DISSENTING OPINION OF JUDGE CREMONA

With respect, I find myself in disagreement with the majority of the Court on the question of the exhaustion of domestic remedies in terms of Article 26 (art. 26) of the Convention.

This question can only be decided on the basis of the object and "cause" of the complaint or complaints before the domestic court or courts, and in deciding it I agree that express mention of the Article of the Convention alleged to have been violated is not indispensable so long as conduct contrary to it is actually set forth and complained of, which is after all what is really meant by raising the issue of a violation "in substance".

But in the present case it emerges that, with reference to his situation on Asinara, the applicant was essentially not complaining of conduct on the part of the State amounting to deprivation of liberty contrary even in substance to Article 5 (art. 5) to the Convention (which I consider to be the only relevant Article of the Convention in this case) or the comparable provisions (Article 13, paragraphs 1 and 2) of the Italian Constitution, but of certain conditions of his compulsory residence there, which might conceivably fall under other provisions of the Convention.

Rather than questioning the lawfulness of his detention on Asinara, the applicant questioned the lawfulness of the application of the Italian Act of 1956 to that particular locality and, as already stated, the conditions in which he was forced to live there. In this connection and without prejudice to what has been stated above concerning the non-indispensability of an express mention ut sic of the Article of the Convention alleged to have been violated, it is interesting to note that the Convention was in fact mentioned by other than that falling under Article 5 (art. 5) of the Convention, and the same applies also to the comparable provisions of the Italian Constitution.

Lastly, there is hardly any need to recall that in international law the local remedies rule is in fact based on the principle that the respondent State must in the first place have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the complainant. In the present case, in the light of the above and to the extent aforesaid, that is to say, with reference to Article 5 (art. 5) of the Convention, the applicant did not afford the Italian State such an opportunity, with the consequence that in this respect the whole purpose of the rule was frustrated.

DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE

1. I have not found it possible to accept the majority view in this case, to the effect that the Italian Government is to be held responsible for a breach of the European Convention on Human Rights, and liable to any damages in the sum of one million Italian lire - even though this can be regarded as constituting little more than a token amount [1] .

2. I will not recapitulate facts and arguments that can be found fully set out in the judgment of the Court, and I shall ignore all the issues in the case except one. That issue - the essential one (if I leave out of account the question of whether the applicant [Guzzardi] did or did not exhaust his possible legal remedies in the Italian courts) [2] - is whether his preventive detention on the island of Asinara - (or more accurately his compulsory residence under special supervision there) - amounted to a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention, or whether it did not, rather, consist simply of a restriction on "liberty of movement and freedom to choose ... residence" within the meaning of Article 2 § 1 of Protocol No. 4 (P4-2-1) to the Convention, - the point being that this Protocol (P4), like the other Protocols to the Convention, needs separate ratification in order to be binding, and Italy has not ratified it. If, therefore, the applicant was not deprived of his liberty as such - i.e. stricto sensu - but only restricted in his freedom of movement and choice of residence, there can have been no breach of the Convention, - and what might, otherwise, have involved a breach of Protocol No. 4 (P4) cannot do so because this Protocol (P4) is not binding upon Italy.

3. At this point a preliminary question arises which, though not in itself decisive for the actual main issue, is closely related to it. Certainly before the Italian courts, the applicant does not appear to have challenged the legality of his preventive detention as such, but merely to have complained of the conditions of his banishment on Asinara - (that the area within which he had to stay was too small, that there was no available work for him to do, that he could not have his family with him, that he could not attend a place of religious worship, etc., etc.) [3] . In the proceedings before the European Commission of Human Rights (to which the case of course went in the first place), it seems uncertain whether the applicant took his complaint much further, or whether he ever definitely invoked Article 5 (art. 5) of the Convention or alleged any breach of it as such. Certainly his original complaints were exclusively based on Articles 3, 8 and 9 (art. 3, art. 8, art. 9) - (inhuman or degrading treatment, absence of respect for private and family life, and absence of freedom to manifest his religion in worship, etc.). There seem to be some grounds for thinking that it was largely the Commission, acting proprio motu, which decided that his complaint came under or involved Article 5 (art. 5) (deprivation of liberty), and which proceeded accordingly. This is significant because, since the Commission was unable to find any contravention of Articles 3, 8 and 9, (art. 3, art. 8, art. 9), Article 5 (art. 5) was left as the only one under which a breach of the Convention could be held to have occurred.

