CONCURRING OPINION OF JUDGE MULARONI, JOINED BY JUDGE TSOTSORIA

I agree with the conclusions of the majority that there has been a violation of Articles 6 § 1 and 8 of the Convention in this case.

However, my reasoning is partly different.

Article 6

As to the applicability of this Article, I have to say that the Court ’ s case-law concerning disciplinary sanctions imposed on prisoners does not seem to me to be always consistent.

The Court has found a violation of Article 6 in cases against some countries, whereas it continues in committees to declare similar complaints raised against other countries inadmissible.

While I am very much looking forward to getting more detailed criteria from the Grand Chamber as to the applicability of Article 6 to this kind of complaint, I can agree that Article 6 applies in this case under its civil head, as by the end of the domestic proceedings the applicant had been deprived of his visiting rights for nearly a year. Applying the Ganci v. Italy principles (no. 41576/98, §§ 24-25, ECHR 2003 ‑ XI) to the specific circumstances of the case, the issue of the applicability of Article 6 is easily determined.

Having said that, I do not understand why reference was made to the Vilho Eskelinen and others v. Finland Grand Chamber judgment in paragraph 29 of the judgment. That case concerns access to court for civil servants and has absolutely nothing to do with the issue of disciplinary sanctions imposed on prisoners. I am very much afraid that said reference serves the purpose of introducing the principle that, from now on, a presumption exists that Article 6 applies to any disciplinary sanction imposed on prisoners when domestic law provides judicial remedies.

I am of the opinion that the chambers of the Court should not engage in judicial hyper-activism, moving rapidly, in the absence of clear Grand Chamber guidelines, from a case-law under which Article 6 of the Convention was not applicable at all to disciplinary proceedings to a case-law according to which Article 6 should always apply, regardless of the nature and gravity of the disciplinary sanction imposed, whenever judicial protection is afforded at domestic level. Even leaving aside that such an approach might discourage the High Parties to the Convention from affording judicial protection with respect to minor disciplinary sanctions, I would point out that Article 6 of the Convention limits its scope to hearings for the determination of “civil rights and obligations”, as well as “criminal charges”. If a major extension of the scope of Article 6 has to be made with reference to disciplinary sanctions imposed on prisoners, with a view to

considering any kind of sanction, even minor ones, as having an impact on a civil right, I think that this should be for the Grand Chamber to decide.

May I add that imposing on domestic courts to hold public hearings in all procedures concerning disciplinary sanctions, regardless of their gravity, would to my mind represent a disproportionate burden and risk undermining the courts ’ ability to deal with cases within a reasonable time. The Grand Chamber having recently found that there was no such obligation in a case involving “criminal” issues (see Jussila v. Finland [GC], no. 73053/01, ECHR 2006 ‑ ... ), I do not believe that it is appropriate for a chamber of the Court to impose such an obligation in cases involving disciplinary sanctions where the “civil limb” of Article 6 is at stake.

For this reason, I come to the conclusion that there has been a violation of Article 6 in this case for one reason only: that the applicant was not given the opportunity to defend himself through a lawyer before the domestic courts which determined his disciplinary appeals. The severity of the total sanction imposed on him cannot justify any derogation from the principle of legal representation before domestic courts.

Article 8

As to the violation of this Article, the majority confines its examination to the issue of “legality”. It concludes that the interference with the applicant ’ s family life was based on legal provisions which did not meet the Convention ’ s “quality of law” requirements, and that there is no need to determine whether the interference pursued a legitimate aim or aims under paragraph 2 of Article 8 and was necessary in a democratic society (§§ 53 ‑ 54 of the judgment).

However, since the Court takes note of the legislation which entered into force on 1 January 2005 and points out that the new legislation should in principle meet the Convention ’ s quality of law requirements (§ 51 of the judgment), I should like to emphasise an additional element.

Even assuming that in new similar cases the interference might be lawful and pursue a legitimate aim, I would consider such interference unnecessary in a democratic society. Total prohibition of family contacts for a year is a clearly disproportionate disciplinary sanction, touching the core of Article 8.

Application of Article 46 of the Convention

I have a serious problem with this portion of the judgment (§§ 59 ‑ 63) for the following reasons.

1) Paragraph 60 of the judgment summarises the reason for finding a violation of Article 6 as being “the lack of a public hearing”. I consider that the wording of paragraph 60 is not consistent with paragraphs 37 and 38 and the conclusion that Article 6 was breached because “the applicant could not effectively follow the proceedings against him”.

May I add, assuming that the majority holds the view that lack of a public hearing is the main reason for finding a violation of Article 6, that I would deeply disagree with such a conclusion, for the reasons developed above.

2) I have serious doubts that paragraph 63 of the judgment will serve the declared purpose of assisting the respondent State in finding the appropriate solution and the Committee of Ministers in supervising the execution of the judgment, for the following two reasons.

On the one hand, I have difficulties in understanding the reference to Article 57 § 2 (b) of the European Prison Rules, which provides that “national law shall determine the procedures to be followed at disciplinary proceedings”. Such procedures are already determined at domestic level, as stated in paragraph 15 of the judgment. What clearly emerges from that paragraph is that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment examined the legislation and only raised two questions, namely lawyers ’ participation in disciplinary proceedings and lawyers ’ access to their clients ’ disciplinary files. Limiting the reference to Article 59 (c) of the European Prison Rules would probably have better served the purpose of helping the respondent State and the Committee of Ministers.

Secondly, the reason for the reference to the Dickson v. the United Kingdom Grand Chamber judgment in the section relating to Article 46 remains a mystery to me, as in that case the Court refrained from suggesting the adoption of any provision of the European Prison Rules under Articles 46 or 41 of the Convention.