European Court of Human Rights

There appeared before the Court:

- for the Government:

       Mr. J. Niset, Legal Adviser

                            at the Ministry of Justice,                                            Agent,

       Mr. E. Jakhian, avocat,                                                             Counsel;

- for the Commission:

       Mr. M. Melchior,

       Mr. J.-C. Soyer,                                                                      Delegates,

       Mr. A.-L. Fettweis, avocat,

       Mr. E. Van der Mussele, applicant,

                            assisting the Delegates (Rule 29 § 1, second sentence, of    

                            the Rules of Court).

The Court heard their addresses and their replies to questions put by it and by certain of its members.

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association).

On 3 October 1979, the Court of First Instance sentenced him to six months’ and eight days’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand.

The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation.

II.   RELEVANT LEGISLATION AND PRACTICE

A. The profession of avocat in Belgium, in general

A pupillage normally lasting three years is a pre-requisite to entry on the register of avocats (Article 434 and the second paragraph of Articles 435 and 436). Subject to the powers of the General Council of the National Ordre, the Council of the district Ordre determines the obligations of pupils (Articles 435 and 494). In the main these consist of attending at a pupil-master’s chambers, attending hearings, following courses on the rules of professional conduct and the art of advocacy (Article 456, third paragraph) and acting as defence counsel in cases assigned by the Legal Advice and Defence Office (Article 455). The Council of the Ordre ensures that these obligations are complied with and may, if need be, prolong the pupillage "without prejudice to the right to refuse entry on the register"; any pupil who is unable, after five years at the latest, to show that he or she has satisfied the said obligations "may be omitted from the roll" of pupils (Article 456, second and fourth paragraphs).

Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats. However, they may not plead before the Court of Cassation or the Conseil d’État (Article 439), vote in elections of the chairman or other members of the Council of the Ordre (Article 450) or deputise for judges and members of the public prosecutor’s department.

Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board (Articles 468 and 472). The disciplinary appeal board is composed of a chairman (who is the first president of the Court of Appeal or a president of a chamber delegated by him), four assessors (who are avocats) and a secretary (who is a member or former member of the Council of the Ordre des avocats); the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority (Articles 473 and 475).

The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to the Court of Cassation (Article 477).

B. Officially appointed avocats

1. At the time of the facts in issue

Officially appointed avocats were thus designated by the Office by virtue of a statutory competence conferred by the State. In Antwerp and Liège a system of rotation was used whereas in Brussels the matter was dealt with on a more flexible basis. The Office almost always selected pupil avocats who, if need be, had to continue acting in the case even after the end of their pupillage, as occurred in the present circumstances (see paragraph 12 above). It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat.

Pupil avocats could invoke the so-called "conscience clause" laid down in Article 429 of the Judicial Code (see paragraph 16 above) or objective grounds of incompatibility. In the event of an unjustified refusal to deal with cases that the Office wished to allocate to him, the Council of the Ordre could extend the pupillage of a pupil avocat to a maximum period of five years, strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations (Article 456, second and fourth paragraphs).

2.   The Act of 9 April 1980

"The State shall grant to the pupil avocat appointed by the Legal Advice and Defence Office compensation in respect of the services which he was appointed to render.

After obtaining the opinion of the General Council of the National Ordre des avocats, the King shall prescribe, by Decree laid before the Council of Ministers, the conditions governing the granting, scale and manner of payment of such compensation."

In certain circumstances, the State will be able to take action against the assisted person to recover the compensation awarded.

The Act is not retroactive. Furthermore, for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of the Royal Decree provided for under Article 455.

C. Official appointment, official assignment, legal aid

- "official assignment", which is provided for under the law in various circumstances where the intervention of an avocat is obligatory, independently of the means of the person concerned (Articles 446, second paragraph, and 480 of the Judicial Code, Article 290 of the Code of Criminal Procedure, etc.);

- "legal aid" in the narrow sense, which "consists of exempting, in whole or in part, persons whose income is insufficient to meet the costs of proceedings, including extrajudicial proceedings, from paying stamp duty, registration duty, registry and copying fees and any other expenditure involved", and of providing "the services of public and publicly appointed officers free" for such persons (Articles 664 and 699 of the Judicial Code).

D. Legal aid and public or publicly appointed officers

The State reimburses the latter persons for their out-of-pocket expenditure (Article 692) but grants no remuneration, the one exception being bailiffs who receive the equivalent of one quarter of their usual fees (Article 693).

PROCEEDINGS BEFORE THE COMMISSION

- Article 4 § 2 (art. 4-2) of the Convention, by ten votes to four;

- Article 1 of Protocol No. 1 (P1-1), by nine votes to five;

- Article 14 of the Convention, taken in conjunction with the two above-mentioned Articles (art. 14+4-2, art. 14+P1-1), by seven votes to seven, with the casting vote of the President (Rule 18 § 3 of the Commission’s Rules of Procedure).

