THE FACTS

Whereas the facts presented by the parties may be summarised as

follows:

The Applicant is a Norwegian dentist, born in 1934 and living in

Sandejord. His Application was presented by Mr. Johan Hjort, barrister

practising at the Supreme Court of Norway.

The facts as represented from the pleadings of the parties appear to

be as follows:

1. On 28th July 1949, a Law providing for a public dental service was

enacted. For the purpose of implementing this Act the country was

divided into districts. In each district there was to be a district

dentist responsible to a regional dentist who would be the head of the

public dental service in his particular region. It was realised at the

time when the Law was enacted that it would be difficult to fill all

the positions of district dentists which were to be established,

especially in northern Norway.

In 1950, the Ministry for Social Affairs raised the question of

increasing the supply of dentists for the public dental service. It was

proposed that students admitted to the Norwegian Dental College as well

as those studying abroad, were to be required, on beginning their

studies, to make a statement in which they undertook, on completing

their studies, to work for a period not exceeding two years in the

public dental service in any district to which they were assigned by

the Ministry. This scheme was brought into effect in 1951 and, in 1954,

a Royal Decree was published which amended accordingly the regulations

for admission to the Norwegian Dental College.

In 1955, however, some doubt was expressed in student quarters about

the legal force of the undertakings which they had been required to

make and, on 2nd March 1956, the students graduating that year wrote

to the Ministry for Social Affairs stating, inter alia, that they

considered themselves legally justified in breaking the agreement. This

led to the passing, on 21st June 1956, of a provisional Act relating

to obligatory public dental service for dentists. The text of this Act

was as follows:

"Provisional Act of 21st June, 1956,

Relating to Obligatory Public Service for Dentists.

Paragraph 1. Persons who in 1955 or later have passed the examination

in dentistry in this Kingdom, or have obtained approval of a foreign

examination in dentistry giving it the same effect as the Norwegian

examination in dentistry pursuant to Act of 8th July 1949, may, on the

basis of a decision of the Ministry for Social Affairs, be required for

a period of up to 2 years to take a position in public dental service

which, though having been advertised, remains vacant.

Unless the dentist concerned agrees to some other arrangement, the

assignment shall be given in such a manner that the service can be

commenced at latest 3 months after the conclusion of his academic

studies or after the termination of such military service as is

immediately subsequent to his examination, - or - if the dentist has

passed his examination in 1955 - at latest 3 months after this Act

enters into force. Assignments may not be made for service which

extends beyond 30th June 1963.

Paragraph 2. By public dental service is understood:

1. municipal dental care for schools,

July 1949,

3. municipal dental care for children and young people, being

respectively below and above the age of obligatory school attendance.

Paragraph 3. For service under paragraph 1. the dentist is entitled to

the remuneration which is stipulated for the position to which the

assignment applies. The dentist is moreover entitled to a refund of

reasonable travelling expenses in connection with his assumption of the

post assigned, and for the return journey to his place of ordinary

residence. The State is responsible for payment and can claim

reimbursement by the county or municipality concerned. The King may

issue further regulations concerning the calculation and fixing of the

remuneration, etc. under the second paragraph.

Paragraph 4. Contravention of an assignment issued under the authority

of this Act is punishable by fine, or by imprisonment up to 3 months.

Paragraph 5. This Act enters into force immediately."

The Government's Bill was introduced by Parliament on 16th March 1956

and was strongly opposed by the Opposition.

However, the Act was passed by Parliament by the majority vote of the

Government Party after some members of the Opposition had argued that

the Act introduced a compulsory direction of labour and was, therefore,

contrary to the Norwegian Constitution and to Article 4 of the

Convention. These arguments were rejected by the Government which

maintained that this direction of labour was necessary to implement a

public dental service.

2. The Act was applied to the Applicant in the following circumstances:

He passed his matriculation examination in 1953 and then applied for

admission to the Norwegian Dental College. Alternatively, he asked the

Dental College to arrange for him to be sent to one of the foreign

universities whose degrees were recognised as equivalent to Norwegian

degrees. His application was refused on the ground that the marks he

obtained for the entrance examination were not adequate. It was

recommended to him that he should sit once more for the matriculation

examination with a view to improving his marks but, nevertheless, the

Applicant went to Germany on his own initiative and passed a dental

examination at the Medical Academy of Düsseldorf in 1957.

An examination diploma from that Academy is recognised in Norway as

equivalent to a Norwegian degree and, indeed, the Applicant studied in

Düsseldorf together with a number of Norwegian students who had been

sent there by the Norwegian Dental College. Since the Applicant started

his studies at his own expense, without assistance from the Norwegian

Agency for Student Loans, he was not required to give any undertaking

to serve in the public dental service after the completion of his

studies, nor has he later made any such statement. In fact, such

written declarations have been discontinued in 1956 after the

promulgation of the Provisional Act.

On his return to Norway, the Applicant, whose first petition for

admission into the Norwegian Dental College had been rejected in 1957

while his second had been accepted in 1958, attended a supplementary

course at the College which is compulsory for all candidates with a

foreign diploma. He passed the test at this course in September 1958

and then carried out his military service until December 1959 as a

military dentist. Towards the end of his service he received from the

Ministry for Social Affairs a list of vacancies in the public dental

service and was asked to indicate the post or posts for which he wanted

to apply.

On 2nd November 1959 the Applicant sent a letter to the Ministry for

Social Affairs in which he applied for a position in the public dental

service in southern Norway but, on 4th December 1959, he was informed

that his application could not be considered and that he would be

directed to take over the positions of dentist in the Moskenes district

in the region of Nordland. Since he had performed his military service

in northern Norway the period of his compulsory assignment was limited

to one year and on 7th December 1959 the Applicant applied in vain for

a reduction of that period. At a meeting with representatives of the

Ministry for Social Affairs, on 14th December 1959, he accepted this

post for the period envisaged by the Ministry and took over the

position in Moskenes on 11th January 1960. However, he gave up his work

on 20th May 1960 and left, having in a letter of 21st March 1960

informed the Ministry for Social Affairs of his intention to do so.

Criminal proceedings were subsequently instituted against the Applicant

by writ issued by the Chief of Police of Sandefjord on 3rd November

1960. By decision of the Sandefjord Town Court of 20th February 1961,

the Applicant was ordered to pay a penalty of kr. 2,000, or,

alternatively, to serve a prison sentence of 30 days for violation of

the Provisional Act of 21st June 1956.

