DISSENTING OPINION OF MR. E. BUSUTTIL,

              JOINED BY MR. A. WEITZEL AND MRS. J. LIDDY

               AS REGARDS  ARTICLE 10 OF THE CONVENTION

      I am unable to share the opinion of the majority both in regard

to Article 10 and in regard to Article 6 para. 1 of the Convention.

      Article 10

      It is of course true that the right to freedom of expression is

here stated in extremely broad terms, purporting as it does to include

the freedom "to receive and impart information and ideas", thereby

making it virtually impossible to argue against the applicability of

the Article in a particular case.  Nevertheless, one may be left to

wonder in the particular circumstances of this case if a pornographic

video film depicting homosexual acts for some one hundred and twenty

minutes to the accompaniment of protracted moaning is indeed what the

founding fathers of the Convention understood by freedom of expression.

      Assuming, nevertheless, that we are here confronted with an

interference with the freedom of the applicant to "impart information

and ideas", it is unquestionably in line with the established case-law

of the Convention organs that the national authorities have a certain

margin of appreciation in assessing whether the interference with

freedom of expression corresponded to a pressing social need and, in

particular, whether the restriction complained of was proportionate to

the legitimate aim pursued.  Where the aim pursued is the protection

of morals, the margin of appreciation enjoyed by the national

authorities is a wide one, as the Court acknowledged in its most recent

judgment on the subject (See Eur. Court H.R. Open Door and Dublin Well

Woman v. Ireland, 29 October 1992, Series A no. 246, § 68), since there

is no uniform European conception of morals and the requirements of

morals vary from time to time and from place to place.  By reason of

their direct and continuous contact with the vital forces of their

countries, state authorities are in principle better placed than

international organs to pronounce on the exact content of these

requirements as well as on the necessity of a restriction or penalty

intended to meet them (see Eur. Court H.R., Müller et al. v.

Switzerland, 24 May 1988, Series A, no. 133, p. 22, § 35).

      The Commission itself, as recently as 8 April 1991, was of the

opinion in a case relating to a conviction for selling or renting

obscene video films that "there can be no doubt that under normal

circumstances the applicant's conviction for renting or selling the

video films at issue would correspond to a pressing social need and

would be proportionate to the legitimate aim pursued" (No. 16564/90,

X. and Y. v. Switzerland, Dec. 8.4.91, as yet unpublished).  The case

was against the same respondent State, the video shops were situated

in the same canton of Zurich, and the offenders were prosecuted under

the same section (Section 204) of the Swiss Penal Code.  In the present

case, however, the Commission has come to the conclusion that there was

no pressing social need to interfere with the applicant's freedom of

expression in that the video film in question was not open to viewing

by the general public as in the earlier case.

      For myself, I find this distinction difficult to draw for a

number of reasons.  For one thing, the film in question here was open

to any adult male person willing to pay to see it.  Secondly, the

applicant attempted to attract clients by placing adverts in

specialised magazines.  Finally, the projection of the film was part

and parcel of the applicant's business activities for which an entrance

fee of 15 SFr was charged, a fee no higher than the normal entrance fee

charged in cinemas.

      Accordingly, it seems to me that, if the conviction in the

earlier case introduced on 24 February 1990 and decided on 8 April 1991

corresponded to a pressing social need, the social need was necessarily

the same in the present case introduced on 6 August 1990, only five

months later than the earlier case but decided as late as

14 January 1993.

      In the result, I am of the opinion that there has been no

violation of Article 10 in the present case.

      Article 6 para. 1

      In regard to Article 6 para. 1, on the other hand, I find it

extraordinary that criminal proceedings relating to the offences of

publishing obscene material and of drunken driving, involving simple

legal issues, should have taken six and a quarter year to conclude in

any Convention State, least of all in a Convention State where

everything else runs on time.

      The Convention organs have constantly held that it is the duty

of Contracting States so to organise their legal systems as to avoid

undue length in court proceedings, particularly criminal proceedings.

To me, the attempt by the majority to justify such length by arguing

that the applicant himself had on 2 March 1987 requested the Court of

Cassation to adjourn the proceedings until the European Court had

decided on the case of Müller et al. v. Switzerland is not very

convincing, since a period of three years and three months (not in

itself a short period in criminal proceedings) had already gone by

before the applicant requested the adjournment and the request was

accompanied by the complaint as to the length of proceedings.

      Accordingly, I consider that there has been a violation of

Article 6 para. 1 of the Convention.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                              Item

_________________________________________________________________

6 August 1990                     Introduction of the application

4 September 1990                  Registration of the application

Examination of Admissibility

27 May 1991                       Commission's decision to invite the

                                  Government to submit observations

                                  on the admissibility and merits of

                                  the application

7 September 1991                  Government's observations

10 October 1991                   Applicant's observations in reply

11 May 1992                       Commission's decision to declare

                                  the application admissible

Examination of the merits

10 July 1992     )                Commission's consideration of the

17 October 1992  )                state of proceedings

7 January 1993                    Commission's deliberations on the

                                  merits and final vote

14 January 1993                   Adoption of the Report