DISSENTING OPINION OF MRS. J. LIDDY, JOINED BY

              MM. H. DANELIUS, C.L. ROZAKIS, L. LOUCAIDES

                M.A. NOWICKI, N. BRATZA AND A. PERENIC

      The applicants were convicted by the Court of Appeal on the basis

of a number of written statements.  It had heard direct evidence from

identified police witnesses concerning forensic evidence and the

investigation.  None of the identified police officers was close to the

events.  A bystander was unable to identify the applicants.

      The Court of Appeal had also examined a reconstruction of the

events of 26 January 1989.  It had not heard any direct evidence from

eleven unidentified police officers who had been involved in the events

of that day, but whose evidence was apparently crucial to the

convictions.  In particular, it related to the identification of some

of the applicants on the day in question.  The applicants challenged

the identification and prosecution case as a whole.

      The eleven police officers had been examined on oath earlier by

an investigating judge within the hearing but outside the sight of

defence and prosecution counsel.   These witnesses had refused to

answer questions that might lead to a disclosure of their identity

including questions relating to their friendship with colleagues.

      The issue is whether the use of the eleven unidentified

witnesses' evidence involved such limitations on the rights of the

defence that the applicants cannot be said to have had a fair trial.

      The Court has established certain principles under the Convention

in this connection:

-     In principle, all the evidence must be produced in the presence

of the accused at a public hearing with a view to adversarial argument.

However to use statements obtained at the pre-trial stage is not in

itself inconsistent with Article 6 paras. 1 and 3(d) provided the

rights of the defence have been respected (Kostovski Case, Judgment of

23 May 1989, Series A, No. 166).

-     A relevant factor is whether each of the trial courts was

precluded by the absence of unidentified witnesses from observing their

demeanour under questioning and thus forming their own impression of

their reliability.  The use of caution in evaluating such statements

can scarcely be regarded as a proper substitute for direct observations

(Kostovski, loc.cit.).

-   Police officers' evidence at the hearing as to the reliability of

the unidentified witnesses cannot be regarded as a proper substitute

for direct observation (Windisch case, Judgment of 27 September 1990,

Series A, Vol. 186).

-  Even where the unidentified witnesses are sworn police officers, an

accused must have during the proceedings an opportunity to question

them and cast doubt on their credibility (Lüdi  Case, Judgment of

15 June 1992, Series A, Vol. 238).

      In the present case, the investigating judge, but neither of the

trial courts, had an opportunity to observe the demeanour of the

unidentified witnesses.  This cannot be said to provide a "proper

substitute for direct observation" (cf. Windisch Case) in the

circumstances of the case.  In the first place, there was no pressing

reason for the Court of Appeal not to hear these witnesses itself.

They were available within the jurisdiction.  The Court appears merely

to have followed a practice of recent times, possibly based on

convenience (cf. para. 49 of the Report).  In the second place, counsel

for the defence was deprived of the possibility of seeing how the

witnesses reacted to questions put to them, and to draw on such

observations for the purpose of questioning and persuading the judge

to adopt a certain view of their credibility.  In the third place,

there is no evidence that the Court treated the unidentified statements

with caution.  On the contrary, it stated (without further elaboration)

that it would have respected the refusal of the unidentified witnesses

to answer certain questions in order not to disclose an investigation

method or in order to safeguard personal anonymity of investigation

officers.

      The facts that the evidence as to the reliability of the

unidentified witnesses came from an investigating judge rather than

police officers (as was the case in Windisch) and that the Court of

Appeal had insufficient indication of the questions counsel still

wished to put to the witnesses are not such as to justify the

fundamental flaw in the proceedings.  The Court of trial was unable to

assess for itself the credibility of those witnesses in circumstances

where it would have been open to it to do so in a way which took into

account any legitimate interest of the police authorities in preserving

the anonymity of undercover agents (cf. mutatis mutandis, Lüdi Case,

loc. cit.).

      Accordingly, there was a violation of para. 3(d) in conjunction

with para. (1) of Article 6.