Forced Labour

ECHR Guarantee

Article 4 of the European Convention on Human Rights provides that

• No one shall be held in slavery or servitude
• No one shall be required to perform forced or compulsory labour.

For the purpose of the article, the term forced or compulsory labour shall not include.

• any work required to be done in the ordinary course of detention imposed in accordance with the provisions of Article 5 of the Convention or during conditional release from such detention.
• any service of a military character or in the case of conscientious objectives in countries where they are recognised service exacted instead of compulsory military service.
• any service exacted in case of an emergency or calamity threatening the life or well-being of the community.
• any work or service which forms part of normal civic obligations.

Scope

The Article prohibits slavery in itself as an institution, as well as prohibiting forced labour. There is no exception to the prohibition on slavery and servitude. There are exceptions to the forced labour prohibitions.

Attempts over the years to argue that the provision was breached in the case of non-payment of remuneration and of lawful retirement ages have failed.

Although slavery and servitude were largely abolished as formal legal institutions in the 19th century, human trafficking continues to exist. Much of human trafficking involves sexual exploitation, in particular of women and children.

Slavery and servitude

Slavery has been long since prohibited under international treaties and customary international law. There is a distinction between servitude and slavery. In Siliadin v. France, a person was brought to France from  Togo by a relative and forced to work 15 hours a day, seven days a week, with no papers or resources. He was held to be in servitude and not slavery. The court held that France had failed to meet its obligations by not making domestic slavery an offence.

Adıgüzel v. Turkey (2017) The applicant, a civil servant working in a municipal authority as an occupational doctor and forensic pathologist, complained that he was required to work outside the prescribed working hours without pecuniary compensation. The Court held in particular that by choosing to work as a civil servant for the municipality, the applicant must have known from the beginning that he could be subject to work outside the standard hours without pay.

Moreover, even if pecuniary compensation was not available, the applicant could have taken compensatory days off, which he never requested. He could thus not claim to be subject to a disproportionate burden. The risk of having his salary deducted or even being dismissed for refusing to work outside working hours was not sufficient to conclude that the work had been required under the threat of a “penalty”. The Court took the view that the additional services the applicant was required to provide did not constitute “forced or compulsory labour”.

There may be servitude where the victim feels on an objective basis that his situation is permanent and unchangeable. In C.N. v. United Kingdom, it was held that the absence of criminalisation of domestic servitude, which may involve overt and subtle coercion, was a failure to comply with the Convention. The UK Modern Slavery statute was introduced subsequently,

Compulsory labour

In Talmon v. Netherlands, the applicant was required as a condition of entitlement to unemployment benefit to undertake what he claimed to be forced or compulsory labour. He claimed his only permissible employment was work as an independent scientist and social critic. The Commission found the application to be manifestly ill-founded.

In a number of cases on alleged compulsory labour involving requirements to undertake professional or other duties in the course of a business, the court considered whether the duties were outside the ambit of the relevant profession or trade, whether they were remunerated or not, whether they were based on social solidarity and, whether the burden was disproportionate.

In Schmidt v. Germany, the court reiterated that paragraph 3 of Article 4 is not intended to limit the exercise of the right guaranteed by Article 2 but should limit the very content of that right, for it forms a whole with paragraph 2 and indicates what the term forced or compulsory labour shall not include. This being so paragraph 3 serves as an aid tp the interpretation of paragraph two.

The four sub-paragraphs of paragraph three, notwithstanding their diversity, are grounded on the governing idea of the general interest, social solidarity and what is normal in the ordinary course of affairs.

In the early case of Iversen, legislation in Norway required that dentists work for the public service for two years. The applicant was convicted of breach of legislation.

On a split decision on admissibility, a majority held that the application was not admitted. There was no forced labour. Some of the majority held that the service was reasonably required in an emergency threatening the well-being of the community and was therefore permissible as such.

In Graziani/Weiss v. Austria, the applicant was forcefully made legal guardian of a minor. This could occur in respect of lawyers, but it was held that did not determine the position that he had consented to become a lawyer.

