THE FACTS

I. Whereas the elements common to the four applications, a appearing

from the respective submission of both parties, and as are uncontested

between them, may be summarised as follows:

The applicants are citizens of the United Kingdom and Colonies born in

England who, at the ages of 15 and 16 joined, with the consent of their

parents, the army or naval services for a period of nine years which,

however, was to be calculated from the date on which they attained the

age of 18 years. For various reasons the applicants have applied for

discharge from the service but, in spite of repeated requests stating

their particular reasons, discharge has been refused by the army or

naval authorities including the Ministry of Defence.

In the United Kingdom, the armed forces now rely entirely on the

recruitment of volunteers, and, at the time before the applicants

entered the services, enlistment was governed by the Naval Enlistment

Act, 1884, and the Army Act, 1955, which now have been replaced by the

Armed Forces Act, 1966. Under the relevant legislation, those entering

the services normally enlist for a term of 9 or 12 years; the term,

however, only starts to run at the age of 18. Parental consent is, and

was, required in law (for the navy initially only in practice) for boys

up to the age of 17 1/2 years.

The possibilities of discharge are limited and desertion is a military

offense. At the time when the applicants enlisted in the armed forces,

a person who had enlisted in the army - but not in the navy - could

claim his discharge as of right during the first three months of

service. Since 1967, members of all the armed forces may claim such

discharge during the first three months of service.

Save in these circumstances, a person who has enlisted in the armed

forces has no right to obtain his discharge before the expiration of

the term of years specified in the form signed by him. It is however,

recognised that special personal reasons may call for the premature

release of persons so enlisted.

There appear to exist the following ways of terminating active service:

(a) on compassionate grounds;

(b) the statutory right of purchasing discharge of £20 during the

    first three months of service;

(c) discharge by purchase under extremely restricted conditions such

    as the completion of a minimum period of productive service; the

    granting of such discharge depends on the discretion of the

    competent authorities;

(d) free discharge on redundancy;

(e) psychiatric or medical grounds;

(f) application to the Conscientious Objectors' Appellate Tribunal

    after a sentence of 90-days detention;

(g) transfer to the Reserves.

Certain amendments of the provisions relating to enlistment and

discharge of minors have been recommended by the Committee on the Age

of Majority in a report of July, 1967 (Cmnd 3342) and appear to be

presently under consideration.

II. Whereas the individual facts of the four applications, as appearing

from the submissions of both parties and as uncontested between them,

may be summarised as follows:

1. Application No. 3435/67 (W.)

W., born on ..., 1949, joined the Royal Navy as a junior seaman on ..

August, 1964. His commitment was for 9 years from the age of 18. As he

joined at the age of 15, his total commitment was, in fact, for 12

years service. He applied for compassionate discharge on .. November,

1965, on the grounds that his father, his only parent, was in bad

health and needed his assistance. He also applied for discharge by

purchase but both requests were refused.

In 1967 he went home on a long weekend with the intention of deserting.

The night on which he was supposed to return on board ship he tried to

commit suicide by slashing his wrists with a razor blade. He was taken

by the police to a hospital for treatment and subsequently transferred

to a mental hospital. After spending a week in that hospital a medical

escort came to fetch him and took him to a navy hospital where he was

seen by a naval psychiatrist who, according to the applicant, treated

him as a "silly little boy who would soon grow out of this passing

phase in a child's life". After a few days he had to rejoin his ship.

The doctor aboard has given him no treatment for his depression and the

applicant's interview with him lasted no more than three minutes.

However, a full examination of the applicant carried out in a naval

hospital by a specialist in neuro-psychiatry disclosed no sign of

mental illness.

On .. November, 1967, Lord A. raised his case in the House of Lords but

apparently without success.

2. Application No. 3436/67 (X.)

Cliff Field, born on .... 1943, joined the Royal Navy at the age of 15.

He is now 24 years old and has served 6 years of his engagement.

During his service his talent for boxing has come to light. He has been

a heavyweight finalist for the national amateur boxing championship and

has been told that, providing he can take up his career immediately,

he would have a profitable future as a professional boxer.

He has made a number of applications for discharge and at one stage his

younger brother offered to take his place in the navy if discharge

could be granted. The offer was refused. An application for discharge

in October, 1966 was unsuccessful in spite of representations made on

his behalf by Mr. B., M.P., and a letter from the Ministry of Defence

dated .. March, 1967 stated that, if he had applied for the next review

in January, 1967, he would have been refused again. After a previous

offence of being absent without leave, the applicant went absent again

in December 1966 and was apprehended after one week. While he was being

awarded punishment for this second offence, the applicant committed the

further offenses of offering violence, attempting to strike a superior

officer and violently resisting an escort. For these three offenses,

he was sentenced to twelve months' detention. That sentence was

approved by the Admiralty Board and the applicant did not exercise his

right to petition for its review. After the applicant had served four

months of that sentence, it was suspended and he was returned to duty.

The applicant again deserted in October 1967 and, on being apprehended,

was tried summarily for desertion and was sentenced to 60 days'

detention and dismissal from the Service. He then had to undergo the

consecutive terms of 60 days and 236 days (the suspended portion of his

previous sentence) detention at the Military Corrective Training

Centre, Colchester. Provided that the applicant had earned full

remission, he would have been due for release (and dismissal) on ..

June, 1969.

His parents have been extremely upset by their son's difficulties and

his father has received psychiatric treatment.

Y., born on ..., 1949, joined the Royal navy as a junior seaman on ..

February, 1965, at the age of 15. according to a letter from his

mother, he did so because there was some disagreement between him and

his father.

