CONCURRING OPINION OF JUDGE GARLICKI

I am prepared to accept the finding that Article 14 of the Convention taken in conjunction with Article 4 (and, in particular, paragraph 3 (d) thereof) is applicable in the present case. I also agree that there has been a violation of that Article.

However, I am not sure whether the “ traditional ” approach to the interpretation of Article 4, as expressed in Van der Mussele v. Belgium ( 23 November 1983, Series A no. 70) and Karlheinz Schmidt v. Germany (18 July 1994, Series A no. 291 ‑ B), represents the most convincing way of arriving at those conclusions.

In analysing the relationship between paragraphs 2 and 3 of Article 4, the Court indicated that the latter paragraph was “ not intended to ‘ limit ’ the exercise of the right guaranteed by paragraph 2, but to ‘ delimit ’ the very content of that right ” (see Karlheinz Schmidt , cited above, § 22). Thus, the Court adopted an “ exception to exception ” approach. But such an approach may lead to a narrow reading of Article 4: the compulsory wor k and services enumerated in paragraph 3 remain entirely outside the scope of that Article. In consequence, their regulation bears no direct relation to “ the enjoyment of rights and freedoms ” necessary to trigger the equal protection guarantees. It is true that, in Karlheinz Schmidt , the Court did find a violation of Article 14, but it did not show how and why the civic duty in question was linked to the right not to be required to perform compulsory labour.

In my opinion, as long as we remain within this traditional approach, it will be very difficult to establish such a link and to apply Article 14 to situations enumerated in paragraph 3 (and, from that perspective, the dissenting opinion of Judge Casadevall seems quite logical ).

However, I believe that it is possible to read Article 4, taken as a whole, in a broader way, not only as prohibiting any forms of forced or compulsory labour but also as regulating State prerogatives in establishing dif ferent forms of compulsory work and services. In other words, Article 4 may also be read as setting a general framework of duties which may be imposed on an individual. Article 4 empowers the State to establish such duties and services, but – by the very fact of their enumeration – Article 4 also absorbs (includes) them into the realm of the Convention. One of the consequences of such inclusion is that those duties and services must be formulated in a manner compatible with the Convention, Article 14 included. It should not be forgotten that Article 4 is drafted in a particular manner: no other substantive provision of the Convention contains enumerations of such kind. This may suggest that the drafters of the Convention envisaged that Article 4 might be interpreted in a particular way.

Several arguments may warrant this broad reading of Article 4. First of all, it would reflect the particular rank of Article 4 as “ one of the fundamental values of democratic societies ” . Secondly, it would correspond better to the concept of positive duties of the State: the State is not only prohibited from introducing any form of forced or compulsory labour, but is also required to regulate the scope and manner of what remains imposable on individual citizens. Finally, it would respond to the developing trends of modern societies: whilst it is now very difficult to find situations of “ classic ” forced labour or servitude (the 2005 Siliadin v. France case being the only recent example (no. 73316/01, ECHR 2005-VII) ), there may be more controversies surrounding obligations enumerated in paragraph 3 of Article 4.

DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. For the reasons set out below, I voted in favour of finding that Article 14 of the Convention taken in conjunction with Article 4 § 3 (d) is not applicable and that consequently there has been no violation of those provisions.

2. Like the dissenting judges in Karlheinz Schmidt ( 18 July 1994, Series A no. 291-B, a judgment that is now twelve years old), I fail to see how Article 14, which is dependent for its existence on a recognised right (see paragraph 42 of the present judgment), can be linked to sub - paragraph (d) of Article 4 § 3 for the following reasons:

(a) sub - paragraph (d) actually constitutes an exception to the general rule prohibiting forced or compulsory labour;

(b) the expression “ forced or compulsory labour ” in Article 4 does not include “ any work or service which forms part of normal civic obligations ” (see paragraph 43 of the judgment); and

(c) it is accepted that the obligation to serve as a juror in Malta forms part of the “ normal civic obligations ” (see paragraph 47 of the judgment).

3. It is quite clear that Mr Zarb Adami has not been required to perform forced or compulsory labour within the meaning of Article 4 § 2 and that the service he was asked to perform constituted a civic obligation, such as serving the administration of criminal justice. Since the applicant is unable to assert a substantive right protected by the Convention (Article 4 does not prohibit civic obligations of this type) Article 14 cannot come into play.

4. Furthermore, I consider that the facts of the present case enable it to be distinguished from the case of Karlheinz Schmidt without difficulty. In the latter case (as the Court notes in paragraph 28), the discrimination complained of by the applicant went beyond the obligation for men to perform compulsory service in the fire brigade, since “ the obligation to perform such service is exclusively one of law and theory . ... The financial contribution has – not in law but in fact – lost its compensatory character and has become the only effective duty ” and the issue therefore became one of a difference in treatment on grounds of sex in view of the obligation imposed on certain inhabitants of the German town concerned to pay the contribution because they belonged to the male sex. In the present case, the applicant was forced to pay a fine for failing to comply with the summons requiring him to perform jury service, a penalty to which anyone, whether male or female, who failed to comply with those statutory provisions was liable. The penalty was not in itself discriminatory and, in my view, does not possess the link with Article 4 that is ascribed to it in the judgment (see paragraph 47).

5. As to the merits, even assuming that Article 14 taken in conjunction with Article 4 was applicable, I would also have voted against finding a violation. I would classify this complaint as frivolous and fail to see any discrimination that would entitle the applicant to protection under the Convention. He was required to perform jury service on three occasions over a seventeen-year period, which is not unreasonable (Mr Van der Mussele was required to act as a court-assigned lawyer approximately fifty times in three years (!) under an obligation which “ ... was founded on a conception of social solidarity and cannot be regarded as unreasonable ” and in respect of which “ the burden imposed on the applicant was not disproportionate ” (see Van d er Mussele v. Belgium , 23 November 1983, § 39 , Series A no. 70 ).

6. Article 14 safeguards individuals, placed in analogous situations, from discrimination (see Marckx v. Belgium , 13 June 1979, § 32 , Series A no. 31 ). In the present case, I see no analogy between the applicant ’ s situation and, for example, that of a housewife and mother. It was on receipt of a fourth summons that the applicant decided to run the risk of ignoring the summons and not attending court, rather than to apply for an exemption. It is accepted that neither the legislation nor the rules on how the lists of jurors are to be compiled are discriminatory. However, for historical, family, social and cultural reasons which are also to be found in other spheres (such as compulsory military service), for many years the number of women included on the lists of jurors was low (perhaps it was they who had cause to complain of discrimination). However, the practice has been corrected in recent years and some balance has now been established. Finally, in April 2005, the applicant ’ s application for exemption from jury service was accep ted by the competent authority.