DISSENTING OPINION OF Mr. H. DANELIUS JOINED BY

      MM. A. WEITZEL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, C.L. ROZAKIS,

      Mrs. J. LIDDY, MM. L. LOUCAIDES, G.B. REFFI, M.A. NOWICKI,

               N. BRATZA, J. MUCHA and E. KONSTANTINOV.

1.    In my opinion, there has been in the present case a violation of

the applicant's rights under Article 6 paras. 1 and 3(d) of the

Convention for the following reasons.

2.    As pointed out by the Commission's majority, the applicant's

conviction and sentence for drug offences was mainly based on the

statements made by four witnesses, namely N. and R. as well as the

two anonymous witnesses Y.15 and Y.16.

3.    The question which arises is therefore whether these four

witnesses gave their evidence under conditions which ensured the

applicant's rights of defence and his right to a fair trial.

4.    As regards N., I recall that he had, when heard by the police,

made an incriminating statement about the applicant but that he

withdrew this statement when he was heard before the Regional Court and

the Court of Appeal. He then denied that the applicant had sold drugs

to him and stated that he had lied to the police.

5.    Although, in such circumstances, the mere fact that the courts

took into account and evaluated the statement N. had made to the police

did not violate the applicant's Convention rights, it is clear that the

declarations N. made before the courts must have reduced the evidential

value of his previous statement. In these circumstances, it was even

more important that other evidence was taken in conditions which were

not at variance with Article 6.

6.    The witness R., who had also incriminated the applicant when

heard by the police, did not appear before the Regional Court. He also

failed to appear before the Court of Appeal but was eventually brought

there by force on 28 August 1990. However, before he had been heard by

the court, he disappeared from the court premises and could not be

found again.

7.    Since R. disappeared from the Court of Appeal after he had been

brought there by force, the authorities must be considered to some

extent responsible for the fact that he was not heard by that court.

In any case, this event made it necessary for the court to be

particularly cautious in drawing any conclusions from R.'s statement

to the police, which had been made in the absence of the applicant and

his lawyer who had also not on any other occasion been given an

opportunity of putting questions to R.

8.    As regards Y.15 and Y.16, the Commission recalls that they were

anonymous witnesses whose identity was known to the investigating judge

but not to the applicant or his lawyer. Consequently, it was not

possible for the applicant to invoke any specific facts regarding the

character of these witnesses or their general reliability. In the

Kostovski case (Eur. Court H.R., Kostovski judgment of 20 November

1989, Series A 166, p. 20, para. 42), the Court stated in regard to a

similar issue:

      "If the defence is unaware of the identity of the person it seeks

      to question, it may be deprived of the very particulars enabling

      it to demonstrate that he or she is prejudiced, hostile or

      unreliable. Testimony or other declarations inculpating an

      accused may well be designedly untruthful or simply erroneous and

      the defence will scarcely be able to bring this to light if it

      lacks the information permitting it to test the author's

      reliability or cast doubt on his credibility. The dangers

      inherent in such a situation are obvious."

9.    It should further be observed that Y.15 and Y.16 were not heard

before either the Regional Court or the Court of Appeal and that those

courts therefore had no opportunity of forming a direct impression of

those two witnesses. Moreover, there was no confrontation of Y.15 and

Y.16 with the applicant. On the other hand, they were heard, on

14 February 1990, by the investigating judge in the presence of the

applicant's lawyer who had the opportunity of putting questions to

them, although he was unaware of their identity.

10.   As the crucial question was whether the witnesses were really

able to identify the applicant as a drug dealer, the fairness of the

procedure might well be considered to have been affected by the fact

that the identification was exclusively made on the basis of a

photograph and that the witnesses R., Y.15 and Y.16 were on no occasion

confronted with the applicant and asked whether they really recognised

him in person. Moreover, N., who gave evidence at the trial, withdrew

his incriminating statement.

11.   On the basis of all these various elements, I cannot but find

that the applicant's defence was restricted to such an extent as to

violate his rights under Article 6 paras. 1 and 3(d) of the Convention.

12.   Having regard to this finding, I do not find it necessary to

determine whether the other aspects of the trial invoked by the

applicant (see para. 66 in the Report) also contributed to making the

proceedings unfair.

                              APPENDIX I

                      HISTORY OF THE PROCEEDINGS

Date                        Item

_________________________________________________________________

27 June 1992                Introduction of application

24 August 1992              Registration of application

Examination of admissibility

8 February 1993             Commission's decision to communicate the

                            case to the respondent Government and to

                            invite the parties to submit observations

                            on admissibility and merits

23 April 1993               Government's observations

1 June 1993                 Applicant's observations in reply

29 November 1993            Commission's decision to declare the

                            application in part admissible and in part

                            inadmissible

Examination of the merits

8 December 1993             Decision on admissibility transmitted to

                            parties. Invitation to parties to submit

                            further observations on the merits

28 January 1994             Government's observations

8 February 1994             Applicant's observations

9 April 1994                Commission's consideration of state of

                            proceedings

3 September 1994            Commission's consideration of state of

                            proceedings

11 October 1994             Commission's deliberations on the merits,

                            final vote, and adoption of the Report