The Applicant appealed against this judgment to the Supreme Court by

notice of appeal dated 28th February 1961. He submitted:

1) that the Provisional Act of 21st June 1956 was invalid as being

contrary to the Constitution;

2) that the Act was invalid as it was contrary to the European

Convention for the Protection of Human Rights; and

3) that the Act was only intended to apply to students who, before

commencing their studies, has made a statement undertaking for a period

of not more than two years after the completion of their studies, to

serve in the public dental service; and that the Act did not therefore

apply to him who had made no such statement.

By decision of the Supreme Court of 16th December 1961 the Applicant's

appeal was dismissed. Of the five members of the Supreme Court, three

judges held that none of the three objections could be accepted while

the other two members of the Court held that objection 3) was valid and

that the Applicant should be acquitted. These two judges felt that

there was no need to express an opinion on the two other submissions

made by the Applicant.

The majority finding of the Court, as pronounced by Justice Hiorthöy,

held as follows:

"Defending Counsel's attack on constitutional grounds, on the general

validity of the Provisional Act of 21st June 1956 regarding civilian

service for dentists is, I think, clearly ill-founded. I do not

entirely rule out the possibility that courts may, in extreme cases,

find a Law to be inapplicable because it is contrary to certain general

principles of law of a constitutional nature, even if it does not

violate any definite provision in the Constitution. But it goes without

saying that it would take a good deal for a Law, enacted by Parliament

(Stortinget) and approved by the King, to be ruled out in this way as

being contrary to the spirit and principles of the Constitution. In

view of the history and background of the above-mentioned Law, the

manner in which it is applied and the restrictions as to time governing

both the Law and the orders of assignments which are based on it, it

seems to me quite clear that the Law cannot be ruled out on such

grounds.

The position is much the same as regards the claim that the Law is

invalid, as being contrary to Article 4 of the European Convention of

4th November 1950 for the Protection of Human Rights and Fundamental

Freedoms. There is little doubt to my mind that the Convention's

stipulation that no one shall be required to perform forced or

compulsory labour cannot be reasonably interpreted as applying to the

obligations of a public nature arising in the present case. The work

in question is of short duration, well-paid, based on the professional

qualifications of the person concerned and in immediate continuation

of his completed studies. Even if, at the time, such service is, as may

occur in many cases, contrary to the interests of the individual

concerned, it is clear to me that it cannot be regarded as an

infringement, let alone a violation, of Human Rights. As, therefore,

I do not find that there is any conflict between the Convention and the

Norwegian Law in question, there is no need for me to go into the

question as to which should be given preference in the event of a

conflict."

The Applicant has paid the fine imposed upon him.

The allegations of the Applicant

3. Whereas the Applicant's counsel submits that the Act and the order

assigning the Applicant to the dental district of Moskenes are contrary

to Article 4 of the Convention. His particular submissions in support

of this allegation are set out below (paragraphs 6 - 9). He further

alleges that Articles 8 and 11 of the Convention have been infringed

(paragraph 10).

The claims of the Applicant

4. Whereas, in his letter of 8th June 1962, the Applicant's counsel

claims "that the Provisional Act of June 21st, 1956 is invalid as being

contrary to Article 4 of the Convention. It follows that the order of

the Ministry for Social Affairs directing him to take over the position

of district dentist in Moskenes is invalid and that the judgment passed

on him by the national courts cannot be enforced."

In his Reply of 1st March 1963 the Applicant's counsel, admitting that

his above claims were perhaps misleading, restated his claims to the

effect that the Commission, after an examination of the Application

a) should state its opinion that the Provisional Act of 1956, as

applied to the Applicant by order of the Ministry, is contrary to

Article 4 of the Convention;

b) should make such proposals as it sees fit in accordance with Article

31 of the Convention. He added that the Commission was called upon to

decide "the general issue whether or not the Act itself was contrary

to the provisions of the Convention".

The submissions of the Parties

5. Whereas the submissions of the Parties may be summarised as follows:

The Respondent Government, in its observations of 7th January 1963, its

Reply of 1st June 1963 and its oral submissions on 30th and 31st

October 1963 raised the following four objections to the admissibility

of the Application:

a. that the Application had been lodged out of time and should be

rejected in accordance with Article 27, paragraph (3), of the

Convention, for non-observance of the six months' rule laid down in

Article 26 (see paragraph 6).

b. that the Application was incompatible with the provisions of the

Convention and should be rejected in accordance with Article 27,

paragraph (2), of the Convention (see paragraph 7).

c. that the Application was an abuse of the right of petition under

Article 25 of the Convention and should be rejected in accordance with

Article 27, paragraph (2), of the Convention (see paragraph 8).

d. that the Application was manifestly ill-founded and should be

rejected in accordance with Article 27, paragraph (2), of the

Convention (see paragraph 51).

6. As regards the contention that the Applicant did not observe the six

months' time-limit laid down in Article 26 of the Convention

The Respondent Government, in its observations of 7th January 1963,

submitted that the final decision in the criminal proceedings against

the Applicant was given by the Supreme Court of Norway on 16th December

1961. Accordingly the six months' time-limit prescribed in Article 26

expired on 16th June 1962. The Application was dated 8th June 1962 but

was received and registered by the Secretariat of the Commission on

18th June. Rule 48 of the Rules of Procedure of the Commission stated

that, for the purpose of determining any time-limits, the date of the

filing of the pleadings with the Secretariat General should alone be

taken into consideration. Consequently the Commission could not and did

not deal with the matter within the six months' time-limit laid down

in Article 26 of the Convention.

The Applicant's Counsel, in his observations of 1st March 1963, agreed

that the time-limit expired on 16th June 1962. The Application was

dated 8th June 1962, however, and was acknowledged by letter dated 12th

June 1962 from the Secretary to the Commission. The application form,

which was itself not a necessary document since it might be replaced

by equivalent documents, was dated 16th June. This was acknowledged by

a letter of 20th June stating that it had been registered on 18th June.

The time-limit was pointed out to the Secretary to the Commission who

wrote confirming that the effective date of the filing of the

Application was 8th June 1962.

7. As regards the contention that the Application is incompatible with

the provisions of the Convention

The Respondent Government stated in its observations of 7th January

1963, its Reply of 1st June 1963 and during the oral hearing, that the

Application contained three submissions namely:

1. that the Commission was requested to declare the Provisional Act of

June 1956 invalid;

2. that the Commission was requested to declare invalid the order of

the Ministry of Social Affairs directing the Applicant to take over the

position of district dentist in Moskenes;

3. that the Commission was requested to declare that the judgment of

the national court could not be enforced.

It submitted that all three claims were incompatible with the provision

of the Convention for the following reasons:

As to 1. The Commission had no competence, either under the Convention

or under any general principle of international law, to declare invalid

an Act duly passed by the Norwegian Legislative authority. The Supreme

Court of Norway decided on 16th December 1961 that the Act was valid

and the Commission could in no sense act as a further Court of Appeal.

