PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1. Like Judge Pinto de Albuquerque, I am of the opinion that Article 5 of the Convention was applicable in the instant case. I earnestly subscribe to my distinguished colleague ’ s arguments, laid out in his partly dissenting opinion, as to the criminal nature of the “preventive” measures imposed on the applicant. I put the word “preventive” in quotation marks, since, as it unambiguously transpires from the case file, for the purposes of the domestic law applied there was nothing at all to “prevent” in the applicant ’ s conduct. (I shall expand on this issue in due course.) I also agree as to the argument that, in the circumstances of the case, these measures would have equated to deprivation of liberty had they been assessed “cumulatively and in combination”, as required by the Guzzardi standard. In particular, the applicant in the instant case, unlike the one in Guzzardi (6 November 1980, § 108, Series A no. 39), was indeed not forced to live on an island, but the “preventive” measures were imposed on him for a much longer period – 221 days (and nights) as against 165 days in Guzzardi . In the instant case, a “cumulative” assessment of the impugned measures would have required undertaking a much more detailed examination of all the relevant factual circumstances, including the essence of each restrictive measure, individually and in “combination”, as well as the fact that they had been imposed on the applicant under the (most realistic) threat of imprisonment. The need for such a thorough examination of the factual circumstances presupposed the examination of the complaint under Article 5.

Thus, while subscribing to the doctrine that “ in proclaiming the ‘ right to liberty ’ , paragraph 1 of Article 5 contemplates the physical liberty of the person”, that “[i]n order to determine whether someone has been ‘ deprived of his liberty ’ within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question” and that “[t]he difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance” (see paragraph 80 of the judgment), I cannot agree that the “assessment of the nature of the preventive measures provided for by the 1956 Act”, as imposed on the applicant in the instant case, has considered them “cumulatively and in combination” (ibid.).

2. In Guzzardi (cited above), decided at a time when Protocol No. 4 had not yet been ratified by Italy, the Court found that “there was ... deprivation of liberty within the meaning of Article 5” (see point 4 of the operative part; see also point 8, wherein it is “sum[med] up ... that ... the applicant was the victim of a breach of Article 5 par. 1”) and that this deprivation of liberty was not justified under various sub-paragraphs of Article 5 § 1 (see points 5, 6 and 7 of the operative part). In the light of this finding, the majority ’ s conclusion in the instant case that Article 2 of Protocol No. 4 is applicable to the applicant ’ s situation, whereas Article 5 is not, means no less than that at least one form of deprivation of liberty is considered to be deprivation of liberty until the member State becomes a fully-fledged party to Protocol No. 4 and that the same form of deprivation of liberty ceases to be deprivation of liberty once Protocol No. 4 enters into force for the member State concerned (or, at the earliest date, once it ratifies this Protocol). By extension, this would mean that what may be deprivation of liberty in one State may not be deprivation of liberty in another. Is the Court ready to accept that in hypothetical identical cases against Switzerland, Turkey or the United Kingdom, which have not ratified Protocol No. 4, Article 5 would be applicable, while it is not applicable in identical cases against, say, Italy, France or Lithuania, which have ratified it?

This would be a very interesting and thought-provoking stance in right-to-liberty cases. The only problem with such a “pluralistic” and “flexible” (not in the most attractive sense of these words) interpretation of the Convention and its Protocols is that it has little (if anything at all) to do either with the canons of legal interpretation in general or with the human right to liberty, as enshrined in the Convention, in particular.

3. I am also convinced that not only is Article 5 applicable in the instant case but that there has also been a violation of this Article. The “preventive” measures imposed on the applicant (under the threat of imprisonment) amounted, in their totality and magnitude and regard being had to the lengthy period of their imposition, to a deprivation of liberty, both in terms of the everyday usage of the word “liberty” as dictated by common sense and in terms of Article 5, the jurisprudential construction of which, I would like to believe, should tend not to distance itself from common sense.

