Savickis v. Latvia : The role of immutability and choice in the discrimination analysis of the ECtHR

Savickis v. Latvia: Facts and decision

After its independence, Latvia set up a pension system that only took into account periods of employment accrued on Latvian territory for the purposes of pension calculation. For Latvian citizens, however, periods of employment in territories of the former Soviet Union could be recognized as well. This did not apply to “permanently resident non-citizens”, a category introduced for former Union of Soviet Socialist Republics (USSR) citizens who chose to remain in Latvia but did not acquire citizenship by way of naturalization. ⁴ Naturalization requires knowledge of Latvian, of the basic principles of the Latvian Constitution and of the national anthem as well as an oath of loyalty to the Republic of Latvia. This differentiation between Latvian citizens and “permanently resident non-citizens” for the calculation of pensions had already come under scrutiny in the 2009 ECtHR case of Andrejeva v. Latvia ⁵ where the Court had found a violation of the prohibition of discrimination, Article 14 ECHR, in conjunction with property protection, Article 1 Protocol No. 1 because the very same measure was deemed disproportional.

In the aftermath, the “permanently resident non-citizens” later to become the applicants in Savickis individually seized the Latvian authorities and courts to have their employment periods outside the territory of Latvia taken into account for pension calculation. The Latvian Constitutional Court however gave a very narrow reading to the Andrejeva judgment and argued that the 2009 case merely applied to the individual case of Mrs. Andrejeva. The stated reason was that the facts in both cases differed significantly since her workplace was located in the territory of Latvia whereas that of the applicants in question was outside of Latvian territory. ⁶ This was of no importance as the applicants in Savickis were alleging a discrimination as compared to persons with Latvian nationality who had worked for several years outside of the Latvian territory and for whom these years were taken into account. ⁷ This narrow reading of the obligations from Andrejeva based on a false framing of the case’s exceptional character was criticized by the Latvian Human Rights Committee in their Rule 9.2 submission to the Committee of Ministers tasked with supervising the judgment’s implementation. ⁸ The Latvian Human Rights Committee argued that the general measures would require the discriminatory provision to be removed from the Latvian pension legislation. ⁹ The Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities (as well as the European Commission against Racism and Intolerance or ECRI) ¹⁰ argued that the bilateral agreements signed with Russia are not enough to rectify the situation of all affected persons and then further invited the authorities to review the legislative and administrative framework regulating access to social services, including social security benefits, to ensure that persons belonging to national minorities are not disadvantaged due to their limited Latvian language knowledge or status of “non-citizens”. ¹¹ For instance with regard to the two to three year period of mandatory military service for all healthy men in the USSR, the years do not count for the calculation of their pension. Yet, the Committee of Ministers accepted the signing of bilateral treaties as sufficient to fulfill the general measures under Article 46 para. 1 of the Convention (together with examples of judicial practice showing the recalculation of retirement pensions for “permanently resident non-citizens”). ¹²

Since their resort to the domestic courts was to no avail, the applicants in Savickis too, alleged a violation of Article 14 ECHR taken with Article 1 Protocol No. 1. The Grand Chamber, firstly, and in line with the Andrejeva judgment, held that the applicants were being treated differently according to their (lack of Latvian) nationality. ¹³ The Court stressed that differentiations on the basis of nationality generally require “very weighty reasons” for their justification. Secondly, it opined that the applicants were in a relevantly similar position to Latvian citizens with a similar employment record. ¹⁴ Thirdly, the Court assessed the legitimacy of the aims pursued. According to the Latvian Government, the differentiation pursued two different aims, the protection of the country’s economic system ¹⁵ as well as its constitutional identity ¹⁶ . Whereas the Court had already accepted the former in the Andrejeva judgment, it now also accepted the latter as a legitimate aim. ¹⁷

Lastly, the Court turned to the proportionality of the impugned measure, and this is where it departed from its previous reasoning in Andrejeva. Before weighing the aspects of the case at hand, the Court explained that although “very weighty reasons” were required for the justification of a differentiation based on nationality, Latvia nevertheless enjoyed a wide margin of appreciation. ¹⁸ It refers to the wide margin granted by the Court in social security matters, to the accepted practice of extending special treatment to persons born in a state, to the fact that the pension system had been designed to address a situation following illegal occupation (by the USSR) as well as the limited consequences of the differentiation in question.

