ŽDANOKA v. LATVIA JUDGMENT 53 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 that judgment, but not the law. The law’s attention span is limited by the established State 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 communism 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 the Latvians the continuation of communist rule was synonymous with the continuation of Russian occupation. To the Russian-speaking minority, representing some 30%2 of the population, the imminent selfdetermination 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 1. During the public hearing the Agent of the Government compared Mrs Ždanoka to Mr Milošević in ex-Yugoslavia. 2. Ethnic groups in 2002: Latvians 57.7%, Russians 29.6%, Belarusians 4.1%, Ukrainians 2.7%, Poles 2.5%, Lithuanians 1.4%, other 2%. (Demographics of Latvia at http://en.wikipedia.org/wiki/Demographics_of_Latvia)