DISSENTING OPINION OF JUDGE PELLONPÄÄ JOINED BY JUDGES WILDHABER, PALM AND CAFLISCH

I have voted against the finding of a violation in the present case since, in my view, Article 6 does not apply to the disciplinary proceedings at issue. My conclusion does not mean that I deny the need for legal safeguards in the field of prison discipline. However, if such safeguards are to be developed through the case-law of the Court, these developments should take place in a reasonably foreseeable manner and respect the continuum linking new precedent to previous case-law.

A break in such a continuum is not obvious at first sight, as the majority affirms its allegiance to the so-called Engel [1] criteria ( see paragraph 85 of the present judgment ) . I have no difficulties in agreeing with this. I can also fully subscribe to the Court ' s conclusion regarding the first criterion, namely that “according to national law the adjudication of such offences was treated as a disciplinary matter and was designed to maintain order within the confines of the prison” (see paragraph 90).

My disagreement concerns the application of the second and, especially, the third criterion.

In analysing the nature of the charge – the second of the Engel criteria – the majority does note “that the offences in question were directed towards a group possessing a special status” (see paragraph 103 of the judgment) [2] , and also seems to admit that the second applicant ' s charge involved a relatively minor incident as compared to those at issue in Campbell and Fell (see paragraph 104) [3] . Despite this, in the present case, the Court comes to the same conclusion as in Campbell and Fell in so far as the relevant circumstances are said to give the offences “a certain colouring which does not entirely coincide with that of a purely disciplinary matter” (see paragraph 106 of the judgment).

There are inevitably similarities between many disciplinary offences, or any sanctioned conduct whatsoever, on the one hand, and common offences on the other, and thus “a certain colouring” in this sense. The colours in the present case are, however, rather faded as compared to Campbell and Fell . I

also do not see how the “finding of culpability” (see paragraphs 105 and 124 of the present judgment) could be regarded as a very important element for the distinction between “criminal” and “disciplinary” offences, as many forms of sanctioned behaviour, including behaviour which is traditionally tried in disciplinary proceedings, presuppose culpability [4] .

All in all, an analysis of the nature of the charges in the light of Campbell and Fell moves this case further away from the criminal sphere. At the same time I accept that this is not decisive, since in the last resort the classification of the proceedings depends on the third criterion, the nature and severity of the penalty. However, it is on this point that I disagree most strongly with the majority.

In Campbell and Fell the Court considered a penalty of a total of 570 days of loss of remission, together with other penalties [5] . In R. v. the Secretary of State for the Home Department, ex parte Carroll, Al-Hasan and Greenfield (judgment of the Court of Appeal of 19 July 2001) , Lord Woolf (at paragraph 53 of his judgment) correctly held that Mr Greenfield ' s case, involving 21 additional days, was “a long way from the situation” in Campbell and Fell . Our applicants were awarded 7 and 40 additional days respectively.

I accept that for a person at liberty a penalty involving a deprivation of that liberty for 7 and, a fortiori , for 40 days, would bring Article 6 into play.

But can the imposition of additional days to a person already lawfully in prison really be equated to a “fresh” deprivation of liberty (see paragraph 124 of the present judgment)? To answer this question one should analyse the applicants ' factual situation in light of its characterisation in domestic law. Like Judges Zupančič and Maruste in their dissenting opinion, I take as the starting-point the judgment of Lord Woolf in the above-mentioned case. Lord Woolf, a leading judge with particular expertise in the field of prisoners ' rights and apparently fully committed to applying the standards of the Convention, held that the change in the legal regime which took place in 1991 (see paragraphs 46-50 of the present judgment), and thus after Campbell and Fell , was not as important as had been suggested. As before the entry into force of the 1991 Act, the sentence pronounced by the court was still the actual period of the sentence [6] .

In his reasoning finding Article 6 inapplicable, Lord Woolf went on to say (paragraph 44 of his judgment):

“The awards of additional days to be served by each of the claimants did not have the effect of adding to their sentence. It was not a fresh sentence of imprisonment. Their effect was to postpone the claimants ' release on licence. The awards clearly had a practical effect so far as the appellants were concerned and that practical effect was to postpone their release. But there was no question of their sentence being increased as a matter of law. Additional days could not be imposed so that they extended the actual sentence which the claimants were serving, and the sentence passed by the court was the justification for the claimants ' detention for the purposes of article 5(1) of the Convention.”

Like Judges Zupančič and Maruste, I “do not know how much clearer one can be”. The majority, however, tells us that the considerations put forward by Lord Woolf fail to go “to the heart of the question of the precise nature of the penalty of additional days” (see paragraph 123 of the present judgment). In support of this criticism the judgment relies on Stafford v. the United Kingdom ([GC], no. 46295/99, ECHR 2002-IV) and the emphasis laid therein on the necessity to look “beyond the appearances ... and concentrate on the realities of the situation”. The reality of the additional days, so the argument goes on, “was that prisoners were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings which were legally unconnected to the original conviction and sentence” (also paragraph 123).

