CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 9 juin 2022

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padding:1.02pt 5.03pt; vertical-align:top } .s27ED04B { width:16.72%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt }   GRAND CHAMBER CASE OF SAVICKIS AND OTHERS v. LATVIA (Application no. 49270/11)   JUDGMENT   Art 14 (+ Art 1 P1) • Discrimination • Very weighty reasons for exclusion of employment periods accrued in other former USSR states in state pension calculation for permanently resident non-citizens, in contrast to Latvian citizens • Impugned difference in treatment justified by the legitimate aims of protecting Latvia’s constitutional identity based on the State continuity doctrine and its economic system • Importance of specific context after decades of unlawful occupation and annexation as well as complex policy choices after restoration of independence • Wide margin of appreciation not overstepped • Weight given to applicants’ personal choice to remain “permanently resident non-citizens” while acceding to citizenship was open to them • Case distinguished from Andrejeva v. Latvia in so far as it concerns employment periods completed outside, and before establishing any link with, Latvia • No loss of basic benefits or those based on financial contributions   STRASBOURG 9 June 2022   This judgment is final but it may be subject to editorial revision.   In the case of Savickis and Others v. Latvia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Yonko Grozev,   Ksenija Turković,   Paul Lemmens,   Ganna Yudkivska,   Aleš Pejchal,   Krzysztof Wojtyczek,   Branko Lubarda,   Mārtiņš Mits,   Pauliine Koskelo,   Lətif Hüseynov,   Lado Chanturia,   Erik Wennerström,   Anja Seibert-Fohr,   Mattias Guyomar, judges, and Abel Campos, Deputy Registrar, Having deliberated in private on 2 March 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the difference in treatment between citizens of Latvia and “permanently resident non-citizens” ( nepilsoņi ) of Latvia with regard to the calculation of their retirement pensions, through the exclusion, for the latter group, of employment and equivalent periods accrued outside Latvia prior to 1991, in other parts of the former Union of Soviet Socialist Republics (“the USSR”). The applicants rely on Article 14 of the Convention, taken together with Article 1 of Protocol No. 1. PROCEDURE 2.     The case originated in an application (no. 49270/11) against the Republic of Latvia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a group of persons born between 1938 and 1948 and living in various cities of Latvia. 3.     The applicants were represented by Ms. I. Nikuļceva , a lawyer practising in Riga. The respondent Government were represented by their Agent, Ms K. Līce. The Russian Government, which subsequently exercised their right to intervene in the case (under Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court), were represented by Mr M. Galperin, Representative of the Russian Federation at the European Court of Human Rights. 4.     The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 22   June 2015 the respondent Government were given notice of the application. 5.     On 1 December 2020 a Chamber of the Fifth Section decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected (Article 30 of the Convention and Rule 72). 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicant and the Government each filed a memorial on the admissibility and merits of the case (Rule 59 § 1). 8.     The fifth applicant (Ms Marzija Vagapova) having acquired Russian nationality, on 5 February 2021 the Russian Government expressed their intention to exercise their right to take part in the written and oral proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 § 1). They subsequently filed written comments on the admissibility and merits of the case. 9.     A hearing took place in the Human Rights Building, Strasbourg, on 26   May 2021; on account of the public-health crisis resulting from the Covid ‑ 19 pandemic, it was held via video-conference. The webcast of the hearing was made public on the Court’s Internet site on the following day. There appeared before the Court: (a)     for the respondent Government Ms   K. Līce,   Agent , Ms   E.L. Vītola , Ms   S. Kauliņa, Ms   B. Felsberga,   Advisers ; (b)     for the applicants Ms   I. Nikuļceva,   Counsel , Mr   A. Kuzmins,   Adviser ; (c)     for the Russian Government Mr   M. Galperin ,   Representative of the Russian Government , Ms   A. Dzutseva,   Counsel , Mr   S. Andreyev,   Mr   S. Toropov,   Mr   O. Polokhov,   Advisers .   The Court heard addresses by Ms Līce, Ms Nikuļceva, Mr Kuzmins and Mr Galperin and the replies given by Ms Līce, Ms Nikuļceva and Mr   Kuzmins to questions put by judges. THE FACTS 10.     The applicants were born between 1938 and 1948 and live in various cities of Latvia. 11.     The facts of the case, as submitted by the parties, may be summarised as follows. THE GENERAL HISTORICAL BACKGROUND TO THE CASE 12 .     