GUZZARDI v. ITALY JUDGMENT
DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT
53
2. As regards the merits of the case, I am not convinced that, as the
judgment has it, "the difference between deprivation of and restriction upon
liberty is ... merely one of degree or intensity, and not one of nature or
substance". Of course, I have no difficulty in accepting that the restrictions
on liberty of movement to which Mr. Guzzardi was subjected were
particularly severe. However, I do not detect in those restrictions the
features which would make it possible to speak of "deprivation" of liberty.
Mr. Guzzardi was not confined within the perimeter of a prison and his
living conditions - albeit far from agreeable - were in striking contrast with
those that obtain in prison: thus, he could spend his time as he chose, he was
not obliged to work, and, for the greater part of his stay on Asinara, he was
able to live together with his wife and his son - and even for a while with his
parents-in-law. One could add to this list. I am therefore inclined to the view
that the compulsory residence order imposed on Mr. Guzzardi did not
constitute deprivation of liberty.
3. However, even if I assumed for the sake of argument that there had
been deprivation of liberty, I would not hold that there had been a violation
of Article 5 (art. 5) of the Convention, since this measure would have been
justified under sub-paragraph (c) of paragraph 1 of that Article (art. 5-1-c).
It is particularly in this connection that I find it imperative to take account of
the "general context of the case"; the judgment refers to this aspect of the
matter without, however, drawing there from any real consequences,
whereas its importance is rightly emphasised by Judge Matscher in his
dissenting opinion.
In making provision for compulsory residence the Italian Acts of 1956
and 1965 are designed to separate from their habitual milieu certain
individuals, such as members of the mafia, who, although this cannot
actually be proved, obviously live off criminal activities, the object being to
prevent them from continuing such activities. There can be no doubt that
these purposes are consonant with the aims recognised as legitimate by
Article 5 § 1 (c) (art. 5-1-c); this is especially true of the second reason
mentioned in that provision: "when it is reasonably considered necessary to
prevent his committing an offence". The judgment rejects this possibility on
the ground that the sub-paragraph (art. 5-1-c), which speaks of "an" offence,
is not adapted to a "policy of general prevention directed against an
individual or a category of individuals who, like mafiosi, present a danger
on account of their continuing propensity to crime" (§ 102). This narrow
interpretation is not without paradoxical results: it means that one is entitled
to imprison persons presumed to have committed the occasional crime but
that one is forbidden to imprison persons belonging to criminal associations,
whose particularly dangerous character resides precisely in the fact that it is
extremely difficult to obtain evidence of their criminal activities which is
sufficient in law and who can be prevented only by certain restrictive
measures from pursuing those activities. The wording of Article 5 § 1 (c)
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