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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
    1. European Convention on Human Rights Art 5
    2. Guzzardi v Italy (1980) 3 EHRR 333
    3. R v Howell [1982] QB 416; [1981] 3 All ER 383
    4. Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705
    5. DPP v Redmond-Bate (1999) 163 JP 789: [2000] HRLR 249
    6. Bibby v Chief Constable of Essex (2000) 164 JP 297; [2000] Po LR 107; The Times April 24 2000
    7. Police and Criminal Evidence Act 1984 ss 24-25; original versions
    8. Hough v Chief Constable of the Staffordshire Constabulary [2001] EWCA Civ 39
    9. Police and Criminal Evidence Act 1984 s 24A
    10. Christie v Leachinsky [1947] AC 573
    11. Police and Criminal Evidence Act 1984 s 28
    12. Kenlin v Gardner [1967] 2 QB 510; [1966] 3 All ER 931
    13. Albert v Lavin [1982] AC 546; [1981] 3 All ER 878
    14. McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358; [1985] 1 All ER 1
    15. Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157
    16. O'Hara v United Kingdom (2002) 34 EHRR 32
    17. Brogan v United Kingdom (1989) 11 EHRR 117
    18. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68
  24. Chapter twenty-three: Leaving the European Union

Guzzardi v Italy (1980) 3 EHRR 333

A. The criminal proceedings taken against Mr. Guzzardi

9. Mr. Guzzardi, an Italian citizen born in 1942, had left Palermo (Sicily) in 1966 to take up residence in Vigevano (in the province of Pavia). He was arrested on 8 February 1973, placed in detention on remand in Milan and then charged with conspiracy and being an accomplice to the abduction on 18 December 1972 of a businessman; the latter had been freed by his kidnappers on 7 February 1973 after payment of a substantial ransom.

The applicant was acquitted on 13 November 1976 by the Milan Regional Court (Tribunale di Milano) for lack of sufficient evidence, but convicted on 19 December 1979 by the Milan Court of Appeal which sentenced him to eighteen years' imprisonment and a fine.

The criminal proceedings in question are not in issue, at least not in direct issue, in the present case.

10. Under Article 272 (first paragraph, item 2) of the Italian Code of Criminal Procedure, the applicant's detention on remand - during which he married his fiancée by whom he shortly afterwards had a son - could not continue for more than two years; it thus had to terminate on 8 February 1975 at the latest.

11. On that date, Mr. Guzzardi was removed from Milan gaol and taken under police escort to the island of Asinara, which lies off Sardinia.

B. The measure of "special supervision" applied to the applicant

12. On 23 December 1974, the Milan Chief of Police (questore) had in fact sent to the Milan State prosecutor (procuratore della Repubblica) a report recommending that Mr. Guzzardi be subjected to the measure of "special supervision" provided for in section 3 of Act no. 1423 of 27 December 1956 ("the 1956 Act" - see paragraphs 45-51 below) and section 2 of Act no. 575 of 31 May 1965 ("the 1965 Act" - see paragraph 52 below). The report referred to indications that although the applicant claimed to be working in the building trade, he was actually engaged in illegal activities and belonged to a band (cosca) of mafiosi; it listed four convictions pronounced against him in 1965, 1967, 1969 and 1972 and described him as "one of the most dangerous" of individuals.

Following an application made in accordance with this recommendation by the State prosecutor on 14 January 1975, the Milan Regional Court (2nd Criminal Chamber) directed on 30 January that Mr. Guzzardi be placed under special supervision for three years, the measure to be combined with the obligation to reside "in the district (comune) of the island of Asinara", a locality that had been designated by the Ministry of the Interior. In its decision the Court further directed that the applicant should:

- start looking for work within a month, establish his residence in the prescribed locality, inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them;

- report to the supervisory authorities twice a day and whenever called upon to do so;

- lead an honest and law-abiding life and not give cause for suspicion;

- not associate with persons convicted of criminal offences and subjected to preventive or security measures;

- not return to his residence later than 10 p.m. and not go out before 7 a.m., except in case of necessity and after having given notice in due time to supervisory authorities;

- not keep or carry any arms;

- not frequent bars or night-clubs and not take part in public meetings;

- inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call......

1. The existence of a deprivation of liberty in the present case

90. The Commission was of the view that on Asinara the applicant suffered a deprivation of liberty within the meaning of the Article (art. 5); it attached particular significance to the extremely small size of the area where he was confined, the almost permanent supervision to which he was subject, the all but complete impossibility for him to make social contacts and the length of his enforced stay at Cala Reale (see paragraphs 94-99 of the report).