The report contains two dissenting opinions.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

"that Mr. Van der Mussele has not been the victim of any violation of the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that accordingly application no. 8919/80 lodged by him is without foundation".

AS TO THE LAW

I.   SCOPE OF THE PRESENT CASE

In proceedings originating in an "individual" application (Article 25 of the Convention) (art. 25), the Court has to confine its attention, as far as possible, to the issues raised by the concrete case before it. However, it appears from the material before the Court that the appointment complained of cannot be reviewed from the standpoint of the Convention without putting it in the general context both of the relevant Belgian legislation applicable at the time and of the practice followed thereunder; the Commission’s Delegates rightly drew attention to this.

II.   RESPONSIBILITY OF THE BELGIAN STATE

Under the Convention, the obligation to grant free legal assistance arises, in criminal matters, from Article 6 § 3 (c) (art. 6-3-c); in civil matters, it sometimes constitutes one of the means of ensuring a fair trial as required by Article 6 § 1 (art. 6-1) (see the Airey judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26). This obligation is incumbent on each of the Contracting Parties. The Belgian State - and this was not contested by the Government - lays the obligation by law on the Ordres des avocats, thereby perpetuating a state of affairs of long standing; under Article 455, first paragraph, of the Judicial Code, the Councils of the Ordres are to make provision for the assistance of indigent persons by setting up Legal Advice and Defence Offices (see paragraph 18 above). As was pointed out by the applicant, the Councils have "no discretion as regards the principle itself": legislation "compels them to compel" members of the Bar to "defend indigent persons". Such a solution cannot relieve the Belgian State of the responsibilities it would have incurred under the Convention had it chosen to operate the system itself.

Moreover, the Government recognised at the hearings that "the obligation", for pupil avocats, "to act as defence counsel in cases assigned by the Legal Advice and Defence Office" arose from Article 455 of the Judicial Code; in paragraph 21 of their memorial, they had already conceded that Belgian law, by not making any provision for indemnifying pupil avocats, acknowledged at least implicitly that the latter have to bear the expenses incurred in dealing with the cases in question.

In addition, the Belgian Bars, bodies that are associated with the exercise of judicial power, are, without prejudice to the basic principle of independence necessary for the accomplishment of their important function in the community, subject to the requirements of the law. The relevant legislation states their objects and establishes their institutional organs; it endows with legal personality in public law each of the Councils of the twenty-seven local Ordres and the General Council of the National Ordre (see paragraph 15 above).

III.  ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION, TAKEN ALONE (art. 4)

"1. ...

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article (art. 4) the term "forced or compulsory labour" shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations."

Four members of the Commission considered that this had been the case, but a majority of ten of their colleagues arrived at the opposite conclusion. The Government contended, as their principal submission, that the labour in question was not "forced or compulsory" or, in the alternative, that it formed part of the applicant’s "normal civic obligations".

As the Commission and the Government pointed out, it is evident that the authors of the European Convention - following the example of the authors of Article 8 of the draft International Covenant on Civil and Political Rights - based themselves, to a large extent, on an earlier treaty of the International Labour Organisation, namely Convention No. 29 concerning Forced or Compulsory Labour.

Under the latter Convention (which was adopted on 28 June 1930, entered into force on 1 May 1932 and was modified - as regards the final clauses - in 1946), States undertook "to suppress the use of forced or compulsory labour in all its forms within the shortest possible period" (Article 1 § 1); with a view to "complete suppression" of such labour, States were permitted to have recourse thereto during a "transitional period", but "for public purposes only and as an exceptional measure, subject to the conditions and guarantees" laid down in Articles 4 et seq. (Article 1 § 2). The main aim of the Convention was originally to prevent the exploitation of labour in colonies, which were still numerous at that time. Convention No. 105 of 25 June 1957, which entered into force on 17 January 1959, complemented Convention No. 29, by prescribing "the immediate and complete abolition of forced or compulsory labour" in certain specified cases.

Subject to Article 4 § 3 (art. 4-3), the European Convention, for its part, lays down a general and absolute prohibition of forced or compulsory labour.

The Court will nevertheless take into account the above-mentioned ILO Conventions - which are binding on nearly all the member States of the Council of Europe, including Belgium - and especially Convention No. 29. There is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 (art. 4-3) of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last-mentioned Article provides that "for the purposes" of the latter Convention, the term "forced or compulsory labour" shall mean "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". This definition can provide a starting-point for interpretation of Article 4 (art. 4) of the European Convention. However, sight should not be lost of that Convention’s special features or of the fact that it is a living instrument to be read "in the light of the notions currently prevailing in democratic States" (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 34, § 95).