4. In view of the uncertainty however, I do not wish to criticize as such the course taken by the Commission, but simply to register a general point of principle which I do not think is adequately dealt with in the relevant paragraphs of the Court ’ s judgment (nos. 58-63). The ultra petita (or as it is sometimes called, the ex, or extra, petita) rule precludes that an international tribunal or equivalent body should deal with matters that are not the subject of the complaint brought before it, and still more that it should give a decision on those matters against the defendant party in the case. If it does this, proprio motu, it is acting ultra vires. It would be perfectly proper for the Commission, if satisfied that a certain complaint has both definitely been made and was justified, to hold that a breach of a given Article of the Convention was involved, even though the complainant, while making the complaint, did not invoke that particular Article or allege a breach of it. It would be quite another thing, however, for an international tribunal or equivalent body to hold a sort of roving commission over the facts of a case in order to see whether, if established, some of them could be regarded as entailing an illegality or breach of treaty, - and then in due course to find that they could and did, although they were not matters (or not the actual matters) of which the plaintiff had complained or alleged any illegality or breach. This would be tantamount to saying to the plaintiff "We do not think you have a good case in regard to the particular matters you have complained of, but we perceive other matters (or aspects of the case) which you did not complain of, but of which in our view you justifiably could have complained, and so we shall be happy to find in your favour in those respects." Of course it would never be put so crudely, but it might well in practice amount to that, however carefully wrapped up. The distinction involved can admittedly be a fine one, but is none the less real and important.

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5. Assuming for the purposes of the argument that there was what amounted to, or implied, a complaint of deprivation of liberty, the question then is whether what occurred was truly of that kind, or was essentially in the nature of a restriction on freedom of movement and choice of residence. Some of the arguments for and against are summarized in paragraphs 90 and 91 of the judgment, and although there is much more to be said, I see no point in embarking on an elaborate analysis of what must in the long run remain a matter of appreciation and opinion, - namely whether the condition of the applicant ’ s existence on Asinara were sufficiently stringent to amount to a sort of imprisonment, even though a mild one as imprisonments go, or whether, on the other hand, there was no more than a banishment accompanied by measures of confinement to house and grounds but, subject to that, without any restriction on movement within an area of at least a half-mile radius, or more according to some accounts. This could be argued about endlessly and either view is reasonably maintainable - for the issue is essentially one of degree. What, to me, decisively tilts the balance is the fact of Article 2 § 1 of Protocol No. 4 (P4-2-1) to the Convention (see paragraph 2 above) – to which paragraph 92 of the Court ’ s judgment refers, but only ephemerally and without bringing out the real point.

6. Article 2 of this Protocol (P4-2) states in terms that

"Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."

Put negatively, this prohibits restrictions on movement or place of residence, and from it certain deductions relevant to the present case can be drawn:

(a) The existence of this provision shows either that those who originally framed the Convention on Human Rights did not contemplate that its Article 5 (art. 5) should go beyond preventing actual deprivation of liberty, or extend to mere restrictions on freedom of movement or choice of residence; - or else that the Governments of the Council of Europe did not see Article 5 (art. 5) as covering measures of "deprivation of liberty" where the basic character of those measures consisted primarily of restrictions on movement and place of residence, - or they would not have considered it necessary to draw up a separate Protocol about that. The resulting picture is that Article 5 (art. 5) of the Convention guaranteed the individual against illegitimate [4] imprisonment, or confinement so close as to amount to the same thing - in sum against deprivation of liberty stricto sensu - but it afforded no guarantee against restrictions (on movement or place of residence) falling short of that. The latter was effected only by the Protocol, so that in those countries (of which Italy is one) that have not ratified it, such restrictions are not prohibited.

(b) It follows that if Article 5 (art. 5) of the Convention is not to impinge on ground intended to be covered by Article 2 of the Protocol (P4-2), and is not to do double duty with the latter, it (Article 5) (art. 5) must be interpreted strictly and regarded as limited to cases of actual imprisonment or to detention close enough and strict enough to approximate to a virtually complete deprivation of liberty. This was certainly not the situation in regard to the applicant in the present case.

(c) If Article 5 (art. 5) of the Convention were to be interpreted so widely as to include instances of what was basically restriction on freedom of movement or choice of residence, then not only would Article 2 of the Protocol (P4-2) be rendered otiose, but an indirect means would be afforded of making Governments subject to the obligations of the latter, despite the fact that they had not ratified the Protocol. This could not have been intended, but it is a possibility that can only be avoided by a strict interpretation of Article 5 (art. 5) that confines it to its proper sphere.

7. It is of course obvious that all deprivation of liberty, especially if it takes the form of actual imprisonment or other close confinement, must imply restricting freedom of movement and choice of residence. It is inherently in its character to do so. But the reverse is not true. Mere exile or banishment, for instance, does not in itself involve deprivation of liberty, - or at any rate it is something that, per se, falls clearly on that side of the line which is occupied by the concept of restriction on movement and place of residence. Equally clearly, such restriction may be accompanied by conditions that turn it into a deprivation of liberty, as the Court has found to be the fact in the present case. Between the one concept and the other there may be many different degrees of circumstances and situation, so that it is always a question of where to draw the line which, as mentioned earlier, must in the last resort be a question of personal appreciation. Deducing, as I have done, from the existence of Article 2 of the Protocol (P4-2) that the concept of deprivation of liberty under Article 5 (art. 5) of the Convention must be interpreted fairly strictly, I come to the conclusion that the conditions of the applicant ’ s residence on Asinara do not bring his case within that concept, or at any rate that the Italian Government must be given the benefit of any doubt that may exist, as exist it does.

