JOINT DISSENTING OPINION OF JUDGES WILDHABER, RESS, Sir Nicolas BRATZA, CABRAL BARRETO, GREVE AND MARUSTE

1. We are unable to agree with the majority of the Court that the expulsion of the present applicants from Latvia gave rise to a violation of Article 8 of the Convention.

2. We fully share the view of the majority not only that the Latvian-Russian treaty of 30 April 1994 on the withdrawal of the Russian troops from Latvia served a legitimate aim in terms of Article 8 of the Convention, but also that the fact that the treaty provided for the withdrawal of all military officers who after 28 January 1992 had been placed under Russian jurisdiction, and that it further obliged their families to leave the country, was not in itself objectionable from the point of view of the Convention. We also endorse the view that, in so far as the withdrawal of the Russian troops interfered with the private life and home of the persons concerned, such interference would not normally appear disproportionate, having regard to the conditions of service of military officers; the continued presence of servicemen of a foreign army, with their families, may, as the judgment points out, be seen as incompatible with the sovereignty of an independent State and as a threat to national security , and the public interest in their removal from the territory will normally outweigh the individual ' s interest in staying. All these reasons taken together justified in our view a finding of no violation.

3. Where we therefore fundamentally differ from the majority is in their conclusion that the specific circumstances of the applicants ' case were such as to render the removal measures disproportionate and unjustified in terms of Article 8 of the Convention.

4. We note at the outset the specific historical context and purpose for which the treaty was signed, namely the elimination of the consequences of the Soviet rule of Latvia . In the preamble of the treaty both parties to the agreement – Latvia and Russia – accepted that the withdrawal of the Russian troops was intended “to eradicate the negative consequences of their common history” (see paragraph 64 of the judgment). The legitimacy of this purpose of the treaty is, in our view, of foremost importance in assessing the justification for an interference with the rights of individual members of the armed forces and of their families, who were subject to removal from the country under the treaty.

It is also significant to note that the treaty itself did not impose on the Latvian authorities an obligation to justify each measure taken by reference to the actual danger posed to national security by the specific individual concerned, particularly in relation to non-military family members. General schemes such as the present one for the withdrawal of foreign troops and their families do not easily accommodate procedures of individual,

particularised justification on the merits of each and every case (see, mutatis mutandis , James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, pp. 41-42, § 68). In our view the approach of defining in the governing instrument the broad categories of troops, and the accompanying members of their family, to be withdrawn without reference to their personal history strikes the requisite fair balance between the competing interests of the individual and the community.

5. In finding that such a balance was not struck in the present case, the majority of the Court lay emphasis on a number of features of the case. In particular, reliance is placed on the fact

(i) that the applicants were members of the family of a retired military officer and that the interests of national security should carry correspondingly less weight than in the case of serving officers;

(ii) that the evidence indicated that 900 persons were able to legalise their stay in Latvia, notwithstanding their status as relatives of Russian military officers required to leave, thus showing that the Latvian authorities were not of the opinion that the treaty ' s provisions had to be applied without exceptions;

(iii) that no allegation had been made in the present case that the applicants presented a specific danger to national security or public order, the public interest being perceived in abstract terms underlying the legal distinctions made in domestic law;

(iv) that, at the time of their removal from Latvia, the applicants were sufficiently integrated into Latvian society, having developed personal, social and economic ties in the country unrelated to their status as relatives of Soviet (and later Russian) military officers;

(v) that the decisive element in the different treatment of the applicants was not their current family situation but the fact of their being the daughter and granddaughter of a former Soviet military officer, who had retired in 1986 and who remained in the country even after the applicants ' removal: the applicants could not be regarded as endangering national security by reason of belonging to a family of someone who was not himself deemed to present any such danger.

6. We regret that we do not find that these factors, whether considered individually or in combination, are such as to justify the conclusion that the Latvian authorities failed to strike a fair balance in requiring the removal of the applicants from the territory.

7. As to the first of the factors relied on, the majority have already found that the retrospective character of the treaty so as to include those who had been discharged from the armed forces prior to the entry into force of that treaty was not incompatible with the requirements of the Convention, even though such persons had no active military role at the time of their removal and could be said to pose less of an individual threat to national security. The inclusion of close relatives of members of the armed forces covered by the treaty, whether still in active service or in retirement, seems to us to be equally justified in terms of the Convention, even though the vast majority of family members, taken individually, would not pose a danger to national security. Having regard to the legitimate aim pursued by the treaty – namely, the repatriation of the totality of a foreign army, including both military personnel and dependants – Article 8 cannot in our view be interpreted as requiring that the treaty be applied in such a manner that close relatives who had resided in Latvia for a considerable time, thereby establishing a home and a private life there, could only be expelled if they personally could be shown to represent a threat to the national security of Latvia. Such an interpretation would undermine the effective implementation of the treaty since, by its very nature, the condition of actual danger to territorial security will hardly ever be satisfied in relation to family members. Once the legitimacy of including family members in the programme of withdrawal has been recognised, we find it difficult to accept that more importance must be attached to the private interests of family members of recently retired officers than to those of officers still in active service.

