ABSTRACT
The Government objected to the Commission having on its own initiative taken into consideration A 5 and 6. However, A 25 required that individual applicants should claim to be the victim ‘of a violation of the rights set forth in the Convention’; it did not oblige them to specify which Article, paragraph or sub-paragraph or even which right they were praying in aid. Any greater strictness would lead to unjust consequences; for the vast majority of ‘individual’ petitions were received from laymen applying to the Commission without the assistance of a lawyer. Seen in an overall context, the applicant’s application and material submitted to the Commission and the Court clearly showed that the present case raised an issue under A 5. The plea concerning the ex officio examination of the case was therefore dismissed. The preliminary objection of non-exhaustion based on the claims that the applicant had not invoked A 5 in the domestic proceedings and the transfer request had not been substantiated. Regarding the plea as to the disappearance of the object of the proceedings, the applicant had left for Force on July 1976, before the Commission had drawn up its report, and since November 1977, Asinara had no longer been used as a place for compulsory residence. The Court recalled its previous case-law in which it had dealt with numerous alleged breaches – isolated or continuing – which related entirely to a period prior to the institution of proceedings (the Delcourt, Tyrer, Schiesser, Deweer cases, etc) or had ceased whilst the proceedings were in progress (the Lawless, Wemhoff, Neumeister, Stögmüller, Matznetter, Ringeisen, De Wilde, Ooms and Versyp, Golder, Sunday Times cases, etc); the Court had nonetheless ruled on those alleged breaches. There remained a conflict of opinion between the interested parties which a judgment by the Court would serve the purpose of resolving. In addition, the applicant claimed to be entitled to just satisfaction under A 50 and if the Court found that the Convention’s requirements had not been observed, it would have to decide that claim. The ‘matter ’ had therefore received no solution. The Court’s judgments also served to elucidate, safeguard and develop the rules instituted by the Convention thereby contributed to the observance of the engagements undertaken by the Contracting States. The present case raised issues of interpretation sufficiently important to call for decision. Therefore, the proceedings had not become devoid of object. In proclaiming the ‘right to liberty’, A 5(1) was contemplating the physical liberty of the person; its aim was to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. The paragraph was not concerned with mere restrictions on liberty of movement; such restrictions
were governed by P4A2. The difference between deprivation of and restriction upon liberty was nonetheless merely one of degree or intensity, and not one of nature or substance. Whilst the area around which the applicant could move far exceeded the dimensions of a cell and was not bounded by any physical barrier, it covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison. The applicant was housed in part of the hamlet of Cala Reale with other persons subjected to the same measures and policemen. There were few opportunities for social contacts other than with his near family, his fellow residents and the supervisory staff. Supervision was carried out strictly and on an almost constant basis, including curfew and reporting restrictions. He was liable to punishment by ‘arrest’ if he failed to comply with any of his obligations. More than 16 months elapsed between his arrival at Cala Reale and his departure for Force. It was not possible to speak of ‘deprivation of liberty’ on the strength of any one of those factors taken individually, but cumulatively and in combination they raised an issue of categorisation from the viewpoint of A 5. The present case was therefore to be regarded as one involving deprivation of liberty. The order for the applicant’s compulsory residence was not a punishment for a specific offence, but a preventive measure taken on the strength of indications of a propensity to crime. The deprivation of liberty complained of was not covered by A 5(1)(b) and the applicant was not in one of the situations dealt with by A 5(1)(c). Subparas (d) and (f) of A 5(1) were not relevant. From 8 February 1975 to 22 July 1976 the applicant was the victim of a breach of A 5(1). Regarding the applicants complaints under A 3, 6, 8 and 9 which had been found by the Commission to be without foundation, the compass of the case was delimited not by the Commission’s report, but by the admissibility decision. The Court could take cognisance of all questions of fact or of law arising in the course of the proceedings instituted before it; the only matter falling outside its jurisdiction was the examination of complaints held by the Commission to be inadmissible. The Court had on occasion found violations in circumstances where the report either perceived none or expressed no opinion. In addition, there were many cases in which the Commission concluded that there had been no violation at all referred to the Court (the Lawless, Delcourt, National Union of Belgian Police, Swedish Engine Drivers’ Union, Schmidt and Dahlström, Kjeldsen, Busk Madsen and Pedersen, Handyside, Klass and Others and Schiesser cases). Certain aspects of the situation complained of on Asinara were undoubtedly unpleasant or even irksome; however, having regard to all the circumstances, it did not attain the level of severity above which treatment fell within the scope of A 3. The proceedings which ended in the Court of Cassation did not involve the determination of a criminal charge. Whether the right to liberty which was at stake was to be qualified as a civil right was a matter of controversy; in any event, the evidence did not reveal any infringement of A 6(1). The applicant’s wife and son lived with him for about 14 of the 16 months he spent at Cala Reale. The reason why they had to leave the island was that he had not applied for renewal of their residence permits. The reasons given by the applicant to explain his failure to apply disclosed nothing contrary to A 8 which could be attributed to the Italian State and, in the circumstances, the necessity for such permits proved to be compatible with that provision. The applicant did not claim either that he had requested that services be held in the chapel at Cala Reale or that he had sought authorisation to go to the church at Cala d’Oliva, accordingly, his complaint under A 9 did not bear examination.
