# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  X. v. AUSTRIA - 1452/62 [1963] ECHR 4 (18 December 1963)

## هيثم الفقى

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X. v. AUSTRIA - 1452/62 [1963] ECHR 4 (18 December 1963) 
THE FACTSWhereas the facts presented by the parties may be summarised asfollows:The Applicant is a Norwegian dentist, born in 1934 and living inSandejord. His Application was presented by Mr. Johan Hjort, barristerpractising at the Supreme Court of Norway.The facts as represented from the pleadings of the parties appear tobe as follows:1. On 28th July 1949, a Law providing for a public dental service wasenacted. For the purpose of implementing this Act the country wasdivided into districts. In each district there was to be a districtdentist responsible to a regional dentist who would be the head of thepublic dental service in his particular region. It was realised at thetime when the Law was enacted that it would be difficult to fill allthe positions of district dentists which were to be established,especially in northern Norway.In 1950, the Ministry for Social Affairs raised the question ofincreasing the supply of dentists for the public dental service. It wasproposed that students admitted to the Norwegian Dental College as wellas those studying abroad, were to be required, on beginning theirstudies, to make a statement in which they undertook, on completingtheir studies, to work for a period not exceeding two years in thepublic dental service in any district to which they were assigned bythe Ministry. This scheme was brought into effect in 1951 and, in 1954,a Royal Decree was published which amended accordingly the regulationsfor admission to the Norwegian Dental College.In 1955, however, some doubt was expressed in student quarters aboutthe legal force of the undertakings which they had been required tomake and, on 2nd March 1956, the students graduating that year wroteto the Ministry for Social Affairs stating, inter alia, that theyconsidered themselves legally justified in breaking the agreement. Thisled to the passing, on 21st June 1956, of a provisional Act relatingto obligatory public dental service for dentists. The text of this Actwas 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 examinationin dentistry in this Kingdom, or have obtained approval of a foreignexamination in dentistry giving it the same effect as the Norwegianexamination in dentistry pursuant to Act of 8th July 1949, may, on thebasis of a decision of the Ministry for Social Affairs, be required fora period of up to 2 years to take a position in public dental servicewhich, though having been advertised, remains vacant.Unless the dentist concerned agrees to some other arrangement, theassignment shall be given in such a manner that the service can becommenced at latest 3 months after the conclusion of his academicstudies or after the termination of such military service as isimmediately subsequent to his examination, - or - if the dentist haspassed his examination in 1955 - at latest 3 months after this Actenters into force. Assignments may not be made for service whichextends beyond 30th June 1963.Paragraph 2. By public dental service is understood:1. municipal dental care for schools,2. Public Dental Service according to the provisions of the Act of 28thJuly 1949,3. municipal dental care for children and young people, beingrespectively below and above the age of obligatory school attendance.Paragraph 3. For service under paragraph 1. the dentist is entitled tothe remuneration which is stipulated for the position to which theassignment applies. The dentist is moreover entitled to a refund ofreasonable travelling expenses in connection with his assumption of thepost assigned, and for the return journey to his place of ordinaryresidence. The State is responsible for payment and can claimreimbursement by the county or municipality concerned. The King mayissue further regulations concerning the calculation and fixing of theremuneration, etc. under the second paragraph.Paragraph 4. Contravention of an assignment issued under the authorityof 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 1956and was strongly opposed by the Opposition.However, the Act was passed by Parliament by the majority vote of theGovernment Party after some members of the Opposition had argued thatthe Act introduced a compulsory direction of labour and was, therefore,contrary to the Norwegian Constitution and to Article 4 of theConvention. These arguments were rejected by the Government whichmaintained that this direction of labour was necessary to implement apublic dental service.2. The Act was applied to the Applicant in the following circumstances:He passed his matriculation examination in 1953 and then applied foradmission to the Norwegian Dental College. Alternatively, he asked theDental College to arrange for him to be sent to one of the foreignuniversities whose degrees were recognised as equivalent to Norwegiandegrees. His application was refused on the ground that the marks heobtained for the entrance examination were