DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT

(Translation)

The Court considered that it had to reject the preliminary objection based on non-exhaustion of domestic remedies and conclude, as regards the merits of the case, that there had been a violation of Article 5 (art. 5) of the Convention. I regret that I disagree with the majority of my colleagues on these two points. I shall endeavour to set out as briefly as possible the reasons for my dissent.

1. As regards the exhaustion of domestic remedies, I should like to take the liberty of making a preliminary observation to which I attach importance. The judgment applies to the proceedings on appeal and in cassation, in other words to the domestic proceedings, the principle that the rule of exhaustion must be interpreted "with a certain degree of flexibility and without excessive regard for matters of form" (§ 72). This principle is certainly correct if one applies it to the international rule itself when one is in the process of determining its scope. On the other hand, to apply it to domestic law in order to determine and interpret the conditions laid down there under in the matter of remedies amounts to endowing the international court with jurisdiction to interpret that law and, in the final analysis, to base itself on a domestic law that does not exist. Reference back to domestic law by the rule of exhaustion of domestic remedies can only mean a reference back to that law as interpreted by domestic case-law [see, on this point, Jacobs, The European Convention on Human Rights, Oxford , 1975, p. 240]. I thus conclude that there was no call to enquire whether "in the Court ’ s view" the pleas advanced by the applicant on appeal and in cassation were equivalent to an allegation of a breach of the right to individual liberty. What should have been done, in my view, was to determine whether, in the light of Italian legislation and case-law, Mr. Guzzardi had exercised such remedies and adduced such arguments as were capable of leading to the reversal of the decision he was challenging. I would add that the case-law of the Court and the Commission relied on by the judgment in support of its extensive interpretation definitely does not corroborate that interpretation; indeed, in each of the cases mentioned the principle that the rule of exhaustion of domestic remedies should be flexibly interpreted concerns the scope of the international obligation and not the interpretation of domestic law.

Having said that and turning now to the question whether or not remedies were exhausted in this particular case, I cannot do better than to refer to the dissenting opinion of the President, Mr. Balladore Pallieri, the national judge, with which I entirely agree.

2. As regards the merits of the case, I am not convinced that, as the judgment has it, "the difference between deprivation of and restriction upon liberty is ... merely one of degree or intensity, and not one of nature or substance". Of course, I have no difficulty in accepting that the restrictions on liberty of movement to which Mr. Guzzardi was subjected were particularly severe. However, I do not detect in those restrictions the features which would make it possible to speak of "deprivation" of liberty. Mr. Guzzardi was not confined within the perimeter of a prison and his living conditions - albeit far from agreeable - were in striking contrast with those that obtain in prison: thus, he could spend his time as he chose, he was not obliged to work, and, for the greater part of his stay on Asinara, he was able to live together with his wife and his son - and even for a while with his parents-in-law. One could add to this list. I am therefore inclined to the view that the compulsory residence order imposed on Mr. Guzzardi did not constitute deprivation of liberty.

3. However, even if I assumed for the sake of argument that there had been deprivation of liberty, I would not hold that there had been a violation of Article 5 (art. 5) of the Convention, since this measure would have been justified under sub-paragraph (c) of paragraph 1 of that Article (art. 5-1-c). It is particularly in this connection that I find it imperative to take account of the "general context of the case"; the judgment refers to this aspect of the matter without, however, drawing there from any real consequences, whereas its importance is rightly emphasised by Judge Matscher in his dissenting opinion.

In making provision for compulsory residence the Italian Acts of 1956 and 1965 are designed to separate from their habitual milieu certain individuals, such as members of the mafia, who, although this cannot actually be proved, obviously live off criminal activities, the object being to prevent them from continuing such activities. There can be no doubt that these purposes are consonant with the aims recognised as legitimate by Article 5 § 1 (c) (art. 5-1-c); this is especially true of the second reason mentioned in that provision: "when it is reasonably considered necessary to prevent his committing an offence". The judgment rejects this possibility on the ground that the sub-paragraph (art. 5-1-c), which speaks of "an" offence, is not adapted to a "policy of general prevention directed against an individual or a category of individuals who, like mafiosi, present a danger on account of their continuing propensity to crime" (§ 102). This narrow interpretation is not without paradoxical results: it means that one is entitled to imprison persons presumed to have committed the occasional crime but that one is forbidden to imprison persons belonging to criminal associations, whose particularly dangerous character resides precisely in the fact that it is extremely difficult to obtain evidence of their criminal activities which is sufficient in law and who can be prevented only by certain restrictive measures from pursuing those activities. The wording of Article 5 § 1 (c) (art. 5-1-c) probably denotes that this problem was not fully thought through; it does not, however, prevent a democratic State from taking the requisite protective measures when organised crime threatens to destroy its legal institutions. The very terminology employed in the sub-paragraph (art. 5-1-c), which clearly refers to activities that are manifestly criminal and not to activities covered by the rights and freedoms guaranteed by the Convention, renders groundless the fear that a less restrictive interpretation would favour the institution of a police state.

The judgment also throws doubt on the lawfulness under sub-paragraph (c) (art. 5-1-c) of the measure in question, on the ground that, leaving aside the manner of its implementation, an order for compulsory residence as such does not constitute deprivation of liberty. As a general statement, this last observation is certainly correct. However, it must not be forgotten that Italian case-law has recognised that an order for compulsory residence in part of a district, such as Asinara, was in conformity with the law. That the Court should now classify the measure as "deprivation of liberty" in no way alters its "lawfulness" under Italian law.

Finally, the requirements of Article 5 § 3 (art. 5-3) were satisfied in the present case. In fact, as soon as he had been released from detention on remand, Mr. Guzzardi was brought, under arrest, before a court and that court issued the compulsory residence order; there was thus no reason for requiring that he be brought before a court another time. What Mr. Guzzardi might have claimed - always on the assumption that he had been deprived of his liberty - was compliance with Article 5 § 4 (art. 5-4), a provision which anyway was not alleged to have been violated.

I therefore conclude from the above that in any event Italy has not violated Article 5 (art. 5), but that the Court should have refrained from ruling on the merits of the case.