In late 1965 after 6 months in the service he started writing to his

parents pleading with them to help him obtain a discharge. His parents,

who had difficulty in persuading him to return after he had been home

on leave, wrote to his Commanding Officer and, in reply, were told that

he would not be released and that he must "make the best of things".

They then contacted their Member of Parliament, Mr. C., and later the

National Council for Civil Liberties. The applicant has applied for

discharge two or three times and Mr. C. made representations on his

behalf in June, 1966 and on subsequent occasions.

On July, 1966, the Ministry of Defence wrote to Mr. C. rejecting his

representations and expressing the hope that Y. would settle down.

There were some ground for compassionate discharge which were not

referred to in the applications to the Ministry of Defence. Mrs. Y.

suffers from heart trouble, is subject to epileptic fits and attends

a hospital regularly. His father was out of work for a long time after

an accident. With regard to these facts the respondent Government has

now stated that, if there is medical evidence that the illness and

disability of the applicant's parents necessitates his discharge from

the service for the purpose of assisting them and if such evidence is

produced to the Ministry of Defence, the question of the applicant's

discharge will be reviewed.

On .. January, 1967, the Ministry of Defence again wrote to Mr. C.

saying that Y. had the makings of a reliable seaman and was happy in

his work.

On .. February, Mr. C. pointed out to the Ministry of Defence that this

was directly contrary to the boy's own view of his situation at that

time. The Ministry replied on .. April:

"Since your last letter Y. has been interviewed again. It is true that

he now wants to leave the Service. This change of heart appears to date

from his parents' decision not to emigrate. He says that he was only

happy in the Royal Navy when it replaced the security that his parents

impeding departure had removed. There seems to be little doubt that the

boy is confused and I am bound to say that he is not helped to stand

on his own two feet by pressure from home ... I am afraid that there

are still no reasons compelling enough to warrant Y's release under our

present rules."

Y. persists in desiring to obtain his discharge from naval service, and

contemplates taking the more drastic action of deserting if he cannot

at least obtain an impartial hearing of his case for release. He is

obliged to serve until April, 1976, and can only obtain his discharge

earlier at the discretion of the British naval authorities.

4. Application No. 3438/67 (Z.)

Z., born on .. September, 1943, joined the army as a boy apprentice at

the age of 16 1/2 years. He signed on for 9 years service to start from

the age of 18, making his total commitment 10 1/2 years. He has now

completed 7 1/2 years.

Early in 1967 when he was 23 years old he decided to try to purchase

his discharge. He made preliminary enquiries in June and July 1967 -

not, however, to the competent offices - and was told that he could

make an application 6 years after his 18th birthday, i.e. .. September,

1967. The cost would be £200. He therefore applied for a civilian

position with Hunting Aerial Surveys in connection with his trade

training as a topographical surveyor and had hoped to start in October,

1967. To provide the money his father obtained a second mortgage on his

house.

Mr. Z. formally applied to purchase his discharge on his 24th birthday

and was then informed that this could only be granted 6 years after he

had completed his technical training, i.e. about December 1968 and at

a cost of £150.

In March 1968, the applicant re-applied to transfer to the reserve by

purchase to take up a vacancy at the National College for the training

of Youth Leaders. The manning position in the trade, rank and

age-of-service group in the service to which the applicant belongs

being satisfactory, he has now been informed that he will be

transferred to the reserve forthwith upon payment of £150.

COMPLAINTS

Whereas the applicants allege in their applications the following

violations of the Convention:

(a) of  their right under Article 4, paragraph (1) not to be held in

servitude;

(b) of their right under Article 6, as regards the determination of the

civil rights, to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law, such

violation arises from the fact that the national legislation provides

for no machinery to deal with an application for discharge from army

or naval service;

(c) of their right under Article 13 to an effective remedy before a

national authority.

Whereas, in their submissions following the communication of the case

to the respondent Government, the applicants have added a further

complaint alleging violation of their right under Article 8 to respect

for family life.

Whereas they claim discharge from army or naval service and therefore

relief from oppressive compulsory service tantamount to the status of

servitude and in the alternative, a fair and impartial hearing of the

matters in issue by an independent tribunal and damages.

SUBMISSIONS OF THE PARTIES

Whereas on 6th April, 1968, the Commission decided to communicate the

case to the respondent Government and to invite it to submit its

observations on admissibility;

I. Whereas the respondent Government in its observations of 27th May,

1968, first explained the background and legislation as regards

enlistment into the armed forces and in this context pointed out that

the armed forces must recruit people at an early age since they are

directly competing with industry in the recruitment sphere;

Whereas in this respect the respondent Government stated, in

particular, the following in paragraph 6 of its observations:

"The authorities responsible for the administration of the armed forces

(upon which  the security of the State depends) must ensure the

continuous and efficient manning of such forces if they are to meet

their commitments. The authorities must, therefore, consider any

application for discharge in the light of the requirements of the

Service as well as in the light of the personal reasons put forward by

the individual concerned. Where, however, an individual's family

circumstances are such that his permanent presence with his family is

essential to the solution of family problems, the authorities recognise

those circumstances as being a reason for granting discharge which

overrides manning requirements. Discharge may be granted on payment of

a sum of money or, in cases where the discharge is granted from a

requirement to pay, the individual is released free of charge."

Whereas the respondent Government further presented its "considerations

of admissibility" the essential passages of which are as follows:

Article 4 (1)

"18. ... Paragraph (3) (b) of the article excludes from the ambit of

the term 'forced or compulsory labour', as used in paragraph (2), 'any

service of a military character'. This exclusion, it is submitted,

demonstrates clearly that 'any service of a military character' is to

be understood as being also excluded from the ambit of the words

"slavery or servitude" in paragraph (1), because any argument to the

contrary necessarily involves the anomalous conclusion that although

no service of a military character can be, under the Convention, forced

or compulsory labour, military service many amount to the more

oppressive condition of slavery or servitude..."