Prison labour

Prison labour and labour during conditional release are permitted in principle under the Convention. In some very old applications against Germany, the Commission rejected applications claiming part-payment for works on the part of prisoners, lack of social security coverage, and in later cases work performed for private bodies while in prison, breached the Convention. The Commission found that the form of prison work fell within the scope of the qualifications of the Article.

Meier v. Switzerland 2016 case concerned the requirement for a prisoner to work beyond the retirement age. The applicant alleged in particular that there had been a violation of his right not to be required to perform forced or compulsory labour. The Court held that there had been no violation of Article 4 of the Convention. It noted in particular that there was insufficient consensus among Council of Europe member States regarding compulsory work for prisoners after retirement age. Accordingly, it emphasised, on the one hand, that the Swiss authorities enjoyed a considerable margin of appreciation and, on the other, that no absolute prohibition could be inferred from Article 4 of the Convention.

In De Vilde and others v. Belgium 1971, the Commission was of the  view that the work required that the applicant was not justified because there had been a breach of Article 5.4. The Court agreed but held there was no breach of Article 4 because the applicants were lawfully detained.

In Stummer v. Austria 2011, , almost forty years later, the applicant claimed that the exclusion of prisoners from social insurance and the pension system breached Article 4. Although many states had changed law and  the European model Convention on prison rules contemplated inclusion in domestic social security, there was no violation, the majority held.

Military Terms

In W, X, Y and Z v. United Kingdom back in 1968, four applicants in their teens had joined the British army and navy for nine years, calculated from the age of 18. They applied for discharge, which was refused.

The Commission held their complaint on the basis of forced or compulsory labour was not found, given the expressed provisions of Article 4.3, the restrictions on soldiers who enlisted after the age of eighteen who observed the terms of their entry with the consequent restriction of freedom was not an impairment such as to constitutes slavery or servitude.

In terms of the young age of enlistment, parents had consented and the claim was rejected. The United Kingdom revised its rules so that entrants could decide at 18 to leave after three years at age 21.

Military Service

In Bayatyan v. Armenia, Article 4 did not prevent consideration of questions of military service under Article 9 regarding conscientious objection.

In Iversen v. Norway, the dentist concerned had accepted the relevant legislative position. In the Army cases, the court emphasized the fact that the enlisting soldiers had signed up and the parents had also signed.

Chitos v. Greece concerned an army officer who had been forced to pay a fee to the State in order to resign before the end of his period of service. The Court held that there had been a violation of Article 4 § 2 (prohibition of forced labour) of the Convention.  By ordering the applicant to pay the sum due in order to buy back his remaining years of service, to the tune of 109,527 euros, without any facility for paying in instalments, even though he had had an appeal pending before the Court of Audit, the authorities had failed to strike a fair balance between protecting the applicant’s individual right and the interests of the community at large.

Civic Obligations

Article 4 contemplates and excepts work that is part of normal civic obligations. This is measured by reference to what is reasonable to be expected of the individual in the circumstances. Jury service has been held to be a civic obligation in this context.

In Van Der Mussele v. Belgium, a similar issue arose in respect of lawyers. It was held that the burden was not disproportionate, and there was no compulsory labour for the purpose of the article, so it was not necessary to consider whether the obligation was a civic obligation.

In Gussen Bauer v. Austria, a lawyer complained that he was required to work pro bono with reimbursement for almost none of his expenses. The application was declared admissible but was not later settled.

The Court considered whether the particular requirement was discriminatory between groups required not to undertake the work and those which were so required. This occurred notwithstanding that if the matter is outside Article 4, it cannot be argued to be discriminatory under other articles in the protocol.

In Schmidt v. Germany, the obligation to serve as a fire person or pay a levy applied to men but not women, The court held the work to be a normal civic duty, and the charge was related to the service. The court found this to be  a violation, notwithstanding that it was protected by Article 4.

In Zarb Adami v. Malta, jury legislation required very few women to serve and it was held to constitute unlawful discrimination, notwithstanding that jury service was accepted as a normal civic obligation.

The question arises as to whether consent may obviate labour or service being forced or compulsory. The use of the word forced or compulsory lends weight to the argument that this may be so. The question arises as to how severe the pressure or sanction in question is in the circumstances.