ILO Convention;¹ Work of international supervisory bodies²

Forced labour/ Pupil advocate/ Use of international law as a guide for interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms

The applicant, a pupil advocate, was called upon to provide free lawyer services to assist indigent defendants. He brought a complaint arguing that he had been required to provide such services without receiving remuneration or being reimbursed for his expenses, and that the Judicial Code of Belgium would make him liable to sanctions if he refused to represent the offender. He argued that such circumstances gave rise to forced or compulsory labour, contrary to Article 4 of the European Convention on Human Rights (Prohibition of slavery and forced labour).

In noting that “the authors of the European Convention […] based themselves, to a large extent” on ILO Convention No. 29,³ the European Court of Human Rights took into account the definition of forced labour contained in it, as a starting point for interpretation of Article 4 of the European Convention. The Court found that the pro bono services rendered by the applicant amounted to “labour” for the purpose of Article 4 of the European Convention. To determine whether this was forced, the Court assessed whether there was the menace of any penalty. Relying on both the Convention and the comments of the ILO Committee of Experts, it found that the prospect of being removed from the roll of pupils or having his application to the Register of Advocates rejected were “sufficiently daunting” to be capable of constituting the menace of a penalty. Concerning the third element, which is to say the lack of voluntariness, the Court noted the applicant’s initial consent but found that this was not decisive. According to the Court “two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, but either the obligation to carry it out must be ‘unjust’ or ‘oppressive’ or its performance must constitute ‘an avoidable hardship’”⁴. This could be the case if the service required imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of the profession that the service could not be treated as having been voluntarily accepted beforehand.

The Court concluded that these conditions were lacking, because the services “did not fall outside the ambit of the normal activities of an avocat” and they contributed to his professional training, nor was the burden excessive or disproportionate, because he had sufficient time to perform paid work. Thus, the Court found no violation of article 4 of the European Convention.