria, where the court held that the right to receive a pension in respect of activities carried out in a state other than the respondent state is not guaranteed under convention. Moreover, finding that the government
GR1 (Government): in the present circumstances has an obligation to grant full pension benefits to all individuals residing in the territory of Latvia would undermine the entire system of bilateral agreements of states in social security matters. Such a finding would render the bilateral social security
GR1 (Government): agreements already concluded between Latvia and Russia, Ukraine and Belarus meaningless and unnecessary. It should be noted that in the Andreeva case, the court explicitly recognised
GR1 (Government): the importance of such bilateral agreements, and in paragraph 90 of the judgment stated that it, for its part, was fully aware of the importance of these agreements in the effective solution of the problems such as those arising in the Andreeva case. Thus, in reply to the court's
GR1 (Government): questions regarding the relevance of the doctrine of state continuity in the present case and the difference of the present case from the case of Andreeva versus Latvia, the government draws two conclusions. First, as noted by the Constitutional Court of Latvia in its judgment of 17 February 2011,
GR1 (Government): the Republic of Latvia is not the successor state of rights and liabilities of the former USSR.
GR1 (Government): Pursuant to the doctrine of state continuity, a re-established state does not have the duty to undertake any liabilities that follow from the liabilities of the occupying power. Second,
GR1 (Government): the decision to grant full pension benefits to citizens regardless of their place of their employment and to non-citizens, foreigners and stateless persons who worked in the territory of Latvia is also a direct consequence of the doctrine of state continuity and the international law applicable in the present case. Moreover, as noted at the very beginning, the difference
GR1 (Government): in the present case and in the case of Andreeva versus Latvia, the differences are significant and the fact that the applicants in the present case were employed in another territory having created ties with the former USSR republics in the territory of which they carried out their work or military service, these differences are sufficient to establish that the conclusions of the court in the Andreeva case are not automatically applicable in the present case.
GR1 (Government): Mr. President, turning to the question and visibility of the applicants' claims, I wish to
GR1 (Government): underline four arguments. First, the government reiterates that the applicants could not have had
GR1 (Government): a possession or any legitimate expectation to receive from Latvia pensions for employment periods outside the territory of Latvia. Therefore, their claims ultimately fall outside the scope of
GR1 (Government): article 1 of protocol 1 to the convention. Second, the government recalls that on 10 June 2019,
GR1 (Government): the first applicant, Mr. Savitsky, passed away and his heirs or other relatives have not come forward
GR1 (Government): and the case in this part should therefore be declared inadmissible. Third, the government
GR1 (Government): argues that four of the applicants have submitted their applications outside the six-month time limit, thereby failing to comply with article 35, paragraph 1 of the convention. And finally,
GR1 (Government): the government notes that the third applicant's complaint should be rejected due to the failure to exhaust domestic primitives. I will now elaborate these four arguments. With respect
GR1 (Government): to the first argument, I wish to recall that according to the well-established case law of this court, article 14 of the convention has no independent existence and its application can only be triggered if the complaint falls within the scope of one or more of the substantive rights guaranteed by the convention. In the present case, the applicants claim that they had a right to
GR1 (Government): receive retirement pension from Latvia in respect of the disputed years when they worked or served mandatory military service in other former USSR republics. In the case of Andreeva versus Latvia,
GR1 (Government): the court concluded that the applicants in that case had a pecuniary interest based on the domestic law, which created a system providing for the payment of pension in respect of aggregate periods of employment in the territory of the former USSR but outside Latvia to its citizens.
GR1 (Government): However, the government strongly believes that such an assessment is inseparable from the facts and particular circumstances of the Andreeva case. I once again wish to reiterate that the applicants
GR1 (Government): in the present case are not in a similar situation with that of the applicants in Andreeva case, who during the disputed years worked and resided in the territory of Latvia. This is furthermore
GR1 (Government): supported by the fact that for a considerable time, the applicants in the present case themselves did not claim that they should receive pensions for employment periods outside the territory of Latvia and did not argue against the decisions of the domestic authorities refusing to pay old age pensions for periods worked outside the territory of Latvia. I recall that in the cases of Stek and
GR1 (Government): Datas versus United Kingdom and Tarkoyev and Datas versus Estonia, the court concluded that the relevant test is whether, but for the condition of entitlement about which the applicants complain, applicants would have had the right to receive the benefit in question. However, while this test
GR1 (Government): in most cases would be sufficient, in the present case, the historical and geopolitical background of Latvia, the occupation of the USSR, the vast sovietization policies during the occupation and the restoration of Latvia's independence according to the doctrine of state continuity cannot be set aside. Otherwise, the test would fail to apply international law principles
GR1 (Government): that are relevant for the case at hand and would create a rule that both undermines the system of bilateral agreements and social security matters and completely disregards the violation of international law that was committed during and following the occupation of Latvia.
GR1 (Government): The government draws the court's attention that if compared to both non-citizens who in the case like Andreeva versus Latvia worked in the territory of Latvia and citizens of Latvia in the particular circumstances of the present case, the situation of applicants is manifestly different from both these categories of persons. Consequently, unlike the applicants in the case of Andreeva versus