56 ŽDANOKA v. LATVIA JUDGMENT – DISSENTING OPINION OF JUDGE ZUPANČIČ In the present case, however, we do have to deal 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?1 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 communist past. Neither is the true reason her present unwillingness to recant and repudiate her communist 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 States) 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 that the majority opinion emphasises the early illegality of the MolotovRibbentrop pact – imply that the residence of the Russian-speaking population in Latvia is itself illegal?2 1. In my view, this is the only “clear and present danger” in this case. 2. It is not difficult to imagine that this population might be over 50%. Despite everything, the legitimate democratic process would then yield the kind of political leaders such as Mrs Ždanoka who would tend towards reunion with the Russian Federation. The independence of Latvia would then hardly amount to something stable. Yet this would not