For what else if not a deprivation of liberty were these “preventive” measures, imposed on the applicant in a manner which was nothing but a mechanical and indiscriminate copy-paste of the statutory provisions? That they were imposed indiscriminately, that is to say, without any regard being paid to the applicant ’ s concrete situation, is obvious from the fact that he was obliged “to start looking for work within a month”, although, as was later established by the Bari Court of Appeal, he had “ consistently been in lawful employment providing him with a respectable source of income” (see paragraph 27 of the judgment). Some of these measures were very restrictive and included an element of deprivation of liberty in its most direct – “physical”! – sense. To wit , the applicant was obliged “not to return home later than 10 p.m. or to leave home before 6 a.m., except in case of necessity and only after giving notice to the authorities in good time”, which effectively included an element of house arrest and in this sense amounted to “interrupted”, or “incomplete”, house arrest (on this issue, again, I concur with the arguments of Judge Pinto de Albuquerque). The majority ’ s argument that this measure was not house arrest on the basis that “ under Italian law, a person under house arrest is deemed to be in pre-trial detention” (see paragraph 87 of the judgment ) runs counter to the fundamental canons of interpretation of the Convention: it may well be that the measure discussed here – “not to return home later than 10 p.m. or to leave home before 6 a.m., except in case of necessity and only after giving notice to the authorities in good time” – is not considered to be house arrest under Italian law , but is it not house arrest under the Convention ? In my opinion, Buzadji v. the Republic of Moldova ([GC], no. 23755/07 , ECHR 2016) speaks to the contrary. Firstly, the Convention is an instrument which is autonomous of domestic (in this case, Italian) law and has always been treated as such by the Court. Not any longer? Secondly, the 221 nights which the applicant spent while subjected to this measure (under the threat of imprisonment) indicate that the “degree and intensity” (ibid., § 104) of the measure was far from negligible.

But there is more to the content of the impugned measures.

4. Some of these measures were patently irrational and difficult to explain in the twenty-first century, such as the prohibition on the applicant ’ s use of “ mobile phones or radio communication devices” – but not the Internet and in particular not Skype (the law applied was from the pre ‑ Internet era). This is sort of funny. It would have been more understandable had the courts prohibited the applicant from communicating with certain persons, but they chose to prohibit him from communicating by certain means.

5. Also, some measures were mutually exclusive. For instance, the applicant was obliged “to start looking for work within a month” – an almost futile enterprise from the outset, given that, in addition to the general prohibition imposed on him not to leave home before 6 a.m. and not to return home later than 10 p.m., he was forbidden to “ use mobile phones”, to “attend public meetings” or to drive a vehicle (since his driving licence had been withdrawn). In Casamassima , a town with a population of less than eighteen thousand at the material time, there were probably not so many employers who would have embraced with great eagerness the prospect of hiring such an “awkward” – if not “useless” – employee.

6. All this, coupled with the prohibition on the applicant ’ s “ associat[ing] with persons who had a criminal record and who were subject to preventive or security measures” (all? even if they were, say, his relatives? or even if he did not know that the persons with whom he happened to associate in one way or another had an old criminal record of some kind?) and “go[ing] to bars, nightclubs, amusement arcades ... and ... attend[ing] public meetings” (all meetings? including those organised by, say, trade unions, had he succeeded in finding employment and become a member of one of them? or could he go to theatres or shows, which are also both “public” and “meetings”?) may leave the readership wondering what the majority have in mind when they state that “the applicant ... was not unable to make social contacts ” (emphasis added), since he “was not forced to live within a restricted area” (see paragraph 85 of the judgment ).

7. Had the majority decided in favour of the applicability of Article 5 and found that there had been a violation of that Article, this would have made it unnecessary for the Grand Chamber to go into the examination of the alleged violation of Article 2 of Protocol No. 4 to the Convention and thus to produce reasoning which unjustifiably puts (clearly too) little emphasis on the essential factual feature of this case, namely that the case is one of mistaken identity . To be sure, Article 2 of Protocol No. 4 has also been violated, but – because any interference with a person ’ s right to liberty always includes, by definition, an interference with his or her freedom of movement – the finding of a violation of Article 2 of Protocol No. 4 would have been “covered” by the “more general” finding of a violation of Article 5.

However, since Article 5 was found, by the majority, to be inapplicable, I had no other choice but to vote for the finding of a violation of Article 2 of Protocol No. 4 (see point 4 of the operative part).