not adequate. It wasrecommended to him that he should sit once more for the matriculationexamination with a view to improving his marks but, nevertheless, theApplicant went to Germany on his own initiative and passed a dentalexamination at the Medical Academy of D&Atilde;¼sseldorf in 1957.An examination diploma from that Academy is recognised in Norway asequivalent to a Norwegian degree and, indeed, the Applicant studied inD&Atilde;¼sseldorf together with a number of Norwegian students who had beensent there by the Norwegian Dental College. Since the Applicant startedhis studies at his own expense, without assistance from the NorwegianAgency for Student Loans, he was not required to give any undertakingto serve in the public dental service after the completion of hisstudies, nor has he later made any such statement. In fact, suchwritten declarations have been discontinued in 1956 after thepromulgation of the Provisional Act.On his return to Norway, the Applicant, whose first petition foradmission into the Norwegian Dental College had been rejected in 1957while his second had been accepted in 1958, attended a supplementarycourse at the College which is compulsory for all candidates with aforeign diploma. He passed the test at this course in September 1958and then carried out his military service until December 1959 as amilitary dentist. Towards the end of his service he received from theMinistry for Social Affairs a list of vacancies in the public dentalservice and was asked to indicate the post or posts for which he wantedto apply.On 2nd November 1959 the Applicant sent a letter to the Ministry forSocial Affairs in which he applied for a position in the public dentalservice in southern Norway but, on 4th December 1959, he was informedthat his application could not be considered and that he would bedirected to take over the positions of dentist in the Moskenes districtin the region of Nordland. Since he had performed his military servicein northern Norway the period of his compulsory assignment was limitedto one year and on 7th December 1959 the Applicant applied in vain fora reduction of that period. At a meeting with representatives of theMinistry for Social Affairs, on 14th December 1959, he accepted thispost for the period envisaged by the Ministry and took over theposition in Moskenes on 11th January 1960. However, he gave up his workon 20th May 1960 and left, having in a letter of 21st March 1960informed the Ministry for Social Affairs of his intention to do so.Criminal proceedings were subsequently instituted against the Applicantby writ issued by the Chief of Police of Sandefjord on 3rd November1960. 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 ofthe Provisional Act of 21st June 1956.The Applicant appealed against this judgment to the Supreme Court bynotice of appeal dated 28th February 1961. He submitted:1) that the Provisional Act of 21st June 1956 was invalid as beingcontrary to the Constitution;2) that the Act was invalid as it was contrary to the EuropeanConvention for the Protection of Human Rights; and3) that the Act was only intended to apply to students who, beforecommencing their studies, has made a statement undertaking for a periodof not more than two years after the completion of their studies, toserve in the public dental service; and that the Act did not thereforeapply to him who had made no such statement.By decision of the Supreme Court of 16th December 1961 the Applicant'sappeal was dismissed. Of the five members of the Supreme Court, threejudges held that none of the three objections could be accepted whilethe other two members of the Court held that objection 3) was valid andthat the Applicant should be acquitted. These two judges felt thatthere was no need to express an opinion on the two other submissionsmade by the Applicant.The majority finding of the Court, as pronounced by Justice Hiorth&Atilde;¶y,held as follows:"Defending Counsel's attack on constitutional grounds, on the generalvalidity of the Provisional Act of 21st June 1956 regarding civilianservice for dentists is, I think, clearly ill-founded. I do notentirely rule out the possibility that courts may, in extreme cases,find a Law to be inapplicable because it is contrary to certain generalprinciples of law of a constitutional nature, even if it does notviolate any definite provision in the Constitution. But it goes withoutsaying 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 asbeing contrary to the spirit and principles of the Constitution. Inview of the history and background of the above-mentioned Law, themanner in which it is applied and the restrictions as to time governingboth the Law and the orders of assignments which are based on it, itseems to me quite clear that the Law cannot be ruled out on suchgrounds.The position is much the same as regards the claim that the Law isinvalid, as being contrary to Article 4 of the European Convention of4th November 1950 for the Protection of Human Rights and FundamentalFreedoms. There is little doubt to my mind that the Convention'sstipulation that no one shall be