JOINT DISSENTING OPINION OF JUDGES TEITGEN AND GARCIA DE ENTERRIA

(Translation)

I. For the reasons set out by the President, Mr. Balladore Pallieri, in his dissenting opinion with which we agree entirely, we consider that Guzzardi ’ s application was inadmissible on account of failure to exhaust domestic remedies.

II. On the violation of Article 5 (art. 5) of the Convention

The Court ’ s judgment states: "The difference between deprivation of and restriction upon liberty is ... merely one of degree or intensity, and not one of nature or substance. ... the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion."

Taking this statement of principle as our starting-point, as does the judgment, we consider for our part that on Asinara Guzzardi was not "deprived of his liberty" within the meaning of Article 5 (art. 5) of the Convention.

Although he could move around within no more than a limited sector of the island, he was able to live there with his family - as indeed he did for fourteen months out of sixteen -, to talk freely with his companions, to telephone outside the island subject to police supervision and even to go to Sardinia and the mainland. Assessing this situation as an issue of fact, we think that it did not fall within the ambit of the prohibition contained in Article 5 (art. 5) of the Convention (but it was probably a borderline case).

III. In the alternative

As the Court acknowledges in its judgment, it was not called upon in the present case to review the Italian Acts of 1956 and 1965 under the Convention but solely to determine the concrete issue before it. This means that it had to enquire whether the living conditions to which, by virtue of those Italian Acts, Guzzardi was subjected on the island of Asinara amounted, in the context of the case, to a violation of the Convention. However, in assessing the facts, the judgment leaves aside one of the concrete aspects of this issue.

Guzzardi ’ s situation on Asinara was not that of a person who is simply suspected by the police of having committed an offence or of being about to do so.

In 1973, he had been lawfully charged by the judicial authorities with conspiracy and being an accomplice to the abduction of a businessman who had been freed only after payment of a substantial ransom; after being charged, he had been detained in prison on remand.

His detention on remand was authorised by sub-paragraph (c) of paragraph 1 of Article 5 (art. 5-1-c) of the Convention and, according to paragraph 3 of the same Article (art. 5-3), could have continued throughout the "reasonable time" required for the conclusion of the proceedings instituted against him, that is to say for probably more than two years in view of the serious difficulties encountered in the case of proceedings directed against the mafia.

Nevertheless, after two years and pursuant not to the Convention but to Article 272 of the Italian Code of Criminal Procedure, the judicial authorities had been obliged to terminate Guzzardi ’ s imprisonment; at that point, however, they had subjected him to an order for compulsory residence on Asinara, pursuant to the 1956 and 1965 Acts.

Of course, whilst he was on the island he remained charged with a crime for which he was, in fact, subsequently sentenced to eighteen years ’ imprisonment.

Accordingly, the concrete question which the Court had to determine was the following:

Have the judicial authorities, which could have held Guzzardi in a remand prison for more than two years without violating the Convention, violated it by substituting for his imprisonment his compulsory residence on Asinara in the living conditions to which he was subjected there?

It seems to us that a negative reply was called for. In fact, the judgment does not expressly state the contrary, but it asserts, by reference to the system of the "double barrier", that the factual conditions of detention on Asinara violated the provisions of the Italian Acts of 1956 and 1965 and thereby indirectly violated the Convention, since Article 5 (art. 5) authorises detention only if in the first place it is lawful under domestic law.

However, if it was a question of interpreting, and of reviewing the application of, the Italian legislation, could the Milan Court of Appeal ’ s judgment of 12 March 1975 and the Court of Cassation ’ s judgment of 6 October 1975 be disregarded? These were judgments on appeals lodged by Guzzardi and in turn they held that the living conditions to which he was subjected on Asinara did not constitute a violation of Italian law. It appears to us that it was not appropriate to set against these judgments nothing more than bare assertions.

In the absence of more persuasive reasons, we consider, on the assumption that Guzzardi was actually "deprived" of his liberty on Asinara, that such deprivation of liberty should have been regarded as authorised, in the present case, by sub-paragraph (c) of paragraph 1 of Article 5 (art. 5-1-c) of the Convention.