SAVICKIS AND OTHERS v. LATVIA JUDGMENT – SEPARATE OPINIONS
situations; legitimate aim; proportionality) (see paragraph 189 of the present
judgment).
8. What we find unconvincing, however, is the majority’s application of
some of those principles and the digression from well-established case-law
relating to the State’s margin of appreciation and the intensity of the Court’s
scrutiny (see paragraphs 183-85 of the present judgment).
It is true that this case is about a matter concerning general measures of
economic or social strategy, for which the Court generally holds that States
enjoy a wide margin of appreciation under the Convention (see paragraph 184
of the present judgment). However, this case is also, and more importantly,
about a difference in treatment based exclusively on grounds of nationality.
In such a case, even if the difference in treatment results from general
measures of economic or social strategy, “very weighty reasons” have to be
put forward by a respondent State before the Court could regard the difference
in treatment as compatible with Article 14 of the Convention (see
paragraph 183 of the judgment, referring to Gaygusuz v. Austria,
16 September 1996, § 42, Reports of Judgments and Decisions 1996-IV;
Andrejeva, cited above, § 87; and Ribać v. Slovenia, no. 57101/10, § 53,
5 December 2017). Like our other dissenting colleagues, we consider that it
is this criterion of “very weighty reasons” that should have been applied in
the present case. This seems to have been accepted also by the Constitutional
Court (see the judgment of 17 February 2011, § 13, quoted in paragraph 55
of the present judgment).
The majority, however, while not entirely overriding that criterion,
nevertheless stress that in assessing whether “very weighty reasons” have
been put forward, the Court must take into account the circumstances of the
case “in determining the scope of the respondent State’s margin of
appreciation” (see paragraph 193 of the judgment; see also paragraph 206 of
the judgment). After having referred to a number of these circumstances, they
conclude that “the assessment of whether the impugned difference in
treatment is justified by ‘very weighty reasons’ must be carried out against
the background of the wide margin of appreciation to be applied in the
circumstances of the present case” (see paragraph 213 of the present
judgment).
It is difficult for us to understand what exactly the majority purport to say.
At best, they blow hot and cold at the same time. At worst, they undermine
the strict criterion of “very weighty reasons” by giving the notion of a wide
margin of appreciation a prominent, perhaps even determinative, place in it.
We continue to adhere to the criterion of “very weighty reasons” required
for the justification of a difference in treatment based exclusively on
nationality. For the reasons explained below, we think the Court was right in
this case to engage more fully with the Constitutional Court’s proposed
justifications for the impugned discrimination, given the political and social
sensitivity of this issue in Latvia and the importance of judicial dialogue in a
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