The historical background, namely the incorporation of the Baltic States into the Soviet Union in 1940, has been described in the cases of Ždanoka v. Latvia [GC] (no. 58278/00, §§ 12-13, ECHR 2006 ‑ IV); Kuolelis and Others v. Lithuania (nos. 74357/01 and 2 others, §   8, 19   February 2008); Vasiliauskas v. Lithuania [GC] (no. 35343/05, §§ 11-12, ECHR 2015); and Sõro v. Estonia (no. 22588/08, § 6, 3 September 2015). 13.     On 4 May 1990, the Supreme Council of the “Latvian Soviet Socialist Republic” (“SSR”, one of the fifteen “Soviet Socialist Republics” of the USSR), the legislative assembly elected on 18   March of the same year, adopted the Declaration on the Restoration of Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR in 1940 unlawful under international law and acknowledged that the fundamental provisions of the 1922 Constitution ( Satversme ) were still in force. A transitional period, aimed at the restoration of de facto sovereignty, was instituted. Negotiations with the USSR were to be initiated in accordance with the 1920 Peace Treaty between Latvia and Russia. During this period, various provisions of the Constitution of the Latvian SSR and other applicable legal acts remained in force in so far as they did not contradict the fundamental provisions of the 1922 Constitution (see paragraphs 60-61 below). 14 .     On 21 August 1991, the Supreme Council passed a constitutional law proclaiming full independence with immediate effect (see paragraph 62 below). The transitional period established under the 4 May 1990 Declaration on the Restoration of Independence was abolished. 15.     On 8 December 1991, Belarus, the Russian Federation and Ukraine signed the Minsk Agreement, declaring the end of the Soviet Union’s existence and setting up the Commonwealth of Independent States (CIS). 16.     On 21 December 1991, eleven sovereign States, former polities of the USSR – but not Latvia, Lithuania, Estonia, and Georgia – signed the Alma ‑ Ata Declaration, which confirmed and extended the Minsk Agreement setting up the CIS. It was noted in the Alma-Ata Declaration that “with the establishment of the CIS, the USSR ha[d] cease[d] to exist” and that the CIS was neither a State nor a supra-State entity. A Council of the Heads of State of the CIS was set up. They decided on the same date that (UN Doc.   A/47/60): “The States of the Commonwealth support Russia’s continuance of the membership of the USSR in the United Nations, including permanent membership of the Security Council, and [membership of] other international organisations.” PARTICULAR CIRCUMSTANCES OF THE CASE The initial calculation of the applicants’ retirement pensions 17.     In 1996, the Republic of Latvia created a social security system under which periods of employment and equivalent periods accrued prior to 1991 in the territory of Latvia were to be taken into account in the calculation of retirement pensions. Such periods were also to be taken into account for citizens of Latvia if they had been accrued in the other territories of the former USSR. However, in relation to “permanently resident non-citizens” the employment and equivalent periods accrued in the other territories of the former USSR were to be taken into account only in a limited number of situations (see paragraphs 66-68 below). 18.     The applicants were all born in various territories of the Soviet Union, were nationals of the former USSR, and came to live in Latvia while its territory was incorporated in the Soviet Union. Some of them arrived at a young age, others shortly before the restoration of Latvia’s independence in 1990-91. Following the restoration of independence the applicants did not become Latvian nationals but were granted the status of “permanently resident non-citizens” ( nepilsoņi ) of Latvia. After having worked in Latvia until their retirement they were granted retirement pensions. However, in contrast to the situation pertaining for citizens of Latvia, the employment and equivalent periods accrued outside the territory of Latvia in other parts of the former USSR prior to the restoration of that State’s independence were not taken into account in calculating their pensions. First applicant (Mr Jurijs Savickis) 19.     The first applicant was born in the Kalinin Oblast (Russia) in 1939. Before the Court, he complained that the period of his employment in Russia, which had lasted 21 years, 3 months and 13 days, was not initially included in the calculation of his retirement pension, and although it was later included this was only on an ex nunc basis, without retroactive effect. 20 .     By a letter received by the Registry on 30 October 2020, the applicants’ representative informed the Court of the first applicant’s death. By a letter of 16 February 2021, the applicant’s representative informed the Court that no heir or close relative had come forward with a wish to pursue the application on the first applicant’s behalf. Second applicant (Mr Genādijs Nesterovs) 21 .     