Had Mr. Van der Mussele refused without good reason to defend Mr. Ebrima, his refusal would not have been punishable with any sanction of a criminal character. On the other hand, he would have run the risk of having the Council of the Ordre strike his name off the roll of pupils or reject his application for entry on the register of avocats (see paragraph 19 above); these prospects are sufficiently daunting to be capable of constituting "the menace of [a] penalty", having regard both to the use of the adjective "any" in the definition and to the standards adopted by the ILO on this point ("Abolition of Forced Labour": General Survey by the Committee of Experts on Application of Conventions and Recommendations, 1979, paragraph 21).

According to the majority of the Commission, the applicant had consented in advance to the situation he complained of, so that it ill became him to object to it subsequently. Their argument ran as follows. On the eve of embarking on his career, the future avocat will make "a kind of prospective assessment": he will weigh up the pros and cons, setting the "advantages" of the profession against the "drawbacks" it entails. And here the drawbacks were "perfectly foreseeable" by the future avocat since he was not unaware either of the existence or of the scope of the obligations he would have to bear as regards defending clients free of charge, obligations that were "limited" both in quantity (about fourteen cases each year) and in time (the period of pupillage). He also had knowledge of the corresponding advantages: the freedom he would enjoy in carrying out his duties and the opportunity he would have of familiarising himself with life in the courts and of "establishing for himself a paying clientele". One of the distinctive features of compulsory labour was therefore lacking and this was sufficient to establish that there had not been a violation of Article 4 § 2 (art. 4-2).

This argument, which was supported by the Government, correctly reflects one aspect of the situation; nevertheless, the Court cannot attach decisive weight thereto.  Mr. Van der Mussele undoubtedly chose to enter the profession of avocat, which is a liberal profession in Belgium, appreciating that under its rules he would, in accordance with a long-standing tradition, be bound on occasions to render his services free of charge and without reimbursement of his expenses. However, he had to accept this requirement, whether he wanted to or not, in order to become an avocat and his consent was determined by the normal conditions of exercise of the profession at the relevant time. Nor should it be overlooked that what he gave was an acceptance of a legal régime of a general character.

The applicant’s prior consent, without more, does not therefore warrant the conclusion that the obligations incumbent on him in regard to legal aid did not constitute compulsory labour for the purposes of Article 4 § 2 (art. 4-2) of the Convention. Account must necessarily also be taken of other factors.

The Court would observe that the second criterion thus applied is not stated in Article 2 § 1 of ILO Convention No. 29. Rather it is a criterion that derives from Article 4 and the following Articles of that Convention, which are not concerned with the notion of forced or compulsory labour but lay down the requirements to be met for the exaction of forced or compulsory labour during the transitional period provided for under Article 1 § 2 (see "ILO-internal minute - January 1966", paragraph 2).

Be that as it may, the Court prefers to adopt a different approach. Having held that there existed a risk comparable to "the menace of [a] penalty" (see paragraph 35 above) and then that relative weight is to be attached to the argument regarding the applicant’s "prior consent" (see paragraph 36 above), the Court will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4 (art. 4) of the European Convention in order to determine whether the service required of Mr. Van der Mussele falls within the prohibition of compulsory labour. This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession, that the service could not be treated as having been voluntarily accepted beforehand; this could apply, for example, in the case of a service unconnected with the profession in question.

The four sub-paragraphs of paragraph 3 (art. 4-3-a, art. 4-3-b, art. 4-3-c, art. 4-3-d), 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) (art. 4-3-d) which excludes "any work or service 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.

The services to be rendered did not fall outside the ambit of the normal activities of an avocat; they differed from the usual work of members of the Bar neither by their nature nor by any restriction of freedom in the conduct of the case.

Secondly, a compensatory factor was to be found in the advantages attaching to the profession, including the exclusive right of audience and of representation enjoyed by avocats in Belgium as in several other countries (see paragraph 16 above); the exceptions to which the applicant drew attention (ibid.) do not divest the rule of its substance.

In addition, the services in question contributed to the applicant’s professional training in the same manner as did the cases in which he had to act on the instructions of paying clients of his own or of his pupil-master. They gave him the opportunity to enlarge his experience and to increase his reputation. In this respect, a certain degree of personal benefit went hand in hand with the general interest which was foremost.

Moreover, the obligation to which Mr. Van der Mussele objected constituted a means of securing for Mr. Ebrima the benefit of Article 6 § 3 (c) (art. 6-3-c) of the Convention. To this extent, it was founded on a conception of social solidarity and cannot be regarded as unreasonable. By the same token, it was an obligation of a similar order to the "normal civic obligations" referred to in Article 4 § 3 (d) (art. 4-3-d). The Court is not required on the present occasion to rule on the correctness of the argument of the minority of the Commission to the effect that the almost routine allocation of pro-Deo cases to pupil avocats might not be fully consonant with the need to provide effective legal aid to impecunious litigants (see the Artico judgment of 13 May 198O, Series A no. 37, pp. 15-16, § 33).