As to 2. The Commission had no competence to declare on the validity

of orders or decisions given by the proper Norwegian administrative

authorities. The validity of such orders was also in this case

confirmed by decisions of the Sandefjord Town Court and of the Supreme

Court and the Commission had no appellate jurisdiction in regard to

such orders.

As to 3. The Commission had no competence to decide on the question of

the enforcement of a valid decision by the Supreme Court of Norway.

The Government submitted that the Applicant had amended his claims in

his counter-observations of 1st March 1963 and that the Convention does

not provide for such "re-writing" of an application, particularly when

it is to the benefit of the Applicant and prejudicial to the

Government. The Commission, in view of Article 27, paragraph (2), of

the Convention, may only consider the petition ("requête") itself. It

was further submitted that the Applicant's two new claims were

irreconcilable with the provisions of the Convention. These new claims

were moreover inadmissible as having been introduced more than six

months after the final decision (Article 26 of the Convention). The

Commission was not competent to pronounce itself on any "general

issues" and the proceedings should be confined to this particular

Application which should be considered on the basis of the original

petition and not on the claims as later amended. The Commission was not

competent to examine the Provisional Act of 1956 in abstracto but only

to deal with the circumstances of this particular case (compare

Commission's decision in Application Number 290/57).

The Applicant's Counsel, in his counter-observations of 1st March 1963,

his rejoinder of 15th July 1963 and during the oral hearing, submitted

that the Norwegian Government had accepted the authority of the

Commission in accordance with Article 31 of the Convention to state its

opinion upon Norwegian law, administrative practices and judicial

decisions. It followed that the organs constituted under that

international agreement would be entitled to deliver opinions on

national enactments and administrative or judicial practices, even if

not expressly invested with such powers.

The Applicant's Counsel contested the Government's suggestion that he

had rewritten his petition. The issue raised was still the same,

namely, whether or not Article 4 of the Convention had been infringed.

The objections made by the Government were purely formalistic. There

was no material difference between the wording in the Application and

in the counter-observations.

In order to decide whether or not a violation of Article 4 had been

committed in regard to the Applicant, the Commission had necessarily

to look at the Provisional Act and to determine whether or not its

provisions complied with the requirements of the Convention. The

logical way of approaching the issue raised was first to decide on the

compatibility of the Act which was thus the "general issue" and then

to look at the individual aspects of the Applicant's case. This method

could not be considered an examination in abstracto of the Application

as alleged by the Government.

8. As regards the contention that the Application was an abuse of the

right of petition

The Respondent Government, in its observations of 7th January 1963, in

its Reply of 1st June 1963 and during the oral hearing, submitted that

the Application was abusive as, although it was absolutely clear that

the Applicant had to bear the full burden of proof, he had relied upon

loose and unsubstantiated accusations, leaving it to the Government of

Norway to produce all the basic documents in the dispute.

It was further abusive in the sense that the Commission should not be

used as a forum for domestic politics. Since Norway was a democracy,

in the enactment of almost all laws some divergence of opinion would

be manifest in Parliament as well as in the Press. The present

enactments were passed in a democratic manner and were purely a matter

of domestic politics. The Applicant clearly broke his agreement of 14th

December 1959 with the Ministry for Social Affairs for purposes of

domestic politics and in this respect the Government referred to the

Applicant's letter of 21st March 1960 to the Ministry for Social

Affairs in which he alleged that the Act of 1956 was an attempt to

"socialise" the profession of dentistry. This allegation was entirely

incorrect, as was his statement that the Bill of the 1956 Act was

fought by a united Opposition on the basis of its being contrary to the

Convention.

The Commission was not competent to decide upon questions raised on

such grounds. The behaviour of the Applicant could not be looked upon

as acts of good faith deserving protection under the Convention.

The Applicant's Counsel, in his counter-observations of 1st March 1963

and in his preliminary and final rejoinders respectively of 15th July

and 29th August 1963, submitted that the question of burden of proof

was not important in this case. Clearly he had the burden of proof of

his case but the Government had the burden of proof in regard to its

contention that the 1956 Act was within the limits of Article 4 of the

Convention.

Since the Provisional Act had, a long time previously, been promulgated

and prolonged, it was not a question of raising domestic political

issues in the Commission.

The question of burden of proof was at this stage of theoretical

interest only. The Applicant had made out a prima facie case that a

breach of the Convention had occurred. The burden of proof was then

shifted so that the Respondent Government would have to prove that the

measures taken were not contrary to the Convention. In order to decide

this issue, it was obviously necessary for the Commission to evaluate

the general issue as to whether or not the Provisional Act of 1956 was

compatible with Article 4 of the Convention.

In reply to the allegation that the Applicant had launched "loose and

unsubstantiated accusations against a responsible Government" is was

pointed out: that a unanimous opposition had fought the Provisional Act

in the Storing on the ground that it was against the Convention; that

two justices of the Supreme Court had been of the opinion that the

Provisional Act could not be invoked against the Applicant; that the

Dentists' Association and the whole Federation of Academic Professions

had taken steps before the Courts against the compulsory measures; and

that the Applicant had brought a specific case before the Commission.

During the oral hearing, Applicant's counsel further submitted that all

cases before the Commission had domestic or political aspects and the

Commission could not be debarred from looking into issues of domestic

policy if it was properly to accomplish its task of protecting human

rights. The contentions of the Government were, in this respect, very

dangerous for the competence of the Commission in general and, if

successful, would render the Commission impotent.

9. As regards the contention that the Application is manifestly

ill-founded

a. as regards the question whether or not the service required from the

Applicant is "forced or compulsory labour" within the meaning of

Article 4, paragraph (2), of the Convention

The Respondent Government, in its observations of 7th January 1963, its

Reply of 1st June 1963 and during the oral hearing, submitted that the

Applicant had not been subjected to "forced or compulsory labour". It

was pointed out that this term should be given a reasonable and working

interpretation so as not to prevent a democratic government from

enacting measures necessary for extending social benefit to its

citizens.

The Respondent Government submitted that, as regards the general

background of the case, the Commission should take into account the

particular circumstances prevailing in Norway at the time when

Parliament passed the Act of 1956.

When trying to give to its citizens all modern social benefits, the

Government was faced with exceptional geographical problems. The

country was situated in the same latitudes as Greenland, Labrador and

Alaska, one-third of it lying north of the Arctic circle. It was barren

and mountainous, the coast heavily indented with fjords and fringed by

150,000 islands. Only 4 % of the surface was cultivable. The Act of

1956 was aimed at helping, inter alia, the northern provinces which,

though comprising 30 % of the territory, were inhabited by only 10 %

of the population, approximately 4 persons per km².

