PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

1. On two points, concerning the merits of the present case, I am unable to share the opinion of the majority of the Court. I have a principal and also a secondary reason for arriving at a final conclusion that there has not been a violation of Article 5 § 1 (art. 5-1) of the Convention.

2. In its observations preceding the examination of the merits of the case and after a brief reference to the background circumstances, the Court observes that it must avoid "losing sight of the general context of the case" (see paragraph 88 of the judgment). I agree entirely with this statement and it has also guided me in my approach to the application of Article 5 (art. 5) of the Convention to the instant case.

The nature of the Convention system is such that in the first place it is left to the Governments of the Contracting States to take the measures they deem appropriate for the accomplishment of their tasks. Amongst those tasks, the protection of the fundamental rights of the general public plays a pre-eminent role. At the same time, it is for the Convention institutions to review those measures in order to determine whether or not they are in conformity with the requirements of the Convention. In the course of this review, the provisions of the Convention should not be interpreted in a vacuum; the measures complained of must always be put back into the general setting to which they belong.

The principle that account must be taken of the general context of the case when examining an application concerning the alleged violation of a fundamental right does not in any way mean that - save for the possibility referred to in Article 15 (art. 15) of the Convention - exceptional circumstances allow the Contracting States to take measures that are not compatible with the requirements of the Convention. On the other hand, I do deduce from this principle that certain measures which, from the viewpoint of the Convention, might be seen as open to considerable criticism in a so-called normal situation are less open to criticism and can be considered as being in conformity with the Convention when there is a crisis over-shadowing public order and notably when rights of others, which are also guaranteed by the Convention, are being threatened by the activities of certain dangerous and anti-social elements. Such a crisis was obtaining in Italy at the time when the present case began.

Furthermore, the aim pursued by the authorities of a respondent State in adopting a particular measure can also not be left entirely out of account when that measure is being reviewed under a given provision of the Convention. It should be stressed that in the present case it was a question of a democratic State struggling to protect the fundamental rights of the general public and that the measures complained of were fully consistent with this aim.

After all, it was similar reasoning that led the Court to conclude that the Convention had not been violated in the Klass case (see the judgment of 6 September 1978, Series A no. 28, especially paragraphs 48, 59 and 60, pp. 23 and 27-28).

3. In reviewing the measure applied to Mr. Guzzardi, the judgment concludes that, taken as a whole, it constituted not just a restriction but a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention. I do not agree.

It is obvious to me that the concept of "deprivation of liberty" is not a matter for formal and precise criteria; quite the contrary – it is a concept of some complexity, having a core which cannot be the subject of argument but which is surrounded by a "grey zone" where it is extremely difficult to draw the line between "deprivation of liberty" within the meaning of Article 5 § 1 (art. 5-1) and mere restrictions on liberty that do not come within the ambit of that provision.

In fact, the Convention system has itself introduced (in Article 2 of Protocol No. 4) (P4-2), alongside the concept of "deprivation of liberty", the concept of "restrictions on liberty of movement" and, as the Court has rightly observed (see paragraph 93 of the present judgment), the difference between the two is merely one of degree or intensity, and not one of nature or substance. In addition, the bounds that Article 5 (art. 5) requires the Contracting States not to exceed in their judicial, disciplinary and police systems may vary from one situation to another (see the Engel judgment of 8 June 1976, Series A no. 22, p. 25, § 59).

Accordingly, only a careful analysis of the various factors which together made up Mr. Guzzardi ’ s situation on Asinara can provide an answer to the question whether or not that situation fell within the concept of "deprivation of liberty" within the meaning of Article 5 § 1 (art. 5-1). Since this is a matter of opinion, different views are clearly tenable.

Personally, I do not attach quite the same weight as the majority of the Court to these various factors (they are set out in paragraph 95 of the present judgment and it thus seems to me superfluous to repeat them here), taken individually and together. In addition, I take the "general context of the case" into account. The whole leads me to the conclusion that the measure applied to Mr. Guzzardi amounted to a serious restriction on his liberty, which was motivated by perfectly understandable reasons and was also in conformity with Italian law, but that it did not attain the level and intensity that would cause it necessarily to be classified as a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention.

4. As a purely secondary point, the measure taken against Mr. Guzzardi could be regarded as covered by sub-paragraph (c) of Article 5 § 1 (art. 5-1-c). The Court reviewed the position under this sub-paragraph (art. 5-1-c), but came to a negative conclusion. Here again, I do not share the views of the majority, for the following reasons:

On account of the rule in Article 272, first paragraph, of the Italian Code of Criminal Procedure, Mr. Guzzardi ’ s detention on remand within the meaning of that Code had had to terminate on 8 February 1975 . However, he remained subject to criminal charges throughout his enforced stay on Asinara.

As the Court itself pointed out, it is true that there was "reasonable suspicion of [Mr. Guzzardi ’ s] having committed an offence"; it would also be difficult to deny that it was "reasonably considered necessary to prevent his ... fleeing after having done so". The conditions which constitute, probably under the laws of all the States, the "classic" reasons for detention on remand were thus satisfied in Mr. Guzzardi ’ s case. Besides, it seems that the Italian authorities as well saw his situation in this light: they selected Asinara as the place for compulsory residence because that island was particularly well suited for separating the applicant from his apparently Mafioso milieu (see the Milan Court of Appeal ’ s judgment of 12 March 1975 and the Court of Cassation ’ s judgment of 6 October 1975: paragraphs 17 and 19 of the present judgment); the authorities were extremely cautious about granting authorisations for visits to Sardinia or the mainland since they feared that he might make use of such occasions in order to escape (see paragraph 14 of the present judgment). In short, these were reasons which underlie detention on remand.

It remains to determine whether the order for Mr. Guzzardi ’ s compulsory residence, seen from this viewpoint, was "lawful" under Italian law, within the meaning of Article 5 § 1 (c) (art. 5-1-c) of the Convention. Here, doubts could arise as to the compatibility of the second reason (danger of flight) with the aim of the Italian Acts of 1956 and 1965 with which, as a matter of form, the order for Mr. Guzzardi ’ s residence on Asinara had to comply. On the other hand, the first reason (separation from other supposedly criminal elements) was perfectly consonant with the aim of these Acts.

In addition, according to the settled case-law of the Italian courts, an order for compulsory residence could under certain conditions, which were satisfied in the present case, refer even to a given locality within a district and, under the same conditions, the "curtailment" of, and the "undoubted limitations" on, the "various rights" which compulsory residence on Asinara entailed for Mr. Guzzardi, were also in conformity with Italian law (see paragraph 19 of the present judgment).

The conditions laid down in paragraphs 2 and 3 of Article 5 (art. 5-2, art. 5-3) of the Convention were also satisfied in this instance: it must be presumed - and there was no allegation to the contrary - that, when Mr. Guzzardi had been arrested and charged on 8 February 1973, he had been informed of the reasons for his arrest and of the charges against him and that he had been brought promptly before the investigating judge, the transfer to Asinara on 8 February 1975 being in substance but a prolongation of the applicant ’ s detention on remand.

I conclude from the above that Mr. Guzzardi ’ s compulsory residence on Asinara from 8 February 1975 to 22 July 1976, even if one considered that it should be classified as a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention, was covered by sub-paragraph (c) of that Article (art. 5-1-c).