46 GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 1. I have not found it possible to accept the majority view in this case, to the effect that the Italian Government is to be held responsible for a breach of the European Convention on Human Rights, and liable to any damages in the sum of one million Italian lire - even though this can be regarded as constituting little more than a token amount1. 2. I will not recapitulate facts and arguments that can be found fully set out in the judgment of the Court, and I shall ignore all the issues in the case except one. That issue - the essential one (if I leave out of account the question of whether the applicant [Guzzardi] did or did not exhaust his possible legal remedies in the Italian courts)2 - is whether his preventive detention on the island of Asinara - (or more accurately his compulsory residence under special supervision there) - amounted to a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention, or whether it did not, rather, consist simply of a restriction on "liberty of movement and freedom to choose ... residence" within the meaning of Article 2 § 1 of Protocol No. 4 (P4-2-1) to the Convention, - the point being that this Protocol (P4), like the other Protocols to the Convention, needs separate ratification in order to be binding, and Italy has not ratified it. If, therefore, the applicant was not deprived of his liberty as such - i.e. stricto sensu - but only restricted in his freedom of movement and choice of residence, there can have been no breach of the Convention, - and what might, otherwise, have involved a breach of Protocol No. 4 (P4) cannot do so because this Protocol (P4) is not binding upon Italy. 3. At this point a preliminary question arises which, though not in itself decisive for the actual main issue, is closely related to it. Certainly before the Italian courts, the applicant does not appear to have challenged the legality of his preventive detention as such, but merely to have complained of the conditions of his banishment on Asinara - (that the area within which he had to stay was too small, that there was no available work for him to do, that he could not have his family with him, that he could not attend a place of religious worship, etc., etc.)3. In the proceedings before the European Commission of Human Rights (to which the case of course went in the first place), it seems uncertain whether the applicant took his complaint much further, or whether he ever definitely invoked Article 5 (art. 5) of the Convention or alleged any breach of it as such. Certainly his original complaints were exclusively based on Articles 3, 8 and 9 (art. 3, art. 8, art. A little under 500 pounds sterling at present rates. The Convention cannot of course validly be invoked unless the domestic remedies available under the local law have been exhausted. 3 A number of these complaints were in fact lacking in any real substance, or were remedied in the course of the applicant's stay on the island. 1 2