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

Abstract

On June 9, 2022, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled on Savickis and Others v. Latvia, addressing Latvia’s pension system, which offers preferential benefits to citizens over “permanently resident non-citizens” who chose not to naturalize. This decision marks a departure from the 2009 Andrejeva v. Latvia judgment, which deemed such treatment discriminatory. The Savickis ruling accepted the differential treatment by emphasizing personal choice in naturalization, a stance criticized as victim-blaming and raising fundamental questions about the Court’s criteria for distinguishing between mutable and immutable traits in discrimination cases. This analysis explores the implications of the Savickis judgment on the Court’s approach to justifying discrimination. It argues that the Court’s reasoning may allow states to frame discrimination on mutable grounds, thereby weakening protections under Article 14 ECHR. By extrapolating the Court’s logic to other areas such as religion, gender, disability, and language, the study highlights the potential for absurd outcomes where victims might be expected to alter intrinsic aspects of their identity to avoid discrimination. This challenges the foundational principle of non-discrimination as protected by the Convention and questions the responsibilities placed on individuals to mitigate discrimination.