While the southern parts of the country benefited from adequate social

service, the outlying districts had a deplorable lack of such

facilities which seriously affected the social and health conditions

of these communities. It was pointed out that in 1946 there was in Oslo

one dentist per 650 inhabitants whereas in the provinces of Finmark,

Froms and Nordland the ratio was one dentist per 13,000, 6,000 and

5,500 inhabitants respectively. Moreover, adequate dental care was

rendered even more difficult by the enormous distances, the

difficulties of communication and the arctic weather conditions

prevailing during the winter months.

The Acts of 1949 and 1956 were an attempt to overcome these

difficulties by making dental care available to the populations of

these isolated districts and they should be considered in the light of

their humanitarian and social purpose.

The Respondent Government, by the Act of 1949, made provision for free

dental treatment for children and young people and for treatment at

stipulated fees for others, the dentists employed in the Public Dental

Service being public officials. It was, however, found difficult to

fill vacant posts as district dentists in the northern areas of the

country. To fill the posts created by the 1949 Act, two special

measures were introduced:

1. From 1951 the authorities gave permission for qualified students to

study dentistry at approved foreign Universities.

2. Students studying at home or abroad were required to accept and sign

declarations undertaking to serve for a period of up to two years after

final examinations as dentists in a public dental clinic.

As in the present case, students studying abroad without the

authorization of the Norwegian authorities were required to sign the

declaration form before being admitted to the supplementary courses to

obtain licentia practicandi in Norway.

These undertakings only amounted to 'gentlemen's agreements' and from

representations made in March 1956, it appeared that the students

became aware that the agreements were not legally tenable and that they

were legally justified in breaking them. They also stated that they

would not comply with any administrative posting under this Agreement.

The letters written by the students in 1956 did not merely contain a

refusal by the students to sit on a committee for the distribution of

vacant positions in the Public Dental Service but also contained

statements from the students that they did not consider themselves

contractually bound. A group of 23 students refused to co-operate at

all. If the original declarations were considered not binding it was

doubtful whether new ones would remedy this, although the students had

apparently changed their attitude. Also, new declarations by the 1956

graduates would not bind those graduating prior to or after 1956.

In order to protect the whole programme of the dental welfare service

which was threatened by the unco-operative attitude of the students but

which had the support of the population of northern Norway, a temporary

Act was passed on 21st June 1956 providing for obligatory service for

not more than two years by dental students after passing their final

examination. This period was reduced to 1 1/2 years by the Act of 28th

June 1962. Under Section 4 of the Act of 1956, violation of its

provisions was a misdemeanour subject to fine or imprisonment of a

maximum of 3 months.

The purely social and humanitarian aspects of this enactment must of

themselves be sufficient for the evaluation of the question as to

whether or not the Government had acted in conformity with its

obligations under the Convention. The Norwegian legislature deemed the

Act to be both necessary and reasonable and the Commission had neither

the competence nor the necessary facts available to overrule the

Government's discretion in this respect.

The Respondent Government then dealt with the allegations regarding

particular provisions of the Convention. As to the interpretation of

Article 4, the Government submitted that this provision was designed

in the light of Nazi excesses and Soviet ideology. Neither the "travaux

préparatoires" to the Convention nor previous anti-slavery instruments

and "B" mandate agreements defined "forced labour". They did not

distinguish between "forced" and "compulsory" labour, nor did the 1926

Slavery Convention or the ILO Conventions of 1930 and 1957. The

background of these Conventions, which were dealing with conditions in

colonies and other dependent territories, shows that "forced labour"

was regarded as not far from "slavery". It was not correct, as alleged

by the Applicant, that "compulsory labour" had a wider or different

scope than "forced labour".

Paragraph (2) of Article 4, which deals with "forced labour" must be

viewed in its context and read in connection with paragraph (1), which

deals with slavery and servitude. It was obvious that the Provisional

Act of 1956 had imposed upon the Applicant neither slavery nor

servitude. The Government had introduced the Act of 1956 in its

struggle to improve the lot of the population, as it considered it to

be, within reasonable limits, part of the fundamental human rights of

the population of Western democracies that they should have a minimum

of medical facilities available such as doctors, dentists and

hospitals. Article 4 could not allow untimely interference with the

necessary and natural functioning of a democratic society and

institutions and the obstruction of measures of social importance.

Viewed in its historic context, it was obvious that the Article

envisaged the suppression of concentration and labour camps and was

never meant to apply to reasonable steps taken by democratic

governments to solve pressing humanitarian and social needs.

The Government could not accept the objection that it could only resort

to compulsory measures if it was evident that it could not achieve its

legitimate ends by other means. The underlying exceptional

circumstances must weigh heavily for the decision of the question

pending before the Commission, particularly when these facts were of

a humanitarian character. In any event, it was not for one individual

to decide whether or not the Provisional Act of 1956 was necessary. The

Norwegian Parliament and Government promulgated the Act because they

deemed it necessary and expedient and it was held to be valid and

binding on the Applicant by the Norwegian Courts.

The Government also contested that it had a duty to show that it was

impossible to achieve the aims of the Public Dental Service Act of 1949

without resorting to compulsory measures.

The burden of proof was on the Applicant in respect of his allegation

that sufficient inducements of pecuniary or other character to attract

voluntary personnel had not been used. In any case, this allegation was

entirely incorrect. The salary paid to a young and inexperienced

dentist was very high and even considered by some to be out of

proportion.

The Government did not agree with the Applicant that Article 4

prohibited 3 sorts of measures:

a. slavery or servitude,

b. forced labour,

c. compulsory labour.

The splitting up of this provision was immaterial to the correct

interpretation of Article 4 but it must be divided into either 4 or 2

categories, if at all.

As expressly stated in Article 4, provision is made for 2 main

categories of violations:

(1) 4, paragraph (1) - slavery or servitude

(2) 4, paragraph (2) - forced or compulsory labour.

Article 4 could not be interpreted as restricting every kind of

compulsion in modern society and must therefore be subject to

reasonable interpretations as are specifically provided for in other

Articles of the Convention.

The ILO Conventions of 1930 and 1957 were of a certain importance for

the interpretation of Article 4. Article 2, paragraph (1), of the

former contained the following definition of the term "forced or

compulsory labour": "... all work or service which is exacted from any

person under the menace of any penalty and for which the said person

has not offered himself voluntarily". It should not be overlooked,

however, that this definition was given for a specific set of problems,

namely, the forced labour of nations in colonial or dependent

territories and that it was not adopted in the 1957 Convention nor in

any other international instrument.

