PARTLY CONCURRING, PARTLY DISSENTING OPINION OF

                             MR. N. BRATZA

      I share the view of the majority of the Commission that there has

in the present case been no violation of Article 6 para. 1 and/or

para. 2 of the Convention insofar as adverse inferences were drawn by

the domestic courts from the failure of the applicant to answer police

questions or to give evidence at his trial.

      I also agree with the reasoning of the majority of the Commission

in paragraphs 47-66 of the Report but would add two points by way of

amplification.

      (1) In reaching the view that there has been no violation of the

Convention I attach considerable importance to the fact that adverse

inferences under the 1988 Order are drawn by a judge sitting without

a jury.  Not only is a judge, by his training and legal experience,

likely to be better equipped than a lay juryman to draw only such

inferences as are justified from a defendant's silence but, as pointed

out by the Commission, a judge in Northern Ireland gives a reasoned

judgment as to the grounds on which he decides to draw inferences and

the weight which he gives to such inferences in any particular case:

whether the inferences have been properly drawn in all the

circumstances and whether proper weight has been given to them by the

trial judge is then subject to review by the Court of Appeal in

Northern Ireland.  The same safeguards against unfairness do not appear

to me to exist in the case of a jury trial.  When it is a jury which

must decide, without giving reasons, what adverse inferences, if any,

to draw against an accused from his silence and what weight to attach

to such inferences in arriving at a verdict, the risk of unfairness

occurring appears to me to be substantially increased, however

carefully formulated a judge's direction to the jury might be.

(2)  The fact that an accused has access to legal advice before

deciding whether to remain silent in the face of police questioning is

also a significant safeguard against unfairness.  In this regard I note

that in the recent Report of the Royal Commission on Criminal Justice,

the minority of the Royal Commission, who were in favour of changing

the existing rules in England and Wales to permit adverse comment on

silence in the face of police questioning, were only prepared to see

this change if the accused had at least been offered the opportunity

of taking legal advice before answering questions put by the police.

      Under the 1988 Order there is no requirement that an accused

should have had access to legal advice before adverse inferences can

be drawn from his silence:  on the contrary, in the case of R. v.

Dermott Quinn the Court of Appeal in Northern Ireland upheld the trial

judge's rejection of a submission to the effect that the provisions of

the 1988 Order should be read subject to Section 15 of the 1987 Act and

that an adverse inference under Article 3 of the 1988 Order should not

be drawn where an accused had asked for access to a solicitor but been

interviewed by the police before his solicitor arrived to advise him.

      Nevertheless, the fact that an accused has been denied access to

a solicitor is not an irrelevant consideration, the Court of Appeal

commenting in the same case that the denial of access in breach of the

provisions of Section 15 of the 1987 Act may justify a judge in

refusing to draw an adverse inference under Article 3 of the 1988

Order.  Moreover, while I consider it highly desirable that access to

legal advice should be available to an accused, it does not in my view

follow that the drawing of inferences from the silence of an accused

who has not had such access will inevitably result in unfairness:

whether it does or not will depend on all the circumstances of the

particular case.

      In the present case, inferences were drawn by the trial judge

against the applicant under Article 6 of the Order by reason of his

failure to account for his presence in the house at 124 Carrigart

Avenue when cautioned by the police on the evening of 7 January 1990.

The applicant did not at the time of his caution and when deciding to

remain silent have the benefit of legal advice.  However, I do not

consider that the drawing of inferences under the Article (or under

Article 4 of the Order by reason of his refusing to give evidence in

his own defence) deprived the applicant in all the circumstances of a

fair trial.  In this regard I attach particular importance to the fact

that

      (i) the adverse inferences were in no sense the sole evidence

against the applicant:  the evidence of L. as to the applicant's

involvement, and the police evidence as to the circumstances in which

the applicant had been found in the house, gave rise to what the Court

of Appeal described as a "formidable case" against the applicant of

aiding and abetting the kidnapping of L.;

      (ii) there is no suggestion that the applicant failed to

understand the significance of the caution given to him pursuant to

Article 6 of the 1988 Order before he was advised by his solicitor;

      (iii) the applicant remained silent both before and after he had

seen his solicitor and there is nothing to suggest that his persistent

refusal to answer any questions put to him by the police would have

been any different had he received legal advice at an earlier stage.

      For these reasons I agree with the majority of the Commission

that the drawing of adverse inferences from the applicant's silence did

not deprive him of a fair trial.

      For the same reasons I regret that I cannot share the majority's

view that the applicant's defence rights were affected and that he was

deprived of a fair hearing in consequence of the restrictions placed

on his access to a solicitor.

      While I accept that the guarantees of Article 6 may require that

an accused has the assistance and support of a lawyer at a pre-trial

stage including during his police interrogation, the question in each

case is whether a restriction on access to legal advice is such as to

prejudice the position of the defence at trial and thereby deprive the

accused of a fair hearing.

      In the present case there is nothing in my view to suggest that

the restrictions had this effect.  The applicant remained steadfastly

silent at all stages of the proceedings from the moment of his initial

arrest.  His stance throughout his police interview remained unchanged

even after access to a solicitor had been granted.  In these

circumstances I can find no indication that the rights of the defence

were in the present case affected by the inability of the applicant to

consult a solicitor at an early stage or by the absence of a solicitor

during his police interviews.

      The applicant further complains that he has been the victim of

discrimination in breach of Article 14 read in conjunction with

Article 6 of the Convention, by reason of the difference in practice

followed in Northern Ireland and in England and Wales regarding the

presence of solicitors during interviews of detained suspects.

      In my view the difference in practice is not capable of amounting

to discriminatory treatment for the purposes of Article 14.  Article 14

is not concerned with all differences in treatment but only with

differences related to personal characteristics.  As the Court pointed

out in its Kjeldsen, Busk Madsen and Pedersen judgment of

7 December 1976, Series A no. 23, p. 29 para. 56,

      "...Article 14 prohibits, within the ambit of the rights and

      freedoms guaranteed discriminatory treatment having as its basis

      or reason a personal characteristic ("status") by which persons

      or groups of persons are distinguishable from each other".

      Insofar as there exists a difference in the treatment of detained

suspects in the two jurisdictions with regard to their access to

solicitors, this difference is not based on personal status or

characteristics but on the geographical location where the suspect is

arrested and detained.  Such a difference does not amount to

discriminatory treatment within the meaning of Article 14 of the

Convention.

                                                           Or. French