8. I also concur with Judge Pinto de Albuquerque as to the applicability of Article 6 § 1 in its criminal limb and share his view that this Article has been violated in precisely that aspect. In the opinion of the majority, “the criminal aspect of Article 6 § 1 of the Convention is not applicable, since special supervision is not comparable to a criminal sanction, given that the proceedings concerning the applicant did not involve the determination of a ‘ criminal charge ’ within the meaning of Article 6 of the Convention” (see paragraph 143 of the judgment). To substantiate this, the majority refer to Guzzardi (cited above, § 108) and Raimondo v. Italy (no. 12954/87, 22 February 1994, § 43, Series A no. 281 ‑ A ). Not a very successful reference. The paragraph from Guzzardi (a case decided as long ago as 1980) referred to in paragraph 143 of the judgment contains little (if any) definitive doctrinal principles of a general nature. It is explicitly indeterminate as to the nature of the right to liberty. The paragraph from Raimondo referred to in the same paragraph 143 in its turn sheds no further light on the matter, since it only refers to the paragraph from Guzzardi mentioned above, although without the provisos which the original paragraph from Guzzardi contains.

9. By the way, the Government made no submissions as to the applicant ’ s assertion that the criminal limb of Article 6 § 1 was applicable “to proceedings for the application of preventive measures in respect of individuals in that they related to the citizen ’ s personal liberty and were governed by the provisions of the Code of Criminal Procedure” (see paragraphs 141 and 142 of the judgment).

This abstention must mean something.

10. In the context of the applicability (turned by the majority into inapplicability) of the criminal limb of Article 6 § 1, yet another aspect has to be mentioned. In fact, it is mentioned in paragraph 14 of the judgment, but then it is completely overlooked in the reasoning.

In paragraph 14 of the judgment it is stated that the “District Court found that the applicant had ‘ active ’ criminal tendencies and that the evidence before it showed that he had derived most of his means of subsistence from criminal activity ” (emphasis added).

Thus, the impugned measures were an official reaction and a judicial response to the alleged “criminal tendencies” and “criminal activity” attributed to the applicant and in that sense were not only “preventive” but also “punitive”.

11. This, consequently, also speaks against the majority ’ s finding that there has been no violation of Article 6 § 1 “as regards the right to a fair hearing” (see point 7 of the operative part).

Thus, the right to a fair hearing is considered not to have been violated in a situation where (i) the authorities take the “wrong” person and, in non ‑ public court proceedings, impose severe and long-lasting “preventive” measures on him, even though he asserts that he is not the person against whom the “factual evidence” has been collected; (ii) that person is not able to have the obvious fact of mistaken identity acknowledged, let alone addressed, by a higher court for more than seven months, in blatant disregard of the statutory time-limit of thirty days; and (iii) when, at last, the mistake is discovered, that person is granted no compensation for being victimised. Not even an apology.

No prejudice at all?

In other words, if the right to a fair hearing has not been violated in such a situation, then that hearing was fair.

Fair?!

12. The Government submitted that “the applicant had had access to a remedy and had been successful in using it” (see paragraph 162 of the judgment – emphasis added; see also paragraph 103).

The majority seem to agree with such an approach.

Well, in the end the applicant was “successful” in the sense that the “preventive” measures were quashed. But can the Court close its eyes to the fact that the applicant had been unsuccessful on so many other occasions? He had not been successful in preventing the imposition of the impugned measures on him during the first set of court proceedings. He had not been successful in bringing his case to the higher court ’ s attention for a period which was more than seven times in excess of the statutory time-limit. He had not been successful in the appellate court proceedings in the sense that he had not been granted any compensation or at least an apology from the authorities. In fact, what he did receive was the complete opposite of an apology: the Government averred that the Bari Court of Appeal “had not acknowledged that there had been a case of mistaken identity”, but had “simply reassessed all the evidence on which the District Court ’ s decision had been based [and concluded] that the applicant did not pose a danger to society” (see paragraph 103; emphasis added).

Is this what from now on will be called “success”?

Maybe in jurisprudence, but not in life. Which would be to the detriment of jurisprudence.

13. As to the alleged violation of Article 13, some arguments in favour of finding a violation have already been set out above. The fact that the time-limit for the judicial review to which the applicant was entitled under the domestic legislation was exceeded to such an extent speaks for itself. But the fact that the applicant was not awarded any compensation for the “preventive” measures that were imposed on him and then quashed ex tunc by the Bari Court of Appeal (see paragraph 20 of the judgment ) speaks even more strongly in favour of a violation of Article 13. Had these measures had any basis in law at the time of their imposition, they probably would not have been quashed ex tunc .