The jurisprudence of the ILO bodies was also important for determining

the scope of Article 4. It was clear that reasonable sanctions for a

breach of contract could not be contrary to the Convention on Human

Rights. The Greek legislation of 1960 regarding the medical service had

the same object as the Norwegian Act of 1956 and was also far from

being a violation of the Convention. Criticisms by ILO of various

systems of direction of labour in the Eastern European countries were

based on facts which differed greatly from the Norwegian Act of 1956,

in particular, as to the ideology behind these systems, namely, a

general channelling of labour, and the exaggerated, often indefinite,

length of the compulsion to work.

The ILO had no objection to the practice that certain work was required

as a condition for admission to universities for scholarships of for

state-financed studies, or as a condition for the exercise of a

profession. If any such scheme had been operative in Norway, the

Applicant would have been faced with the same obligation as he now had

according to the Provisional Act of 1956 and would have had no standing

before the Commission. The conclusion to be drawn from the ILO

practices was that the Act of 1956 could in no way be condemned as

introducing measures which amounted to forced or compulsory labour.

Article 4, paragraph (2) itself was couched in general terms and an

exhaustive definition of the term "forced or compulsory labour" was not

possible. The Government submitted that the following factors had

bearing on the interpretation of the term "forced and compulsory

labour":

1. the scope and purpose of the Act of 29th June 1956;

2. the temporary and provisional character of these legislative

measures imposed conditions in no way analogous to conditions of

slavery;

3. the duration of the service;

4. the remuneration and social status in which respect the Government

pointed out that the salary paid was considerably over average incomes

for dentists in southern Norway;

5. the fact that the service was within one's own profession and in

immediate connection with graduation or completion of military service;

6. the nature of the sanctions involved for violation of the Act, in

particular, the lightness of the penal sanction and the fact that the

Applicant in the present case was neither imprisoned nor forced to

return to Moskenes, nor deprived of his right to practise as a dentist

in the future; and

7. the voluntary or contractual aspects of the present case.

It was also important to consider that the Ministry always endeavoured

to take individual considerations into account when posting young

dentists as was shown by the reduction of the Applicant's service from

two years to one year.

Too broad an interpretation of the Article would make it apply also to

career diplomats and officers in the armed forces who were transferred

against their wills. Such interpretation was clearly unreasonable but

these examples did not differ in any way from the Applicant's case.

The Government then returned to the particular facts of the present

case and pointed out that the Applicant knew of the effect of the 1949

and 1956 Acts and voluntarily entered into an agreement with the

competent authorities. By his conversations with officials in the

Ministry for Social Affairs and his consent to being posted in Moskenes

the relationship between the Applicant and the Ministry had assumed a

contractual nature which excluded any application of Article 4 of the

Convention. In this respect, the Government submitted that the

Applicant applied for the supplementary courses in Norway 1 1/2 - 2

years after the promulgation of the Provisional Act of June 1956. He

knew of the consequences of his application and did not question his

obligation to comply with the request of the Ministry for Social

Affairs. It had been stressed repeatedly in official notifications that

those students going abroad to study could not expect to obtain a

licentia practicandi. Nevertheless, the Applicant applied for admission

to these courses, though he was in no way obliged to do so.

Furthermore, in December 1959 the Applicant concluded an agreement with

the competent Ministry to the effect that he should take over the

position as a dentist in Moskenes which he did on 11th January 1960.

This agreement, entered into voluntarily by him, was wilfully broken

by him four months later. It was not usual to reduce the period to one

year and this had been done in only a few cases. The Applicant thanked

the Ministry "for handsome treatment".

In the light of his application for the supplementary courses, his

application for licentia practicandi and his agreement with the

Ministry, it was not possible to pretend that the service required from

the Applicant could be termed "forced or compulsory labour" within the

meaning of Article 4, paragraph (2), of the Convention. In this

respect, reference was made to the Supreme Court's decision of 16th

December 1961.

The Applicant's Counsel, in his counter-observations his rejoinder and

during the oral hearing, submitted that the service required from the

Applicant constituted "compulsory labour" within the meaning of Article

4 of the Convention.

The conditions in northern Norway might call for a special solution but

it did not follow that they justified compulsory measures. The

Government could only resort to such measures if it was evident that

it could not achieve its legitimate ends by other means and it had a

duty to show that it would be impossible otherwise to achieve the aims

of the Public Dental Service Act, 1949. The Applicant challenged the

suggestion that it would entail "heavy financial implications for the

State Budget" to carry out the scheme by means of economic inducement

to dentists to fill the vacant posts. It was not the duty of a small

group of dentists to shoulder the burden for the whole nation.

It was true that the 1949 Act was passed unanimously, but this might

not have been so had it been thought that it would be necessary to

resort to compulsory labour. It was wrong to use the unanimity vote in

1949 on the Public Dental Service as an argument to justify the later

compulsory measures provided for in the Act of 1956. As to the

background of the Act of 1956, it was submitted that students were

required as from 1951 to sign a declaration to work in the Public

Dental Service as a condition for admission to the Dental College, but

it was doubtful whether the authorities had legal power to enforce

these declarations. This was remedied by the Decree of 1954.

In 1955 the odontological students did not claim that the Decree of

1954 was illegal but that the above condition could not be imposed

before the Decree came into force.

The letter from the graduating students dated 2nd March 1956 gave the

impression of a threat. Examination of the letter did not, however,

reveal a refusal to fulfil the obligations undertaken in the

declarations but only unwillingness to serve on a committee set up to

allocate the vacant posts. The attitude of the students did not make

legislation necessary. It was a misunderstanding that 23 students

refused to co-operate. The Government could have counted on the

co-operation of all, or practically all, of the odontological students

but it refused to try and find a voluntary solution to the problem. The

new declarations given in exchange for a withdrawal of the Draft Bill

would have been enforceable as contracts.

It was stated that the Government had asserted that the Act was only

intended to apply to students who had, at the commencement of their

studies, stated that they would serve up to two years, after completing

their studies, in the public dental service. It would therefore not be

unreasonable in its effects, since it did not impose obligations which

had not been accepted by the students when they began their studies.

It was submitted that, as maintained by certain parliamentarians during

the debate in 1956, the Act of 1956 was unnecessary. This aspect was

relevant in considering if that Act was a breach of the Convention.

It could not be accepted that the social and humanitarian aspects of

the enactment were sufficient for the appreciation of the question

whether the Government had acted in conformity with its obligations

under the Convention or not. It was wrong to assume that an idealistic

goal was decisive in the issue whether or not a State was acting within

the obligations of the Convention. The ends could not justify the

means. The order to post the Applicant to Moskenes should be considered

in relation to Article 4 of the Convention and not solely to the

motives behind the measures taken. Neither the period of service nor

the pay was relevant to the case since it was not a question of the

degree of hardship but the fact that the service was compulsory.