"19. ... service in modern conditions in the armed forces of the Crown

(or of any other democratic state, whether such service was entered

into compulsorily or voluntarily) clearly cannot be regarded as

constituting servitude within the meaning of paragraph (1) of that

article. It is submitted that the term 'servitude', in this context,

connotes a condition comparable to that of slavery, save that a person

in a state of servitude may not be the actual property of his master.

That is to say, it implies a deprivation of freedom and personal rights

which quite patently does not exist in the case of persons serving in

the armed forces of the Crown ..."

"20. ... The United Kingdom Government also submit that an essential

feature of servitude is that it has been forced upon a person against

his will, in circumstances where he has no genuine freedom of choice.

In the United Kingdom, no one is required to enter upon military

service and a person who does so chooses this course freely from among

the various forms of employment available to him ..."

"21. In the submission of the United Kingdom Government the complaints

of the applicants of the violation of their rights under Article 4 (1)

are, for the reasons set out in paragraphs 18, 19 and 20 above,

incompatible with the provisions of the Convention or, in the

alternative, manifestly ill-founded and should be considered

inadmissible under Article 27 (2) of the Convention.

22. Further, if the applicants' complaint is that the refusal of the

United Kingdom authorities to discharge them from the armed forces is

tantamount to an act of wrongful detention or confinement, whether for

the purpose of exacting labour or for any other purpose, it is open to

the applicants or any of them to apply to the High Court for a writ of

habeas corpus. By that writ the High Court may command that the person

detained be brought before the court so that the causes of his

detention may be enquired into. If the detention is shown to be

unlawful, the detained person's release will be ordered. None of the

applicants has applied to the court for a writ of habeas corpus."

Article 5

"24. In the submission of the United Kingdom Government an application

for discharge from the armed forces does not involve the determination

of a civil right within the meaning of Article 6 of the Convention. It

is submitted that, on the true construction of Article 6 (1) (in both

the English and French texts), only something which is justiciable in

the courts of the country concerned can properly be regarded as a civil

right or obligation within the meaning of that Article ..."

"25. If Article 6 (1) is not interpreted in the way set out in

paragraph 24 above, the word 'civil' in the phrase 'civil rights' would

be unnecessary ..."

"27. In support of the above submissions the United Kingdom Government

rely upon the decision of the Commission in Application No. 1329/62,

Collection of Decisions, Vol. 9, p. 28, that 'Article 6 applies only

to proceedings before courts of law' and that 'the right to have a

purely administrative decision based upon proceedings comparable to

those prescribed in Article 6 for proceedings in court is not as such

included among the rights and freedoms guaranteed by the Convention.

28. It is the submission of the United Kingdom Government that the

complaints of the applicants of the violation of their right under

Article 6 are ... incompatible with the provisions of the Convention

or, in the alternative, manifestly ill-founded and should be considered

inadmissible under Article 27 (2) of the Convention".

"29. If ... the applicants intend to suggest that there is no

'machinery' in the armed forces of the United Kingdom for the making

of complaints by persons serving therein with regard to such matters

affecting their welfare as the treatment of applications by them for

discharge, the United Kingdom Government state that any such person who

wishes to complain about any such matter is required to do so to a

superior officer; and, if the person so complaining is dissatisfied

with the decision of such officer, he may request that the complaint

be forwarded to the next superior authority. It is provided that all

such requests shall be so forwarded. It is the duty of officers and

authorities to investigate such complaints and take steps to redress

any matter which requires to be redressed. None of the applicants has

requested that his complaint regarding discharge from the armed forces

be referred to the next higher authority."

Article 13

"31. The applicants complain of violations of their right under Article

13 to an effective remedy before a national authority. The United

Kingdom Government submit that the applicants have not even prima facie

established any violation of Article 4 or Article 6 nor of any right

guaranteed by the Convention. The Commission has decided in numerous

cases ... that Article 13 relates exclusively to a remedy in respect

of a violation of one of the rights and freedoms set forth in the

Convention, and that, until such a violation has been established,

there is no basis for the application of Article 13. It is submitted

that there is no basis for the application of Article 13 in these

cases.

II. Whereas the applicants in their observations in reply submitted on

9th July, 1968, do not, in general, contest the respondent Government's

explanations as to the background and the legislation on enlistment

into the armed forces;

Whereas they refer in particular to the respondent Government's

statement, in paragraph 6 of its observations, that in certain cases

family problems are recognised by the authorities "as being a reason

for granting discharge which overrides manning requirements"; whereas

in reply the applicants make the following observations:

"This, it is submitted, is an express acknowledgement by the Government

of the United Kingdom that military service (including recruitment) is

subject to the guaranteed right of respect to family life. The

applicants gratefully adopt what has been conceded by the Government

of the United Kingdom, and hereby formally request that their

respective applications be amended to include an additional claim that

their rights under Article 8 (1) are being violated. Moreover, it is

to be observed that in its concession (cited above) the Government of

the United Kingdom acknowledges by implication that the recruitment of

minors on long-term service contracts does not fall within the

exceptions set out in Article 8 (2) ..."