The second applicant was born in Baku (Azerbaijan) in 1938. According to his submissions, he was employed in the territory of Azerbaijan from 1956 to 1957 and from 1960 to 1968 (that is, 9 years, 1 month and 8   days). From 1957 to 1960 he was conscripted for compulsory military service, which he served in East Germany (3 years, 2 months and 12 days). In 1968, at the age of 30, he started working in Latvia. 22.     On 12 January 1999 the State Social Insurance Agency ( Valsts sociālās apdrošināšanas aģentūra ) granted the second applicant a retirement pension. The insurance period was set at 30 years, 1 month and 14 days. The years of employment and of military service outside the territory of Latvia were not included in the calculation. The monthly amount of his pension was set at 79.05 Latvian lati (LVL) (approximately 113 euros (EUR)), payable from 3   December 1998. 23.     On 11 February 2008 the second applicant’s pension was recalculated in view of his continued employment. The insurance period was set at 39   years, 1 month and 13 days, and he was granted a pension amounting to LVL   177.46 (approximately EUR   253), payable from 1 January 2007. 24 .     According to the most recent information provided by the applicants, as of December 2015 the second applicant was receiving a pension of EUR   359.15 and a supplement of EUR 26.89. The employment periods accrued in Azerbaijan and the compulsory military service served in Germany remain excluded from the calculation. Third applicant (Mr Vladimirs Podoļako) 25 .     The third applicant was born in Vladivostok (Russia) in 1948 and came to Latvia in 1951, at the age of three. He worked in the territory of Latvia from 1968 onwards. He states that his compulsory military service was carried out in Russia (2 years and 1 month). 26.     On 20 October 2009 the third applicant requested an early retirement pension. On 2 December 2009 his application was refused on the grounds that he did not meet the requirement of having accrued an insurance period of at least 30 years. As the period of compulsory military service had not been taken into account, the insurance period was set at 28 years, 5 months and 14   days. An appeal before the administrative courts was not examined on the grounds that he failed to establish that he had complied with the procedural requirements. 27 .     On 2 August 2010, after the third applicant had reached the official retirement age, he was granted a retirement pension of LVL   186.17 (approximately EUR   265), payable from 11 July 2010. In view of his continued employment, his insurance period was set at 29 years, 3 months and 16 days. 28 .     According to the most recent information provided by the third applicant, as of December 2015 he was receiving a pension of EUR 283.05 and a supplement of EUR   16.93. The years of his compulsory military service in Russia remain excluded from the calculation.   Fourth applicant (Ms Asija Sivicka) 29 .     The fourth applicant was born in Termez (Uzbekistan) in 1946. According to data from the State Social Insurance Agency, from 1963 to 1971 she worked in the territory of Uzbekistan (a total of 7 years, 10 months and 14   days of employment, and 2 months of parental leave). From 1971 to 1973 (1 year, 11 months and 26 days) the fourth applicant was on parental leave, although the documents before the Court do not clearly specify in which country this time was spent. In the period between 1973 and 1976 the fourth applicant was employed in Germany (2 years, 9 months and 16 days of employment and 1 month and 4 days of parental leave). From 1976 until 1981 she was employed in Russia (4 years, 11 months and 25 days). From 1981 to 1985 she served in the Soviet armed forces as a volunteer. From 1985 to 1987 (1 year, 5 months and 5 days) the fourth applicant worked in the territory of Belarus. She started working in Latvia in 1987, at the age of 41. 30.     On 28 March 2008, the State Social Insurance Agency granted the fourth applicant a retirement pension. The insurance period was set at 19   years, 11 months and 12 days, as the years of employment and the equivalent periods accrued outside the territory of Latvia were not included in the calculation. The monthly amount of her pension was set at LVL   49.50 (approximately EUR   70), payable from 27 February 2008. 31.     On 28 September 2010, the Agreement between the Republic of Latvia and the Republic of Belarus on Cooperation in the Field of Social Security (“Latvia-Belarus Social Security Agreement”) entered into force. On the basis of this agreement, the Republic of Belarus granted the fourth applicant a retirement pension of EUR 6.55 with respect to the employment period in Belarus. There are no documents establishing when this decision was taken. In her application form lodged on 4 August 2011, the fourth applicant submitted that she had filed the relevant request in October 2010 but had not yet received a response. However, the Government alleged that this decision had already been taken on 27 October 2010. 32.     