Although the Court takes into account various factors, such as the fact that the applicants’ basic pension rights were not infringed, the Court’s reasoning centers on the fact that the applicants could have applied for Latvian citizenship:

In this respect, the Court can accept that in the context of difference in treatment based on nationality there may be certain situations where the element of personal choice linked with the legal status in question may be of significance with a view to determining the margin of appreciation left to the domestic authorities, especially in so far as privileges, entitlements and financial benefits are at stake [...]. It does not appear from the case file that any of the applicants has ever tried to obtain citizenship of Latvia – the country in which they have already been permanently settled for many years – or that they did so but were met with obstacles. It is clear that naturalization depends on the fulfillment of certain conditions and may require certain efforts. This does not, however, alter the fact that the question of legal status, namely the choice between remaining a “permanently resident non-citizen” and acceding to citizenship, is largely a matter of personal aspiration rather than an immutable situation, especially in the light of the considerable time-frame available to the applicants to exercise that option [...]. ¹⁹

Finally, with a majority of ten to seven votes, it held that there had been no violation of Article 14 ECHR taken with Article 1 Protocol No. 1. Below, we address the criticism laid out in the concurring opinion by Judge Wojtyczek as well as the dissenting opinions by Judges O’Leary, Grozev and Lemmens and Judges Seibert-Fohr, Turković, Lubarda and Chanturia respectively.

Historical and geopolitical context of the judgment

A shaky reversal of Andrejeva

The Court’s judgments have inter partes effect and the ratio decidendi is generally limited to the specific parties and facts of the case. Of course, the Court’s judgments do have a de facto erga omnes effect, if only because the Convention states are cautious not to be condemned by the Court. Hence, it is usually not appropriate to characterize a turn in the Court’s case law as a “reversal” since the parties as well as the facts usually differ. ³⁴ Savickis, however, is different, because we can contrast it with the highly similar 2009 case of Andrejeva v. Latvia. ³⁵

Andrejeva focused on the differential treatment of contribution periods inside Latvian territory but for businesses established outside of Latvia for the purposes of pension calculation for non-Latvian nationals. The relevant passage of the judgment reads as follows:

Lastly, the Court cannot accept 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. The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant’s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. To proceed otherwise in dismissing the victim’s claims on the ground that he or she could have avoided the discrimination by altering one of the factors in question – for example, by acquiring a nationality – would render Article 14 devoid of substance. ³⁶

On this basis, the Court found a violation of the prohibition of discrimination taken in conjunction with property protection.

The Court’s majority in Savickis stresses the fact that the Court should not, without good reason, depart from precedent case law. ³⁷ However, the majority tries to distinguish the case from Andrejeva by stressing that the work was performed outside Latvia and reaches the opposite conclusion, ³⁸ a fact heavily criticized in both dissenting opinions. ³⁹ Nationality is no longer an immutable trait but rather a “matter of personal aspiration”. Without any doubt, this must be seen as a true reversal of Andrejeva. Additionally, with a strong dissent of seven judges, including the current president of the Court, it is a rather weak reversal. But it is one.

A closer analysis of Savickis also highlights certain deficiencies in the Court’s reasoning in Andrejeva. It is quite common for the Court to stress that – in cases about Article 14 ECHR and social security – it does not only take a look at the specific case at hand but assesses the social security system in its entirety. ⁴⁰ Further, the Court did not indicate any general measures under Article 46 ECHR. The latter was used by the Latvian government to conclude that upon the conclusion of a social security agreement with the Russian Federation, it had discharged its obligations under the judgment. The missing emphasis on the analysis of the entire social security system in the Andrejeva judgment prompted the Latvian Constitutional Court in 2011 to hold that the facts of the case could not be extended any further. ⁴¹ If the ECtHR would have stressed already in Andrejeva that it examined the entire Latvian social security system, the Latvian Constitutional Court’s argument would have been difficult to sustain: After all, had the Court found a violation of Article 14 ECHR with a view to the entire social security system, there is no room for an argument trying to limit the effects of the judgment to the specific applicants in Andrejeva and not extend its scope to the applicants from Savickis. Similarly, had the Court indicated general measures, the Latvian government might have been forced to take more far-reaching measures than merely concluding a social security agreement with the Russian Federation. Yet, such an indication is more the exception than the rule, ⁴² especially in the social field where the Court usually grants a wide margin of appreciation to the States.

