50 GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE the Italian authorities in sending the applicant to Asinara? As I understand it, they could validly under Italian law have arrested and kept him in prison on suspicion of the offences in the nature of terrorism for which (subsequent to his preventive relegation to Asinara, and afterwards to Force) he was eventually condemned to 18 years’ imprisonment. The irony is that, had the authorities dealt with him in that way, no contravention of the Convention would have been involved because the matter would have been covered by one of the sub-paragraphs to Article 5 § 1 (art. 5-1) to which reference has been made in footnote 4 above. The Italian Government is therefore being condemned by the judgment of the Court for treating the applicant in a much more lenient way than the altogether harsher one they could legitimately have adopted without any infraction of the Convention. There is a manifest injustice here that could easily have been avoided. This situation also constitutes one of the many absurdities of the case - (and see further paragraph 12 below). 10. What the Italian authorities clearly intended to do, and thought they were doing, was to put the applicant out of circulation so to speak, by sending him to reside in a place where, and under conditions which, would ensure that he could not do any serious harm, - but not otherwise to prevent him living a normal life, which was certainly not the normal life of a prisoner as is quite clear from the recorded facts. The case is therefore evidently one of obligatory residence in a certain place, accompanied by restrictions on any movement outside the general area of that place. The Court could easily have so held, and the judgment does not, in my opinion, furnish any convincing explanation of why it did not do so. But until the Court modifies the general trend of its present policy in the interpretation of the Convention, this sort of thing will doubtless continue, - and one of the consequences will be that, provided they keep within the letter of the Convention, governments will have no particular inducement to conform to its spirit - since, as this case shows, doing so can be penalized as much as not so doing. 11. In this connexion, and in general, I consider that the Court failed to give any adequate weight - if weight at all - to the fact that the applicant was a terrorist and mafioso. Naturally these factors would not justify treating him in a manner clearly, or at any rate substantially, contrary to the Convention. But where there are grounds for genuine doubt whether any contravention has in fact occurred, such factors, though in no way conclusive per se, may legitimately be taken into account (I do not put it any higher than that) in deciding how to set about resolving the doubt - again I put it no higher. In the present case, however, the Court completely ignored the plea of the Italian Government to the effect that public order in Italy at this time was seriously menaced by threats coming essentially from political terrorism and the mafia, and that the authorities were under strong pressure to combat these evils by draconian measures - pressure which they had so