On 19 January 2011, the Agreement between the Republic of Latvia and the Russian Federation on Cooperation in the Field of Social Security (“Latvia-Russia Social Security Agreement”) entered into force. By a decision of 8 June 2011 the employment period in Russia was included in the calculation on the basis of the Latvia-Russia Social Security Agreement. Accordingly, the insurance period was set at 27 years, 2 months and 7 days (including periods accrued through continued employment following her retirement). The monthly pension was set at LVL 82.05 (approximately EUR   117) with a supplement of LVL 9.10 (approximately EUR 13), payable from 1 February 2011. 33 .     According to the most recent information provided by the applicants, as of December 2015 the fourth applicant was receiving a pension of EUR   152.06 and a supplement of EUR 12.95 from Latvia. The applicant receives a pension of EUR   12.50 from Belarus for the periods worked in Belarus. The employment and equivalent periods accrued in Uzbekistan remain excluded from the calculation. While the employment periods accrued in Germany and the voluntary military service in Russia are also excluded from the calculation, the fourth applicant does not complain about those periods, as they also remain excluded from the relevant calculation for Latvian citizens. Fifth applicant (Ms Marzija Vagapova) 34 .     The fifth applicant was born in Syzran (Russia) in 1942. According to the data provided by the State Social Insurance Agency, she worked in the territory of Russia from 1960 to 1970 (9 years, 10 months and 14 days), in Uzbekistan from 1970 to 1971 (7 months and 10 days), in Turkmenistan from 1972 to 1980 (4 years, 9 months and 15 days, or, according to the applicant’s submissions, 5 years, 3 months and 12 days), and in Tajikistan from 1980 to 1986 (6 years, 1 month and 15 days). She started working in Latvia in 1987, at the age of 44. 35.     On 16 February 2005, the State Social Insurance Agency granted the fifth applicant a retirement pension. The insurance period was set at 10 years and 4 days, as the years of service outside the Latvian territory were not included in the calculation. The monthly amount of her pension was set at LVL   38.50 (approximately EUR   55), payable from 1 December 2004. 36.     By a decision of 11 March 2011, the employment periods accrued in the territory of Russia were included in the calculation on the basis of the Latvia-Russia Social Security Agreement. The insurance period was set at 21   years, 1 month and 18 days (including periods of employment accrued following her retirement). The monthly amount of the pension was set at LVL   88.76 (approximately EUR   126). She was granted a supplement of LVL   12.60 (approximately EUR   18), payable from 1 February 2011. 37 .     According to the most recent information provided by the fifth applicant, as of December 2015 she was receiving a pension of EUR   137.08, with a supplement of EUR 17.93. The employment periods accrued in Uzbekistan, Turkmenistan, and Tajikistan remain excluded from the calculation. 38.     On an unspecified date (after the introduction of the application before the Court but prior to its relinquishment to the Grand Chamber), the fifth applicant acquired Russian nationality. The Constitutional Court’s initial ruling (2001) 39 .     The domestic legislation providing for the differences in the calculation of State pensions on the basis of Latvian citizenship was reviewed by the Constitutional Court ( Satversmes tiesa ) in 2001, in proceedings instituted by twenty members of the Parliament. The Constitutional Court considered that the contested provision, namely Paragraph   1 of the transitional provisions of the State Pensions Act, did not concern the right of property, as the pension entitlements for the respective time periods were based on the principle of solidarity and did not create a direct link between the contributions and the amount of pensions. Accordingly, it found that the contested provision was not at variance with Article 1 of Protocol No. 1 and did not infringe Article 14 of the Convention. Additionally, the Constitutional Court pointed out that the distinction made under the domestic law was objectively justified by the nature and principles of the Latvian pension system and did not amount to a discrimination within the meaning of the Constitution. The question of the aggregate periods of employment outside Latvia prior to 1991 with respect to persons not holding Latvian citizenship had to be resolved by means of international agreements, and Latvia should not be required to assume the obligations of another State (for a translation of the Constitutional Court’s main arguments, see Andrejeva v. Latvia [GC], no.   55707/00, §   37, ECHR   2009). The Court’s judgment in the Andrejeva case 40.     