GUZZARDI v. ITALY JUDGMENT
DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE
47
9) - (inhuman or degrading treatment, absence of respect for private and
family life, and absence of freedom to manifest his religion in worship,
etc.). There seem to be some grounds for thinking that it was largely the
Commission, acting proprio motu, which decided that his complaint came
under or involved Article 5 (art. 5) (deprivation of liberty), and which
proceeded accordingly. This is significant because, since the Commission
was unable to find any contravention of Articles 3, 8 and 9, (art. 3, art. 8,
art. 9), Article 5 (art. 5) was left as the only one under which a breach of the
Convention could be held to have occurred.
4. In view of the uncertainty however, I do not wish to criticize as such
the course taken by the Commission, but simply to register a general point
of principle which I do not think is adequately dealt with in the relevant
paragraphs of the Court’s judgment (nos. 58-63). The ultra petita (or as it is
sometimes called, the ex, or extra, petita) rule precludes that an international
tribunal or equivalent body should deal with matters that are not the subject
of the complaint brought before it, and still more that it should give a
decision on those matters against the defendant party in the case. If it does
this, proprio motu, it is acting ultra vires. It would be perfectly proper for
the Commission, if satisfied that a certain complaint has both definitely
been made and was justified, to hold that a breach of a given Article of the
Convention was involved, even though the complainant, while making the
complaint, did not invoke that particular Article or allege a breach of it. It
would be quite another thing, however, for an international tribunal or
equivalent body to hold a sort of roving commission over the facts of a case
in order to see whether, if established, some of them could be regarded as
entailing an illegality or breach of treaty, - and then in due course to find
that they could and did, although they were not matters (or not the actual
matters) of which the plaintiff had complained or alleged any illegality or
breach. This would be tantamount to saying to the plaintiff "We do not think
you have a good case in regard to the particular matters you have
complained of, but we perceive other matters (or aspects of the case) which
you did not complain of, but of which in our view you justifiably could have
complained, and so we shall be happy to find in your favour in those
respects." Of course it would never be put so crudely, but it might well in
practice amount to that, however carefully wrapped up. The distinction
involved can admittedly be a fine one, but is none the less real and
important.
* * *
5. Assuming for the purposes of the argument that there was what
amounted to, or implied, a complaint of deprivation of liberty, the question
then is whether what occurred was truly of that kind, or was essentially in
the nature of a restriction on freedom of movement and choice of residence.
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