required to perform forced orcompulsory labour cannot be reasonably interpreted as applying to theobligations of a public nature arising in the present case. The workin question is of short duration, well-paid, based on the professionalqualifications of the person concerned and in immediate continuationof his completed studies. Even if, at the time, such service is, as mayoccur in many cases, contrary to the interests of the individualconcerned, it is clear to me that it cannot be regarded as aninfringement, let alone a violation, of Human Rights. As, therefore,I do not find that there is any conflict between the Convention and theNorwegian Law in question, there is no need for me to go into thequestion as to which should be given preference in the event of aconflict."The Applicant has paid the fine imposed upon him.The allegations of the Applicant3. Whereas the Applicant's counsel submits that the Act and the orderassigning the Applicant to the dental district of Moskenes are contraryto Article 4 of the Convention. His particular submissions in supportof this allegation are set out below (paragraphs 6 - 9). He furtheralleges that Articles 8 and 11 of the Convention have been infringed(paragraph 10).The claims of the Applicant4. Whereas, in his letter of 8th June 1962, the Applicant's counselclaims "that the Provisional Act of June 21st, 1956 is invalid as beingcontrary to Article 4 of the Convention. It follows that the order ofthe Ministry for Social Affairs directing him to take over the positionof district dentist in Moskenes is invalid and that the judgment passedon him by the national courts cannot be enforced."In his Reply of 1st March 1963 the Applicant's counsel, admitting thathis above claims were perhaps misleading, restated his claims to theeffect that the Commission, after an examination of the Applicationa) should state its opinion that the Provisional Act of 1956, asapplied to the Applicant by order of the Ministry, is contrary toArticle 4 of the Convention;b) should make such proposals as it sees fit in accordance with Article31 of the Convention. He added that the Commission was called upon todecide "the general issue whether or not the Act itself was contraryto the provisions of the Convention".The submissions of the Parties5. Whereas the submissions of the Parties may be summarised as follows:The Respondent Government, in its observations of 7th January 1963, itsReply of 1st June 1963 and its oral submissions on 30th and 31stOctober 1963 raised the following four objections to the admissibilityof the Application:a. that the Application had been lodged out of time and should berejected in accordance with Article 27, paragraph (3), of theConvention, for non-observance of the six months' rule laid down inArticle 26 (see paragraph 6).b. that the Application was incompatible with the provisions of theConvention 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 underArticle 25 of the Convention and should be rejected in accordance withArticle 27, paragraph (2), of the Convention (see paragraph 8).d. that the Application was manifestly ill-founded and should berejected in accordance with Article 27, paragraph (2), of theConvention (see paragraph 51).6. As regards the contention that the Applicant did not observe the sixmonths' time-limit laid down in Article 26 of the ConventionThe Respondent Government, in its observations of 7th January 1963,submitted that the final decision in the criminal proceedings againstthe Applicant was given by the Supreme Court of Norway on 16th December1961. Accordingly the six months' time-limit prescribed in Article 26expired on 16th June 1962. The Application was dated 8th June 1962 butwas received and registered by the Secretariat of the Commission on18th June. Rule 48 of the Rules of Procedure of the Commission statedthat, for the purpose of determining any time-limits, the date of thefiling of the pleadings with the Secretariat General should alone betaken into consideration. Consequently the Commission could not and didnot deal with the matter within the six months' time-limit laid downin Article 26 of the Convention[/align]

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## هيثم الفقى

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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 ("requ&Atilde;&ordf;te") 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 km&Acirc;².

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.

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## هيثم الفقى

[align=left]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
pr&#195;©paratoires" 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 forc&#195;©"
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"[/align]

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## هيثم الفقى

[align=left]he 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;[/align]

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## هيثم الفقى

[align=left] 

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.
[/align]

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