SAVICKIS AND OTHERS v. LATVIA JUDGMENT – SEPARATE OPINIONS
and development more generally. Such contributions would establish a
sufficient tie justifying distinctions. However, a distinction based exclusively
on nationality is not tailored to this aim. Taking into account that the pension
scheme is contribution-based, I cannot therefore accept the respondent State’s
argument that the difference in treatment, which was based exclusively on
nationality, can be explained by a State’s particular responsibility for its own
citizens. According to the Preamble to the European Convention on Social
Security (1972), the principle of equal treatment for nationals of the
Contracting States applies also to stateless persons (and refugees) under their
social-security legislation.
III. THE TRANSITIONAL CONTEXT AND ITS RELEVANCE UNDER
ARTICLE 14
10. I understand that the majority focus their finding on the particular
circumstances of the case, in which the respondent State, faced with specific
difficulties after a long period of occupation, established a pension system
with limited resources. They explain the respondent State’s purportedly wide
margin of appreciation as arising from the specific background to the
impugned transitory measure, adopted in the context of fundamental changes
and while the respondent State was in transition from a totalitarian regime
after the restoration of independence (see paragraph 211 of the present
judgment). The judgment refers to British Gurkha Welfare Society and
Others, cited above). What is overlooked, however, is that in the latter case
of indirect discrimination, the remedial nature of the impugned measures,
which were intended to correct past inequalities in the British scheme, led the
Court to accept a wide margin of appreciation (ibid, § 81). The only point
which distinguished the applicants from other soldiers serving in the British
army is that, as Gurkha, they accrued the right in respect of years of service
prior to 1 July 1997 at actuarial value (ibid., § 77) rather than on a
year-for-year basis. Nevertheless, the applicants accrued pension rights in
respect of all years of service (like their British counterparts). Furthermore,
the calculation on an actuarial basis was decided not because of their
nationality, but because of the lower living expenses in their home countries.
11. The present case, which involves direct discrimination on the ground
of nationality, is different. Not only is the beneficial treatment pursuant to the
relevant statutory provision dependent on the applicant’s nationality, but the
applicants – who worked in Latvia and have contributed to its pension
scheme – incur the same living expenses as their co-workers who hold
Latvian citizenship. In contrast to British Gurkha Welfare Society and Others,
the difference in treatment does not result from a transitional measure
forming part of a scheme carried out in order to correct an inequality. None
of those seeking recognition for the work periods accrued outside Latvia has
suffered from any injustice by the respondent State which the pension scheme
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