The conformity of Paragraph   1 of the transitional provisions of the State Pensions Act with Article 1 of Protocol No. 1 and Article 14 of the Convention was put before the Court in the Andrejeva case, cited above. In its judgment, the Court started by pointing out that in Stec and Others v. the United Kingdom ((dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ X) it had abandoned the distinction between contributory and non-contributory benefits for the purposes of the applicability of Article 1 of Protocol No.   1. The Government’s argument that, from the standpoint of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits, was found to be misconceived in the instant case, as the Latvian State had decided of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law. Accordingly, the presumed entitlement to such benefits fell within the scope of Article 1 of Protocol No. 1 and rendered Article 14 of the Convention applicable (ibid., §§ 76-80). 41.     Having regard to the conclusions it would reach later in its judgment, the Court considered it unnecessary to determine whether the domestic courts’ finding that the fact of having worked for an entity established outside Latvia, despite having been physically in Latvian territory, had not constituted “employment within the territory of Latvia” was reasonable or, on the contrary, manifestly arbitrary (see Andrejeva , cited above, § 85). The Court then accepted that the difference in treatment pursued at least one legitimate aim, namely the protection of the country’s economic system (ibid., § 86) and then noted that the national authorities’ refusal to take into account the years of the applicants’ employment “outside Latvia” had been based exclusively on the consideration that she had not had Latvian citizenship. Therefore, the Court concluded that nationality had been the sole criterion for the distinction complained of (ibid., § 87). 42.     Relying on the judgments in Gaygusuz v. Austria (16 September 1996, § 42, Reports of Judgments and Decisions 1996 ‑ IV), and Koua Poirrez v.   France (no. 40892/98, § 46, ECHR 2003 ‑ X), the Court reiterated that very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention. No such reasons could be discerned in the Andrejeva case. Firstly, it had not been alleged that the applicant had not satisfied the other statutory conditions entitling her to a pension in respect of all her years of employment. She had therefore been in an objectively similar situation to persons who had had an identical or similar career involving periods of employment outside Latvian territory but who, after 1991, had been recognised as Latvian citizens. Secondly, there was no evidence that during the Soviet era there had been any difference in treatment between nationals of the former USSR as regards pensions. Thirdly, the applicant was not a national of any State. She had the status of a “permanently resident non ‑ citizen” of Latvia, the only State with which she had any stable legal ties and thus the only State which, objectively, could assume responsibility for her in terms of social security (ibid., § 88). Accordingly, the Court was not satisfied that there was a “reasonable relationship of proportionality” rendering the impugned difference of treatment compatible with the requirements of Article 14 of the Convention (ibid., § 89). 43.     Additionally, while the Court acknowledged the importance of the bilateral inter-State agreements on social security in the effective solution of problems such as those arising in the case before it, it noted that the Latvian State could not be absolved of its responsibility under Article 14 of the Convention on the ground that it was not bound by inter-State agreements on social security (ibid., § 90). Finally, the Court rejected the Government’s argument that it would be sufficient for the applicant to become a naturalised Latvian citizen in order to receive the full amount of the pension claimed. Dismissing the victim’s claims on the ground that he or she could have avoided the discrimination by altering one of the factors listed in Article 14 – for example, by acquiring a nationality – would render that provision devoid of substance (ibid., § 91). Accordingly, the Court found a violation of Article   14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 to the Convention. The applicants’ requests subsequent to the Andrejeva judgment Requests for administrative review 44.     On 14 August 2009, following the delivery of the judgment in the Andrejeva case, the first, second, fourth, and fifth applicants applied to the State Social Insurance Agency seeking a recalculation of their pensions and the inclusion of the employment and equivalent periods accrued in the territory of the former USSR outside Latvia, as well as compensation for the pecuniary damage sustained. As these requests were refused, the applicants brought proceedings before the administrative courts, seeking the reopening of the administrative proceedings related to their claims. 45.     