48 GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE Some of the arguments for and against are summarized in paragraphs 90 and 91 of the judgment, and although there is much more to be said, I see no point in embarking on an elaborate analysis of what must in the long run remain a matter of appreciation and opinion, - namely whether the condition of the applicant’s existence on Asinara were sufficiently stringent to amount to a sort of imprisonment, even though a mild one as imprisonments go, or whether, on the other hand, there was no more than a banishment accompanied by measures of confinement to house and grounds but, subject to that, without any restriction on movement within an area of at least a half-mile radius, or more according to some accounts. This could be argued about endlessly and either view is reasonably maintainable - for the issue is essentially one of degree. What, to me, decisively tilts the balance is the fact of Article 2 § 1 of Protocol No. 4 (P4-2-1) to the Convention (see paragraph 2 above) – to which paragraph 92 of the Court’s judgment refers, but only ephemerally and without bringing out the real point. 6. Article 2 of this Protocol (P4-2) states in terms that "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." Put negatively, this prohibits restrictions on movement or place of residence, and from it certain deductions relevant to the present case can be drawn: (a) The existence of this provision shows either that those who originally framed the Convention on Human Rights did not contemplate that its Article 5 (art. 5) should go beyond preventing actual deprivation of liberty, or extend to mere restrictions on freedom of movement or choice of residence; - or else that the Governments of the Council of Europe did not see Article 5 (art. 5) as covering measures of "deprivation of liberty" where the basic character of those measures consisted primarily of restrictions on movement and place of residence, - or they would not have considered it necessary to draw up a separate Protocol about that. The resulting picture is that Article 5 (art. 5) of the Convention guaranteed the individual against illegitimate4 imprisonment, or confinement so close as to amount to the same thing - in sum against deprivation of liberty stricto sensu - but it afforded no guarantee against restrictions (on movement or place of residence) falling short of that. The latter was effected only by the Protocol, so that in those countries (of which Italy is one) that have not ratified it, such restrictions are not prohibited. (b) It follows that if Article 5 (art. 5) of the Convention is not to impinge on ground intended to be covered by Article 2 of the Protocol (P4-2), and is I use this term to exclude cases covered by sub-paragraphs (a) to (f) of paragraph 1 of Article 5 (art. 5-1-a, art. 5-1-b, art. 5-1-c, art. 5-1-d, art. 5-1-e, art. 5-1-f), whereby acts that would otherwise constitute a deprivation of liberty, contrary to that Article (art. 5), become legitimated so far as the Convention is concerned. 4