CONCURRING OPINION OF MR E. BUSUTTIL

I remain of the view, for the reasons set out in the dissenting part of my opinion in the John Murray case (Application No. 18731/91) decided by the Commission on 27 June 1994, that the drawing of adverse inferences from the applicant's silence deprived him of a fair trial and infringed the principle of the presumption of innocence.

Accordingly, I consider that there has been a violation of both para. 1 and para. 2 of Article 6 of the Convention.

As regards the role played by the O'Hagans ' evidence in the written statements admitted at the trial, it seems to me that this was of crucial importance since it established the link between the gunmen who committed the offence and the car in which forensic evidence was found.  While the issue of the fairness to the applicant of admitting written statements was subject to challenge, the rights of the defence were significantly curtailed by the fact that they were unable to cross-examine the O'Hagans .  Thus, once the statements were admitted in evidence, there was no effective way in which the applicant could challenge their contents, thereby placing the defence at a substantial and unfair disadvantage on a question of vital importance and, in consequence, undermining the fairness of the proceedings.

I consider, therefore, that there has been a violation of Article 6 para. 1 in conjunction with para. 3(d) of the Convention in respect of the admission of written statements in evidence.

Finally, I agree with the majority that there has been a violation of Article 6 para. 1 in conjunction with para. 3(c) of the Convention as regards the applicant's lack of access to a solicitor.

(Or. English)

PARTLY DISSENTING AND PARTLY