ZARB ADAMI v. MALTA - 17209/02 [2006] ECHR 1209 (20 September 2006)

CONCURRING OPINION OF JUDGE BRATZA

1. It is with some hesitation that I have voted with the majority of the Chamber in favour of finding a violation of Article 14 of the Convention taken in conjunction with Article 4. My hesitations relate less to the question whether, if applicable, Article 14 of the Convention was violated than to the more fundamental question whether the facts complained of fall within the ambit of Article 4 and thus whether Article 14 has any application at all.

2. As the judgment makes clear, this is not the first occasion on which the Court has been required to examine whether a complaint of discriminatory treatment in the performance of a “civic obligation” fell within the ambit of Article 4 § 3 (d) of the Convention.

In Van der Mussele v. Belgium (23 November 1983, Series A no. 70), the Court was required to determine whether the obligation imposed on the applicant, as a pupil advocate, to represent a defendant without remuneration and without being reimbursed his expenses was in violation of Article 4 of the Convention taken alone or in conjunction with Article 14. In assessing whether the work the applicant was obliged to perform amounted to “forced or compulsory labour” within the meaning of Article 4 § 2, the Court held that the structure of Article 4 was informative on this point:

“Paragraph 3 is not intended to ‘limit’ the exercise of the right guaranteed by paragraph 2, but to ‘delimit’ the very content of this right, for it forms a whole with paragraph 2 and indicates what ‘the term “forced or compulsory labour” shall not include’ (ce qui ‘n’est pas considéré comme ‘travail forcé ou obligatoire” ‘). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2.

The four sub-paragraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is in the normal or ordinary course of affairs. The final sub-paragraph, namely sub-paragraph (d) which excludes ‘any work which forms part of normal civil obligations’ from the scope of forced or compulsory labour, is of especial significance in the context of the present case.” (§ 38)

Having examined the nature and extent of the burden imposed on the applicant, as well as the compensatory factors and the standards generally obtaining in Belgium and other democratic societies, the Court concluded that there was no compulsory labour for the purposes of Article 4 § 2 of the Convention. In view of this conclusion, the Court did not find it necessary to determine:

“... whether the work in question was in any event justified under Article 4 § 3 (d) as such and, in particular, whether the notion of ‘normal civic obligations’ extends to obligations incumbent on a specific category of citizens by reason of the position they occupy, or the functions they are called upon to perform, in the community.” (§ 41)

Turning to the issue under Article 14 of the Convention, the Court first addressed the question whether, since it had already found that there was no forced or compulsory labour for the purposes of Article 4,

“... the facts in issue fall completely outside the ambit of that Article and, hence, of Article 14. However, such reasoning would be met by one major objection. The criteria which serve to delimit the concept of compulsory labour include the notion of what is in the normal course of affairs ... Work or labour that is in itself normal may in fact be rendered abnormal if the choice of the groups or individuals bound to perform it is governed by discriminatory factors, which was precisely what the applicant contended had occurred in the present circumstances.

Consequently, this is not a case where Article 14 should be held inapplicable; the Government, moreover, did not contest the point.” (§ 43)

Having concluded that Article 14 was not inapplicable, the Court found on the facts that the applicant had not been subjected to discriminatory treatment.

3. In the case of Karlheinz Schmidt v. Germany (18 July 1994, Series A no. 291-B), the applicant complained that he was obliged to pay a fire service levy under an Act which made it compulsory for men, but not for women, to serve in the fire brigade or pay a financial contribution in lieu of such service. He claimed to be the victim of discrimination on grounds of sex in breach of Article 14 “taken in conjunction with Article 4 § 3 (d) of the Convention”.

