DISSENTING OPINION OF THE PRESIDENT, Mr. BALLADORE PALLIERI

(Translation)

I share the Court ’ s opinion that "as provided for under the 1956 Act ..., special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope" of our Article 5 (art. 5) (see paragraph 94 of the judgment). I also agree with the Court ’ s view that, for the purposes of exhaustion of domestic remedies, it is not necessary for the applicant to have pleaded before the national courts the Article of our Convention or perhaps even the corresponding domestic rules, such as the first and second paragraphs of Article 13 of the Italian Constitution which read:

"Personal liberty shall be inviolable.

No form of personal detention, inspection or search and no other restriction on personal liberty shall be permitted unless it is effected pursuant to a reasoned direction of the judicial authorities and save in the cases and forms prescribed by law."

However, in my view, it should at least be required that the applicant has complained of conduct on the part of the State that is contrary to the content of these Articles. In addition, once more in my opinion and contrary to that of the Court, account can be taken in this connection solely of the requests which the applicant addressed to the national courts. It is only by comparing the content of those requests with the content of the Articles in question that one can decide whether the applicant ’ s intention was to complain of an infringement of the freedoms provided for in those Articles. To this end, it is not possible to rely, as the Court did, on mere sentences spoken or written in the course of the domestic proceedings.

If Mr. Guzzardi ’ s request to the national courts are examined, it can be seen at once that they sought first and foremost revocation of the compulsory residence order: that was his principal request, even before the Court of Appeal. They thus bore on an issue that has no connection with the issue facing our Court which, as we have said previously, is not concerned with the lawfulness in abstracto of the Italian Act of 1956.

It is true that the applicant also complained, as regards his actual treatment on Asinara, of his inability to obtain on the island medical treatment required by his state of health and to live together with his family without hindrance. Here again, however, this is a matter of other freedoms and other rights which have no connection with Article 5 (art. 5) of the Convention, this being the only Article in respect of which the question of exhaustion of domestic remedies arises. Finally, it is also true that the applicant asserted that he was physically and mentally a prisoner on Asinara and was vegetating there in conditions worse than those of his detention on remand and that he described Cala Reale as a "veritable concentration camp". However, we can find an explanation of what he meant by these remarks in his appeal to the Court of Cassation: in that appeal he relied not on the first and second paragraphs of Article 13 of the Italian Constitution, which relate to the protection of individual liberty against any measure involving detention, but on the fourth paragraph which stipulates: "The infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence."

Besides, confirmation that the applicant never had it in mind to complain of limitation of his liberty, within the meaning of the first two paragraphs of Article 13 of the Italian Constitution and Article 5 (art. 5) of our Convention, is to be found in the fact that he did not rely on Article 5 (art. 5) in his application to the Commission and that a complaint by him to that effect had to be entirely constructed by the Commission of its own motion.

Even if one were to accept the possibility of the new criterion of interpretation referred to by the Court, namely the "flexible" interpretation, I do not see how it could be applied to that fundamental right of the State which is safeguarded by prior exhaustion of domestic remedies. In any event, the interpretation should have been effected on the basis of objective data and not of a mere hunt for intentions.

Finally, account should be taken of the fact that when Mr. Guzzardi made two further applications to the Milan Regional Court on 14 November 1975 - applications that did actually concern the issue raised before us - he obtained a transfer elsewhere and the camp on Asinara was eventually closed. Had the matter been pleaded in the proper terms, the domestic remedy would thus have resulted in a finding in favour of the applicant and there would have been no call to institute proceedings before the international institutions.