GUZZARDI v. ITALY JUDGMENT
29
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition."
1. The existence of a deprivation of liberty in the present case
90. The Commission was of the view that on Asinara the applicant
suffered a deprivation of liberty within the meaning of the Article (art. 5); it
attached particular significance to the extremely small size of the area where
he was confined, the almost permanent supervision to which he was subject,
the all but complete impossibility for him to make social contacts and the
length of his enforced stay at Cala Reale (see paragraphs 94-99 of the
report).
91. The Government disputed the correctness of this analysis. They
reasoned as follows. The factors listed above were not sufficient to render
the situation of persons in compulsory residence on the island comparable to
the situation of prisoners as laid down by Italian law; there existed a whole
series of fundamental differences that the Commission had wrongly
overlooked. The distinguishing characteristic of freedom was less the
amount of space available than the manner in which it could be utilised; a
good many districts in Italy and elsewhere were less than 2.5 sq. km. in
area. The applicant was able to leave and return to his dwelling as he wished
between the hours of 7 a.m. and 10 p.m. His wife and son lived with him for
fourteen of the some sixteen months he spent on Asinara; the inviolability
of his home and of the intimacy of his family life, two rights that the
Convention guaranteed solely to free people, were respected. Even as
regards his social relations, he was treated much more favourably than
someone in penal detention: he was at liberty to meet, within the boundaries
of Cala Reale, the members of the small community of free people - about
two hundred individuals - living on the island, notably at Cala d’Oliva; to
go to Sardinia or the mainland if so authorised; to correspond by letter or
telegram without any control; to use the telephone, subject to notifying the
carabiniere of the name and number of his correspondent. The supervision
of which he complained constituted the raison d’être of the measure ordered
in his respect. Finally, the fact that more than sixteen months elapsed before
his transfer to Force was of itself of no relevance (see paragraph 7 of the
memorial of December 1979 and the oral pleadings of 29 January 1980).
92. The Court recalls that in proclaiming the "right to liberty", paragraph
1 of Article 5 (art. 5-1) is contemplating the physical liberty of the person;