As to the interpretation of Article 4, the Applicant submitted that

this provision, taken as a whole, prohibited three different kinds of

infringement on the individual's liberty, namely:

a) slavery or servitude,

b) forced labour,

c) compulsory labour.

It was wrong to equate b) with c).

Clearly, "compulsory labour" covered a wider field than "forced

labour". This was evident from the French and German terms: "travail

obligatoire" and "Pflichtarbeit" have wider scope than "travail forcé"

and "Zwangsarbeit".

The events during and after World War II were important in ascertaining

the immediate motives of the Convention but it was incorrect to

maintain that the intention only was to prevent future inhumanities

comparable with war crimes. The preparatory works on the Convention

showed clearly the intention of establishing a much wider scope than

merely to prevent outright criminal acts.

It was to describe only one side of the picture to say that Article 4

of the Convention "was not meant to ... allow untimely interference

with the necessary and natural functioning of democratic societies".

The other aspect was the side of the individual. It was clear that the

individual and the State would often hold different opinions as to what

"the necessary and natural functioning" of society demanded in terms

of individual sacrifice. To strike a balance, paragraph (3) of Article

(4) of the Convention had been adopted and a compulsory measure must

come under one of its four heads. It was not open to doubt that

paragraph (2) was applicable in the present case. By a "sensible and

reasonable interpretation" no other result could be arrived at. The

protection of the individual should not give way to the convenience of

the State.

The fundamental right of a minimum of facilities was irrelevant to the

issue; these social services had nothing to do with the fundamental

human rights as defined in the Convention. It was more relevant to ask

if these measures could only be rendered through compulsory measures

and, if this was the case, were these measures contrary to the

Convention?

The Applicant could not accept the contention that his comparison with

career diplomats and regular officers was valid since the latter

accepted transfers as a normal part of their chosen professions. It was

a different matter to force a small number of people in a special

profession into the temporary employment of the State and direct them

to take up work at places against their own wishes. This was a clear

case of compulsion.

The Applicant submitted that the ILO Conventions and the European

Convention must be interpreted along the same lines. It was true that

the 1930 Convention mainly aimed at suppressing forced labour in

overseas colonial territories but it was obvious that the protection

should not be less effective in respect of the populations of more

civilised and advanced countries. The provisions of the 1930 Convention

proved that the liberty of the individual was considered more important

than the speeding up of the economic development of a territory. The

definition of "forced or compulsory labour" in Article 2, paragraph

(1), of the 1930 Convention was highly relevant to the present case.

The Applicant concluded that the 1956 Act would have been considered

contrary to the ILO Conventions if it had been submitted to the ILO

bodies for examination.

The specification under the headings (a) to (c) of Article 1 of the ILO

Convention of 1957 gave a broad illustration of what was considered as

"forced or compulsory labour". It showed clearly that these terms could

not be given a narrow and restrictive interpretation. In particular,

heading (b), which suppressed forced or compulsory labour "as a method

of mobilising and using labour for purposes of economic development",

was important in the present case. The public dental service was a

special aspect of a broad economic development. The Applicant referred

in particular to certain practices in the Eastern European countries

which had been criticised by ILO authorities and which showed a certain

similarity to the Norwegian Act of 1956.

Concerning the factors enumerated by the Government as having bearing

on the interpretation of the term "forced or compulsory labour", the

Applicant made the following observations:

re 1. Purpose of the Act: - The Government had not shown that the Act

was necessary in order that society would function in a reasonable and

natural manner.

re 2. Temporary character of the measures: - The Act was promulgated

in 1956 and prolonged until 1966. Ten years was a long period and this

was also the expert opinion of the organisation of dentists which had

protested.

re 3. Duration of the obligatory service: - Two years (now 18 months)

was a considerable hardship but the duration was of no relevance in

respect of Article 4 of the Convention.

re 4. The remuneration and social status: - It was an exaggeration to

say that dentists performing obligatory service were among the highest

paid officials, also that they achieved high and advanced positions in

the Norwegian Health Service. Remuneration, however, had no bearing on

the question of whether or not the compulsory service was within the

scope of the Convention.

re 5. The service was within the Applicant's chosen profession and in

immediate connection with graduation: - It was misleading to compare

the compulsory service demanded in the present case with other kinds

of service which students of various kinds must undertake as part of

their education. In these cases the students could decide for

themselves whether or not they would accept the different postings and

thereby complete their education.

re 6. The nature of the sanctions involved: - This was only of

importance in the appreciation of the degree of hardship and was

irrelevant to the principle involved.

The "contractual aspects" of the case, which were stressed by the

Respondent Government, were not relevant: First, they had no bearing

on the fundamental issue of the case, i.e. whether or not the 1956 Act

was contrary to the Convention. Secondly, the term 'agreement' was

misleading since the Applicant was faced with an order directing him

to Moskenes. It was a necessary element in a contract that both parties

had freedom of action. The Applicant, however, knew that he was under

the threat of a criminal prosecution. The fact that he accepted this

alternative did not make his behaviour a breach of contract. It was

also contested that, by applying for the supplementary courses at the

Norwegian Dental College, he had entered into a contractual relation

with the Government. The Applicant could not know that the Act of 1956

applied to him. Indeed, the dissenting minority in the Supreme Court

was of the opinion that it did not. The fact that the Applicant applied

for certain posts in the Public Dental Service was also irrelevant

since appointment to one of these posts would have had as it bases a

voluntary agreement. He did not get one of these posts, however, but

was sent to Moskenes by a compulsory order.

Furthermore, the "contractual" point of view now taken by the

Respondent Government had not been argued by the prosecution in the

national courts. The Government had not sued the Applicant for breach

of contract but he had been charged with a violation of the Act of 1956

and the prosecution had chosen to defend the Act on its merits. The

Government should not be entitled to use arguments before the

Commission which had not been used before the national courts.

It had not been a special favour to the Applicant to reduce his service

to one year and to give him the position as a Class A dentist. The

reduction to one year was the usual practice in difficult districts and

the choice of class was left to the dentist himself.

b. As regards the question of the applicability of Article 4, paragraph

(3), sub-paragraph (c), of the Convention - "any service exacted in

case of an emergency or calamity threatening the life or well-being of

the community"

The Respondent Government, during the oral hearing, submitted as a

subsidiary argument and without prejudice to its main conclusion, that

no violation of Article 4, paragraph (2), had occurred. It submitted

that, if a rigid and strict interpretation were given to paragraph (2),

the exceptions in paragraph (3) should correspondingly be given a wider

interpretation in order to make the Article as a whole reasonable and

workable. In respect of sub-paragraph (c), the Government emphasised

the extraordinary geographical conditions of northern Norway.