14. Now I come to the fundamental divergence between the approaches of the majority and myself. This divergence pertains to the reasoning which leads to the finding of a violation of Article 2 of Protocol No. 4. And it has a lot to do with the use, in this opinion, of the word “preventive” in quotation marks.

15. In paragraph 110 of the judgment it is stated that “Act no. 1423/1956, as interpreted in the light of the Constitutional Court ’ s judgments, formed the legal basis for the individual preventive measures imposed on the applicant” and that “therefore ... the preventive measures in issue had a legal basis in domestic law ” (emphasis added).

No, no, no, and again no.

The Act in question, whatever its deficiencies (many of them are rightly noted in the judgment, and, as a matter of principle, I do agree with this assessment), speaks of the “preventive” measures which can be applied to three types of individuals : (i) “who, on the basis of factual evidence , may be regarded as habitual offenders”; (ii) “who, on account of their behaviour and lifestyle and on the basis of factual evidence , may be regarded as habitually living, even in part, on the proceeds of crime”; and (iii) “who, on the basis of factual evidence , may be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to health, security or public order” (emphasis added). The cumulative name for these three types of individuals is “persons presenting a danger for security and public morality” (see paragraphs 33 and 34 of the judgment ).

Neither the said cumulative category, nor any of the three sub-categories constituting it include, even indirectly, an individual who has been mistaken , by the authorities, for another person , whom the authorities rightly or wrongly consider to “[present] a danger for security and public morality”. For the purposes of the Act, the “factual evidence” collected against Mr Roe cannot mechanically be held to have been collected against Mr Doe who had been mistaken for Mr Roe. And this is so irrespective of whether or not Mr Doe has a criminal record or a history of other offences. Of course, it may happen that while collecting factual evidence against Mr Roe the authorities come across something which would also incriminate Mr Doe, but even in such an event not only must the latter be identified directly and properly, but also what has been collected against Mr Roe cannot be automatically and indiscriminately held against Mr Doe.

And the Constitutional Court, moreover, had never interpreted the Act (at least directly, but also, it appears, implicitly) in such a way that it would allow the “wrong” person to be treated as someone who “[presents] a danger for security and public morality” within the meaning of section 1 of the Act.

16. Thus, the Act was not at all applicable to the applicant .

The “preventive” measures imposed on him resulted from a mistake. This was acknowledged by the Bari Court of Appeal, which quashed the impugned measures ex tunc (see paragraphs 20 and 26 of the judgment ).

It is as plain as that. They got the wrong man.

Mistaken identity is mistaken identity . Period.

17. Again, I must repeat myself (see paragraph 1 above). “ Preventive ” measures proper can be lawfully applied only to someone who has to be “prevented” from doing something. If there is no factual basis justifying the need for “prevention” with regard to a particular person, the restrictive measures imposed on that person can hardly be considered “preventive” in the true sense of this term.

18. Not only the rule of law, but also common decency requires that when a mistake is discovered whereby serious restrictions are imposed on a person mistaken for another person against whom “factual evidence” had been collected, the authorities say “oops!”, apologise, close the case a.s.a.p. and compensate the “wrong” person for whatever damage he or she may have sustained. This should be so unless we live in some alternate reality, where the law applied has nothing to do with the facts to which it is applied.

Needless to say, that parallel world would not be one governed by the rule of law.

19. However (as has already been mentioned in paragraph 12 above), the Government averred that the Bari Court of Appeal “had not acknowledged that there had been a case of mistaken identity”, but had “simply reassessed all the evidence on which the District Court ’ s decision had been based [and concluded] that the applicant did not pose a danger to society” (see paragraph 103 of the judgment), as if that evidence could have any connection to the applicant. From this assertion it transpires that the respondent Government still have some way to go until they ascertain for themselves the simple truths commanding what the authorities should do in a case of mistaken identity.

20. In view of the gross mistake underpinning everything that ensued in the applicant ’ s situation, jurisprudential considerations as to whether the Act was “accessible” or sufficiently “foreseeable” to the applicant, whether or not it was “vague”, “precise” or “clear”, and whether the guidance for the applicant as to what his conduct should be was “sufficient” are completely immaterial. They are not needed for holding that the impugned “preventive” measures were imposed on the applicant without any legal basis.

