SAVICKIS AND OTHERS v. LATVIA JUDGMENT – SEPARATE OPINIONS
seeks to remedy, as was the situation for the British Gurkha. On the contrary,
at the end of the occupation period they were all in a similar situation
regarding their pension claims, irrespective of their nationality.
12. I can agree with the Government that the historical context should be
adequately taken into account. As emphasised by the Latvian Constitutional
Court, upon the restoration of its independence Latvia was not obliged to
assume the USSR’s responsibilities (see paragraph 203 of the present
judgment). When Latvia set up its pension scheme in 1996, it was confronted
with considerable difficulties (Andrejeva, cited above, § 86), given that the
resources of the USSR State Bank were not shared (see paragraph 55 of the
present judgment). However, once Latvia introduced a system of
occupational retirement pensions in 1996, which allowed for periods of
employment accrued outside its territory to be counted towards the pension
for Latvian nationals, it was under an obligation to comply with Article 14
taken in conjunction with Article 1 of Protocol No. 1. The Government have
failed to explain how the injustice suffered by the Latvian population during
the period of illegal occupation and annexation by the Soviet Union justifies
the impugned difference in treatment on the basis of nationality, without
regard to the circumstances of those former citizens of the Soviet Union who
were not, and are not, Latvian citizens. Given that the Convention is based on
a system of individual rights, the fact that the Soviet Union unlawfully
annexed Latvia and, as an occupying State, committed illegal acts and
maintained the unlawful occupation for five decades, does not in itself justify
reserving unfavourable treatment on the sole basis of their nationality for all
former subjects of the Soviet Union who have settled in Latvia, even if this
occurred as a result of the immigration policies imposed by the Soviet Union.
What is at issue is not a matter of ex injuria ius non oritur, according to which
States must not benefit from prior illegal conduct, but rather the issue of
protecting individuals from discrimination, as prohibited under the
Convention. The possibility of concluding bilateral agreements on social
issues does not detract from this obligation under the Convention (see
Andrejeva, § 90, and, mutatis mutandis, Koua Poirrez, § 49, both cited
above).
13. The difference in treatment between nationals and non-nationals laid
down in the transitional provisions with regard to periods of employment
accrued outside Latvia in the period prior to the restoration of independence
in 1991 resulted in a situation where even those non-nationals who
subsequently, by the time of their retirement, had resided and worked in
Latvia for the major part of their lives were unable to have the periods before
1991 counted toward their occupational retirement pensions on the same basis
as Latvian citizens. The fact that the employees’ share of these contributions
is levied on both nationals and non-nationals, on an equal basis, militates
against a difference in treatment based on nationality (compare Luczak, cited
above, § 55). Although the pre-1992 periods of employment accrued outside
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