52 GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT DISSENTING OPINION OF JUDGE BINDSCHEDLERROBERT (Translation) The Court considered that it had to reject the preliminary objection based on non-exhaustion of domestic remedies and conclude, as regards the merits of the case, that there had been a violation of Article 5 (art. 5) of the Convention. I regret that I disagree with the majority of my colleagues on these two points. I shall endeavour to set out as briefly as possible the reasons for my dissent. 1. As regards the exhaustion of domestic remedies, I should like to take the liberty of making a preliminary observation to which I attach importance. The judgment applies to the proceedings on appeal and in cassation, in other words to the domestic proceedings, the principle that the rule of exhaustion must be interpreted "with a certain degree of flexibility and without excessive regard for matters of form" (§ 72). This principle is certainly correct if one applies it to the international rule itself when one is in the process of determining its scope. On the other hand, to apply it to domestic law in order to determine and interpret the conditions laid down there under in the matter of remedies amounts to endowing the international court with jurisdiction to interpret that law and, in the final analysis, to base itself on a domestic law that does not exist. Reference back to domestic law by the rule of exhaustion of domestic remedies can only mean a reference back to that law as interpreted by domestic case-law [see, on this point, Jacobs, The European Convention on Human Rights, Oxford, 1975, p. 240]. I thus conclude that there was no call to enquire whether "in the Court’s view" the pleas advanced by the applicant on appeal and in cassation were equivalent to an allegation of a breach of the right to individual liberty. What should have been done, in my view, was to determine whether, in the light of Italian legislation and case-law, Mr. Guzzardi had exercised such remedies and adduced such arguments as were capable of leading to the reversal of the decision he was challenging. I would add that the case-law of the Court and the Commission relied on by the judgment in support of its extensive interpretation definitely does not corroborate that interpretation; indeed, in each of the cases mentioned the principle that the rule of exhaustion of domestic remedies should be flexibly interpreted concerns the scope of the international obligation and not the interpretation of domestic law. Having said that and turning now to the question whether or not remedies were exhausted in this particular case, I cannot do better than to refer to the dissenting opinion of the President, Mr. Balladore Pallieri, the national judge, with which I entirely agree.