21. Thus, although I concur with the majority that there has been a violation of Article 2 of Protocol No. 4, I strongly disagree with the reasoning leading to that finding. This reasoning replaces the issue of the application of the Act to the applicant ’ s concrete situation with that of the “quality of the law”. The latter problem is then “solved” in such a way as if this Court were a constitutional court whose task is to examine the compliance of statutes with some higher law, irrespective of to whom and how these statutes are applied and even irrespective of whether or not they are applied at all. In other words, this reasoning replaces the real problem which this applicant indeed encountered and which was presented before the Court with the general problem of the pros and cons of the legal regulations as such. Although (again) I cannot but concur with the majority in their critical assessment of the insufficient foreseeability of the provisions applied (a finding which could be useful for deciding on the hypothetical claims of other persons to whom this Act might be applied), all this has little to do with this applicant ’ s case. This applicant ’ s freedom of movement has been violated not because an “insufficiently foreseeable” or “insufficiently clear” law, “couched in vague and excessively broad terms”, was applied to his situation, but because of the very fact that that law, which allowed for restrictions on freedom of movement (not to mention deprivation of liberty as such), was applied to this person when it should – under its own terms – not have been applied to him.

22. The majority state, in paragraph 125 of the judgment, that the law in question was not sufficiently clear and foreseeable to the “ individuals to whom preventive measures were applicable ” (emphasis added).

One could ask: by saying “applicable”, do they also mean the applicant ?!

I am afraid that the answer to this question, as suggested by the majority ’ s reasoning, is anything but sanguine.

[1] . Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Rep ublic of Moldova, Montenegro, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine .

[2] . In 2011 the new “Anti-Mafia Code” came into force, bringing together the legislation on anti-Mafia action and preventive measures concerning individuals and property and repealing Act no. 1423/1956.

[3] . The silence of the founding fathers of the Italian Republic was intentional. They had in mind the previous use of these measures by the fascist regime as an instrument of political repression (see Fiandaca, “ Misure di prevenzione (fondamenti costituzionali) ” , in Dig. Pub ., IX, 1994, and voce “ Misure di prevenzione ”, in Digesto delle Discipline Penalistiche , Torino, 1994; Barile, Diritto dell’uomo e libertà fondamentali , Bologna, 1984; and Amato, “ Commento all’ art.13 ” , in Branca (ed.), Commentario della Costituzione , Bologna, 1977).

[4] . See the Italian Constitutional Court judgment no. 23 of 1964 which rejected the question of the constitutional legitimacy of section 1 of the 1956 Act with reference to Articles 13, 25 and 27 of the Italian Constitution.

[5] . The entire relevant passage of the 1964 judgment reads as follows : “ nella descrizione delle fattispecie (di prevenzione) il legislatore debba normalmente procedere con diversi criteri da quelli con cui procede nella determinazione degli elementi costitutivi di una figura criminosa, e possa far riferimento anche a elementi presuntivi, corrispondenti, per ò , sempre, a comportamenti obiettivamente identificabili. Il che non vuol dire minor rigore, ma diverso rigore nella previsione e nella adozione delle misure di prevenzione rispetto all a previsione dei reati e dalla irrogazione delle pene . ”

[6] . With reference to points 2, 3 and 4 of section 1 of the 1956 Act , the Constitutional Court judgment no. 23 of 1964 excluded the possibility that “ le misure di prevenzione possano essere adottate sul fondamento di semplici sospetti ”, demanding that “ una oggettiva valutazione di fatti da cui risulti la condotta abituale e il tenore di vita della persona o che siano manifestazioni concrete della sua proclività al delitto, e siano state accertate in modo da escludere valutazioni puramente soggettive e incontrollabili da parte di chi promuove o applica le misure di prevenzione . ”

[7] . See paragraphs 53-56 of the judgment.

[8] . See Labita v. Italy [GC], no. 26772/95, § 195, ECHR 2000 ‑ IV; Raimondo v. Italy , 22 February 1994, § 39 , Series A no. 281 ‑ A; and Ciancimino v. Italy , no. 12541 / 86, Commission decision of 27 May 1991, Decisions and Reports 70 . In the domestic case-law, see, for example, Court of Cassation, United Sections, 3 July 1996, Simonelli , and Court of Cassation, Section I, 17 January 2008, no. 6613. B etween 2005 and 2013 these preventive measures were ap plied to 30,511 persons, according to the statistical information in the file . Although asked to provide information on h ow many of them had been acquitted in criminal proceedings , the Government did not provide the required information.

