GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 51 far resisted, as was exemplified in the case of Guzzardi by the relative leniency of his original treatment as described in paragraph 8 above. This very much sharpens the moral of the conclusion suggested in the last few lines of paragraph 10. 12. The process of simply ignoring the whole context in which a case occurs is bound to lead to injustices and absurdities, one instance of which was given supra in paragraph 9. The present case in fact bristles with absurdities. Another instance of this is that, as pointed out by the Italian Government, whereas by reason of sub-paragraph (e) of Article 5 § 1 (art. 51-e) of the Convention, a vagrant can, merely by reason of his being such, be placed under detention without any contravention of the Convention, a known terrorist cannot even have his movements restricted under the conditions applied to Guzzardi without such a breach resulting – if the judgment of the Court is correct. To be sure, modern terrorism was an evil not specifically present to the minds of those who drafted the Convention, or they would doubtless have provided for it. Again, it is admittedly for governments and none other to remedy this defect: the Court cannot do so by deeming a terrorist to be a vagrant even though he is in fact much worse than a vagrant (who may well be a harmless individual, which a terrorist never is). But this does not alter the fact that, according to the order of things resulting from the Court’s judgment, a terrorist may be much better off than a vagrant. (He may even be paid a million lire!). All these absurdities could have been avoided by an attitude of greater realism against the background of the case, leading to the conclusion – for which there was ample warrant on the facts - that the case was basically one of restriction on movement and place of residence and not one of deprivation of liberty under Article 5 (art. 5) of the Convention, interpreted, as it has to be, in the light of the existence of Article 2 of Protocol No. 4 (P4-2). * * * 13. It is therefore with regret (especially as this is the last occasion on which I shall be delivering an opinion in my present capacity) that I feel obliged to regard the judgment of the Court as involving a serious and avoidable miscarriage of justice - not the less so because a Government not an individual was affected, and though I know that none was intended. This outcome is, I think, compounded by the monetary award made to the applicant, which carries matters into that region of the absurd to which the English expression of "cloud-cuckoo land" applies. In my view, the fact that a decision should have been given in his favour in such a debatable case and on the basis of an, at most, technical breach of the Convention, lacking in any real substance - this constituted in itself a more than sufficient satisfaction that did not require any embroidery.