The Court’s consideration of immutability in its reasoning

To trigger Art. 14 ECHR protection, the alleged discrimination must relate to the enjoyment of the rights and freedoms set forth in the Convention as well as one of the grounds enumerated. ⁴³ Although the Court has not always been clear about the grounds that would fall under the purview of Art. 14 ECHR, ⁴⁴ it can be said that the Court’s approach today is rather generous. It generally accepts the applicability of Art. 14 ECHR for almost all grounds irrespective of whether they can be characterized as immutable. ⁴⁵ While some legal traditions emphasize immutability, the ECtHR has not confined its protection to such traits. Instead, it has recognized discrimination based on characteristics that are socially constructed or subject to personal choice, such as religion, nationality rather than just limiting its protection to discrimination based on inherent traits. ⁴⁶

Not just any unequal treatment does immediately constitute a violation of the prohibition of discrimination because it can be justified if it serves a legitimate aim and adheres to the proportionality principle. When assessing the question of proportionality, the Court applies different standards depending on the relevant grounds of discrimination but also on the subject matter of the application.

As mentioned above, in Andrejeva, the Court found that the difference in treatment was solely based on nationality and stressed that for a difference in treatment solely based on nationality, weighty reasons had to be put forward. While the Court did not explicitly mention immutability, it dealt with the argument that all the applicant needed to do was to become a naturalized Latvian citizen. In this regard, the court held that the prohibition of discrimination is only meaningful “if, in each particular case, the applicant’s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands”. ⁴⁷ The Court stressed that dismissing the applicant’s claim because they could have avoided the discrimination by altering one of the factors that contributed to it “would render article 14 devoid of substance”. ⁴⁸ Yet, this is exactly what happens in Savickis, when the Court finds that the element of personal choice linked with the legal status in question may be of significance. It is not surprising that the dissenters find that the “majority’s reasoning risks undermining the very essence of the prohibition of discrimination”. ⁴⁹

The Court generally applies stricter scrutiny (the so-called ‘very weighty reasons’ test) to the proportionality review of justifications for differentiations based on nationality, birth and origin, sexual orientation, disability, illness, sex and religion. The Court approaches these grounds as a priori suspect grounds. When it comes to race and ethnic origin, the ECtHR applies the strictest standard possible: differentiations based entirely or overwhelmingly on this criterion violate Article 14 ECHR. ⁵⁰ Other grounds of discrimination, although closely linked to the suspect ones, have not received the same heightened attention, e.g. immigration status ⁵¹ or place of residence. ⁵² Yet, it has been found that the grounds as such are hardly ever decisive on their own for the application of the very weighty reasons test. ⁵³

When the Court deems the ‘very weighty reasons’ test applicable, it only grants a very narrow margin of appreciation to the defendant state. However, in Savickis the Court stated that the “very weighty reasons” test must be read in light of a wide margin of appreciation. At the same time - and the relationship to the suspect grounds just expounded is not entirely clear - the Court stressed that when a difference in treatment occurs within a state’s social and economic policy, the margin of appreciation accorded was generally a wide one. The central justification for awarding this margin is the element of choice.

Before, this element of choice had rarely been an aspect relevant for the Court’s analysis. In fact, in case such arguments were forwarded by the defendant government, the Court quickly shut down this line of reasoning. For example, in the case of Carson v. United Kingdom, the UK government tried to argue that place of residence was not part of “other status” because of the element of choice. ⁵⁴ The Court did not accept the argument made about the grounds of discrimination and clarified the wide meaning that had been given to the words “other status” to include place of residence as well. ⁵⁵ Although Carson was about the definition of “other status” in Art. 14 ECHR, it demonstrates the Court’s wariness of following a line of argumentation that tries to diminish discrimination protection because of a choice the applicant made.

