DISSENTING OPINION OF MR. L. LOUCAIDES

      I am unable to agree with the opinion of the majority that there

has not been a violation of Article 6 paras. 1 and 3 (c) of the

Convention in this case.

      After the arrest of the applicant and while he was in custody he

was interrogated on several occasions by the police in respect of the

accusations laid down against him.  In answer, he made statements which

contained also contradictions.  These contradictions were relied on in

the subsequent judgment of 26 June 1985 by the Bülach District Court

which concluded that in view thereof, it could not accept the

applicant's claim that he was innocent.  The interrogations thus had

a direct bearing on the applicant's conviction.

      It should also be mentioned that, according to the legal system

of the Canton of Zurich, the relevant investigation which was carried

out at the material time and which included the interrogations in

question was important for the development of the proceedings as a

whole and in particular as regards the preparation and conduct of the

trial itself.

      Thus, the confrontations of the applicant by the investigating

authorities amounted to critical stages of the relevant criminal

proceedings as their results might well settle his fate at the trial

itself.

      It is clear that in the circumstances of the case the applicant

was, in respect of the above pre-trial stages of the proceedings,

entitled to legal assistance by virtue of the provisions of para. 1 of

Article 6 - regarding the right of a fair hearing - and para. 3 (c) of

the same article - regarding the right of defence through legal

assistance. (cf. Comm. Report 12.7.84, Eur. Court H.R., Series A

No. 96, p. 15 et seq., para. 49).

      The right to the aid of counsel is of fundamental character. In

fact, such right plays a crucial role in securing all other rights

guaranteed to an accused person under Article 6 of the Convention.

Many of these rights would have little meaning to the average criminal

defendant without the aid of counsel to protect the rights.  More

generally, without legal assistance the accused person may not be in

a position to protect himself from abuses of the state organs that may

adversely affect his defence and his right to a fair trial.

      As aptly observed by the U.S. Supreme Court: "Even the

intelligent and educated layman has no skill in the science of law ...

Left without the aid of counsel he may be put on trial without a proper

charge and be convicted upon incompetent evidence ...  He lacks both

the skill and knowledge adequate to prepare his defence even though he

have a perfect one.  He requires the guiding hand of counsel at every

step in the proceedings against him.  Without it, although he may not

be guilty, he faces the danger of conviction because he does not know

how to establish his innocence" (Powell v. Alambama, 287, US. 45 (1932)

pp. 68-69).

      The necessity of legal assistance becomes even more vital for an

accused person interrogated by the prosecuting authorities while in

custody as in the case of the present applicant.  A custodial

interrogation of this kind is inherently coercive and should therefore

be accompanied by such procedure safeguards for the accused including,

in particular, the right to the presence of his lawyer, so as to

protect the accused from the risk of compelled self-incrimination and

to secure him equality of arms and fair treatment in a setting in which

the prosecutorial forces have the upper hand.  The counsel can then

advise the accused whether "to make use of his right of silence or to

make a confession" and "generally assist the accused who by his

detention is removed from his normal environment (see Can v. Austria,

op. cit., paras. 55-56) and is isolated in police custody.

      The inherent coercive element of pre-trial custodial

interrogation, which by itself is a threat to the privilege against

compelled self-incrimination, has led the U.S. Supreme Court to rule

that, before such interrogation, the police "must warn the person to

be interrogated that he has the right to remain silent, that any

statement he does make may be used as evidence against him in Court and

that he has a right to consult with a lawyer, either retained or

appointed, and to have the lawyer with him during interrogation".

(Miranda v. Arizona, 384 US 436 at 444, 467-73 (1966)).  The Court

based its decision on the Fifth Amendment of the U.S. Constitution

which expressly provides that "no person shall be compelled in any

criminal case to be witness against himself".  Such right is not

expressly mentioned in the Convention but, in my view, it is implicit

in the concept of fair trial and the presumption of innocence

guaranteed under Article 6 of the Convention.

      The above-mentioned ruling of the U.S. Supreme Court, and in

particular the right to counsel indicated therein in respect of pre-

trial custodial interrogations, appears pertinent to the complaints of

the applicant supported by the facts of the case.

      In the light of the above, I find that the applicant had a right

of legal assistance prior to and during the interrogations which per

se were so vital in the relevant criminal proceedings against the

accused that the absence or denial of such rights could presumptively

be considered harmful to the defence of the accused so as not to

require any evidence of actual prejudice.  Such prejudice, however,

seems to have been shown in this case anyway.

      In my view, the right to legal assistance in respect of custodial

interrogations, as explained above, in order to be effective and not

merely theoretical (Eur. Court H.R., Artico judgment of 13 May 1980,

Series A no. 37, page 16, para. 33) the following conditions must be

satisfied:

      (a)  The person to be questioned must be informed in advance of

           his right to consult a lawyer and to have his assistance

           before and during the questioning.

      (b)  If the accused wishes to exercise his right in question the

           investigating authorities must enable him to have a timely

           consultation in private with a lawyer (either retained or

           appointed) before the interrogation and enable the lawyer

           to be present throughout the interrogation.

      I do not think that it is necessary to examine here whether and

to what extent the right under consideration could be subjected to any

particular restriction, as the facts of the present case do not

disclose that any such restriction was considered necessary by the

appropriate authorities of the respondent Government due to any special

circumstances of the case (See Can v. Austria, op. cit., para. 57).

      From the facts before the Commission it does not appear that:

      (a)  the applicant was informed of his right to have legal

           assistance in respect of at least five interrogations by

           the District Attorney or a police officer while he was in

           detention;

      (b)  the applicant or his lawyers were informed in advance of

           the interrogations in question.

      Furthermore, it appears that although the applicant at an initial

stage of his arrest (3 February 1985) has expressly requested an

officially appointed lawyer, the authorities failed to meet his request

without justifying such failure and they carried out six interrogations

in the absence of a lawyer of the applicant.

      As a result, I find that, in the circumstances of this case the

rights of the applicant for fair trial and legal assistance under

Article 6 of the Convention have been violated.  In this respect, I

take into account that no evidence was produced to establish that the

applicant has ever waived his right to counsel.

      Therefore, I find that there was a breach of

Article 6 paras. 1 and 3 (c) of the Convention in this case.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

5 May 1988                  Introduction of the application

23 June 1988                Registration of the application

Examination of Admissibility

5 February 1990             Commission's decision to invite the

                            Government to submit observations on the

                            admissibility and merits of the

                            application

20 April 1990               Government's observations

25 June 1990                Applicant's observations in reply

3 December 1990             Commission's decision to hold an oral

                            hearing

31 May 1991                 Oral hearing on admissibility and merits,

                            Commission's decision to declare the

                            application in part admissible and in

                            part inadmissible

Examination of the merits

12 October 1991  )          Commission's consideration of the state

7 December 1991  )          of proceedings

14 May 1992                 Commission's deliberations on the merits,

                            final vote and adoption of the Report