DISSENTING OPINION OF JUDGE ZUPANČIČ

I regret that I cannot join the majority opinion in this case. Clearly, the majority decision hinges on accurate assessment of the real threat posed by the applicant ’ s political activities at the material time. Yet these activities , even at the time critical for Latvian independence , were not subversive or even secretive. If at any time Mrs Ždanoka truly represented a danger [1] to the emerging Latvian sovereignty, this was a corollary of her real prospects of being elected.

Consequently, the issue in this as in all similar cases concerns the relationship between democracy and the rule of law.

However, from a historical viewpoint , when the Latvian constitutional order was still in statu nascendi , one could not have simply said – not even in terms of the Molotov-Ribbentrop Pact and international law! – that Mrs Ždanoka ’ s and others ’ concurrent political activities opposing Latvian independence, the disintegration of the Soviet Union and so on were per se politically illegitimate or even illegal. Even international law does not have the power to wipe away a historical period of some fifty years. Consequently, if the applicant ’ s activity were to be a priori declared illegitimate or illegal, much of what had been happening in the Soviet Union ought to have been a posteriori declared illegitimate or illegal. Ex factis ius oritur ; history may have the power to make t hat judgment, but not the law. The l aw ’ s attention span is limited by the established S tate power. History, on the other hand, is written by the victor; Mrs Ždanoka found herself on the wrong side of that history.

The majority ’ s opinion thus derives from a rather narrow time perspective. Since timing is at the heart of this decision , I beg to differ.

Ždanoka v. Latvia is a case in which the historical and ideological significance of transition from Soviet c ommunism as a failed socio-political experiment back to capitalism, democracy and the rule of law is inescapably the central issue. I say “inescapably”, because the case concerns the political rights of the sizeable Russian-speaking minority.

To th e Latvians the continuation of c ommunist rule was synonymous with the continuation of Russian occupation. T o the Russian-speaking minority, representing som e 30% [2] of the population, the imminent self-determination of Latvians foreshadowed the certain loss of privileged status and a possibility of discrimination. To the Latvian majority, as was made clear in the case of Slivenko v. Latvia ( [GC], no. 48321/99, ECHR 2003-X ), the granting of particular human rights to the large Russian-speaking minority, a consequence of the fifty years of Russia n occupation, was and is absurd [3] . It smacks of the inverse logic of Article 17 of the Convention [4] . Suddenly, the former occupiers whose very existence on Latvian territory had originated in illegal occupation, claimed to be victims of human rights violations. Had the very rule of law and democracy for which the Latvians had fought and which for decades had been denied them by the c ommunist rulers of the Soviet Union now become the weapon to be turned against the Latvians themselves? Th e historical paradox they faced is an existentially absurd one, reflecting an internal clivage to which there can be no immediate solution.

Nevertheless, the travesty of former oppressors subsequently appealing to and profiting from democracy and the rule of law is not specific to Latvia or even only to all three Baltic countries. Specific cases reachi ng this Court make this evident [5] . In c entral and e astern Europe we now find many aging individuals who have blood on their hands. Some of them have become vociferous proponents of human rights. If anybody should propose retribution towards, for example, all those who in the not so distant past avidly collaborated with the secret police, they raise their voices with the accustomed arrogance derived from their past and established authoritarian position. They barefacedly claim the very human rights which they spent their life denying to others, nay, often cold-bloodedly violating them in the most brutal fashion.

This Court must take a clear position on this matter.

The logic underlying A rticle 17 is clear. The legal weapon of claiming human rights must not be perverted. It must not be used to serve those who would in turn violate human rights themselves. The genius of Karl Popper formulated this clearly. He maintained that democracy is for everybody except for those who would destroy it. We are to be tolerant of everything except acts of intolerance.

Two questions derive from this general principle. First ly , are those who were intolerant in the past subsequently entitled to tolerance? This is a question of Biblical proportions. Should the talionic [6] tooth-for-tooth retributive logic of the Old Testament apply, or should human rights be universal not just in space but also in time? In t urn, does this mean turning the other cheek to those who slapped us?

