54 ŽDANOKA v. LATVIA JUDGMENT – DISSENTING OPINION OF JUDGE ZUPANČIČ minority, a consequence of the fifty years of Russian occupation, was and is absurd1. It smacks of the inverse logic of Article 17 of the Convention 2. 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 communist rulers of the Soviet Union now become the weapon to be turned against the Latvians themselves? The 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 reaching this Court make this evident3. In central and eastern 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 Article 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. Firstly, are those who were intolerant in the past subsequently entitled to tolerance? This is a question of Biblical proportions. Should the talionic4 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 turn, does this mean turning the other cheek to those who slapped us? 1. See, for example, paragraph 4 of the joint dissenting opinion of Judges Wildhaber, Bratza, Cabral Barreto, Greve and Maruste in the case of Slivenko v. Latvia. 2. Article 17 – Prohibition of abuse of rights: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” 3. See, for example, Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001-II. 4. “Si membrum rupsit, ni cum eo pacit, talio esto!” Leges XII Tabularum, Tabula VII, Fragmentum 2.