GUZZARDI v. ITALY JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 47 9) - (inhuman or degrading treatment, absence of respect for private and family life, and absence of freedom to manifest his religion in worship, etc.). There seem to be some grounds for thinking that it was largely the Commission, acting proprio motu, which decided that his complaint came under or involved Article 5 (art. 5) (deprivation of liberty), and which proceeded accordingly. This is significant because, since the Commission was unable to find any contravention of Articles 3, 8 and 9, (art. 3, art. 8, art. 9), Article 5 (art. 5) was left as the only one under which a breach of the Convention could be held to have occurred. 4. In view of the uncertainty however, I do not wish to criticize as such the course taken by the Commission, but simply to register a general point of principle which I do not think is adequately dealt with in the relevant paragraphs of the Court’s judgment (nos. 58-63). The ultra petita (or as it is sometimes called, the ex, or extra, petita) rule precludes that an international tribunal or equivalent body should deal with matters that are not the subject of the complaint brought before it, and still more that it should give a decision on those matters against the defendant party in the case. If it does this, proprio motu, it is acting ultra vires. It would be perfectly proper for the Commission, if satisfied that a certain complaint has both definitely been made and was justified, to hold that a breach of a given Article of the Convention was involved, even though the complainant, while making the complaint, did not invoke that particular Article or allege a breach of it. It would be quite another thing, however, for an international tribunal or equivalent body to hold a sort of roving commission over the facts of a case in order to see whether, if established, some of them could be regarded as entailing an illegality or breach of treaty, - and then in due course to find that they could and did, although they were not matters (or not the actual matters) of which the plaintiff had complained or alleged any illegality or breach. This would be tantamount to saying to the plaintiff "We do not think you have a good case in regard to the particular matters you have complained of, but we perceive other matters (or aspects of the case) which you did not complain of, but of which in our view you justifiably could have complained, and so we shall be happy to find in your favour in those respects." Of course it would never be put so crudely, but it might well in practice amount to that, however carefully wrapped up. The distinction involved can admittedly be a fine one, but is none the less real and important. * * * 5. Assuming for the purposes of the argument that there was what amounted to, or implied, a complaint of deprivation of liberty, the question then is whether what occurred was truly of that kind, or was essentially in the nature of a restriction on freedom of movement and choice of residence.