Second ly , what kind of (simultaneous) intolerance should be directed at those who are themselves intolerant? Does the Constitutional Court of Austria, for example, have the right and indeed the duty to proscribe the activities of Mr Haider ’ s proto-Nazi party that feeds on “ Urangst ” and ethnic intolerance against Slovenians in Carinthia? How clear and present should be the danger established by the famous Brandenburg v. Ohio test recently adopted by Turkish domestic legislation? [7]

These used to be “political questions”. Thanks to the colossal progress of constitutional law in the second half of the twentieth century it is now clear that they go to the essence of the rule of law.

In international law, the Nuremberg trial is a historic representation of how the rule of law responds to barbarity, of how the power of legal logic ex post facto prevails over the Hobbesian logic of power. In Streletz, Kessler and Krenz (cited above) it became clear, on narrower grounds, that the systemic practice of impunity, despite the purely formal existence of precise punitive norms to the contrary, cannot afterwards be grounds for the affirmative defence based on an excusable mistake of law. Once the rule of law is re-established, the positive norm, even if previously dormant, will apply. Ever since 1764 when Cesare Beccaria wrote his decisive “ Dei delitti e delle pene ” the retrospective validity of the punitive rule of law has been an integral part of the principle of legality. Later it was reformulated by Anselm Feuerbach into the famous formula “ nullum crimen, nulla poena sine lege praevia ”. The doctrine is now reiter ated in the first paragraph of A rticle 7 of the Euro pean Convention on Human Rights [8] . Thus, the temporal scope of the rule of law – at least in its negative , punitive aspect – is subject to strict restraints. Streletz , Kessler and Krenz , however, also proves that this doctrine cannot be reduced, as it mostly is in our own case-law, to the simple notion of advance notice. It proves that the punitive norm, even if dormant and subject to selective but systemic denial, that is, the generalised practice of impunity, and thus liable to make the actors reasonably assume it will not be applied, is, years afterwards, still in positive existence. At least in so far as the circles of law and morality overlap, in other words, the selective non-application of a penal norm (the systemic practice of selective impunity) is no bar to subsequent prosecution. I maintain here what I said in my concurring opinion in Streletz , Kessler and Krenz – that it is not a case of the retroactive application of criminal law but of an inexcusable mistake of law.

In the present case , however, we do have to d eal with the positive element of retrospectivity. Here we are concerned with positive rights (the right to be elected) and not with negative-punitive norms. Restrictions as to the temporal scope of the application of the norm, such as derive from the principle of legality, do not apply. For example, the extensive interpretation of the presumption of innocence precludes discrimination against former collaborators (lustration) unless, of course, their criminal liability has been finally established. It is relevant that Mrs Ždanoka has never been convicted of anything.

Furthermore, people cannot be prevented from actively participating in the democratic process simply because they are likely to be elected. The alleged political subversiveness of Mrs Ždanoka does not derive from any illegal activity on her part established by a Latvian criminal court. Moreover, she would be politically irrelevant were it not for the real odds , past, present or future, that she would be elected. By whom? By members of the Russian-speaking minority? [9] When she was permitted to stand (successfully) for election to the European Parliament this was tolerated because her political impact in the European Parliament is diluted and does not threaten the autonomist rule in Latvia. The fact, incidentally, that she was elected proves the real odds mentioned above.

In other words, I do not believe for a moment that the Latvian authorities would have prevented Mrs Ždanoka from standing in national elections in Latvia were it only for her c ommunist past . Neither is the true reason her present unwillingness to recant and repudiate her c ommunist views. The domestic Latvian point of view concerns no more (and no less) than Mrs Ždanoka ’ s future political dangerousness. This has to do with the demographic fact that thirty per cent of the existing Latvian population speaks Russian. Presumably, this puts in jeopardy the pro-autonomy rule of the autochthonous majority in whose name the separation of Latvia (and the other two Baltic S tates) from the Soviet Union was carried out in the first place.

