DISSENTING OPINION OF JUDGE MARUSTE

I have expressed my detailed view on prison disciplinary proceedings in my joint dissenting opinion in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003 ‑ X) and I remain of that opinion.

The relevant proceedings in the present case took place within the original, fully legal and still standing sentence period and were directly linked to the context of the original penal conviction (otherwise the problem would not have arisen).

It was not a fresh sentence of imprisonment: neither did it extend beyond the actual sentence. The prospect of early release was conditional, linked to the prisoner ’ s behaviour. The prisoner is expected to behave well and to justify a munificent expectation as to his future conduct. If he or she is not well behaved, he or she has to serve more time – legally until the last day of mandatory (namely, the original) imprisonment. The judiciary has spoken and delivered judgment: its execution is delegated to the executive.

It must be admitted that prisoners have a legitimate interest in early release but there are conditions to be followed before that interest becomes a “right” requiring the application of Article 6. These conditions were not fulfilled.

It is my understanding that there is no need or justification for arranging two full scale trials within one sentence period. This is especially the case where the disciplinary “mini trial” could be examined on judicial review before High Court as indeed happened in present case.