GUZZARDI v. ITALY JUDGMENT
25
75. Doubts could arise as to whether, once the proceedings relative to the
measure complained of had terminated with the judgment of 6 October
1975, the applicant was still obliged to apply for a transfer in order to
comply with Article 26 (art. 26). The Court has nevertheless also examined
the second branch of the objection (see paragraph 66 above).
(a) Estoppel
76. From the very beginning, the Government contended that Mr.
Guzzardi, by failing to await the outcome of his request of 14 November
1975 to the Milan Regional Court, had been premature in applying to the
Commission (see their observations of 3 September 1976, 21 January 1977
and 21 February 1977). They further criticised him for not having
challenged on appeal and then, if need be, in cassation the decision given by
the Regional Court on 20 January 1976 (ibid.) This latter criticism, which
was subsequently abandoned, was supplemented by another in a memorial
which, being dated 21 February 1977, preceded the closure of the initial
examination of admissibility (1 March 1977): the Government claimed, as
they subsequently did before the Court, that the request in question was
addressed to an authority lacking jurisdiction. There is thus no estoppel in
respect of the second branch of their preliminary objection.
b) Whether the objection is substantiated
77. The fact that Mr. Catalano’s first letter (17 November 1975) predated
by a few weeks the decision of the Milan Regional Court (20 January 1976)
is of little consequence for the purposes of Article 26 (art. 26) of the
Convention; for that Court had already delivered its ruling when the
Commission registered the application (2 February 1976) and, a fortiori,
when it accepted the application (cf., mutatis mutandis, the abovementioned Ringeisen judgment, pp. 36-38, par. 85-93).
78. Neither does the Court share the view that the Regional Court lacked
jurisdiction. On 14 November 1975, Mr. Guzzardi had filed two distinct
applications. The first was addressed to the President of the Milan Regional
Court in his capacity of judge supervising the execution of sentences and
requested him to cancel the compulsory residence order; the second invited
the 2nd Chamber, a collegiate body, to replace Asinara by a district that
satisfied certain conditions. Both applications were dealt with on 20 January
1976, in a single decision. The Regional Court first of all declared, in
contrast to an Order by the Milan Court of Appeal (dated 27 October 1975),
that the implementation of preventive measures was the responsibility of the
police and not of the judge supervising the execution of sentences. It did
not, however, confine itself to this remark and did not decline its own
jurisdiction in the matter: exigencies of the protection of society, it added,
justified the special form of isolation undergone by persons residing at Cala
Reale. It was apparently for this reason of substance that the Regional Court