91. The Government disputed the correctness of this analysis. They reasoned as follows. The factors listed above were not sufficient to render the situation of persons in compulsory residence on the island comparable to the situation of prisoners as laid down by Italian law; there existed a whole series of fundamental differences that the Commission had wrongly overlooked. The distinguishing characteristic of freedom was less the amount of space available than the manner in which it could be utilised; a good many districts in Italy and elsewhere were less than 2.5 sq. km. in area. The applicant was able to leave and return to his dwelling as he wished between the hours of 7 a.m. and 10 p.m. His wife and son lived with him for fourteen of the some sixteen months he spent on Asinara; the inviolability of his home and of the intimacy of his family life, two rights that the Convention guaranteed solely to free people, were respected. Even as regards his social relations, he was treated much more favourably than someone in penal detention: he was at liberty to meet, within the boundaries of Cala Reale, the members of the small community of free people - about two hundred individuals - living on the island, notably at Cala d'Oliva; to go to Sardinia or the mainland if so authorised; to correspond by letter or telegram without any control; to use the telephone, subject to notifying the carabiniere of the name and number of his correspondent. The supervision of which he complained constituted the raison d'être of the measure ordered in his respect. Finally, the fact that more than sixteen months elapsed before his transfer to Force was of itself of no relevance (see paragraph 7 of the memorial of December 1979 and the oral pleadings of 29 January 1980).

92. The Court recalls that in proclaiming the "right to liberty", paragraph 1 of Article 5 (art. 5-1) is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2) which has not been ratified by Italy. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 (art. 5), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see the Engel and others judgment of 8 June 1976, Series A no. 22, p. 24, par. 58-59).

93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although 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, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 (art. 5) depends.

94. As provided for under the 1956 Act (see paragraphs 48-49 above), special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope of Article 5 (art. 5). The Commission acknowledged this: it focused its attention on Mr. Guzzardi's "actual position" at Cala Reale (see paragraphs 5, 94, 99, etc. of the report) and pointed out that on 5 October 1977 it had declared inadmissible application no. 7960/77 lodged by the same individual with regard to his living conditions at Force (see paragraph 93 of the report and paragraph 56 above).

It does not follow that "deprivation of liberty" may never result from the manner of implementation of such a measure, and in the present case the manner of implementation is the sole issue that falls to be considered (see paragraph 88 above).

95. The Government's reasoning (see paragraph 91 above) is not without weight. It demonstrates very clearly the extent of the difference between the applicant's treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman (see the above-mentioned Engel and others judgment, p. 26, par. 63). Deprivation of liberty may, however, take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes; and the Convention is to be interpreted in the light of the notions currently prevailing in democratic States (see notably the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, par. 31).

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. Mr. Guzzardi was housed in part of the hamlet of Cala Reale which consisted mainly of the buildings of a former medical establishment which were in a state of disrepair or even dilapidation, a carabinieri station, a school and a chapel. He lived there principally in the company of other persons subjected to the same measure and of policemen. The permanent population of Asinara resided almost entirely at Cala d'Oliva, which Mr. Guzzardi could not visit, and would appear to have made hardly any use of its right to go to Cala Reale. Consequently, there were few opportunities for social contacts available to the applicant other than with his near family, his fellow "residents" and the supervisory staff. Supervision was carried out strictly and on an almost constant basis. Thus, Mr. Guzzardi was not able to leave his dwelling between 10 p.m. and 7 a.m. without giving prior notification to the authorities in due time. He had to report to the authorities twice a day and inform them of the name and number of his correspondent whenever he wished to use the telephone. He needed the consent of the authorities for each of his trips to Sardinia or the mainland, trips which were rare and, understandably, made under the strict supervision of the carabinieri. He was liable to punishment by "arrest" if he failed to comply with any of his obligations. Finally, more than sixteen months elapsed between his arrival at Cala Reale and his departure for Force (see paragraphs 11, 12, 21, 23-42 and 51 above).

It is admittedly not possible to speak of "deprivation of liberty" on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of Article 5 (art. 5). In certain respects the treatment complained of resembles detention in an "open prison" or committal to a disciplinary unit (see the above-mentioned Engel and others judgment, p. 26, par. 64). On 20 January 1976, the Milan Regional Court had let it be understood that it did not regard that treatment as satisfactory. The administrative authorities also had some misgivings for they investigated the possibility of taking remedial measures; since they did not pursue the matter in the face of the expense involved and the time needed, the Ministry of the Interior decided in August 1977 to strike Asinara out of the list of places for compulsory residence (see paragraphs 20 and 43 above). Two telegrams from the Ministry to the Milan Chief of Police, dated 19 and 23 August 1977 and concerning one Alberti Gerlando, establish that this decision was not unconnected with application no 7367/76 even though Mr. Guzzardi had already left Cala Reale; the Government appended these telegrams to their memorial of May 1980. Several items of the documentary evidence filed thus show that the island was not suitable for a normal application of the 1956 and 1965 Acts. This was eventually recognised by the Italian State.

The Court considers on balance that the present case is to be regarded as one involving deprivation of liberty.....