DISSENTING OPINION OF MR. E. BUSUTTIL

      I dispute the finding of the majority that there has been no

breach of Article 6 paras. 1 and 3(d) of the Convention in the present

cases, and agree with the conclusion reached in Mrs. Liddy's dissenting

opinion that the constraints imposed on the rights of the defence were

such that the applicants were deprived of a fair trial.

      I am also in broad agreement with the reasoning contained in the

dissenting opinion, but would myself highlight in particular the

publicity ingredient inherent in the concept of a fair trial.

      The public character of court proceedings is a cardinal principle

enshrined in para. 1 of Article 6.  It protects litigants against the

administration of justice in secret without public scrutiny and ensures

the maintenance of the confidence of the public at large in the

judicial system.  Publicity renders the administration of justice

visible and is therefore conducive to the achievement of a fair trial,

the guarantee of which is one of the fundamental principles of any

democratic society.  This characteristic is all the more important in

contemporary democratic societies where openness and public

accountability are constantly extolled and clandestinity is viewed with

disfavour.  To preserve its credibility, democracy must practice what

it preaches.

      It is small wonder, therefore, that the Court has underscored the

explicit character of court proceedings by stating that all evidence

must normally be produced in the presence of the accused at a public

hearing with a view to adversarial argument.  While the Convention does

not preclude the taking of anonymous evidence in the interests of

public policy in the investigation stage of criminal proceedings, to

consider such evidence at the trial stage as sufficient to found a

conviction, as in the present cases, involves restrictions on the

rights of the defence which are irreconcilable with the guarantees

embodied in Article 6.

      Incriminating evidence should be produced and taken before the

trial court in public so that that court itself (and not some examining

magistrate sitting in private) should form its own opinion of the

reliability of the evidence presented and not rely on second-hand

evidence.

      The majority of the Commission itself concedes in para. 71 of the

Report that the Courts in the Netherlands based their finding of guilt

to a large extent (even if not exclusively) on the statements of the

unidentified police officers.

      The tale which we see unfolding before our eyes in the present

cases consists of an ostensibly public hearing held by a trial court

which reached a finding of guilt, based to a large extent on evidence

taken in private by an investigating judge, out of sight and hearing

of the trial court itself.  The evidence taken before the investigating

judge was largely anonymous evidence taken out of sight of but within

the hearing of the defence and prosecution counsel.  The identity of

the unidentified police officers was unknown to the Regional Court,

unknown to the Court of Appeal, unknown to the Supreme Court, unknown

to defence and prosecution counsel, and unknown to the community at

large.  Their identity was only known to the investigating judge in the

privacy of his conscience.

      To my mind, this scenario smacks of stage management and, in the

final analysis, cannot be disassociated from the danger of

arbitrariness.  In addition, in these days of investigative journalism,

one could be led to speculate about the consequences, under Dutch law

and under the Convention, for some particularly enterprising journalist

who happened to discover the identity of the unidentified witnesses and

then proceeded to divulge it to the general public.

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