[9] . Court of Cassation , Section I, 28 April 1995, Lupo .

[10] . See Labita , cited above, § 196, and Ciancimino , cited above . In the domestic case-law, see, for instance, Court of Cassation, Section II, 20 April 2013, no. 26774.

[11] . Corso, “ Profili costituzionale delle misure di prevenzione: aspetti teorici e prospettivi di riforma ”, in AA.VV., La legge a ntimafia tre anni dopo , Milan, 1986.

[12] . See, among many other authorities, Court of Cassation, Section VI, 19 January 1999, Consolato , which specifies that the evidentiary requirements of Article 192 § 2 of the Code of Criminal Procedure do not apply in proceedings for the application of preventive measures.

[13] . Bricola, “ Forme di tutela ‘ ante delictum ’ e profili costituzionali della prevenzione ” , in AA.VV., Le misure di prevenzione , Atti del Convegno C.N.P.D. S., 26-28.4.1974, Milan, 1975.

[14] . See Balbi, “ Le Misure di Prevenzione Personali ” , contribution at the Annual Meeting of the Italian Association of Criminal Law Professors, 18 November 2016, Milan, p. 5. See also Gallo, “ Misure di prevenzione ”, in Enc. Giur. Treccani , Rom e , 1990, vol. XX, and Guerrini et al., Le misure di prevenz ione , Pad u a, 2004.

[15] . For example, Article 644 of the Criminal Code: “ Le pene per i fatti di cui al primo e secondo comma sono aumentate da un terzo alla metà: … se il reato è commesso da persona sottoposta con provvedimento definitivo alla misura di prevenzione della sorveglianza speciale durante il periodo previsto di applicazione e fino a tre anni dal momento in cui è cessata l’esecuzione .”

[16] . See Balbi, cited above, p. 12.

[17] . Court of Cassation, Section I, 10 February 2009, M.M .

[18] . Court of Cassation, Section I, no. 6285/97, Capizzi .

[19] . Court of Cassation, Section I, 16 April 1998, Castellano .

[20] . Court of Cassation, United Sections, 25 March 1993, no. 6, dep. 14 July 1993, imp. Tumminelli , Rv. 194062.

[21] . The revocation of misure cautelari for lack of gravi indi zi of culpability required by Article 273 of the Code of Criminal Procedure does not hinder the application of misure di prevenzione personali (Court of Cassation, Section I, no. 5760/99, Iorio ).

[22] . See Balbi, cited above, p. 17.

[23] . Elia, Libertà personale e misure di prevenzione , Milan, 1962, and “ Libertà personale tra l’articolo 13 e l’articolo 25 della Costituzione ” , in Giur. Cost . 1964, Petrini, La prevenzione inutile. Illegi t timità delle misure praeter delictum , Nap les , 1996, and Moccia, “ La lotta alla criminalit à organizzata ”, in Vallefuoco and Gialanella (ed s .), La difficile antimafia , Rom e , 2002.

[24] . Translation: “ I n the beginning there is the suspicion” . The expression comes from medieval criminal procedure. See Balbi, cited above, p. 17.

[25] . Amodio, “ Il processo di prevenzione: l’illusione della giurisdizionalità ” , in Giust. pen. , 1975, III.

[26] . Translation: “In the beginning there is the act”. See Bettiol, “ Il problema penale ”, 1945, in Scritti giuridici , I, p. 678.

[27] . See Raimondo , Labita , both cited above, and Vito Sante Santoro v. Italy , no. 36681/97, ECHR 2004 ‑ VI .

[28] . Guzzardi v. Italy , 6 November 1980, Series A no. 39 .

[29] . S.M. v. Italy (dec.), no. 18675/09, 8 October 2013 .

[30] . Ibid. , § 26 .

[31] . Ibid. , § 27 .

[32] . See Bocellari and Rizza , no. 399/02 , §§ 34-41 , 13 November 2007 ; Perre and Others v. Italy , no. 1905/05, §§ 23-26, 8 July 2008; Bongiorno and Others v. Italy , no. 4514/07 , §§ 27-30, 5 January 2010 ; Leone v. Italy , no. 30506/07 , §§ 26-29, 2 February 2010 ; and Capitani and Campanella v. Italy , no. 24920/07 , §§ 26-29, 17 May 2011 .

[33] . Guzzardi , cited above, § 95.

