GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 49 not to do double duty with the latter, it (Article 5) (art. 5) must be interpreted strictly and regarded as limited to cases of actual imprisonment or to detention close enough and strict enough to approximate to a virtually complete deprivation of liberty. This was certainly not the situation in regard to the applicant in the present case. (c) If Article 5 (art. 5) of the Convention were to be interpreted so widely as to include instances of what was basically restriction on freedom of movement or choice of residence, then not only would Article 2 of the Protocol (P4-2) be rendered otiose, but an indirect means would be afforded of making Governments subject to the obligations of the latter, despite the fact that they had not ratified the Protocol. This could not have been intended, but it is a possibility that can only be avoided by a strict interpretation of Article 5 (art. 5) that confines it to its proper sphere. 7. It is of course obvious that all deprivation of liberty, especially if it takes the form of actual imprisonment or other close confinement, must imply restricting freedom of movement and choice of residence. It is inherently in its character to do so. But the reverse is not true. Mere exile or banishment, for instance, does not in itself involve deprivation of liberty, or at any rate it is something that, per se, falls clearly on that side of the line which is occupied by the concept of restriction on movement and place of residence. Equally clearly, such restriction may be accompanied by conditions that turn it into a deprivation of liberty, as the Court has found to be the fact in the present case. Between the one concept and the other there may be many different degrees of circumstances and situation, so that it is always a question of where to draw the line which, as mentioned earlier, must in the last resort be a question of personal appreciation. Deducing, as I have done, from the existence of Article 2 of the Protocol (P4-2) that the concept of deprivation of liberty under Article 5 (art. 5) of the Convention must be interpreted fairly strictly, I come to the conclusion that the conditions of the applicant’s residence on Asinara do not bring his case within that concept, or at any rate that the Italian Government must be given the benefit of any doubt that may exist, as exist it does. 8. Basically what happened to the applicant was not that he was imprisoned or confined, but that he was banished to an island on which he was assigned a place of residence (an ordinary house) and restricted to an area sufficiently big for him to be able to live a normal life except that he could not leave it without permission and was (and for that purpose had to be) under surveillance. To me all this has very much more the flavour of Article 2 of the Protocol (P4-2) than of Article 5 (art. 5) of the Convention, even if a residue of doubt may remain, - but in that event, is it right to condemn a Government for breach of the Convention in the presence of a very reasonable doubt as to whether any has occurred? 9. There is another test that can be applied which, though not in itself conclusive, is highly relevant, and that is to ask what were the intentions of