In the Savickis case, however, the Court heavily relied on the case of Bah v. the United Kingdom. In Bah, immutability came in when the Court had to discuss whether or not immigration status should be read into “other status” under Article 14 and when the Court had to decide whether it triggered heightened scrutiny which would only allow the state a narrow margin of appreciation. The Court rejected the first point clarifying that it had previously included statuses under “other status” that could not be considered personal “in the sense of being immutable or innate to the person”. The fact that the criterion was not “inherent” to an individual is not relevant for the meaning of other status. On the second point, the Court went on to argue in Bah that “immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice” and “[s]he [the applicant] cannot therefore be described as a person who was present in a Contracting State because, as a refugee, she could not return to her country of origin”. ⁵⁶ After Bah, the immutability criterion as used by the Court was criticized as potentially harmful and unnecessary for the Court to include into its reasoning. ⁵⁷

In Bah, the Court affirmed its stance on nationality requiring weighty reasons (from Andrejeva) but rejected the need for a weighty reasons test for immigration status based on the element of choice:

Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality. ⁵⁸

In Bah therefore the Court took into account the choice of the applicant to move to the United Kingdom. In Savickis and Andrejeva, the applicants did not have such a choice. They were placed in a territory that later became Latvia without Latvian citizenship. Other than the applicant in Bah, their individual situation did not change but the circumstances around them, more specifically the political and legal situation, around them changed.

In Andrejeva, Judge Ziemele already brought up the fact that the applicant’s claim could have easily been taken care of if she had chosen to naturalize in Latvia. ⁵⁹ But even the Latvian judge herself characterizes this aspect of the case as being “of limited legal value”. ⁶⁰ Yet, it was exactly this element that a big part of the majority’s reasoning in Savickis was built upon. The majority’s assertion that nationality is simply a matter of aspiration is naive and unrealistic at best and cynical at worst. The dissenting opinion of judges O’Leary, Grozev and Lemmens called out the majority for its departure from Andrejeva where the Court had held that the prohibition of discrimination according to Article 14 ECHR was only meaningful if the applicant’s personal criteria were taken as they stand. ⁶¹ In fact, in Andrejeva, the Court held that “[t]o proceed otherwise in dismissing the victim’s claims on the ground that he or she could have avoided the discrimination by altering on of the factors in question - for example, by acquiring a nationality - would render Article 14 devoid of substance”. ⁶² This, however, was what the Court asked the applicants in Savickis.

Finally, the Court has also already acknowledged the importance of fundamental choice in the past when it asked in Springett v. the United Kingdom: “The basis of the difference of treatment between the applicants and the members of this group is that the latter had acquired a right to the benefit before leaving the United Kingdom. The Court does not consider that the fact of having, or not having, acquired a right to a welfare benefit can be considered to be an aspect of personal status within the meaning of Article 14. Unlike the principal grounds set out in Article 14, such as ‘sex’, ‘race’ or ‘colour’, it is not an innate characteristic which applies from birth. Furthermore, unlike ‘religion’, ‘political or other opinion’ or even place of residence, the fact of having acquired a right to a benefit does not relate to a core or personal belief or choice.” ⁶³

We see that the Court has already acknowledged the importance of core or fundamental choice such as religion, political or other opinion and even (!) place of residence in its case law. Although it has not explicitly listed citizenship, we can use an argumentum a minore ad maius to conclude that if place of residence were to constitute a fundamental choice already, citizenship should, too.

Impact of other contextual factors: Economic and social policy

Additionally, we must not forget that Andrejeva and Savickis as well as Bah (and in fact, many other of the cited cases ⁶⁴ on the prohibition of discrimination) relate to the Convention states’ economic and social policy, i.e. to the field of social rights. In this field, the Court generally grants a wider margin of appreciation to the states:

Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. ⁶⁵

Therefore, it becomes difficult to distinguish what the wide margin of appreciation granted to a state is attributable to: is it the fact that the Court deems the ground of discrimination (im)mutable or the fact that the applicant’s claim relates to economic and social policy? The Court has a history of affording less protection (against discrimination) in social matters. It is therefore likely that the fact that Savickis was about this particular field of Strasbourg jurisprudence prompted the Court to apply a more lenient standard of scrutiny.