Whereas the applicants then present their considerations of

admissibility the essential parts of which read as follows:

Article 4 (1)

"9. The Government of the United Kingdom contends that the exclusion

in Article 4 (3) (b) of military service from the meaning of 'forced

or compulsory labour' must also operate to exclude military service

from the prohibition against slavery or servitude. It is submitted that

this is not the natural construction of the article. The drafters of

this article clearly intended that there should be an absolute

prohibition against servitude or slavery, but only a qualified

prohibition against forced or compulsory labour. The exclusion of

'service of military character' from Article 4 (2) bites conceptually

on 'forced or compulsory labour' as being concerned with objective

fact; whereas 'servitude or slavery' is dealing with status. Thus age

and sex would be irrelevant to the question of whether the individual

was being made to undergo forced labour, but would be directly relevant

to the question whether they were slaves. Again, slavery might not in

any way involve forced labour but merely involve a state of ownership.

It is submitted that it is wrong to conclude that slavery or servitude

constitute a 'more oppressive condition' than forced or compulsory

labour. Slavery or servitude is a condition different conceptually from

forced labour, and may or may not be more oppressive. Some forms of

slavery are much less physically, if not psychologically oppressive

than forced or compulsory labour. There is, it is submitted, nothing

anomalous about the conclusion that no military service under the

Convention can be forced or compulsory labour but might amount to

slavery or servitude.

10. It is accepted, as stated in paragraph 19 of the observations of

the Government of the United Kingdom, that the prohibitions in Article

4 (1) imply a deprivation of freedom and personal rights. While it is

conceded that for all those over the age of 21 (or, at very least, over

the age of 18 which is the lowest age of majority in modern civilised

countries) who serve in the armed forces of the Crown there is no

substantial impairment of rights, the same cannot be said, it is

submitted, for infants who lose the very vital protection of the

English law.

11. The United Kingdom Government submit in paragraph 20 that the

involuntariness of service is an essential feature of servitude or

slavery. It is submitted that once again this is to confuse status and

contract ... The fact that each of the four applicants exercised a

freedom of choice to undergo military service is neutral in determining

whether that exercise of choice involved the creation of a legal

status. Whether that status was imposed or created by the applicants

and the Crown does not alter the fact that the status objectively

exists. If the Convention had sought to exclude armed servicemen from

the prohibition of slavery or servitude it would have declared that

'for the purpose of this article the term 'slavery or servitude' shall

not include membership of any armed force'.

12. In the submission of the applicants there is, for the reasons set

out in paragraphs 9, 10 and 11, a violation of their rights under

Article 4 (1). The United Kingdom Government has contended that these

applications should be considered incompatible with the provisions of

the Convention solely on the ground that Article 4, (3) (b) qualified

the absolute prohibition contained in Article 4 (1). For the reasons

expressed herein the applicants submit that there is an incorrect

construction of the relevant provisions of Article 4. The United

Kingdom Government has pointed to no other provisions of the Convention

with which these applications should be considered incompatible. It is

submitted that these applications are moreover not manifestly

ill-founded within Article 27 (2).

13. The applicants admit as alleged in paragraph 22 of the observations

of the United Kingdom that none of them has applied to the English

courts for a writ of habeas corpus. Although the United Kingdom

Government does not specifically request that the Commission should

exercise its powers under Article 27 (3) the applicants treat this

submission of the United Kingdom Government as an argument for

concluding that the applicants have not exhausted all domestic

remedies.

"16. It is submitted that in any event the writ of habeas corpus ad

subjiciendum is available to an applicant only if the confinement is

such as to put the military authorities in such control over the

applicants as to constitute them custodians of their bodies for the

purpose of habeas corpus. In Ex parte Mwenya (1959) 3 W.L.R. 767, 772,

Lord Evershed, M.R. was doubtful if habeas corpus lay in the case where

the applicant was merely restricted from moving out of an area of 1500

miles, in which area there were no limitations on his movements.

17. No English judge could conceivably make an order that would have

the effect of overriding the statutory powers of the military

authorities and the Crown to keep the applicants under military service

for the full period of their engagement ..."

Article 8 (1)

"19. The principle of respect for family life under Article 8 (1)

includes the right of any member of the nuclear family - that is,

husband, wife and dependent or minor children - to the consortium of

every other member. A prime element in that consortium is the right of

each member to reside in the family's chosen place of residence. The

Commission has already recognised that the unity of the family is a

factor to be considered under Article 8. The desirability of

maintaining that unity is recognised by English law, and indeed the

United Kingdom Government specifically recognises it in the context of

the recruitment of young servicemen; see paragraph 6 of the

observations of United Kingdom Government."

"20. A state which ratifies the Convention agrees to restrict its

powers to legislate in such a way as not to infringe the right of its

citizens conferred by the Convention. To provide for the recruitment

and long-term service of minors (even with the express consent of the

minors and their parents or guardians) is to interfere with the right

of respect for family life. That right under Article 8 (1) may be

waived with the consent of those vested with such right but only as

long as the consent is not withdrawn. Any waiver of a right under the

Convention is ambulatory, in the sense that no citizen can

prospectively contract out of rights and obligations imposed under the

Convention."

"21. The applicants were entitled at any time up to their majority or

at least until the age of 21 to claim their discharge from the service

as having the right to live with other members of their family. This

right subsists today in Application No. 3437/67 (Y.) and Application

No. 3435/67 (W.). In the case of Application No. 3436/67 (X.) and

Application 3438/67 (Z.) the right to respect for family life was

infringed until the age of 21 and such infringement was only abated at

the age of majority."

"22. By its observations in paragraph 6 the United Kingdom Government

by implication has conceded that these applications could not come

within the exceptions set out in Article 8 (2)."