The Applicant's Counsel submitted that there was no emergency in the

provinces of northern Norway which could justify a compulsory direction

of dentists to posts which had not been filled on a voluntary basis,

and that the situation did not amount to a threat to the life or

well-being of these communities. He referred to the ILO Convention of

1930, which in its Article 2, paragraph (2), sub-paragraph (d) gave

examples of what could be termed cases of emergency, namely, war, fire,

flood, famine, earthquake and epidemic diseases. Public dental care

could not be considered to fall within any of these categories.

Furthermore, the term "emergency" could not be construed so as to apply

to an Act which had been in force for more than seven years and would

remain in force for yet three more years. The exception for emergencies

envisaged only short-termed situations of extraordinary nature, quite

different from the one existing in northern Norway.

c. As regards the question of the applicability of Article 4, paragraph

(3), sub-paragraph (d), of the Convention - "any work or service which

forms part of normal civic obligations"

The Respondent Government, in its observations of 7th January 1963, its

Reply and during the oral hearing, submitted without prejudice to its

main conclusion, that it was a part of "normal civic obligations" for

a young dentist to serve in the public dental service and, in any

event, for the Applicant to fulfill the agreement which he entered into

with the Ministry for Social Affairs, to serve one year as a district

dentist in Moskenes.

The Applicant's Counsel submitted that the compulsory service imposed

upon dentists was not a part of the general civic obligations of all

nationals but affected only a very limited group of people. The Act of

1956 was clearly not covered by paragraph (3), sub-paragraph (d). Two

conditions inherent in this clause were that the service must be

"normal" that was part of the usual and ordinary obligations in the

State, and must be a "civic obligation", that was to say, the kind of

work or service which could be asked on an equal basis from all or a

substantial part of the citizens. Neither of these conditions was

fulfilled.

10. As regards the alleged violations of Articles 8 and 11 of the

Convention

As regards the alleged violations of Articles 8 and 11 of the

Convention

The Respondent Government made no submissions in respect of these

alleged violations.

The Applicant's Counsel, in his rejoinder and during the oral hearing,

submitted that the compulsory direction of dentists to posts in which

they did not wish to serve would amount to an unwarranted interference

with their rights to respect for private and family life under Article

8 and with their freedom of association under Article 11. He referred,

in respect of the latter issue, to the ILO Conventions Numbers 87 and

98 concerning the Freedom of Association and the Right to Bargain

Collectively.

THE LAW

As regards the contention that the Applicant did not observe the six

months' time-limit laid down in Article 26 (Art. 26) of the Convention

Whereas Article 26 (Art. 26) provides that "the Commission may only

deal with a matter ... within a period of six months from the date on

which the final decision was taken"; whereas the decision of the

Supreme Court, which was the final decision in this case, was given on

16th December 1961;

Whereas, in regard to this Application, the first letter sent by the

Applicant's counsel to the Secretary of the Commission was dated 8th

June 1962; whereas this letter arrived at the Council of Europe on 12th

June 1962;

Whereas the Respondent Government has submitted that the date of the

filing of this Application should be considered as 18th June 1962,

being the date on which the Application was entered in the special

register provided for in Rule 13 of the Commission's Rules of

Procedure; whereas, in this connection, the Government has referred to

Rule 48, paragraph (2), of the Rules of Procedure which provides as

follows: "... For the purpose of determining any time-limit, the date

of the filing of the pleading with the Secretariat-General of the

Council of Europe shall alone be taken into consideration";

Whereas it is necessary to distinguish in the introduction of an

Application between its deposit with the Secretariat-General and its

registration by the Commission; and whereas, if Rule 48, paragraph (2)

is applicable to the introduction of an Application, it is clear,

particularly from the French text, that the date of its deposit is at

the latest the date of its acknowledged arrival in the

Secretariat-General; and whereas, since the Application in the present

case was dated 8th June and arrived in the Secretariat-General on 12th

June, the time limit required by Article 26 (Art. 26) was observed;

Whereas, consequently, the Commission unanimously rejects this first

objection made by the Respondent Government as to the admissibility of

the present Application.

As regards the contention that the Application is incompatible with the

provisions of the Convention

Whereas the Respondent Government has contended that the Application

is incompatible with the provisions of the Convention in that the

Applicant, in his application form, claims a form of redress which is

outside the competence of the Commission; whereas it was further

submitted by the Government that the claims as "re-written" by the

Applicant in his counter-observations of 1st March 1963 also fell

outside the scope of the competence of the Commission;

Whereas it is true that the Convention does not confer upon the

Commission any competence to declare invalid an Act passed by a

national parliament, or to declare invalid an administrative order

issued by a competent national authority or to give a decision that a

judgment of a national court cannot be enforced;

Whereas, however, in his application form, the Applicant, in

unequivocal terms, made the allegation that the Provisional Act of

1956, as applied to the Applicant, violates Article 4 (Art. 4) of the

Convention; whereas he has thus clearly indicated the legal basis of

his Application and left no doubt as to the issue of which he seized

the Commission in pursuance of Article 25 (Art. 25) of the Convention,

so that the precise form in which he summarised his claims may be

disregarded;

Whereas, in respect of the "amendments" to the claims contained in the

Applicant's counter-observations of 1st March 1963, the Commission

finds that he has not amended the substance of the Application in a

manner which amounts to a "re-writing" of the Application; whereas the

text of these counter-observations make it clear that the basic issue

raised by the Applicant was still the conformity of the application to

himself of the Provisional Act of 1956 with Article 4 (Art. 4) of the

Convention;

Whereas, therefore, the Commission has competence to examine and

pronounce upon the allegations contained in the Application;

Whereas, consequently, the Commission unanimously rejects this second

objection made by the Respondent Government as to the admissibility of

the present Application.

As regards the contention that the Application was an abuse of the

right of petition

Whereas the Respondent Government has contended that the Application

was abusive on the grounds that it was designed to make use of the

Commission as a forum for domestic politics and that it relied upon

loose and unsubstantiated accusations;

Whereas, in respect of the first submission, the Commission refers to

its decision on the admissibility of Application Number 332/57 (Lawless

v. Ireland - Yearbook II, page 308 [338] in which it held as follows:

"Whereas the fact that the Applicant was inspired by motives of

publicity and political propaganda, even if established, would not by

itself necessarily have the consequence that the Application was an

abuse of the right of petition"; whereas the Commission has taken into

consideration the undisputed fact that the present case raises issues

which caused considerable political interest in Norway; whereas,

nevertheless, the Commission does not find it established that the

Applicant has unduly emphasised the political aspect of his case in the

present proceedings;

Whereas, in respect of the second submission, the Commission finds that

the allegations made by the Applicant were sufficiently clear and

substantiated as to permit the Commission to pronounce upon the issues

raised;

Whereas, therefore, the present Application does not constitute an

abuse of the right of petition under Article 25 (Art. 25) of the

Convention;

Whereas, consequently, the Commission unanimously rejects this third

objection made by the Respondent Government as to the admissibility of

the present Application.