Nevertheless, the shift is remarkable. More specifically, in Gaygusuz v. Austria - one of the Court’s most famous judgments on social rights - the Court emphasized that the refusal of social security benefits on the basis of nationality would require the state to put forward very weighty reasons for justification. ⁶⁶ Back then, it was out of the question to analyze whether the applicant had had the possibility of acquiring Austrian citizenship. From the late 1990s onwards, the Court stuck to this “inclusive” approach. ⁶⁷ The Court would meet distinctions based on nationality with strict scrutiny, usually leading to the finding of a violation. ⁶⁸ It will be interesting to follow the Court’s case law from Savickis onwards to see whether this judgment heralded a more accepting and isolationist approach to differentiations made on the basis of nationality in the social field.

Playing the Devil’s Advocate: Applying the Savickis logic to other discrimination cases

Although in Savickis, the Court explicitly linked the “element of choice” argument to the ground of nationality, the problematic nature of this argument goes beyond this ground. In this vein, the dissenters in Savickis, too, ask the question as “to what other nonimmutable prohibited grounds the majority would be prepared to extend this reasoning.” ⁶⁹ We asked ourselves the same question and here we embark on an experiment to apply the Savickis rationale to other grounds of discrimination. While for some people, it may seem like a relatively uncontroversial request to ask an applicant to change their citizenship, this quickly changes when looking at other grounds of discrimination. Therefore, we apply the Savickis argument on the “element of choice” developed by the majority to earlier case law of the Court to demonstrate that this leads to absurd outcomes. By engaging in this exercise, we want to show the danger if such reasoning happens to be utilized by “falling into the wrong hands”. Of course, we are aware that the grounds of discrimination are very different from each other. Therefore, the following must be taken with a grain of salt. We do believe however that it is a worthwhile and interesting experiment that lays bare the problematic nature of the argument.

Let us start by imagining the situation in which the Court had not struck down Northern Ireland’s discriminatory “buggery” legislation that criminalized certain homosexual acts, ⁷⁰ but shrugged it away by essentially asking the applicant to simply refrain from practicing anal intercourse or even redirecting his sexuality towards heterosexuality. The reasoning of the Court under Article 14 would look something like this: It does not appear from the case file that any of the applicants have ever tried to be in a heterosexual relationship […] or that they did so but were met with obstacles. It is clear that conversion may require certain efforts. This does not, however, alter the fact that their sexual orientation is largely a matter of personal aspiration rather than an immutable situation. We do not need to explain that this reasoning would have been ludicrous. In terms of protection against discrimination, homosexuality (or more generally speaking, non-heteronormative sexualities) have always been prone to arguments focusing on the element of choice. ⁷¹ It is laudable that the Court did not engage with them. ⁷²

Next, let us imagine the Polish national courts refusing to investigate the possibility of a deaf father entering into contact with this son. The father goes to Strasbourg and alleges he has been discriminated against on the ground of his disability. The Court’s conclusion goes as follows: In light of the rapid strides in technological advancement, deafness is largely a matter of personal aspiration rather than an immutable situation, especially in light of the considerable time-frame available to the applicant to obtain cochlear implants. ⁷³ That the Court would take this element into account when assessing the margin of appreciation is unthinkable, although it is definitely possible that a hearing aid would help a deaf person or a person who has difficulties to hear. ⁷⁴

Then, in a recent case before the ECtHR, the Court had to deal with harassment of a Muslim minority who wanted to open a boarding school in a neighborhood mostly inhabited by Orthodox-Christians. ⁷⁵ The police did not intervene although the ‘mob action’ went on for months. As this was approached as a conflicting rights case where the Court had to assess whether the State had struck a fair balance, it would have been possible for the Court to reflect on the fact that the ground (i.e. religion) was mutable. If the Court were to resort to such a mutability argument, it would not have to outweigh the freedom of expression and assembly of the local population against the freedom from discrimination of the Muslim minority. Let us try to imagine how the reasoning of the Court under Article 14 ECHR might look like: It does not appear from the case file that any of the applicants has ever tried to convert to Christianity […] or that they did so but were met with obstacles. It is clear that conversion depends on the fulfillment of certain conditions and may require certain efforts. This does not, however, alter the fact that their religious status is largely a matter of personal aspiration rather than an immutable situation. ⁷⁶

One could argue that we are really pushing the envelope by proposing these hypothetical lines of reasoning. Importantly, we definitely do not want to argue that all (these) discrimination grounds are of the same nature, especially with regards to the importance of a status to the individual, the possibility or ease of changing and its visibility.

