JOINT DISSENTING OPINION OF JUDGES RYSSDAL AND DE MEYER

In this case, we agree in substance with the opinion of Mr Danelius and the other eleven members of the Commission who shared his view that there had been a breach of the applicant's defence rights. It is not only in drugs cases that problems may arise in relation to the safety of witnesses.

It is not permissible to resolve such problems by departing from such a fundamental principle as the one that witness evidence challenged by the accused cannot be admitted against him if he has not had an opportunity to examine or have examined, in his presence, the witness in question. In the instant case the applicant had this opportunity in respect of the witness N., who withdrew his earlier statement. The applicant did not have such an opportunity in relation to the witness R., who "disappeared", or the witnesses Y.15 and Y.16, who were heard only in the presence of his lawyer. Moreover, Y.15 and Y.16 were anonymous witnesses whose identity was only known to the investigating judge but not to the applicant and his lawyer, nor to the Regional Court and the Court of Appeal.

[1] The case is numbered 54/1994/501/583.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9)

[3] For practical reasons this annex will appear only with the printed version of this judgment (in Reports of Judgments and Decisions - 1996-II), but a copy of the Commission's report is obtainable from the registry.