Article 6

"23. The United Kingdom Government, in paragraph 24 of its

observations, submits that an application for discharge from the armed

forces of the Crown does not involve the determination of a civil right

within the meaning of Article 6 of the Convention. The submission

proceeds upon the assumption that only something which is justifiable

in the courts of the respondent Government can properly be regarded as

a civil right. The applicants submit that the short, an conclusive

answer to the submission is to be found in the decision of the

Commission as to the admissibility of Application No. 2991/66. In that

case the Commission held that 'the determination of a right to respect

for family life under Article 8 may well be considered as the

determination of a civil right within the meaning of Article 6'. It is

to be observed that in that case, which concerned the refusal by UK

immigration authorities to allow a minor child to enter the United

Kingdom to take up residence with his father, there was no remedy

available to the applicant in the English courts.

24. It is submitted that the determination of a right not to be held

in slavery or servitude under Article 4 may well also be considered as

the determination of a civil right within the meaning of Article 6.

It is therefore further submitted that if the Commission holds (as the

applicants ask it to) that their respective complaints under Articles

4 and 8 cannot be declared manifestly ill-founded, accordingly the

applicants' submission that a civil right existed under Article 6 (1)

in respect of determination under Articles 4 and 8 can also not be

declared manifestly ill-founded.

25. It is to be observed that the submissions made in paragraphs 23 to

27 of the observations of the United Kingdom Government are

substantially in the form submitted to the Commission in Applications

2991/66 and 2992/66. For their part the applicants adopt the

submissions made on behalf of the applicants in Applications 2991/66

and 2992/66.

26. The applicants, in answer to the matters set out in paragraph 29

of the observations of the United Kingdom Government submit that the

reference to the absence of any machinery to deal with an application

for discharge from army or naval service was a submission that there

had been no compliance with the requirements of Article 6 (1) to

provide an independent and impartial tribunal and also a fair and

public hearing.

Article 13

27. The applicants submit that the United Kingdom Government is in

breach of Article 13 because it has failed to provide any remedy or

effective remedy before a national authority for violations of the

prohibition against slavery or servitude and of family rights under

Article 8 by the relevant military authorities."

THE LAW

Whereas the Commission has noted that the respondent Government, in its

observations on admissibility, has referred to the possibility for the

applicants to apply either to the High Court for an order of habeas

corpus or to the higher military authorities for discharge from the

service;

Whereas it is not clear whether the respondent Government, by referring

to the possibility to apply for an order of habeas corpus, wishes to

raise a formal objection of non-exhaustion of domestic remedies under

Article 26 (Art. 26) of the Convention; whereas, in any event, the

Commission has examined ex officio the question whether in the

circumstances of the present case an application for an order of habeas

corpus would have constituted an effective remedy within the meaning

of Article 26 (Art. 26);

Whereas the Commission has noted the applicants' submissions that an

order of habeas corpus can only be obtained in cases of close

confinement and that it could not be granted in respect of any

restriction of freedom based on statutory power; whereas, on the basis

of the information at present available, the Commission finds that both

these elements appear to exclude in the applicants' situation any

chance of success of an application for an order for habeas corpus;

Whereas the respondent Government has also referred to the possibility

of having a complaint forwarded to the superior officers and

authorities of the armed forces, whereas it is again not clear whether

the respondent Government thereby formally submits that the applicants

have failed to exhaust an effective remedy available to them; whereas

the Commission has nevertheless also examined ex officio this question

in the light of Article 26 (Art. 26);

Whereas, it is first observed that all four applicants repeatedly

applied to their military superiors for discharge and that, after this

was refused, three of the cases (W., X., Y.) were taken up either in

the House of Lords or by a Member of Parliament and, in fact, the

Defence Secretary appears to have been aware of all four cases and to

have examined them; whereas in these circumstances it cannot be said

that the applicants failed to take any action which might have led to

their discharge;

Whereas the Commission further considers that mere internal

representations to higher authorities within the military hierarchy

cannot be considered as an effective remedy within the meaning of

Article 26 (Art. 26);

Whereas this provision, although not necessarily presupposing a

judicial review, nevertheless refers only to a reconsideration by some

outside organ which is not part of the decision-making authority

itself;

Whereas, for these reasons, the Commission finds that the applications

are not to be rejected on the ground of non-exhaustion of domestic

remedies under Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of

the Convention;

Whereas the Commission has consequently examined the substance of the

applicants' complaints; whereas, in doing so, the Commission finds it

first necessary to examine the application ex officio in the light of

Article 4, paragraphs (2) and (3) (b) (Art. 4-2, 4-3-b) of the

Convention which state as follows:

"(2)  No one shall be required to perform forced or compulsory labour.

(3)  For the purpose of this article the term 'forced or compulsory

labour' shall not include:

(a)  ...

(b)  any service of a military character or, in case of conscientious

objectors in countries where they are recognised, service exacted

instead of compulsory military service;"

Whereas the Commission has first considered ex officio the question

whether, in view of the exception clause contained in Article 4,

paragraph (3) (b) (Art. 4-3-b), military service is completely outside

the scope of Article 4, paragraph (2) (Art. 4-2), with the consequence

that any complaint made as to such service must in the light of this

provision be rejected as being incompatible with the provisions of the

Convention ratione materiae;

Whereas it is true that Article 4, paragraph (3) (Art. 4-3), is so

worded that any military service or substitute service by conscientious

objectors is not to be included in the term "forced or compulsory

labour";

Whereas, however, the form of drafting applied in Article 4 (Art. 4)

is taken over from Convention No. 29 of the International Labour

Office, concerning Forced or Compulsory Labour, 1930 and it would

moreover be in conformity with the forms of drafting adopted in other

articles of the Convention on Human Rights, such as paragraphs (2) of

articles 8, 9, 10 and 11 (Art. 8-2, 9-2, 10-2, 11-2), to consider

Article 4, paragraph (3) (Art. 4-3), as constituting provisions

permitting limitations of, or exceptions to, the general freedom from

forced or compulsory labour set forth in paragraph (2) (Art. 4-2) of

that article;