Yet, for all the three (i.e. sexual orientation, disability and religion) grounds mentioned above, we can find strands of this problematic reasoning in case law from other apex courts. We can also identify reasoning whereby other apex courts link the level of protection against discrimination to the possibility to change the ground based on which a person is discriminated against. ⁷⁷ In all these jurisdictions, the reliance on immutability in cases of discrimination is highly criticized. The Court has never awarded a lot of attention to immutability (and rightly so) and it should stay clear of going down that rabbit hole.

Immutability is a fragile category

In the case of R v Secretary of State for Work and Pensions, Lord Neuberger of the United Kingdom House of Lords held:

I do not accept that the fact that a condition has been adopted by choice is of much, if any, significance in determining whether that condition is a status for the purposes of article 14. Of the specified grounds in the article, ‘language, religion, political or other opinion, … association with a national minority [or] property’ are all frequently a matter of choice, and even ‘sex’ can be. ⁷⁹

What we can take from this statement is the fact that what constitutes an immutable ground is by no means clear-cut. In fact, what an individual perceives as immutable is highly individual. Additionally, we live in an age characterized by quick advances in society and technology. For the purposes of this contribution, we can merely highlight the fields of society where this might be relevant: sexuality, gender, disability. All these aspects of society are changing at a fast pace bringing with them possibilities previously unheard of. Therefore, immutability is not a static category, but a fragile and changing one.

If we take a look at Savickis, the Court seemingly proceeded under the assumption that acquisition of citizenship had been possible for the applicants, but they simply chose not to. ⁸¹ We are not in the position to say whether this was the case or not. The Court did not assess whether the applicants – had they applied for citizenship – would have been entitled to it. ⁸¹ In any case, the assumption is problematic anyway. Despite the fact that the Court’s judgments only concern the parties involved, we do know that an erga omnes effect of the Court’s judgments exists ⁸² and that statements by the Court from one judgment are extended to other cases. Other governments, too, use the judgments for guidance about the obligations under the Convention. What they will take away from Savickis is this: “Citizenship is a matter of choice, therefore we get a pass to discriminate on the basis of citizenship”. However, it might not always be true for all applicants in all cases as it is possible, too, that applicants do not fulfill the conditions for naturalization according to national law. This shows that using immutability – which we are advocating against – would lead to the situation that for certain applicants, citizenship would be treated as a mutable characteristic and for others, it would not. In our view, this shows that the distinction between mutable and immutable characteristics is not fit for purpose.

Additionally, using immutability as the tool to determine which standard of review to use freezes human rights standards in a way that is at odds with the modern world. When more and more grounds are mutable – be it by way of technological advances or societal ones that leave more freedom to individuals – focusing on the question of immutability seems strange. If – probably – at some point in time virtually all grounds of discrimination are mutable, immutability is worthless as a tool in legal doctrine.

Immutability disregards the identity-constituting aspect of a discrimination ground

Additionally, another element of the problematization is the immutability element is that whether a ground has an alterable element to it says nothing about the importance for an individual’s identity. To tackle this, immutability has been reconceptualized over time to accommodate traits that – if they were to be changed – this would involve great difficulty for the individual, either a major physical change or traumatic change of identity. ⁸³

For instance, it has been argued by several authors that religion is not an immutable feature of one’s identity and it cannot be protected by anti-discrimination law. ⁸⁴ This has not been stated as clearly as in the opinion by Advocate General Kokott in the Achbita case:

unlike sex, skin color, ethnic origin, sexual orientation, age or a person’s disability, the practice of religion is not so much an unalterable fact as an aspect of an individual’s private life, and one, moreover, over which the employee concerned can choose to exert an influence. While an employee cannot “leave” his sex, skin color, ethnicity, sexual orientation, age or disability “at the door” upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behavior or (as in the present case) his clothing. ⁸⁵