I cannot but agree with the general principle that in interpreting the Convention one should go beyond appearances and look at the realities of situation s . I also accept the development of the case-law brought about by Stafford , as evidenced by the fact that I formed a part of the majority on all points in that case. I am, however, disturbed by the apparent ease with which the majority has referred to Stafford , which concerned a prisoner serving what was de facto found to be an indeterminate life sentence and Article 5, in the context of the present case involving prisoners serving a fixed sentence and Article 6.

The judgment in Stafford was a logical step in a rather lengthy development whereby certain guarantees of, and principles concerning, Article 5 as applied in Weeks v. the United Kingdom (judgment of 2 March 1987, Series A no. 114) to a discretionary life prisoner were extended to apply, first to juvenile murderers detained “during her majesty ' s pleasure” (for example, in Hussain v. the United Kingdom , judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I) and then, finally, to mandatory life prisoners ( Stafford ). The “connection” mentioned in the passages of Stafford cited in paragraph 123 cannot be anything other than a reference to the requirement of a “causal connection” [7] , read into Article 5 § 1 in Weeks , between the original conviction and the reasons for the recall to prison of a “discretionary” lifer who has been released on licence and thereby has regained his “liberty” – a question of fact (see Weeks , p. 22, § 40 ) . Without such a causal connection the original conviction could not constitute, for the purpose of Article 5 § 1, a legal basis for the new deprivation of liberty in the form of recall to prison.

The issue has been considered and further developed in subsequent case-law. In Stafford the Court found it “established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers” (§ 79). As the mandatory life sentence had, due to domestic legal developments, in reality ceased to mean imprisonment for life (save in the exceptional cases involving a whole life “tariff”), there was every reason to apply the requirement of the “causal connection”, within the meaning of Weeks , to any deprivation of liberty going beyond the tariff period – whether by recall or otherwise – in the same way as it is applied to discretionary lifers.

In my view there are important differences between this case and situations which arise in the Weeks/Stafford category of case. In the first place, in the light of the judgment of Lord Woolf I cannot find that the shift from the “loss of remission” regime to “additional days” (or from a “privilege” to a “legitimate expectation” – see paragraph 121 of the present judgment) did represent in domestic law a change which could be compared to the disappearance of the distinction between the different forms of life sentences, as evidenced by the developments referred to above [8] . Secondly, I remain unpersuaded that the circumstances of the present case are sufficiently similar to the Weeks / Stafford situation as to make it possible to transfer from those cases the above-mentioned requirement of “connection” to the situation in the present case involving persons serving fixed-term prison sentences after conviction of, for example, rape and attempted murder. Typically, a situation in which disciplinary measures would legitimately be needed is likely to arise in relation to behaviour not having any connection with the original conviction. The majority appears to imply, in the final sentence of paragraph 123, that there may be situations in which the disciplinary proceedings could be connected to the original conviction and sentence and that such a connection could be relevant to the classification of these proceedings. I confess that I find it difficult to envisage a situation where that might be the case. In my view, if one is to operate with the requirement of “connection” at all, then the connection between the original sentence and the additional days lies simply in the fact that the original sentence also covers the period during which the additional days would have to be served and provides a legal basis [9] , for the purposes of Article 5 § 1, for the detention during that period.

It follows naturally from what I have said that I also disagree with the view of the majority that “the mere fact” that “the applicants were prisoners serving a lawfully imposed sentence does not ... serve to distinguish their case from that of civilians or military personnel at liberty” (see paragraph 125 of the present judgment). To me, the difference is fundamental. This also leads me to conclude that the additional days awarded cannot be regarded as “appreciably detrimental” within the meaning of paragraph 82 of Engel and Others . I note that even the imposition of the maximum penalty of 42 days would not as such have prevented the applicants ' release long – indeed, several years – before the expiry of their respective sentences.

Having said this, I admit that the changes in the domestic regime and conceptions culminating in the reform of 1991 should also be reflected in the interpretation of the Convention. While these changes do not in my view justify the conclusion that the additional days should be regarded as a criminal sanction within the meaning of Article 6, they do create for the prisoner an expectation of being released on licence after the service of half or two-thirds of their sentence (see paragraph 48 of the present judgment). The frustration of this expectation by the imposition of additional days, although these days do not exceed the original sentence still forming the legal basis for the deprivation of liberty, can be said to raise new legal issues concerning the person ' s deprivation of liberty. In this respect, the case is comparable to other cases in which “new issues of lawfulness” arise during a detention for which the original conviction or other decision does continue to provide a legal basis for the purposes of Article 5 § 1. There is a line of precedent including, among others, cases concerning mental health patients [10] , recidivists placed “at the government ' s disposal” [11] and different categories of life prisoners in the United Kingdom [12] , in which the applicants were found to be entitled by Article 5 § 4 to a review of the legality of the possible new issues concerning their detention despite the fact that the legal basis, for the purposes of Article 5 § 1, of that detention remained unchanged.

In my view, there is much to be said for the argument that the imposition of additional days under a system such as that at issue in this case should trigger the guarantees of Article 5 § 4. However, I refrain from going further than that, as Article 5 § 4 is not before the Court. I refrain in particular from speculating whether the English law as applied in this case would comply with such an obligation arising under Article 5 § 4.