Now that we have reached the stage where we can, without legalistic smokescreens, call a spade a spade, we can finally address the real question. The large Russian-speaking minority in Latvia is a demographic by-product of the long-term illegal occupation by the Soviet Union. Does the historical fact that the occupation was illegal – and it is probably not an accident th at the majority opinion emphasis es the early illegality of the Molotov-Ribbentrop pact – imply that the residence of the Russian-speaking population in Latvia is itself illegal? [10]

In different terms the same issue arose in Slivenko ( cited above ) . The critical distinction when an individual ’ s human right is at stake is precisely between an individual ’ s personal situation on the one hand, and the larger historical and collective situation of the group to which he or she happens to belong on the other [11] . In principle, human rights are strictly individual rights. Historical and collective aspects of the situation are beyond the scope of our jurisdiction.

Yet the majority opinion, like the domestic decisions concerning Mrs Ždanoka, rightly treats her situation as representative not merely of her private predicament. Obviously, the right to stand for election – for this reason considered in a separate Protocol – affects the individual (Mrs Ždanoka) and the collectivity (the Russian-speaking minority) he or she has the ambition to represent politically. The majority opinion, however, implicitly amalgamates the two aspects. The consequence of this mingling of issues is explicit endorsement of the denial of the right to stand for election. The reason for this denial was that Mrs Ždanoka had a real chance of being elected [12] . So much for democracy.

Admittedly, this result is a consequence of the narrow scope of our jurisdiction. Yet, are we here to correct the historical wrongs? Are we to say that 30% of the Latvian population is there illegally? Even if these people were regarded as aliens, their collective expulsion would be explicitly forbidden by Article 4 of Protocol No. 4 [13] . The prohibition of the collective expulsion of aliens indicates a clear legal answer to this question, if indeed there is a need for one. This answer is tolerance in the passage of time.

The dilemma is not specific to the Baltic States. In fact the whole of European history, not to speak of its horrific colonial cruelties, is replete with the recurrent “movement of nations” – usually by means of wars and violent takeovers. Needless to say, in terms of international law – in so far as its criteria applied at all – most of these takeovers were utterly “illegal”. It is for the historians to assess the end results of this mixing of populations, determining who in any particular case were the victors and who the vanquished.

The issue, however, has always been the preservation of national identity versus assimilation. In terms of international law, Woodrow Wilson ’ s formula concerning “self-determination of nations” implies, as he had been warned by his advisers at the time, a wide-ranging particularisation and ethnic intolerance [14] .

Parallel to this process of particularisation, however, we have today an intense global process of universalisation. It goes under the name of “globalisation”. Some legal theorists, among them Roberto Mangabeira Unger of Harvard, even maintain that the current intense reversion to “the preserva tion of national identity”, or the pandemonium of nationalism, is a regressive and over-compensatory reaction not to interstate conquests but to the process of globalisation. This is happening through commercial ties and through the means of global communications that insistently and gradually obliterate residual value hierarchies, ethnic attributes, and distinctive cultural productivity. In international - law circles there is talk of legal and cultural imperialism [15] .

The two processes (of particularisation and universalisation) run in parallel and dialectically condition one another. The process of particularisation implies, as if the bre akdown into a number of pocket S tates in Europe were not enough, regression to ever smaller units of ethnic defensiveness.

Parallel to this, the inevitable universalisation (economically: “globalisation”) makes these defensive postures both more and more irrelevant but also more aggressive. As usual, this aggression is then displaced to the target that is closest and most at hand. In Nachova and Others v. Bulgaria [16] it was the Roma people, in Blečić v. Croatia [17] it was Serbians, in Serbia it was Albanians, in Germany and France it may be immigrant workers and their children , and so on . In many of these realms we detect the unhealthy trend from patriotism on the one hand to nationalism, chauvinism and racism on the other.

This intolerance is the European scourge. Because European history is replete with instances of aggression deriving from regressive nationalism, the European Court of Human Rights must take an unambiguous and unshakable moral stand on this predicament. Inter-ethnic tolerance is a categorical imperative of modernity. From intolerance derive too many violations of human dignity and human rights.

Protocol No.12 will bring discrimination as such into play. There can be absolutely no doubt that discrimination on the basis of the suspect class of national origin is par excellence an issue of constitutional and human rights. In my opinion the future of the European Union, too, depends on such moral leadership and on the ability of united Europe to rise above the petty nationalistic prejudices that have hitherto been the cause of so many wars and of so much human suffering.

Here, above all, the Court will be tested as to its wished-for historical role.