DISSENTING OPINION OF JUDGE MIFSUD BONNICI

1.   I view the facts of the case as being essentially a question of a civic duty imposed on adult males living in Tettnang in Baden-Württemberg to carry out fire brigade duties. Where these duties are not carried out, the male adult in question has to pay a monetary contribution. Women are exempted from the service. The applicant claims that his case has to be considered under Article 4 (art. 4) of the Convention which prohibits "forced and compulsory" labour.

2.   I do not think that anyone can subscribe to the applicant ’ s claim. However, since it is combined with what is laid down in Article 14 (art. 14), the majority have found a violation. To this I cannot subscribe for if no substantive provision of the Convention or of the Protocols has been found to be applicable, before looking at Article 14 (art. 14), then the latter provision does not even come into consideration.

3.   In my opinion this is the logical and juridically correct approach for a reading of Article 14 (art. 14) (I refer in particular to the judgments and opinions expressed in the Marckx case ( Marckx v. Belgium judgment of 13 June 1979, Series A no. 31)). It can only come into operation after one of the substantive provisions on which the applicant bases his claims has been found to be applicable. In the present case Mr Schmidt was not required to perform forced or compulsory labour, as prohibited by Article 4 para . 2 (art. 4-2), for the reason that what was required of him was a service which forms part of a normal civic obligation, which is expressly exempted by the same Article 4 in paragraph 3 (d) (art. 4-3-d). Once this is established, the principal claim of the applicant appears to me to be completely unfounded and therefore Article 14 (art. 14) does not come into play.

4.   According to the majority, "... the Court considers that compulsory fire service such as exists in Baden-Württemberg is one of the ‘ normal civic obligations ’ envisaged in Article 4 para . 3 (d) (art. 4-3-d)" and I cannot but agree with this.

They continue: "It observes further that the financial contribution which is payable - in lieu of service - is, according to the Federal Constitutional Court ..., a ‘ compensatory charge ’ . The Court therefore concludes that, on account of its close links with the obligation to serve, the obligation to pay also falls within the scope of Article 4 para . 3 (d) (art. 4-3-d)." Here too I cannot but agree, because all this excludes the alleged violation of Article 4 (art. 4).

But they conclude: "There has accordingly been a violation of Article 14 taken in conjunction with Article 4 para . 3 (d) (art. 14+4-3-d)." Here I part company since, to my mind, what should follow from the premises is the contrary proposition.

5.   I cannot but conclude that there is no violation and as I think the claim to be completely unfounded, the applicant should be awarded nothing.

[*]  Note by the Registrar.  The case is numbered 12/1993/407/486.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 291-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.