GUZZARDI v. ITALY JUDGMENT JOINT DISSENTING OPINION OF JUDGES TEITGEN AND GARCIA DE ENTERRIA 55 JOINT DISSENTING OPINION OF JUDGES TEITGEN AND GARCIA DE ENTERRIA (Translation) I. For the reasons set out by the President, Mr. Balladore Pallieri, in his dissenting opinion with which we agree entirely, we consider that Guzzardi’s application was inadmissible on account of failure to exhaust domestic remedies. II. On the violation of Article 5 (art. 5) of the Convention The Court’s judgment states: "The difference between deprivation of and restriction upon liberty is ... merely one of degree or intensity, and not one of nature or substance. ... the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion." Taking this statement of principle as our starting-point, as does the judgment, we consider for our part that on Asinara Guzzardi was not "deprived of his liberty" within the meaning of Article 5 (art. 5) of the Convention. Although he could move around within no more than a limited sector of the island, he was able to live there with his family - as indeed he did for fourteen months out of sixteen -, to talk freely with his companions, to telephone outside the island subject to police supervision and even to go to Sardinia and the mainland. Assessing this situation as an issue of fact, we think that it did not fall within the ambit of the prohibition contained in Article 5 (art. 5) of the Convention (but it was probably a borderline case). III. In the alternative As the Court acknowledges in its judgment, it was not called upon in the present case to review the Italian Acts of 1956 and 1965 under the Convention but solely to determine the concrete issue before it. This means that it had to enquire whether the living conditions to which, by virtue of those Italian Acts, Guzzardi was subjected on the island of Asinara amounted, in the context of the case, to a violation of the Convention. However, in assessing the facts, the judgment leaves aside one of the concrete aspects of this issue. Guzzardi’s situation on Asinara was not that of a person who is simply suspected by the police of having committed an offence or of being about to do so. In 1973, he had been lawfully charged by the judicial authorities with conspiracy and being an accomplice to the abduction of a businessman who had been freed only after payment of a substantial ransom; after being charged, he had been detained in prison on remand. His detention on remand was authorised by sub-paragraph (c) of paragraph 1 of Article 5 (art. 5-1-c) of the Convention and, according to