The Court, after reiterating that there could be no room for the application of Article 14 unless the facts fell within the ambit of one or more of the substantive provisions of the Convention, went on to quote from paragraph 38 of Van der Mussele to the effect, inter alia, that paragraph 3 of Article 4 was not intended to “limit” the exercise of the right guaranteed by paragraph 2 but rather to “delimit” the very content of that right and that the paragraph accordingly served as an aid to the interpretation of paragraph 2. The Court continued:

“Like the participants in the proceedings, the Court considers that compulsory fire service such as exists in Baden-Württemberg is one of the ‘normal civic obligations’ envisaged in Article 4 § 3 (d). 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 § 3 (d).

It follows that Article 14 read in conjunction with Article 4 § 3 (d) applies.” (§ 23)

In this case the Court concluded that the difference in treatment was not objectively justified and that there had accordingly been a violation of Article 14 of the Convention “taken in conjunction with Article 4 § 3 (d)”.

4. I do not find the reasoning in either judgment for holding Article 14 to be applicable to be entirely convincing or satisfactory.

The drafting of Article 4 of the Convention is unusual. The rights guaranteed by the Article are set out in paragraph 1 (“No one shall be held in slavery or servitude”) and paragraph 2 (“No one shall be required to perform forced or compulsory labour”). Like Article 3 of the Convention, the prohibitions contained in the two paragraphs are cast in absolute terms, there being no stated exceptions and, in the case of the first paragraph, no derogation being permitted under Article 15. Paragraph 3 of the Article does not confer any rights. In particular, it does not confer a right not to be compelled to perform work or services of the kind set out in sub-paragraphs (a)-(d). Nor, unlike paragraph 2 of Articles 8-11 of the Convention, does paragraph 3 provide for permitted restrictions on the enjoyment of rights guaranteed by Article 4. Nor, again, unlike paragraph 2 of Article 2 of the Convention, does paragraph 3 lay down specific circumstances in which acts which would otherwise offend against the absolute prohibition in the Article might be justified. Paragraph 3 instead defines the scope of the prohibition in paragraph 2 by spelling out what is not included within the words “forced or compulsory labour”: as the Court expressed the point, paragraph 3 does not “limit” the exercise of the right guaranteed by paragraph 2 but “delimits” the very content of that right.

5. This being so, the question arises as to how compulsion to perform work or services forming part of “normal civic obligations”, which are expressly excluded from the protection afforded by Article 4, can at the same time be said to fall “within the ambit” of that provision so as to render Article 14 applicable.

In Van der Mussele, the Court sought to circumvent the problem by holding that the work or labour in question was “abnormal” if the choice of the groups or individuals bound to perform it were “governed by discriminatory factors”, which was what the applicant contended had occurred in that case. However, this reasoning is not without its difficulties. In the first place, the Court expressly found that the services the applicant had been required to perform, even if “abnormal”, did not amount to “forced or compulsory labour” for the purposes of paragraph 2 of Article 4 and were thus not within the scope of the right guaranteed by that paragraph. Secondly, discriminatory treatment only gives rise to an issue under Article 14 of the Convention if it relates to facts falling within the ambit of a substantive provision; if the facts do not otherwise fall within such ambit they cannot be made to do so because discrimination is alleged.

In Karlheinz Schmidt, the Court did not suggest that the obligation imposed on the applicant was abnormal but, on the contrary, found that it was a normal civic obligation which fell squarely within the terms of paragraph 3 (d). It would appear to follow from the Court’s earlier reasoning that the obligation in question thus fell outside the scope of the right guaranteed by Article 4. However, as Judge Mifsud Bonnici pointed out in his dissenting opinion in that case, the Court in fact reached precisely the opposite conclusion, appearing to treat paragraph 3 (d) not as “delimiting” the scope of the right guaranteed by paragraph 2 of Article 4 but as if it conferred an independent right.