By final decisions of 20 November 2009, 27 November 2009, and 16   December 2009 the District Administrative Court ( Administratīvā rajona tiesa ) dismissed the applicants’ requests. The District Administrative Court declared that the Court’s judgment had been adopted only in respect of Ms   Andrejeva; conversely, no similar judgments had been given by the Court with respect to any of the applicants in the present case. Furthermore, reopening could not be based on an alleged change in the legal circumstances, as the State had a margin of appreciation in deciding how to execute the Strasbourg Court’s judgment. In particular, the District Administrative Court pointed out that draft amendments to the State Pensions Act were pending before Parliament and had been adopted at first reading. These amendments proposed that the insurance periods accrued outside the territory of Latvia be excluded from the calculation of pensions in respect of both Latvian citizens and “permanently resident non-citizens”. The explanatory note to the draft amendments argued that the Andrejeva judgment could be executed either by including those periods in the calculation with respect to both of these groups or by excluding them from the calculation entirely. As the inclusion of these periods in the calculation of pensions for “permanently resident non-citizens” was seen as contradicting the doctrine of continuity of the Latvian State despite its occupation or annexation by foreign powers, a complete exclusion was proposed. In view of these circumstances, the District Administrative Court considered that only following the legislative amendments would it be possible to speak of a change in legal circumstances warranting or justifying the reopening of the administrative proceedings. The Constitutional Court’s review (a)    Application before the Constitutional Court 46.     On 5 March 2010, relying on the Court’s judgment in Andrejeva , the first, second, fourth, and fifth applicants lodged an application with the Constitutional Court seeking a reassessment of the compatibility of Paragraph   1 of the transitional provisions of the State Pensions Act, instituting the impugned difference in treatment between citizens and “permanently resident non-citizens” in the calculation of their retirement pensions, with Article 91 of the Constitution (guaranteeing the principle of equality and non-discrimination) and Article   14 of the Convention, read in conjunction with Article 1 of Protocol No. 1 to the Convention. 47.     The Constitutional Court accepted their application and instituted proceedings on 24 March 2010 (case no. 2010-20-0106). It considered that the applicants had provided sufficient evidence that no possibility was open to them to defend their rights through the generally available remedies. 48 .     On 22 March 2010, the third applicant lodged a similar application, specifically pointing to the exclusion of the periods of compulsory military service from the calculation of the insurance period and the resulting refusal to grant him an early retirement pension. On 16 April 2010 the Constitutional Court instituted proceedings with respect to the third applicant also, having held that the contested legal provision had personally affected him and that he had substantiated that he was unable to protect his rights by using the general remedies. On 17 June 2010 the two applications were joined. (b)    The Constitutional Court’s second judgment (2011) 49 .     By a judgment delivered on 17   February 2011, the Constitutional Court found that the impugned legal provision was compatible with the principle of non-discrimination. Analysing the historical context in which the social security system had been created, the Constitutional Court reasoned that, once Latvia’s independence had been restored, the State had to resolve the issue of how to calculate retirement pensions for those persons who had made no contributions to the Latvian State budget, either because they had retired prior to the restoration of independence or because their insurance periods had been entirely or partly accrued during the Soviet regime. With regard to Latvian citizens, the legislature had chosen to include in the calculation all the employment periods and equivalent periods accrued both in Latvia and in the territory of the former USSR outside Latvia. Conversely, with respect to foreign citizens, stateless persons and “permanently resident non-citizens” of Latvia, only the periods of work in the Latvian territory were to be counted (with some exceptions). The treatment of Latvian citizens and “permanently resident non-citizens” of Latvia was thus clearly different and it had to be determined whether this difference was justified. 50.     Referring to the Court’s judgment in the Andrejeva case, the Constitutional Court noted that the European Court of Human Rights had only analysed the particular circumstances of that case, rather than the general compliance of the relevant domestic regulation with legal provisions of a higher legal force. The Constitutional Court then drew a distinction between the factual circumstances in the Andrejeva case and those in the case at hand. In particular, even though Ms Andrejeva had been an employee of a Soviet enterprise, the regional department where she was physically present during her work had been located in Latvia. In contrast, in the case at hand the applicants had been working outside the Latvian territory for periods of considerable length over which time they could not have acquired legal ties with Latvia. 51 .     