ŽDANOKA v. LATVIA JUDGMENT – DISSENTING OPINION OF JUDGE ZUPANĆIĆ Secondly, 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?1 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 reiterated in the first paragraph of Article 7 of the European Convention on Human Rights2. 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 caselaw, 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. 1. Brandenburg v. Ohio, 395 US 444 (1969) This test was used in Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001-IX. 2. In truth this doctrine goes back to Roman law. “Poena non irrogatur nisi quae quaque vel quo alio iure specialiter, huic delicto imposita est.” Dig.50.16.131.1, Ulpianus 3 ad l. iul. et pap.