8. Basically what happened to the applicant was not that he was imprisoned or confined, but that he was banished to an island on which he was assigned a place of residence (an ordinary house) and restricted to an area sufficiently big for him to be able to live a normal life except that he could not leave it without permission and was (and for that purpose had to be) under surveillance. To me all this has very much more the flavour of Article 2 of the Protocol (P4-2) than of Article 5 (art. 5) of the Convention, even if a residue of doubt may remain, - but in that event, is it right to condemn a Government for breach of the Convention in the presence of a very reasonable doubt as to whether any has occurred?

9. There is another test that can be applied which, though not in itself conclusive, is highly relevant, and that is to ask what were the intentions of the Italian authorities in sending the applicant to Asinara? As I understand it, they could validly under Italian law have arrested and kept him in prison on suspicion of the offences in the nature of terrorism for which (subsequent to his preventive relegation to Asinara, and afterwards to Force) he was eventually condemned to 18 years ’ imprisonment. The irony is that, had the authorities dealt with him in that way, no contravention of the Convention would have been involved because the matter would have been covered by one of the sub-paragraphs to Article 5 § 1 (art. 5-1) to which reference has been made in footnote 4 above. The Italian Government is therefore being condemned by the judgment of the Court for treating the applicant in a much more lenient way than the altogether harsher one they could legitimately have adopted without any infraction of the Convention. There is a manifest injustice here that could easily have been avoided. This situation also constitutes one of the many absurdities of the case - (and see further paragraph 12 below).

10. What the Italian authorities clearly intended to do, and thought they were doing, was to put the applicant out of circulation so to speak, by sending him to reside in a place where, and under conditions which, would ensure that he could not do any serious harm, - but not otherwise to prevent him living a normal life, which was certainly not the normal life of a prisoner as is quite clear from the recorded facts. The case is therefore evidently one of obligatory residence in a certain place, accompanied by restrictions on any movement outside the general area of that place. The Court could easily have so held, and the judgment does not, in my opinion, furnish any convincing explanation of why it did not do so. But until the Court modifies the general trend of its present policy in the interpretation of the Convention, this sort of thing will doubtless continue, - and one of the consequences will be that, provided they keep within the letter of the Convention, governments will have no particular inducement to conform to its spirit - since, as this case shows, doing so can be penalized as much as not so doing.

11. In this connexion, and in general, I consider that the Court failed to give any adequate weight - if weight at all - to the fact that the applicant was a terrorist and mafioso. Naturally these factors would not justify treating him in a manner clearly, or at any rate substantially, contrary to the Convention. But where there are grounds for genuine doubt whether any contravention has in fact occurred, such factors, though in no way conclusive per se, may legitimately be taken into account (I do not put it any higher than that) in deciding how to set about resolving the doubt - again I put it no higher. In the present case, however, the Court completely ignored the plea of the Italian Government to the effect that public order in Italy at this time was seriously menaced by threats coming essentially from political terrorism and the mafia, and that the authorities were under strong pressure to combat these evils by draconian measures - pressure which they had so far resisted, as was exemplified in the case of Guzzardi by the relative leniency of his original treatment as described in paragraph 8 above. This very much sharpens the moral of the conclusion suggested in the last few lines of paragraph 10.

12. The process of simply ignoring the whole context in which a case occurs is bound to lead to injustices and absurdities, one instance of which was given supra in paragraph 9. The present case in fact bristles with absurdities. Another instance of this is that, as pointed out by the Italian Government, whereas by reason of sub-paragraph (e) of Article 5 § 1 (art. 5-1-e) of the Convention, a vagrant can, merely by reason of his being such, be placed under detention without any contravention of the Convention, a known terrorist cannot even have his movements restricted under the conditions applied to Guzzardi without such a breach resulting – if the judgment of the Court is correct. To be sure, modern terrorism was an evil not specifically present to the minds of those who drafted the Convention, or they would doubtless have provided for it. Again, it is admittedly for governments and none other to remedy this defect: the Court cannot do so by deeming a terrorist to be a vagrant even though he is in fact much worse than a vagrant (who may well be a harmless individual, which a terrorist never is). But this does not alter the fact that, according to the order of things resulting from the Court ’ s judgment, a terrorist may be much better off than a vagrant. (He may even be paid a million lire!). All these absurdities could have been avoided by an attitude of greater realism against the background of the case, leading to the conclusion – for which there was ample warrant on the facts - that the case was basically one of restriction on movement and place of residence and not one of deprivation of liberty under Article 5 (art. 5) of the Convention, interpreted, as it has to be, in the light of the existence of Article 2 of Protocol No. 4 (P4-2).

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13. It is therefore with regret (especially as this is the last occasion on which I shall be delivering an opinion in my present capacity) that I feel obliged to regard the judgment of the Court as involving a serious and avoidable miscarriage of justice - not the less so because a Government not an individual was affected, and though I know that none was intended. This outcome is, I think, compounded by the monetary award made to the applicant, which carries matters into that region of the absurd to which the English expression of "cloud-cuckoo land" applies. In my view, the fact that a decision should have been given in his favour in such a debatable case and on the basis of an, at most, technical breach of the Convention, lacking in any real substance - this constituted in itself a more than sufficient satisfaction that did not require any embroidery.