Whereas, considering the provisions from this point of view, the

Commission finds that it is competent to examine and pronounce upon

questions involving the interpretation and application of the exception

clauses contained in paragraph (3) (Art. 4-3); whereas in this respect

the Commission refers to its findings in the decision on the

admissibility of Application No. 1468/62, Iversen against Norway

(Yearbook vol. VI, page 278 [324]) and in the Report concerning the

Grandrath case, Application No. 2299/64, (page 34 of the Report)

confirmed by Resolution (67) DH 1 of the Committee of Ministers of 29th

June, 1967;

Whereas consequently the Commission finds  that a complaint raising an

issue of "forced or compulsory labour" under paragraph (2) of Article

4 (Art. 4-2), even if relating to one of the situations regulated in

paragraph (3) of that article (Art. 4-3), is not to be considered as

being incompatible with the provisions of the Convention within the

meaning of Article 27, paragraph (2) (Art. 27-2);

Whereas, indeed, the Commission finds it necessary in the present case

to examine and pronounce upon the question whether the exception clause

of Article 4, paragraph (3) (b) (Art. 4-3-b), also covers military

service into which a person has entered as a volunteer; whereas in this

respect the Commission has had regard to the history of this provision;

Whereas Article 4 (Art. 4) of the European Convention was drafted on

the basis of the earlier projects of Article 8 of the United Nations

Covenant on Civil and Political Rights which in turn was partly based

on the 1930 ILO Convention; whereas Article 2, paragraph (2) (a)

(Art. 2-2-a), of that Convention reads as follows:

"... for the purposes of this Convention, the term 'forced or

compulsory labour' shall not include:

(a)  any work or service exacted in virtue of compulsory military

service laws for work of a purely military character."

Whereas, however, all drafts of the United Nations and of the Council

of Europe from the very beginning replaced the term "any work or

service exacted in virtue of compulsory military service laws" used in

the ILO Convention by the term "any service of a military character";

Whereas no reasons for this change are to be found in the preparatory

work;

Whereas, however, it is safe to assume that in omitting the word

"compulsory" it was intended to cover also the obligation to continue

a service entered into on a voluntary basis;

Whereas consequently the Commission finds that the service entered into

by the applicants is subject to the limiting provision under Article

4, paragraph (3) (Art. 4-3), and therefore any complaint that such

service constitutes "forced or compulsory labour" must be rejected as

being manifestly ill-founded in view of the express provision of

Article 4, paragraph (2) (b) (Art. 4-2-b) of the Convention;

Whereas the applicants submit, however, that the service to which they

are presently bound without any possibility of discharge violates

Article 4, paragraph (1) (Art. 4-1), of the Convention which reads as

follows:

"(1)  No one shall be held in slavery or servitude."

Whereas, while not alleging that their service amounts to "slavery"

they do submit that it constitutes a form of "servitude"  within the

meaning of the Convention;

Whereas the Government of the United Kingdom contends that the

exclusion in Article 4, paragraph (3) (b) (Art. 4-3-b), of military

service from the meaning of "forced or compulsory labour" must also

operate to exclude military service from the prohibition against

slavery or servitude;

Whereas the applicants, on the other hand, submit that the drafters of

this article clearly intended that there should be an absolute

prohibition against servitude and slavery, but only a qualified

prohibition against forced or compulsory labour; whereas they further

submit that the exclusion of "service of military character" from

Article 4, paragraph (2) (Art. 4-2), bites conceptually on "forced or

compulsory labour";

Whereas the Commission is of the opinion that "servitude" and "forced

or compulsory labour" are distinguished in Article 4 (Art. 4) and,

although they must in fact often overlap, they cannot be treated as

equivalent, and that the clause excluding military service expressly

from the scope of the term "forced or compulsory labour" does not

forcibly exclude such service in all circumstances from an examination

in the light of the prohibition directed against "slavery or

servitude";

Whereas indeed there are historical examples of uncontestable slavery

or servitude being used for purposes of military service;

Whereas the employment for such service of a person subjected to a

state of slavery or servitude would not detract from this status if

otherwise established; whereas thus it proves necessary to examine the

general situation of the particular group of persons employed in

military service in order to determine whether an allegation that they

are kept in "slavery or servitude" is well founded or not; whereas

consequently the Commission finds that the allegation to this effect

made by the applicants in the present cases cannot be rejected as being

incompatible with the provisions of the Convention within the meaning

of Article 27, paragraph (2) (Art. 27-2);

Whereas the Commission has therefore proceeded to an examination of the

general situation of those who, like the applicants, have entered as

minors into the armed forces of the United Kingdom; whereas it is

clear, and in fact admitted by the applicants, that generally the duty

of a soldier who enlists after having attained the age of majority, to

observe the terms of his engagement and the ensuing restriction of his

freedom and personal rights does not amount to an impairment of rights

which could come under the terms of "slavery or servitude"; whereas

furthermore the applicants themselves mention that both the age of

majority and the minimum age for the recruitment of volunteers into the

armed forces widely vary in different countries; whereas it is true

that such recruitment under the age of 18 appears to be exceptional;

Whereas, however, the Commission finds that the young age at which the

applicants entered into the services cannot in itself attribute the

character "servitude" to the normal condition of a soldier; whereas the

applicants refer to the particular protection of minors provided for

in all legal systems in regard to their own possibly unconsidered

engagements;