[34] . Ibid., §§ 92-93; see also Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012; Austin and Others v. the United Kingdom [GC], no. 39692/09, 40713/09 and 41008/09 , § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06 , § 115, ECHR 2012; and Medvedyev and Others v. France [GC], no. 3394/03 , § 73, ECHR 2010 .

[35] . Guzzardi , cited above, § 95 .

[36] . Ibid., § 92; see also Engel and Others v. the Netherlands , 8 June 1976, § 59, Series A no. 22 , and Amuur v. France , 25 June 1996, § 43, Reports of Judgments and Decisions 1996 ‑ III .

[37] 36. See footnote 26.

[38] . See Ciancimino ; Raimondo ; Labita ; Vito Sante Santoro and S.M. , all cited above .

[39] . The basis of the Court’s present case-law is a passage from Raimondo (§ 39), which simply affirmed, without any attempt to provide justification, that these measures were to be assessed as restrictions on the liberty of movement under Article 2 of Protocol No. 4 and “ did not amount to a deprivation of liberty within the meaning of Article 5 para. 1 of the Convention” , citing “ Guzzardi v. Italy judgment, cited above, p. 33, para. 92 ”, while ignoring all the subsequent reasoning of Guzzardi , which had reached the exact opposite conclusion:  “ The Court considers on balance that the present case is to be regarded as one involving deprivation of liberty ”.

[40] . Ciulla v. Italy , 22 February 1989, § 40, Series A no. 148 . This case referred to a provision on detenzione provvisoria , which was later repealed. I furthe r note that this approach was also confirmed mutatis mutandis in a recent German case (see Ostendorf v. Germany , no. 15598/08, 7 March 2013).

[41] . See Guzzardi , cited above § 92 .

[42] . C ontrast with eleven hours in Quinn v. France , 22 March 1995, § 42 , Series A no. 311 ; twelve hours in Labita , cited above, § 166; three days in Mancini v. Italy , no. 44955/98, § 25, ECHR 2001 ‑ IX ; and six months in Brand v. the Netherlands , no. 49902/99, § 6 0, 11 May 2004 . For other short periods of deprivation of liberty, see Murray v. the United Kingdom , 28 October 1994, §§ 49 et seq ., Series A no. 300 - A, concerning custody at an army centre for less than three hours for questioning; Novotka v. Slovakia (dec.) , no. 47244/99, 4 November 2003, concerning one hour spent in police custody; Shimovolos v. Russia , no. 30194/09, §§ 49-50, 21 June 2011, concerning questioning in police custody for forty-five minutes; see also Witold Litwa v. Poland , no. 26629/95, § 46, ECHR 2000 ‑ III, concerning confinement for six and a half hours in a sobering-up centre .

[43] . Buzadji v. the Republic of Moldova [ GC ] , no. 23755/07 , § 104, ECHR 2016.

[44] . Legge-delega no. 136 of 13 August 2010 required the categories of persons to whom the measures were applied to be established on the basis of “ clearly defined conditions, referr ing to the existence of factual circumstances ” (“ che venga definita in maniera organica la categoria dei destinatari delle misure di prevenzione personali e patrimoniali, ancorandone la previsione a presupposti chiaramente definiti e riferiti in particolare all'esistenza di circostanze di fatto che giustificano l'applicazione delle suddette misure di prevenzione e, per le sole misure personali, anche alla sussistenza del requisito della pericolosità del soggetto ” ) . This cannot but be read as an implicit acknowledgment on the part of the domestic authorities of the lack of clarity of the 1956 Act.

[45] . C ontrast Danov v. Bulgaria , no. 56796/00, 26 October 2006 ; Mancini , cited above, § 20 ; Nikolova v. Bulgaria (no. 2) , no. 40896/98, 30 September 2004; and Vachev v. Bulgaria , no. 42987/98, § 64, ECHR 2004 ‑ VIII .

[46] . See Guzzardi , cited above, § 100 .

[47] . C ontrast Van Droogenbroeck v. Belgium , 24 June 1982, § 35, Series A no. 50 .

[48] . See Guzzardi , cited above, § 101 .

[49] . C ontrast Steel and Others v. the United Kingdom , 23 September 1998, § 66, Reports 1998 ‑ VII; Nowicka v. Poland , no. 30218/96, § 60, 3 December 2002; Harkmann v. Estonia , no. 2192/03, § 30, 11 July 2006; and Gatt v. Malta , no. 28221/08, § 36, ECHR 2010 .

