SEPARATE DISSENTING OPINION OF JUDGE MARUSTE

While sharing the views expressed in the joint dissenting opinion , I would like to express here some more reasons why I am unable to agree with the majority.

Firstly, I think the case is particular in its historical background. From that background flow consequences under constitutional and international law which cannot be disregarded. It is well known and recognised in international law that the Baltic States, including Latvia, lost their independence on the basis of the “Hitler-Stalin Pact” between Nazi Germany and the USSR, which actually refers to the Molotov-Ribbentrop Pact, or the secret protocols that were appended to the non-aggression treaty between the Soviet Union and Germany, which was signed on 23 August 1939. The result of this secret agreement was that Eastern Europe was divided into two spheres of influence, leaving the Baltic States , including Latvia , in the Soviet Union ' s sphere of interests. This was followed by Soviet threats of force in the form of an ultimatum addressed in 1940 to the Baltic S tates, including Latvia, in which the USSR demanded a change of government and the entry of Soviet armed forces (in addition to those already stationed in Soviet military bases). The actual entry of military forces and the change of government took place in June 1940.

According to Article 42 of the Hague Regulations on the Laws and Customs of War on Land, a territory is considered occupied “when it is actually placed under the authority of the hostile army”. By way of comparison, the Nuremberg Military Tribunal included the ultimatum delivered by Germany to Austria in 1938 among the acts to be judged as “crimes against peace” within the meaning of the 1945 London Charter.

The above actions by the Soviet Union were not recognised by a majority of the international democratic community, including the European Parliament and the Council of Europe. The latter , for example , expressed its attitude in Resolution 189 (1960) on the situation in the Baltic States , noting , “on the twentieth anniversary of the occupation and forcible incorporation into the Soviet Union of the three European S tates of Estonia , Latvia and Lithuania ” that “this illegal annexation took place without any genuine reference to the wishes of the people”.

It has been an established principle in international law which is now also enshrined in the Statute of the International Criminal Court (Article 8) that the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies is not allowed. Indeed, according to the same Article 8, it is a war crime.

According to generally recognised principles of international law , every internationally wrongful act of a State entails international responsibility and gives rise to the obligation of that State to restore the status quo ante . Consequently, the restoration of the independence of the Baltic States on the

basis of legal continuity and the withdrawal of the Soviet / Russian troops has to be regarded as redress for a historical injustice. This aim was also stressed in the preamble of the Latvian-Russian treaty of 30 April 1994 on the withdrawal of troops , where it was mentioned that by signing the treaty the parties wished to “eradicate the negative consequences of their common history” (see paragraph 64 of the judgment ). Thus , the t reaty requirement of the withdrawal of military servicemen and their family members ( second paragraph of Article 2 of the t reaty) is fully in conformity with the principles of international law. Consequently, the aim pursued by the Latvian-Russian t reaty of 30 April 1994 was fully legitimate for the purposes of the Convention (see paragraph 111 of the judgment ). The Court rightly accepted that the withdrawal of the armed forces of one independent State from the territory of another constitutes an appropriate way of dealing with the various political, social and economic problems arising from that historical injustice.

As Latvia had regained its independence from the USSR in 1991 and the Russian Federation had assumed jurisdiction over the armed forces of the former Soviet Union with effect from 28 January 1992, the scheme established under the t reaty covered all military officers together with their families who had been serving in the Russian armed forces in Latvia at that moment, even if they had been discharged prior to the entry into force of the t reaty. The programme of withdrawal was not in itself such as to bring the measures ordered in respect of the two applicants outside the margin of appreciation available to the Latvian authorities for achieving the legitimate objective they pursued. It is to be noted that the t reaty itself did not impose on the Latvian authorities an obligation to justify each measure taken by reference to the actual danger which the specific individual concerned posed to national security, particularly in relation to non-military family members. Moreover, the list of those to be removed, according to the terms of the t reaty , was drawn up not by the Latvian, but by the Russian side. In these circumstances the responsibility for the removal belongs at least to both parties to the t reaty and not only to the Latvian side. It must also be noted that , although this was contested by the applicants and the third party, it was the Latvian courts which found that the first applicant had not presented all the necessary information (in the 1995 registration form) about her husband ' s (military) occupation. The document was known to the applicants, but they never challenged its validity before the domestic courts. They and the third party did so only at a later stage.

Finally, from late 1994 onwards a large-scale Western financial - aid scheme was introduced to accommodate returning Soviet/Russian military personnel, under which accommodation, as decided by the Latvian Supreme Court, was made available to the Slivenko family also. Whereas I understand that for the majority the award of compensation to the applicants was the logical consequence of finding a violation, in the light of this aid scheme and taking into account the historical context, in which most of those who suffered injustices were never able to get compensation for either pecuniary or non-pecuniary damage, it is hard for me to agree with the financial compensation awarded by the Court.

[1] . Note by the Registry . Extracts of the decision are published in ECHR 2002-II.