Whereas in this respect the Commission has noted that parental consent

is required in the United Kingdom at least for boys entering the armed

forces under the age of 17 1/2 years and that in the present cases such

consent was in fact given; whereas the protection of minors in other

fields of law consists exactly in the requirement of parental consent

and also in the existence of the principle that an engagement entered

into by the minor will be void without such consent but valid and

binding in if the consent has been duly given; whereas thus the

provisions of the United Kingdom concerning the recruitment of boys

under 17 1/2 years take into account the special situation of a minor;

Whereas consequently the terms of service if amounting to a state of

servitude for adult servicemen, can neither have that character for

boys who enter the services with their parents' consent;

Whereas consequently an examination of the cases as they have been

submitted does not disclose any appearance of a violation of the right

set forth in Article 4, paragraph (1) (Art. 4-1), of the Convention;

Whereas it follows that under this aspect the applications are

manifestly ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention;

Whereas the applicants in their observations of 9th July, 1958, also

invoke Article 8 (Art. 8) of the Convention and allege violations of

their right to respect for their family life insofar as they are still

minors (Y. and W.) and insofar as concerns the period of service which

the other two applicants (X. and Z.) had to perform before the age of

21; whereas the applicants submit that they are or were "entitled up

to their majority or at least until the age of 21 to claim their

discharge from the service as having the right in live with other

members of their family"; whereas they refer to this respect to a

remark in the respondent Government's observations of 27th May, 1968,

to the effect that "an individual's family circumstances" may in

certain cases be recognised as "being a reason for granting discharge

which overrides manning requirements"; whereas the applicants consider

that, in the absence of any observations by the respondent Government

referring to paragraph (2) of Article 8 (Art. 8-2), the Government had

conceded that the applications should not come within the exceptions

set out therein;

Whereas the Commission is of the opinion that the term "respect for

family life" cannot reasonably be given such a wide interpretation as

to allow an individual - even a minor - to free him from the

obligations under a long-term service engagement freely entered into

but involving a separation from his family except for periods of leave;

Whereas such is indeed the normal condition of anyone in the armed

forces and even in many civilian occupations; whereas it is true that

in the present cases this separation from the family is, or was, taking

place at a time when the applicants are, or were, still minors;

Whereas the refusal of discharge from a service involving separation

of a minor from his family to which both the minor and his parents had

consented for a certain period of time, cannot be said in the

Commission's opinion to involve an issue of the right to respect for

family life;

Whereas consequently an examination of the case as it has been

submitted, does not disclose any appearance of a violation of the right

set forth in Article 8 (Art. 8) of the Convention; whereas it follows

that this part of the applications is also manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Whereas the applicants also allege a violation of their right under

Article 6 (Art. 6), to have their civil rights determined in a fair and

public hearing by an independent and impartial tribunal established by

law and whereas they complain that the national legislation does not

provide for such a tribunal to deal with an application for discharge

from army or naval service;

Whereas the respondent Government contests that the request for

discharge involves a "civil right or obligation" and submit that "only

something which is justiciable in the courts of the country concerned

can properly be regarded as a civil right or obligation within the

meaning of that article", and that otherwise the word "civil" would be

unnecessary;

Whereas the respondent Government also refers to the Commission's

Decision in Application No. 1329/62, (Collection of Decisions, Vol. 9,

p. 28), where the Commission expressed the view  that "Article 6

(Art. 6) applies only to proceedings before courts of law" and that

"the right to have a purely administrative decision based upon

proceedings comparable to those prescribed in Article 6 (Art. 6) for

proceedings in court is not as such included in the right and freedoms

guaranteed by the Convention";

Whereas with regard to these submissions of the respondent Government

the Commission recalls that it has held in constant jurisprudence that

the term "civil rights and obligations" cannot be construed as a mere

reference to the domestic law of the High Contracting Party concerned

but, on the contrary, must be interpreted independently (see Decision

on the admissibility of Applications No.s 1931/63, Yearbook vol. VII,

p. 222, and 2145/64, Collection of Decisions, Vol. 18, p. 17); whereas

the Commission also maintained this view recently before the European

Court of Human Rights, "Neumeister" case, judgment of 27th June, 1968,

page 28); whereas the Commission has further emphasised in several

decisions that the question whether a right or an obligation is of a

civil nature does not depend on the particular procedure prescribed by

domestic law for its determination but solely on an analysis of the

claim itself (Applications Nos. 808/60, Yearbook V, p. 122, and

2145/64, Collection of Decisions, p. 16);

Whereas consequently the "non-justiciable" character in English law of

a claim to be discharged from service in the armed forces cannot be

considered as excluding such claim from the applicability of the

requirements established in Article 6, paragraph (1) (Art. 6-1), for

the "determination of civil rights and obligations"; whereas, on the

contrary, the Commission finds it necessary to examine whether,

according to the Commission's interpretation of this autonomous

concept, Article 6 (Art. 6), may be applicable to a serviceman's

application for discharge from military service before the end of the

term for which he has enlisted;

Whereas the respondent Government particularly emphasised the

importance of the word "civil" mentioned in Article 6, paragraph (1)

(Art. 6-1) and submits that this term must be interpreted in a way

restricting the scope of those rights to which this provision should

apply;

Whereas the applicants in reply to this argument refer to the case of

Alam (Khan) and Singh against the United Kingdom (Applications Nos.