8. The majority of the Court rely on the fact that, after their discharge from the armed forces, a requirement to move as part of the general conditions of military service will normally no longer apply to military officers and their families. While this is true, the present case is concerned not with a reposting of military officers and their families in accordance with the general conditions of service, but rather with the implementation of the terms of an international treaty, designed to secure the withdrawal of an imposed and long-standing military presence from a foreign territory. In this regard, we would note that the treaty arrangements themselves endeavoured to take account of the family life of the persons concerned, by treating the family as a unit, with the Russian Federation undertaking to accept the whole family within its territory, irrespective of the origin or nationality of the individual members of the family.

9. The fact that in some 900 cases the Latvian authorities had allowed a derogation from the obligation under the treaty to leave the country does not in our view serve to reinforce the applicants ' case. The beneficiaries of these derogations were all either Latvian citizens or close relatives of Latvian citizens, and the decisions had not been based on any consideration as to whether each person concerned presented a specific danger to the national security of Latvia (see paragraphs 57 and 85 of the judgment). Furthermore, as regards Latvian citizens, a derogation of this kind was indeed required by the Convention, since their expulsion would have contravened Article 3 of Protocol No. 4 to the Convention. The applicants, in contrast, had no such connection with Latvia . The refusal to grant them permanent residential status in Latvia has been explained by the respondent Government as being due to their dual affiliation to families of military officers: the first applicant came to the country in 1959 as the daughter of a Soviet military officer then in active service; in 1980 she married another Soviet military officer who had come to Latvia on active service and who later continued to serve in the Russian armed forces stationed in Latvia after that country had regained its independence. The sole reason for the residence of the two applicants in Latvia was thus the presence there of the Soviet armed forces, which with effect from January 1992 became the armed forces of the Russian Federation . That being so, the refusal to grant them a derogation on the grounds of personal hardship was in accordance with the underlying logic of the treaty, which the Court has found to strike a fair balance.

10. It is correctly pointed out in the judgment that the applicants had in the period of their residence in Latvia developed strong links with the country. However, in deciding whether these links were such as to qualify the applicants for special treatment under the treaty, we consider that the Latvian authorities were entitled also to take into account the significant personal ties which the applicants had with Russia . In this connection we would note that the applicants were of Russian national origin and Russian-speaking, attended Russian-speaking educational establishments, and eventually were able to become Russian citizens. The first applicant ' s husband became a Russian citizen while he was still living in Latvia , and had moved to Russia by the time of the events complained of by the applicants (see paragraphs 21 and 33 of the judgment). From late 1994 onwards, there was also accommodation available for the family in Kursk in Russia (see paragraphs 28, 37 and 46 of the judgment) and it has not been submitted that the applicants have ultimately been unable to pursue any personal, educational or employment activities in Russia. Therefore, while their personal, social and economic ties with Latvia cannot be denied, it also appears that the applicants had equally significant ties of that nature in Russia (see Dalia v. France , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 91-92, § 53; see also C. v. Belgium , judgment of 7 August 1996, Reports 1996-III, p. 924, § 34).

11. In these circumstances, we are unable to conclude that the Latvian authorities overstepped the margin of appreciation afforded to them under Article 8 of the Convention in the particular context of the withdrawal of the Russian armed forces from the territory of Latvia after almost fifty years of Soviet presence there. The Latvian authorities were in our view entitled to consider that the impugned interference with the applicants ' right to respect for their private life and their home was “necessary in a democratic society”.

12. In view of this finding, it is necessary to consider the further contention of the applicants that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 on account of the difference in the statutory treatment of members of families of Russian military officers who were required to leave Latvia and that of other Russian-speaking residents of Latvia, who as former Soviet citizens could obtain residence in the country.

13. According to the Court ' s case-law, a difference of treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, Van Raalte v. the Netherlands , judgment of 21 February 1997, Reports 1997-I, p.1 8 6, § 39).

14. The applicants asserted that their removal disclosed discrimination on two grounds – their belonging to the Russian-speaking minority, and their belonging to the family of a Russian military officer. We find the applicants ' claim that they were discriminated against as Russian speakers to be unsubstantiated. Indeed, a number of other Russian-speaking persons were in fact able to legalise their stay in Latvia . The distinction made in regard to the applicants by the Latvian authorities was not based on their ethnic origin, but on their dual affiliation with families of military officers, one of whom was a member of the Russian armed forces subject to withdrawal under the 1994 treaty. For the reasons already given in examining the complaint under Article 8 itself, these elements could in our view reasonably be taken into account to justify the imposition of the impugned measures to remove the applicants from the territory of Latvia.

15. For the same reasons, we find that the distinction made in the present case on the basis of the applicants ' status – that is, the distinction made in the relevant legal provisions and then in the application of those provisions to the applicants – had an objective and reasonable justification and thus did not amount to discrimination within the meaning of Article 14 of the Convention.

16. There has, thus, in our view, been no breach of Article 14 of the Convention taken in conjunction with Article 8.