6. Despite my doubts as to the Court’s reasoning in its earlier judgments, since I see no ground on which to distinguish them from the present case, I would follow them in holding Article 14 to be applicable. This result would also seem to accord better with the principle that the Convention should be interpreted and applied in a manner which renders the rights practical and effective, not theoretical and illusory. It would seem scarcely compatible with this principle to interpret Article 4 as entitling a State to oblige one particular group or category of individuals to perform civic obligations, without the necessity to justify the discriminatory treatment. However, I consider that the reasons for holding Article 14 to be applicable in such circumstances require further clarification. Here, my approach to the question is not dissimilar to that of Judge Garlicki, whose concurring opinion I have had the benefit of reading.

7. The central question which arises is what constitutes “the ambit” of one of the substantive Articles, in this case Article 4. It has been argued that “even the most tenuous links with another provision in the Convention will suffice” for Article 14 to be engaged (see Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention, 1st edition, Sweet & Maxwell, 2000, § C14-10). Even if this may be seen as going too far, it is indisputable that a wide interpretation has consistently been given by the Court to the term “within the ambit”. Thus, according to the constant case-law of the Court, the application of Article 14 not only does not presuppose the violation of one of the substantive Convention rights or a direct interference with the exercise of such right, but it does not even require that the discriminatory treatment of which complaint is made falls within the four corners of the individual rights guaranteed by the Article. This is best illustrated by the fact that Article 14 has been held to cover not only the enjoyment of the rights that States are obliged to safeguard under the Convention but also those rights and freedoms that a State has chosen to guarantee, even if in doing so it goes beyond the requirements of the Convention (see, for example, Case “relating to certain aspects of laws on the use of languages in education in Belgium” (merits), 23 July 1968, Series A no. 6, pp. 33-34, § 9, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 71, Series A no. 94). This would indicate in my view that the “ambit” of an Article for this purpose must be given a significantly wider meaning than the “scope” of the particular rights defined in the Article itself. Thus, in the specific context of Article 4 of the Convention, the fact that work or service falling within the definition of “normal civic obligations” in paragraph 3 are expressly excluded from the scope of the right guaranteed by paragraph 2 of that Article in no sense means that they are also excluded from the ambit of the Article seen as a whole.

8. What then is to be regarded as being “within the ambit” of Article 4? In my view valuable guidance is to be found in the International Labour Organisation Convention no. 29 on which, as pointed out by the Court in Van der Mussele (cited above, § 32), the authors of the European Convention based themselves in drafting Article 4 and to which the Article “bears a striking resemblance”. Paragraph 1 of the ILO Convention provides that for the purposes of that Convention “forced or compulsory labour” shall mean “all work or service which is exacted from any person under the menace of a penalty and for which the person has not offered himself voluntarily”. It is this definition which the Court noted could “provide a starting-point for interpretation of Article 4 ... of the European Convention”, without sight being lost of the Convention’s special features or of the fact that the Convention was a living instrument, to be read in the light of the notions currently prevailing in democratic States. It is beyond dispute that compulsory jury service in Malta was and is a service which is exacted “under the menace of a penalty” (in the case of the applicant, a fine for non-attendance for jury service was in fact imposed). It is also beyond dispute that the applicant did not offer himself voluntarily for jury service, which would in principle therefore fall within the ordinary meaning of what constitutes “forced or compulsory labour”. This is indeed confirmed by paragraph 3 itself which, by excluding from the prohibition in paragraph 2 “normal civic obligations”, shows the wide scope of what would otherwise be treated as “forced or compulsory labour”. While paragraph 3 must indeed be regarded as “delimiting” the scope of the right guaranteed in paragraph 2 as the Court stated in Van der Mussele (with the consequence that a State which imposes normal civic obligations does not violate the Article), it does not exclude such obligations from the ambit of the Article (with the consequence that such obligations may only be imposed in a non-discriminatory manner).

9. For the above reasons, I consider that Article 14 is applicable and I share the view of the majority of the Court that in the present case it was violated. However, unlike the majority and unlike the Court in Karlheinz Schmidt, I would find a violation of Article 14 “taken in conjunction with Article 4” and not “taken in conjunction with Article 4 § 3 (d)”.

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 work 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 different 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 der 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 accepted by the competent authority.

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