—Ignatius Yordan Nugraha, PhD Research Fellow, Hasselt University
On 9 June 2022, the Grand Chamber of the European Court of Human Rights (ECtHR) pronounced its judgment in the case of Savickis and Others v. Latvia, which concerns differential treatment between Latvian citizens and “permanently resident non-citizens” (nepilsoņi) with regard to the calculation of pension. The notability of this case cannot be overstated; as far as I am concerned, this is the first time that an international human rights body or tribunal recognizes “protection of constitutional identity” as a legitimate aim for differential treatment. This post is intended to briefly reflect on this development and its potential implication for the future of human rights adjudication.
Facts
The five applicants were born in different parts of the former Soviet Union, including Russia, Azerbaijan and Uzbekistan, and came to Latvia at some point in their life (with the third applicant arriving when he was three years old). After the independence of Latvia was officially restored in 1991, they continued to work there as a “permanently resident non-citizen” (a status that is mostly held by ethnic Russians), which constituted 9.6% of the population in January 2022. Once they reached retirement age, their pension was calculated only on the basis of the period when they worked in the territory of Latvia. By contrast, for Latvian citizens, the period when they worked in other parts of the former Soviet Union before 1991 was also considered. Thus, the applicants complained that there had been unlawful discrimination on the basis of nationality in the implementation of the right to property.
Constitutional Identity as a Legitimate Aim
The Latvian government invoked two grounds to justify this differential treatment. The first is the protection of Latvia’s economic system after five decades of unlawful occupation by the Soviet Union, although the Latvian economy has grown substantially since independence to the extent that it is dubbed as one of the three “Baltic Tigers”. The second, which is recognized by the ECtHR as “most important according to the domestic authorities” (para. 198), is the protection of the Latvian constitutional identity. This article will focus on this particular ground.
Latvia contended that part and parcel of the “Latvian constitutional identity” is the “state continuity” doctrine. According to this doctrine, the Soviet Union unlawfully annexed Latvia in 1940 pursuant to the infamous secret pact with Nazi Germany. Despite the illegal occupation, the Republic of Latvia as established in 1918 did not cease to exist de jure. After Latvia regained its independence in 1991, the 1922 Constitution was reinstated. The Republic of Latvia as it stands today is deemed to be a continuation of the pre-World War II republic. Hence, Latvian citizenship was considered to be restored to those who held it before the occupation and to their descendants. Those who did not belong to this category became a nepilsoņi, and they would have to undergo a naturalization procedure to become a Latvian citizen.
This narrative was accepted by the ECtHR. In fact, for the first time in its history, the ECtHR recognized the protection of constitutional identity as a legitimate aim for differential treatment. The Court observed that the case itself relates to the constitutional foundation of Latvia post-independence. It also accepted that Latvia’s “overall historical and demographic background” has informed the decision of the Latvian authorities in establishing the impugned pension system, and that their aim was “to avoid retrospective approbation of the consequences of the immigration policy practiced in the period of unlawful occupation and annexation of the country” (para. 198).
Having recognized this legitimate aim, the Court then proceeded to assess the proportionality of the measure. While differential treatment based solely on the ground of nationality would require “very weighty reasons”, the ECtHR accorded a wide margin of appreciation for Latvia in the case. Eventually, the Court found that the difference in treatment was in line with the legitimate aims invoked, while the grounds relied upon by Latvia were considered “very weighty reasons”. Thus, the Court concluded that there was no violation of the right to non-discrimination read in conjunction with the right to property.
Slippery Slope?
The recognition of the protection of constitutional identity as a legitimate aim immediately drew a sharp rebuke from Judges O’Leary, Grozev and Lemmens in their joint dissenting opinion. They dreaded that this recognition would become “another potentially dangerous and slippery slope” (dissenting opinion Judges O’Leary, Grozev and Lemmens, para. 24). In their words, “Europe knows only too well by now how some States may misuse or instrumentalize arguments relating to their constitutional identity for a variety of purposes” (dissenting opinion Judges O’Leary, Grozev and Lemmens, para. 24).
Indeed, constitutional identity has been used as a trump card to defy the judgment of an international tribunal. The Russian Constitutional Court, for instance, has reiterated many times before its expulsion from the Council of Europe that the effectiveness of ECHR norms in Russia depends on the ECtHR’s respect for the national constitutional identity (see, for instance, Judgment No. 12-P/2016 of 19 April 2016, para. 1.2). Had Russia remained in the ECtHR system, it would likely have seized this opportunity to invoke the protection of constitutional identity as a legitimate aim for limiting rights.
The ‘slippiness’ of the slope itself would depend on how strict the Court exercises the proportionality test. In this particular case, the Court has accorded a wide margin of appreciation to Latvia, and thus it did not exercise strict scrutiny concerning the proportionality assessment. The fact that the protection of constitutional identity is recognized as a legitimate aim does not imply that it would automatically excuse all measures that are framed to fulfill that particular aim. The Court will still assess whether that measure is necessary for the fulfillment of the aim and whether it is proportional. In a way, this judgment can be considered a balance between the Court’s awareness of the historical sensitivity of the issue (see para. 102) and the need to ensure that such an aim will not be abused to cheat the system.
Nevertheless, the Court’s recognition of ‘protection of constitutional identity’ as a legitimate aim for differential treatment sits uneasily from the perspective of international (human rights) law. It could open up an avenue for states to circumvent their obligations under Article 27 of the Vienna Convention on the Law of Treaties of 1969, which stipulates that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” It remains to be seen whether this development would remain an isolated anomaly (such as the ECtHR’s infamous “internal consensus” approach in A, B and C v. Ireland), or whether the Court would also recognize the protection of constitutional identity as a legitimate aim for human rights limitation in general (such as to limit the right to private life or the right to freedom of expression).
Suggested citation: Ignatius Yordan Nugraha, Protection of Constitutional Identity as a Legitimate Aim: Savickis and Others v. Latvia in the European Court of Human Rights, Int’l J. Const. L. Blog, July 27, 2022, at:http://www.iconnectblog.com/2022/07/protection-of-constitutional-identity-as-a-legitimate-aim-savickis-and-others-v-latvia-in-the-european-court-of-human-rights/
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