DISSENTING OPINION OF JUDGE ZEKIA

The main issue involved in this case is whether the applicant Mr. Guzzardi was deprived of his liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention by becoming a compulsory resident on the island of Asinara and by having to put up with the restrictions imposed relating to his living conditions, social contacts, etc., during his stay on the island from 8 February 1975 to 22 July 1976.

The Court directed itself correctly in framing the question to be answered.

I have entertained some doubt as to whether the restrictions imposed on the applicant during his stay on Asinara, after taking into account all relevant aspects of his living conditions in a small area of a small island, amounted to deprivation of liberty envisaged under Article 5 § 1 (art. 5-1).

The restrictions imposed were based on the Italian Acts of 1956 and 1965.

It is the way those Acts were applied which matters in this case. We have to find whether the restrictions in question had the cumulative effect of depriving the person subject thereto of his liberty. That issue had to be decided on an overall assessment of the relevant facts available. This was a borderline case. A violation on the part of a Contracting State should be established as clearly as possible without admitting reasonable doubts. What is more, it is part of the established jurisprudence of this Court that a Contracting State is entitled to a margin of appreciation when the question whether it has committed a violation of the Convention is under consideration.

I agree with the finding that there was no breach of Articles 3, 6 and 9 (art. 3, art. 6, art. 9).

I disagree, however, with the view expressed as regards Article 8 (art. 8).

I am inclined to find that there was a breach of Article 8 (art. 8) which deals with rights to respect for private and family life, home and correspondence.

The main target and object of the proceedings in this case was Article 5 § 1 (art. 5-1). Article 8 (art. 8) might be regarded as an incidental or side issue because the right to respect for private life was not directly involved. I agree, but it is difficult to assume that the kind of restrictions imposed on liberty in this case did not in one way or another affect the right to respect for private life. I consider that such restrictions inevitably affect a person ’ s rights under Article 8 (art. 8) of the Convention.

Even if we regard the restrictions imposed on Mr. Guzzardi as not depriving him of his liberty, they may constitute encroachment on his rights under Article 8 (art. 8).

In that case we have to examine whether the restrictions were necessary for the prevention of crime as provided by paragraph 2 of the Article (art. 8-2) in question.

If we find the curtailment of his rights under Article 8 (art. 8) to be necessary, the next question which arises is whether the steps taken and the conditions imposed did or did not exceed the bounds of necessity. Anyone reading Article 8 together with Article 17 (art. 17+8), which refers to limitations on the rights set forth in the Convention, would entertain no doubt as to the correctness of the above approach.

In the circumstances of this case, and taking into account all its aspects and the nature and extent of the restrictions imposed, I find that such restrictions exceeded the bounds of necessity and that the Government have committed a breach of Article 8 (art. 8).