PARTLY DISSENTING OPINION OF JUDGE TULKENS

(Translation)

1. I consider that in this case there were sound reasons for finding a violation of Article 4 of the Convention, which prohibits forced labour. This position is all the more compelling as the Court has found no violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.

2. Admittedly, Article 4 § 3 (a) specifies that “forced or compulsory labour” does not include any work required to be done in the ordinary course of detention (“ tout travail requis normalement d’une personne soumise à la détention ”). However, this provision, incorporated in the Convention in 1950, must be interpreted in the light of the present-day situation. More specifically, the concepts used in the Convention are to be understood in the sense given to them by democratic societies today.

3. It has long been the Court’s position that “[g]iven that [the Convention] is a law-making treaty, it is ... necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties” [5] . Such an interpretation is guided by the Preamble to the Convention, which refers to the maintenance and further realisation of rights and freedoms. “Maintenance” requires the Court to ensure in particular that the rights and freedoms set out in the Convention continue to be effective in changing circumstances. “Further realisation” allows for a degree of innovation and creativity, which may extend the scope of the Convention guarantees. Moreover, in the Golder judgment, the Court provided the following clarification regarding the teleological method: “This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 § 1 read in its context and having regard to the object and purpose of the Convention, a law-making treaty.” [6] The same reasoning can be followed in relation to Article 4 § 3 (a).

4. This approach has had natural consequences. The Court subsequently developed the idea/principle of effective protection of the rights enshrined in the Convention [7] . Since then, the effectiveness theory has become the basis for the protection of the Convention rights and freedoms. These rights must be given “their full scope” since the purpose of the Convention is to guarantee rights that are not theoretical or illusory but practical and effective.

5. In relation to Article 4 of the Convention, the judgment rightly notes that the Court’s case-law concerning prison work is scarce. Indeed, in the sphere of prisoners’ remuneration and social cover, the only relevant decision is that by the European Commission of Human Rights in the case of Twenty-One Detained Persons v. Germany (nos. 3134/67, 3172/67 and 3188-3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97 ‑ 116), in which the application was declared manifestly ill-founded.

6. More than forty years have passed since the above-mentioned inadmissibility decision and prison law – which at the time was virtually non-existent – has developed considerably during this period. Traditionally regarded as an area outside the law, prisons have gradually opened up to fundamental rights, to the benefit not only of prisoners but also of the prison authorities and their staff. Thus, regarding the same issue of prisoners’ remuneration which formed the subject of the Commission’s 1968 inadmissibility decision referred to in the previous paragraph, it is interesting to note that thirty years later, in a judgment of 1 July 1998, the German Federal Constitutional Court held, on the contrary, that since the State had a constitutional duty to promote prisoners’ social rehabilitation and had chosen compulsory prison work as one of the means of achieving that aim, it had to ensure appropriate remuneration for such work, which could not yield the expected results unless it was properly rewarded [8] . Although the Constitutional Court did not specify the amount that would constitute an appropriate reward, it held that it was unconstitutional to pay prisoners low wages that bore no relation to the value of the work performed or to the minimum wage in the outside world. The guiding principle is that of human dignity [9] . Similarly, Rule 26.10 of the 2006 European Prison Rules emphasises the need for equitable remuneration for prisoners.

7. In Austria, as we have seen, prisoners are obliged to work pursuant to section 44 of the Execution of Sentences Act; furthermore, refusal to work constitutes an offence under sections 107(1) and 109 of the same Act, carrying penalties ranging from a reprimand to solitary confinement. This situation thus clearly entails – as was not disputed – work under the menace of a penalty within the meaning of the International Labour Organization Forced Labour Convention (No. 29), and hence forced or compulsory labour.

8. In such a context, can it really still be maintained in 2011, in the light of current standards in the field of social security, that prison work without affiliation to the old-age pension system constitutes work that a person in detention may normally be required to do? I do not think so. This, in my view, is the fundamental point. Nowadays, work without adequate social cover can no longer be regarded as normal work. It follows that the exception provided for in Article 4 § 3 (a) of the Convention is not applicable in the present case. Even a prisoner cannot be forced to do work that is abnormal . In the examination of the case under Article 14 taken in conjunction with Article 1 of Protocol No. 1, moreover, the judgment notes explicitly that “the applicant as a working prisoner was in a relevantly similar situation to ordinary employees” (see paragraph 95 of the judgment).

9. If we are to give any meaning to the famous phrase from the 1984 Campbell and Fell judgment that “justice cannot stop at the prison gate” [10] , it is important to take account of developments in the member States, as reflected, for example, in the 2006 European Prison Rules, which refer to normalisation of prison work as one of the basic principles in this sphere and one which has guided reforms in certain member States [11] .

10. In finding no violation of Article 4 of the Convention, the judgment relies to a decisive extent on the lack of a sufficient consensus among member States on the issue of working prisoners’ affiliation to the old-age pension system (see paragraph 132 of the judgment). This argument, to my mind, raises two difficulties. The first is of a factual nature. Nowadays, with the development of long-term prison sentences, the profile of prisoners has changed and the reality is that prisons house increasing numbers of older inmates. Whereas for younger prisoners, the requirements of social rehabilitation encompass health and accident cover and affiliation to the unemployment insurance scheme, for older prisoners they also include the guarantee of an old-age pension. The second difficulty is of a legal nature. What role is there in the present case for a European consensus, the main function of which is to determine the extent of the margin of appreciation? The flexibility inherent in the margin of appreciation is admittedly an essential factor, but, as the Court has frequently repeated, it must go hand in hand with European supervision. Such supervision was lacking in the present case.

[1] . Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies.

[2] . The concept of normalisation is defined as bringing detention conditions closer to parity with the standards of free society, in both social and legal terms (see W. Lesting, Normalisierung im Strafvollzug. Potential und Grenzen des §3 Absatz 1 StVollzG , Pfaffenweiler, Centaurus, 1988, and E. Shea, “Les Paradoxes de la Normalisation du Travail Pénitentiaire en France et en Allemagne”, in Déviance et Société , vol. 29, no. 3, 2005, pp. 349 et seq.).

[3] . See A. Pilgram, “Austria”, in D. van Zyl Smit and S. Snacken (eds.), Prison Labour: Salvation or Slavery? International Perspectives , Onati International Series in Law and Society, Aldershot, Ashgate, 1999, p. 21.

[4] . See “Les limitations au droit à la sécurité sociale des détenus: une double peine ?”, V. van der Plancke and G. Van Limberghen (eds.), in Les dossiers de la revue de droit pénal et de criminologie , no. 16, Brussels, La Charte, 2010.

[5] . See Wemhoff v. Germany , 27 June 1968, p. 23, § 8, Series A no. 7.

[6] . See Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18.

[7] . See Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 32, § 5, Series A no. 6.

[8] . BverfG – 2 BvR 441/90, 1 July 1998.

[9] . D. van Zyl Smit and S. Snacken, Principles of European Prison Law and Policy. Penology and Human Rights , Oxford University Press, 2009, p. 192.

[10] . See Campbell and Fell v. the United Kingdom , 28 June 1984, § 69, Series A no. 80.

[11] . Thus, for example, in Belgium, the Law of 12 January 2005 establishing the principles governing the prison service and the legal status of prisoners is part of the reform aimed at normalising prison work by making it as similar as possible to employment in the community and requiring its inclusion in the social security system.