European Court of Human Rights, Graziani-Weiss v. Austria, Application No. 31950/06, 18 October 2011
European Court of Human Rights
Use of international law as a guide for interpreting European human rights law
Forced labour/ Lawyer’s civic obligations/ Use of international law as a guide for interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms
The applicant, a practicing lawyer, alleged that the appointment against his consent by the District Court of Linz as a guardian for a mentally ill person amounted to forced labour, and thus violated his rights under Article 4, paragraph 2 (Prohibition of slavery and forced labour) of the European Convention on Human Rights.
During the examination of the case and of the interpretation of the article 4, paragraph 2 of the European Convention on Human Rights, the Court reiterated that the mentioned Convention did not contain a definition of the term “forced or compulsory labour”. Therefore, it had recourse to the definition contained in ILO Convention No. 29, and took that definition as a starting point for its interpretation of Article 4.
The Court also noted the situations of exception to forced labour provided in article 4, paragraph 3 of the same European Convention on human rights, and concluded that subparagraph (d) – which excludes from the scope of forced or compulsory labour “any work or service which forms part of normal civil obligations” – was of special significance. In addition, the Court noted that in the Van der Mussele v. Belgium case, it had developed standards for evaluating what could be considered normal in respect of duties incumbent on members of a particular profession.3
The Court did not reject the argument that the refusal to act as a guardian could give rise to disciplinary sanctions, and therefore there was an element of “menace of penalty”. However, it observed that when the applicant decided to become a lawyer, he must have been aware of the fact that he might be obliged to act as a guardian. Therefore, he had “offered himself voluntarily”. In addition, all the other standards developed in the Van der Mussele v. Belgium case were met. For these reasons, the Court held that the services requested did not amount to forced labour. Therefore, it was not necessary to examine whether the duties at issue could be regarded as “normal civic obligations”.
Relying on the definition of forced labour contained in ILO Convention No.29, the European Court of Human Rights concluded that the obligations incumbent on the applicant did not constitute forced or compulsory labour for the purposes of Article 4, paragraph 2 of the European Convention on Human Rights and, therefore, held that there has been no breach of Article 4 of the aforementioned Convention.
3 These standards take into account: whether the services rendered fall outside the ambit of the normal professional activities of the person concerned; whether the services are remunerated or not, or whether the service includes another compensatory factor (such as the advantages linked to the profession); whether the obligation is founded on a conception of social solidarity; and whether the burden imposed is disproportionate.