[50] . C ontrast Vasileva v. Denmark , no. 52792/99, § 36, 25 September 2003, and Epple v. Germany , no. 77909/01, § 36, 24 March 2005 .

[51] . See Guzzardi , cited above, § 102 .

[52] . I bid.; see also Lawless v. Ireland (no 3) , 1 July 1961, Series A no. 3, and Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, Series A no. 182 .

[53] . See Guzzardi , cited above, § 103 .

[54] . Ibid., § 98.

[55] . Ibid. , § 103 .

[56] . Engel and Others , cited above, §§ 82-83 .

[57] . See Jussila v. Finland [GC], no. 73053/01, §§ 30- 31, ECHR 2006-XIII, and Zaicevs v. Latvia , no. 65022/01, § 31, 31 July 2007 .

[58] . Deweer v. Belgium , 27 February 1980, § 46, Series A no. 35 .

[59] . From sections 10 and 12(3) of the 1956 Act, a principle could be derived to the effect that a security measure prevailed over a preventive measure, when they were both applied, but they could, in certain circumstances, be applied in conjunction (Court of Cassation, Section I, 7 February 2011, Macri ).

[60] . The relevant passage is the following: “ l'applicazione delle misure di sicurezza personali, finalizzate anche esse a prevenire la commissione di (ulteriori) reati (e che non sempre presuppongono la commissione di un precedente reato; art. 49, secondo e quarto comma e art. 115, secondo e quarto comma del codice penale), talché possono considerarsi una delle due species di un unico genus .”

[61] . See the above-mentioned judgments nos. 23/1964 and 177/1980 of the Constitutional Court .

[62] . Court of Cassation, Section I, 17 May 1984, no. 1193.

[63] . See, among other authorities, Nuvolone, “ La prevenzione nella teoria generale del diritto penale ” , in Rivista Italiana di Diritto e Procedura Penale , 1956 ; Piroddi, Le misure di prevenzione di pubblica sicurezza , 1971 ; Vassalli, “ Misure di prevenzione e diritto penale ” , in Studi in onore di B. Petrocelli , vol. III, 1972.

[64] . B etween 2005 and 2014 , 16 , 461 persons were convicted of breaching the preventive measures applied to them , according to the statistical information in the file . Although asked, the Government did not provide information on h ow many of them were sentenced to jail .

[65] . Cairo and Forte, Codice delle misure di prevenzione annotato , Rome, 2014, p. 23.

[66] . See Engel and Others , cited above, § 85 ; Campbell and Fell v. the United Kingdom , 28 June 1984, § 73, Series A no. 80 ; Ezeh and Connors v. the United Kingdom [GC] , nos. 39665/98 and 40086/98, § 130, ECHR 2003 - X ; and, mutatis mutandis , Dacosta Silva v. Spain , no. 69966/01, §§ 46-50, ECHR 2006 - XIII .

[67] . I n Guzzardi (cited above, § 108 ) the Court held that the criminal limb of Article 6 was not applicable , but it considered none of the above-mentioned arguments.

[68] . Engel and Others , cited above, §§ 82-83 .

[69] . There was no legal and factual basis for the criminal measures imposed, as the C ourt of A ppeal acknowledged by its declaration of the ex tunc invalidity of the measures. The measures were annulled ( annullato ), not revoked, for failing to comply with the legal requirements since the day of the delivery of the judgment by the court of first instance.

[70] . See, a mong other authorities, Rehbock v. Slovenia , no. 29462/95, § 84, ECHR 2000 ‑ XII; Mamedova v. Russia , no. 7064/05, § 96, 1 June 2006; G.B. v. Switzerland , no. 27426/95, § 33, 30 November 2000; and Kadem v. Malta , no. 55263/00, § 44, 9 January 2003.

[71] . See Rizzotto v. Italy , no. 15349/06, §§ 30-36, 24 April 2008 .

[72] . See N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002 ‑ X.

[73] . Vito Sante Santoro , cited above, § 45.

[74] . See Seferovic v. Italy , no. 12921/04, § 49, 8 February 2011; Pezone v. Italy , no. 42098/98, §§ 51-56, 18 December 2003; and Fox, Campbell and Hartley , cited above, § 46 .

[75] . See Tyrer v. the United Kingdom , 25 April 1978, § 31, Series A no. 26 .