Hennette-Vauchez has countered this argument in the following way:

the very notion that religious beliefs and the sartorial (or other) expressions thereof can be set aside and relegated to the coatrack the same way a political sticker, pin, or button can be temporarily removed or hidden, is outrageous – and fails to grasp the very stuff that religious belief is made of. ⁸⁶

When it comes to the element of choice in practicing a religion, Vickers confirms that very few adherents would experience their religion as chosen and – even if this were the case – denouncing what they consider pillars of their identity and culture comes as a great individual cost. ⁸⁷

Immutability forces individuals to self-optimize and moves societal power structures to the background

Focusing on the (im)mutability of discrimination grounds, goes hand in hand with what Ganty and Kochenov have referred to as blaming victims of discrimination. ⁸⁸ Someone is not fully considered a victim of discrimination when this discrimination is due to a status that they are considered to be responsible for. This is especially apparent when the Court uses phrases like “matter of personal aspiration” and the like. In fact, the entire paragraph 215 of the judgment is loaded with language that puts the onus on the applicants: It stresses that they had already been settled in Latvia for years despite trying to obtain citizenship and that obtaining citizenship “may require certain efforts”. As already stated, we cannot say whether the applicants in Savickis were actually entitled to Latvian citizenship if they had just chosen to apply. The Court proceeded on the assumption that they were. The differential treatment of these “permanently resident non-citizens” is the result of a process of “social stratification based on traits, not the nature of the traits themselves”. ⁸⁹ The immutability discussion shifts the focus away from the origin of this social (or civic) stratification that is introduced by excluding “permanently resident non-citizens” from enjoying the same pension rights as Latvian nationals – keeping in mind that everyone paid the same contributions. The stratification system is introduced because of dominant attitudes towards this group but the burden to rectify its consequences are placed on the shoulders of the members of the group.

Through this shift, the impact of existing structures that “perpetuate disadvantage and exclusion” on the situation of the individual moves to the background. ⁹⁰ Certain traits are problematized in society, often in line with majoritarian sentiments and based on power structures that are present in a particular society. Considering the particular history and impact of these contextual factors on the situation of an individual or group is a relevant exercise for a Court to conduct when assessing whether an applicant was discriminated. In such a process, the Court should not so much focus on finding out what the nature of the trait or ground is but what it is made to be in opposition to other traits or grounds. ⁹¹ Here it is relevant to consider, during a contextual analysis, that indeed “a system of subordination cannot be stable if it is too easy to exit from the criteria of subordinate status”. ⁹² So, in considering the difficulty with which to leave or exit a system of oppression, there can be room for looking at the nature of the ground and its changeability. The place for such an analysis in the Court’s Art. 14 ECHR assessment would most likely be its proportionality analysis: Proportionality analysis lets the Court consider and weigh all the factors in context.

A status is suspect not because of its immutability but because of its irrelevance

The focus on immutability further obscures the fact that some criteria may simply be irrelevant for a differential treatment. We agree much with Susan R. Schmeiser that the focus on immutability “represents an unnecessary departure from the core purpose of equal protection jurisprudence”. ⁹³ This purpose is to prevent that rights and benefits are divided by the government (or other actors) in accordance with “illegitimate considerations as paranoia or a desire to subordinate an unpopular group”. ⁹⁴ Martha Nussbaum argues in a similar vein that “what is really at issue is not the immutability as such, but irrelevance to the purpose at hand”. A particular status is introduced not because of a relevance for the purpose at hand but because of prejudice. Indeed, just as in the case of Frontiero, ⁹⁵ the criterion used in the Savickis case bears no relation to the ability to contribute to society (on which the pension scheme is based). ⁹⁶ The key factor to take into account when assessing whether a specific classification is suspect is not its immutability but its irrelevance. ⁹⁷ People can change their hair color with one visit to the hairdresser but to exclude all blonde people from additional pension benefits would amount to discrimination because the color of your hair is irrelevant to whether you have contributed to the system. The fact that hair color is a mutable aspect of physical appearance would not be a good reason to broaden the margin of appreciation in such a hypothetical case.

The reasoning in Savickis would have benefitted from a focus on the relevance of citizenship for the differentiation in the consideration of employment periods outside of Latvia. If such a focus was adopted, the Court would have had to conclude that citizenship had no relevance at all, because all employed persons contributed to the pension fund irrespective of their citizenship.