As regards the contention that the Application is manifestly

ill-founded

Whereas the majority, consisting of six members out of the ten members

present and voting, consider that the service of Iversen in Moskenes

was not forced or compulsory labour within the meaning of Article 4

(Art. 4) of the Convention;

Whereas the Commission has had regard to the importance of the question

of principle raised in the Application, and has had further regard to

the exhaustive written and oral submissions made to it by both parties

in which all the material facts have been set out; whereas,

consequently, the Commission has thought it right to depart, in the

exceptional circumstances of this case, from its usual practice and to

indicate to vote by which the decision upon the issue of admissibility

was taken;

Whereas four members of the majority, considering that: although

Article 4, paragraph (3) (Art. 4-3), of the Convention delimits the

scope of Article 4, paragraph (2) (Art. 4-2) by declaring that four

categories of work or service do not constitute forced or compulsory

labour for the purpose of the Convention, the expression "forced or

compulsory labour" is not defined in the Convention and no

authoritative description of what it comprises is to be found

elsewhere; the concept of compulsory or forced labour cannot be

understood solely in terms of the literal meaning of the words, and has

in fact come to be regarded, in international law and practice as

evidenced in part by the provisions and application of ILO Conventions

and Resolutions on Forced Labour, as having certain elements, and that

it is reasonable, in the interpretation of Article 4, paragraph (2)

(Art. 4-2), of the Convention, to have due regard to those elements;

these elements of forced or compulsory labour are first, that the work

or service is performed by the worker against his will and, secondly,

that the requirement that the work or service be performed is unjust

or oppressive or the work or service itself involves avoidable

hardship; the attribution of these elements to "forced and compulsory

labour" in Article 4, paragraph (2) (Art. 4-2) of the Convention is not

inconsistent with the other provisions of that Article or of the

Convention; it is true that the Provisional Act of 1956 imposed

obligatory service, but since such service was for a short period,

provided favourable remuneration, did not involve any diversion from

chosen professional work, was only applied in the case of posts not

filled after being-duly advertised, and did not involve any

discriminatory, arbitrary or punitive application, the requirement to

perform that service was not unjust or oppressive; the Law of 1956 was

properly applied to Iversen when he was directed to take up the post

at Moskenes; further, in the particular case of the Applicant, the

hardship of the post was mitigated by the reduction in the required

term of his service from 2 years to 1 year; hold that the service of

Iversen in Moskenes was manifestly not forced or compulsory labour

under Article 4, paragraph (2) (Art. 4-2), of the Convention and they

therefore find it unnecessary to express any opinion on the

applicability to the case of Article 4, paragraph (3) (Art. 4-3) of the

Convention;

Whereas two members of the majority, considering that:

the situation in 1956 and 1960 of the public dental service and school

dental care in northern Norway was regarded by the Norwegian Government

as an emergency threatening the well-being of the community in northern

Norway; in particular, in 1956, the Norwegian Government was

confronted, in the exercise of its function, recognised in the

Convention, of protecting public health, with a situation of the public

dental service in northern Norway which had two elements; the inherent

difficulties of administering the service caused by the scattered

character of towns and settlements and the severe climate and

intractable terrain; and a regional shortage of qualified dentists; in

the opinion of the Norwegian Government, there was the threat of a

breakdown in the supply of volunteers from among whom the public dental

service in northern Norway had hitherto been maintained; the Law of

1956 was enacted by the Norwegian Parliament after a full and public

debate; the Commission has frequently held that, although a certain

margin of appreciation should be given to a government in determining

the existence of a public emergency within the meaning of Article 15

in its own country, the Commission has the competence and the duty to

examine and pronounce upon the consistency with the Convention of a

government's determination of this question (cf. Lawless Report, page

85); in the analogous circumstances of the present case, the Commission

cannot question the judgment of the Norwegian Government and Parliament

as to the existence of an emergency as there is evidence before the

Commission showing reasonable grounds for such judgment; hold

therefore, having regard to Article 4, paragraph (3) (Art.4-3) of the

Convention, that the service of Iversen at Moskenes was service

reasonably required of him in an emergency threatening the well-being

of the community and was not forced or compulsory labour; whereas the

majority thus finds that this part of the Application must be rejected

in accordance with Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Whereas to this decision the minority of four members attaches the

following statement:

I. The minority is of the opinion that the conditions under which the

Applicant was required to perform his work in Moskenes, as regards, for

instance, salary, time-limit and professional facilities, do not as

such exclude the applicability of Article 4, paragraph (2) (Art. 4-2),

of the Convention, since the work in question was imposed upon the

Appellant subject to penal sanctions;

II. The same members find that the question of the applicability of

Article 4, paragraph (3), sub-paragraph (c) (Art.4-3-c) of the

Convention requires further examination;

III. Having thus regard to the complexity of the legal problems raised

by the Application and in view of the number of opinions which were in

the course of the deliberations put forward in the Commission and even

among the six members forming the majority which voted in favour of the

inadmissibility of this part of the Application, the members forming

the majority which voted in favour of the inadmissibility of this part

of the Application, the members of the minority do not find it possible

to declare this part of the Application inadmissible as manifestly

ill-founded and are therefore of the opinion that it should be declared

admissible.

As regards the alleged violation of Articles 8 and 11 (Art. 8, 11) of

the Convention

Whereas the Applicant has alleged, in general, that orders directing

persons to take up work in places other than their place of residence

constitute violations of the right of family life guaranteed under

Article 8 (Art. 8) and also of the right to free association with

others as guaranteed under Article 11 (Art. 11)

Whereas the Commission unanimously finds that in the present case the

Applicant has failed to produce any facts substantiating his

allegations that the order issued by the Ministry for Social Affairs

on 14th December 1959 to the effect that the Applicant should take up

his duties as a dentist in Moskenes constituted a violation of the

rights or freedoms guaranteed in Article 8 or 11 (Art. 8, or 11)

whereas it follows that this part of the Application is manifestly

ill-founded and must be rejected in accordance with Article 27,

paragraph (2) (Art. 27-2) of the Convention:

Now therefore the Commission declares this application INADMISSIBLE.