2991/66 and 2992/66) and to the submissions made on behalf of the

applicants in those cases (see the summary, Collection of Decisions,

Vol. 24, p. 126); whereas it was there argued that the term "civil"

should be widely interpreted and that its function within Article 6

(Art. 6) was to distinguish such matters from criminal charges";

Whereas the Commission, without entering into the general problems of

an interpretation of the concept of "civil rights and obligations",

finds that the subject at issue in the present cases does not fall

within the scope of that concept; whereas in this respect the

Commission has had regard both to the preparatory work and to its own

previous jurisprudence;

Whereas the wording of Article 6, paragraph (1) (Art. 6-1), of the

Convention is taken over from the early drafts for Article 14,

paragraph (1), of the United Nations Covenant on Civil and Political

Rights;

Whereas the word "civil" was not contained in the first drafts but

inserted subsequently in the drafting process and whereas the

considerations leading to this amendment are to be found in the

discussions of the United Nations Commission for Human Rights (see the

summary given by J. Velu, le problème de l'application aux juridictions

administratives des règles de la Convention Européenne des Droits de

l'Homme relatives à la publicité des audiences et des jugements, in

Revue de Droit International et de Droit Comparé, Brussels, 1961, pp.

130 et seq.); whereas it is true that in these discussions different

views were expressed as to the meaning and purpose of this amendment;

whereas it appears, however, that the delegates, whether favouring or

opposing the amendment, agreed generally that a right to determination

by a court of a question concerning military service and taxes would

be excluded from the field of application of the provision; whereas in

this respect particular reference is made to the declarations by the

Delegates of the United States, France and Egypt (see United Nations

Doc. E/CN 4 SR 107, pages 3, 6 and 8);

Whereas the drafters of the European Convention on Human Rights, when

adopting a text partly based on the work of the United Nations, without

reconsidering the concept of "civil rights and obligations" expressly

referred to the results achieved in the drafting process in the United

Nations framework (see Velu loc. cit. p. 159 et seq.);

Whereas consequently the intentions and views then expressed must also

be assumed to be those of the High Contracting Parties to the European

Convention on Human Rights and must be taken into account when

interpreting and applying Article 6, paragraph (1) (Art. 6-1), of this

Convention;

Whereas in the light of the meaning thus to be given to this provision

and determination of any questions related to military service cannot

be reasonably considered as falling within its scope;

Whereas furthermore the same conclusion also follows from the principle

already established in the Commission's jurisprudence that disputes

between civil servants and the State do not involve the "determination

of civil rights or obligations"; whereas in this respect the Commission

refers to its decisions on the admissibility of Applications Nos.423/58

(Collection of Decisions, Vol. 1) and 734/60 (Collection of Decisions,

Vol. 6, p. 32); whereas the status of an enlisted serviceman is in this

regard similar to that of a civil servant; whereas therefore the

Commission finds that the applicants' claim to be discharged from the

armed forces before the end of their term cannot be considered as a

"civil right" within the meaning of Article 6, paragraph 1 (Art. 6-1);

Whereas it is true that the applicants refer more particularly to their

rights to respect for family life under Article 8 (Art. 8) and to

freedom from servitude under Article 4, paragraph (1) (Art. 4-1), of

the Convention;

Whereas they claim that these are civil rights to be determined under

Article 6, paragraph (1) (Art. 6-1), by an independent and impartial

tribunal;

Whereas, however, the Commission has already found that the right to

respect for family life cannot reasonably be given such a wide

interpretation as to allow the applicants to free themselves from the

obligations under their service engagements; whereas consequently the

determination of their requests for discharge from service did not in

fact involve any issue of the right to respect for family life which

might be qualified as a "civil right" within the meaning of Article 6,

paragraph (1) (Art. 6-1);

Whereas the applicants similarly invoke as a "civil right" their right

under Article 4, paragraph (1) (Art. 4-1), of the Convention not to be

subjected to servitude; whereas even assuming that this right is to be

considered as a "civil right" within the meaning of Article 6,

paragraph (1) (Art. 6-1), such right was not in fact in issue in the

present cases since the Commission has already found that the

applicants' condition cannot be said to amount to a state of

"servitude";

Whereas it follows that also under the aspects of the Articles 8 and

4, paragraph (1) (Art. 8, 4-1), no "civil rights" of the applicants

were involved;

Whereas consequently an examination of the case as it has been

submitted including an examination made ex officio, does not disclose

any appearance of a violation of the right set forth in Article 6,

paragraph (1) (Art. 6-1);

Whereas it follows that this part of the applications is also

manifestly ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2) of the Convention;

Whereas finally the applicants complain that the United Kingdom

Government was responsible for a breach of Article 13 (Art. 13) of the

Convention in that it failed to provide any effective remedy before a

national authority for the alleged breaches of the rights to freedom

from servitude under Article 4, paragraph (1) (Art. 4-1), and respect

for family life under Article 8 (Art. 8) of the Convention; whereas,

however, Article 13 (Art. 13) relates exclusively to a remedy in

respect of a violation of one of the rights and freedoms set forth in

the other provisions of the Convention (see the Commission's decisions

on the admissibility of Applications Nos. 472/59, Yearbook, Vol. III,

p. 212, 655/59, Yearbook, Vol. III, p. 286 and 3325/67, Collection of

Decisions, Vol. 25, p. 124); whereas the applicants not having

established even the appearance of a violation of one of the other

rights invoked by them, there is in the present cases no basis for the

application of Article 13 (Art. 13) of the Convention;

Whereas it follows that this part of the applications is incompatible

with the provisions of the Convention within the meaning of Article 27,

paragraph 2 (Art. 27-2), of the Convention (see also the decision on

the admissibility of Application No. 2992/66, Collection of Decisions,

Vol. 24, p. 131);

Now therefore the Commission declares these applications INADMISSIBLE