JOINT PARTLY DISSENTING OPINION OF JUDGES CREMONA , MACDONALD AND RUSSO

We agree with the conclusion reached in paragraph 73 of the judgment that Article 6 (art. 6) of the Convention is applicable to the Board of Visitors ’ adjudication in Mr. Campbell ’ s case. Indeed, applying (due allowance being made for the different context) the criteria set out in the Engel and Others judgment to the present case, the proceedings against Mr. Campbell have, in the circumstances of the case and for the reasons stated in the judgment, to be regarded as coming within the "criminal" sphere for the purposes of Article 6 (art. 6). This being so, it logically follows, as is in fact accepted in the judgment, that the requirements referred to in that Article (art. 6) had of course to be observed, save in the case that non-observance could be shown to come within any of the exceptions permitted by that Article (art. 6) itself.

Where we disagree with the judgment is in regard to whether, on the basis of the evidence adduced, failure to observe the Article 6 (art. 6) requirement of publicity of proceedings did in the present case come within the permitted exceptions to that requirement.

It was of course for the Government to show that the circumstances were such as to justify recourse to one of those exceptions. However, the Government (followed in this by the majority of the Chamber in paragraph 87 of the judgment) relied on the general nature of Board of Visitors ’ proceedings and on the general practice and, although Mr. Campbell was stated to be a "category A" prisoner, the Government adduced no evidence to show that the absence of publicity of proceedings was in his specific case warranted by Article 6 (art. 6) as coming within the permitted exceptions.

In the absence of such evidence we, like the Commission, conclude that there was a violation of Article 6 para. 1 (art. 6-1) also in this respect.

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON AND GÖLCÜKLÜ

The central question in this case is whether the events in Albany Prison on 16 September 1976 gave rise to proceedings to which Article 6 (art. 6) of the Convention is applicable. The majority of the Court has come to the conclusion that Mr. Campbell was faced with "criminal charges" and that, consequently, Article 6 (art. 6) is applicable. We are unable to share this view.

In its Engel and Others judgment of 8 June 1976, this Court laid down three criteria on which it based its decision in that case on the applicability of Article 6 (art. 6) under the "criminal" head. There the problem was whether, in the context of military justice, proceedings against the applicants had been criminal or disciplinary. It seems to us - and in this we are in agreement with the majority of the Court - that the same criteria should be applied in the present case.

On the first criterion - the position under domestic law - there is no doubt. Mr. Campbell was charged with offences against English disciplinary rules and these charges were dealt with according to English disciplinary procedure. There was a possibility of bringing criminal charges also, but that was not in fact done.

The second criterion set out in the Engel judgment is the nature of the offence. We take this to mean that a typical breach of disciplinary rules is outside Article 6 (art. 6). For us, the sit-down in which the applicant took part was just such a typical violation of prison discipline. It is, of course, possible to stage such incidents outside prisons but in a prison setting they take on a special and grave character. Forceful resistance to orders to move from certain premises is also an act that, although it can happen in many places, has its own characteristics when it occurs in prisons. It seems to us, therefore, that in this case the incident that led to the proceedings against the applicant was a typical example of a prison disturbance that is and should as a rule be met with disciplinary measures.

The third criterion set out in the Engel judgment is the severity of the sanctions risked. These are described in paragraph 28 of the present judgment. The sanctions can be divided into two groups. In the first group are sanctions that consist of excluding prisoners from associated work, of stopping their earnings and of sending them into cellular confinement, in each case for a period not exceeding 56 days. Of these, we find only the last to raise any problem. Cellular confinement can have a serious impact on the person who is subject to it. However, it should be taken into account in this connection that this sanction is one of the traditional methods of prison discipline and that prisoners have already been deprived of their liberty. For these reasons we do not find it possible to interpret the words of Article 6 (art. 6) of the Convention in such a way that they oblige States not to use this sanction as a non-criminal, disciplinary measure in prisons. The second group of sanctions risked by Mr. Campbell consisted of forfeiture of certain privileges and of forfeiture of remission of his sentence. According to the relevant rules these forfeitures were not limited in time except that they could not exceed the original sentence. These rules are set out in more detail in paragraphs 28 and 29 of the judgment of the Court to which we refer. It is clear that "forfeiture of certain privileges" does not bring a case automatically from the disciplinary into the criminal sphere. We have more doubts concerning the forfeiture of remission of sentence. Obviously, the applicant had been sentenced to a specific period of imprisonment and this had been decided by the court which sentenced him. On the other hand, it is the general practice in England that, upon starting to serve a prison sentence, the prisoner is given an estimated date for release which is calculated by taking one-third of the sentence off the time stated in the sentence itself. In fact, the rules on remission are applied in such a way that a prisoner is released after serving two-thirds of his sentence unless a forfeiture has been awarded in disciplinary proceedings. Prisoners can thus expect to receive the benefit of the system of remission if they are of good behaviour: the rules governing the time involved are well-established and it is also rather clear what can change the prospects of being given remission. Thus, disciplinary proceedings can result in a considerable prolongation of the time actually served in prison. In spite of that, we have come to the conclusion that this cannot deprive the proceedings against the applicant of their disciplinary character. This is because the time spent in prison could not exceed the period fixed by the original sentence and because remission is an integral part of a system that is upheld by disciplinary measures.

We cannot see that any points other than those already mentioned can be relevant for the question of the applicability of Article 6 (art. 6) under the "criminal" head in this case. Our conclusion is therefore that the applicant was not faced with "criminal charges".

The rules set out in Article 6 para. 1 (art. 6-1) of the Convention - in contrast to those in Article 6 paras. 2 and 3 (art. 6-2, art. 6-3) - apply not only to "criminal charges" but also to the determination of "civil rights and obligations". The applicant has argued that Article 6 (art. 6) is applicable under the latter head. We find that this issue has to be examined only in connection with a possible right to remission of sentence. Even if it were assumed that remission is a right rather than a privilege, we do not think it possible to call it a "civil right" in the context of Article 6 (art. 6) of the Convention. Remission and forfeiture of remission are typical disciplinary matters. Consequently, we find that we are here on the disciplinary side of the line between disciplinary proceedings and proceedings concerning civil rights and obligations.

For the reasons set out above, we are of the opinion that Article 6 (art. 6) is not applicable in the present case.