PARTLY DISSENTING OPINION OF MR. F. MARTINEZ

      I agree with the dissenting part of Mr. Bratza's opinion.

                                                           (Or. Eng.)

                DISSENTING OPINION BY MR. L. LOUCAIDES

      I am unable to agree with the conclusion of the majority that in

this case there has been no violation of Article 6 para. 1 or 2 of the

Convention as regards the applicant's right to silence.

      My disagreement refers to the application of the 1988 order to

the silence of the applicant during his pre-trial detention by the

police.

      I had the opportunity in my dissenting opinion in the Saunders

case (Application No. 19187/91) to explain that the presumption of

innocence safeguarded under Article 6 para. 2 of the Convention entails

the right to remain silent and not to be compelled to incriminate

oneself.  The right in question aims at the protection of the innocent

against abuses by law-enforcing agencies.  Therefore it is particularly

important to secure this right during pre-trial police detention.

      Subject to the following, I share the view of Amnesty

International (para. 55 of the Report) according to which a system

which permits adverse inferences to be drawn against an accused person

because of his silence is inconsistent with the right to remain silent.

I believe that this view should only be applicable as regards the

exercise of such right at pre-trial stages when the danger of abuses

by state organs (i.e. the raison d'être of the right) exist and not at

the stage when the accused chooses to offer no explanation to the court

after a prima facie case is made in court against him.

      Apart from the danger of abuse, which I believe does not exist

at the stage of the judicial proceedings, there are other factors which

distinguish the above-mentioned two stages for the purposes of the

right in issue.  In contrast with the trial stage an accused person,

when faced with the law-enforcing agencies before trial, alone and

without the legal guidance of a counsel, lacks the necessary safeguards

for an effective presentation of his version in an inherently coercive

setting in which the prosecutorial forces have the upper hand.

Although he may not be guilty he may not be in a position to establish

effectively his innocence.  In this respect it is useful to recall that

the Commission found that in this case there has been a violation of

Article 6 para. 1 in conjunction with Article 6 para. 3 (c) of the

Convention as regards the applicant's lack of access to a solicitor

during the preliminary investigations by the police.

      In the light of the above and in view of the fact that the

failure of the applicant to give an account to the police of his

presence in the house where L.  was imprisoned, was relied on by the

trial judge in drawing "very strong inferences" against the applicant

(pursuant to Article 6 of the Order) I find there has been a breach of

the presumption of innocence which is protected in absolute terms in

Article 6 para. 2 of the Convention.

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

16.08.91              Introduction of the application

27.08.91              Registration of the application

Examination of admissibility

10.09.92              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits

25.02.93              Government's observations

08.04.93              Commission's grant of legal aid

07.06.93              Applicant's reply

30.08.93              Commission's decision to invite the parties to

                      an oral hearing

18.01.94              Hearing on admissibility and merits

18.01.94              Commission's decision to declare the application

                      admissible

Examination of the merits

18.01.94              Commission's deliberations

24.02.94              Applicant's observations on the merits

13.05.94              Consideration of the state of proceedings

27.07.94              Commission's deliberations on the merits, final

                      votes and adoption of the Report