The relevant part of the Constitutional Court’s reasoning reads as follows: “9.     ... The factual circumstances in the case of Andrejeva v. Latvia and in the present case put before the Constitutional Court differ considerably. In particular, Ms   N.   Andrejeva lived in Latvia from 1954 onwards and was an employee of an enterprise that was placed under the authority of the central government of the USSR, that is, an all-Union enterprise; the regional department where she worked was nonetheless located in the territory of Latvia. However, the total length of the insurance period for the [first] applicant is 37.2   years, of which 21.3 years (57 percent) was worked outside the territory of Latvia. [The fifth applicant] worked outside the territory of Latvia for 21.4 years (68   percent) of the total length of her insurance period (31.4 years). [The fourth applicant] accrued 21.8 years (52 percent) of the total length of her insurance period (41.7 years) outside Latvia, whilst [the second applicant] [accrued outside Latvia] 12   years (28 percent) of the total length of his insurance period (42.1 years). The Constitutional Court has no information that the above-mentioned applicants had only formally been employees of the enterprises placed under the authority of other Republics of the USSR but had in reality resided and worked in the territory of Latvia, as was the case for Ms N. Andrejeva. Consequently, during these periods, no legal ties could have formed between them and Latvia.” 52.     Relying, inter alia , on the case-law of the European Court of Human Rights, the Constitutional Court emphasised the wide margin of appreciation enjoyed by the States in creating their social security schemes, including pension schemes. Further, relying on such cases as Jasinskij v. Lithuania ((dec.), no. 38985/97, 9 September 1998); Kuna v. Germany ((dec.), no.   52449/99, 10 April 2001); Kireev v. Moldova and Russia ((dec.), no.   11375/05, 1 July 2008); Kovačić and Others v. Slovenia ([GC], nos.   44574/98 and 2 others, § 256, 3 October 2008); and Si Amer v. France (no. 29137/06, 29 October 2009), the Constitutional Court noted that the Court had indeed paid due regard to considerations of the State succession and continuity of legal obligations. 53.     The Constitutional Court continued (emphasis as in the original): “11.1.     ... On 18 November 1918 the People’s Council of Latvia proclaimed the Republic of Latvia as an independent State. Latvia and the other Baltic States lost their independence de facto in 1940 when the USSR occupied Latvia in breach of international law. Latvia’s independence was restored in 1990, based on the doctrine of State continuity. If a State in respect of which independence was discontinued unlawfully restores its statehood on the basis of the doctrine of State continuity, it is entitled to recognise itself as the same State as that which was unlawfully liquidated ... The continuity of Latvia as a subject of international law was emphasised in the Declaration [“On the Restoration of Independence of the Republic of Latvia”, adopted on 4 May 1990 by the Supreme Council of the Latvian SSR]. Its Preamble notes that the incorporation of the Republic of Latvia into the Soviet Union was null and void from the perspective of international law and that the Republic of Latvia still existed de jure as a subject of international law. Establishing the doctrine of the continuity of the Latvian State in the Latvian legal system may be considered to be the main function of the Preamble to the Declaration ... 11.2.     A State’s legal identity determines its rights and obligations. In determining a State’s legal identity it must be noted, and recognised, that the illegal annexation of a State, or part thereof, into other State has no effect in legal terms. ... According to the principle ex injuria ius non oritur , States or parts thereof can join other States on a voluntary basis only, complying with the procedures established by international and national law ... 11.3     The doctrine of State continuity directly influences the State’s actions, not only in the area of international law, where it continues to comply with the obligations undertaken prior to the de facto termination of its independence and does not assume the international obligations of the State of which it formerly unlawfully formed part, but also in internal affairs. The acts of the illegally established public authorities of the other State in the field of public law are not binding on the State which has restored its independence. ... To claim or to imply indirectly that Latvia has any automatic obligations based on the Soviet period would be tantamount to denying the fact of the unlawful occupation and annexation of Latvia within the meaning of international law and would be contrary to the principle ex injuria ius non oritur and the obligation of non-recognition established in international law (see the partly dissenting opinion of Judge Ziemele in the case of Andrejeva v. Latvia, paragraph 22). Accordingly, the Republic of Latvia is not a successor to the right