Finally, the burden imposed on the applicant was not disproportionate. According to his own evidence, acting for Mr. Ebrima accounted for only seventeen or eighteen hours of his working time (see paragraph 11 above). Even if one adds to this the other cases in which he was appointed to act during his pupillage - about fifty in three years, representing, so he said, a total of some seven hundred and fifty hours (see paragraph 13 above) -, it can be seen that there remained sufficient time for performance of his paid work (approximately two hundred cases).

For their part, the Government acknowledged that the practice complained of was inspired by a "paternalism" that was now "outmoded". They asserted that the traditional stance of a profession jealous of its independence accounted for the fact that Belgium had delayed in "endeavouring", by means of the Act of 9 April 1980 (see paragraph 21 above), "to bring its standards" in this sphere to "the level of other States, notably European": until recent times, so the Government stated, the Bar had viewed with "distrust" State-payment of pupil avocats, the idea of an official scale of fees inspiring deep-rooted hostility amongst its members.

The Commission also described as unfortunate a legal situation which in its opinion, while being compatible with Article 4 (art. 4), no longer meets "the requirements of modern life". Pointing out that if pupil avocats were remunerated their professional training would not suffer thereby, the Commission expressed the wish for a prompt and effective implementation of the Act of 9 April 1980.

The Court has not overlooked this aspect of the problem. While remunerated work may also qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of affairs. In this connection, it is noteworthy that the respective laws of numerous Contracting States have evolved or are evolving, albeit in varying degrees, towards the assumption by the public purse of the cost of paying lawyers or trainee lawyers appointed to act for indigent litigants. The Belgian Act of 9 April 1980 is an example of this development; that Act, once it has been implemented, should bring about a significant improvement, without thereby threatening the independence of the Bar.

At the relevant time, the state of affairs complained of undoubtedly caused Mr. Van der Mussele some prejudice by reason of the lack of remuneration and of reimbursement of expenses, but that prejudice went hand in hand with advantages (see paragraph 39 above) and has not been shown to be excessive. The applicant did not have a disproportionate burden of work imposed on him (ibid.) and the amount of expenses directly occasioned by the cases in question was relatively small (see paragraph 12 above).

The Court would recall that Mr. Van der Mussele had voluntarily entered the profession of avocat with knowledge of the practice complained of. This being so, a considerable and unreasonable imbalance between the aim pursued - to qualify as an avocat - and the obligations undertaken in order to achieve that aim would alone be capable of warranting the conclusion that the services exacted of Mr. Van der Mussele in relation to legal aid were compulsory despite his consent. No such imbalance is disclosed by the evidence before the Court, notwithstanding the lack of remuneration and of reimbursement of expenses - which in itself is far from satisfactory.

Having regard, furthermore, to the standards still generally obtaining in Belgium and in other democratic societies, there was thus no compulsory labour for the purposes of Article 4 § 2 (art. 4-2) of the Convention.

IV.   ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 4 (art. 14+4)

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

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

On the basis of the applicant’s grievances, the Court accordingly does not find any breach of Articles 14 and 4 taken together (art. 14+4).

V.   ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Consequently, under this head, there is no scope for the application of Article 1 of Protocol No. 1 (P1-1), whether taken on its own or together with Article 14 (art. 14+P1-1) of the Convention; moreover, Mr. Van der Mussele invoked the latter Article solely in conjunction with Article 4 (art. 14+4).

That does not suffice, however, to warrant the conclusion that Article 1 of Protocol No. 1 (P1-1) is applicable.

In many cases, a duty prescribed by law involves a certain outlay for the person bound to perform it. To regard the imposition of such a duty as constituting in itself an interference with possessions for the purposes of Article 1 of Protocol No. 1 (P1-1) would be giving the Article a far-reaching interpretation going beyond its object and purpose.

The Court sees no valid cause to think otherwise in the instant case.

The expenses in question were incurred by Mr. Van der Mussele in acting for his pro Deo clients. Although in no wise derisory (the epithet bestowed on them by the Government), these expenses were relatively small and resulted from the obligation to perform work compatible with Article 4 (art. 4) of the Convention.

Article 1 of Protocol No. 1 (P1-1), whether taken alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention, is thus not applicable in this connection.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no breach of Article 4 (art. 4) of the Convention, taken on its own or in conjunction with Article 14 (art. 14+4), or of Article 1 of Protocol No. 1 (P1-1).

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-third day of November, one thousand nine hundred and eighty-three.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

The separate concurring opinion of Mr. Thór Vilhjálmsson, joined by Mrs. Bindschedler-Robert and Mr. Matscher, is annexed to the present judgment, in accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 50 § 2 of the Rules of Court.

G.W.

M.-A.E.