[align=left]As in the present case, students studying abroad without the
authorization of the Norwegian authorities were required to sign the
declaration form before being admitted to the supplementary courses to
obtain licentia practicandi in Norway.

These undertakings only amounted to 'gentlemen's agreements' and from
representations made in March 1956, it appeared that the students
became aware that the agreements were not legally tenable and that they
were legally justified in breaking them. They also stated that they
would not comply with any administrative posting under this Agreement.

The letters written by the students in 1956 did not merely contain a
refusal by the students to sit on a committee for the distribution of
vacant positions in the Public Dental Service but also contained
statements from the students that they did not consider themselves
contractually bound. A group of 23 students refused to co-operate at
all. If the original declarations were considered not binding it was
doubtful whether new ones would remedy this, although the students had
apparently changed their attitude. Also, new declarations by the 1956
graduates would not bind those graduating prior to or after 1956.

In order to protect the whole programme of the dental welfare service
which was threatened by the unco-operative attitude of the students but
which had the support of the population of northern Norway, a temporary
Act was passed on 21st June 1956 providing for obligatory service for
not more than two years by dental students after passing their final
examination. This period was reduced to 1 1/2 years by the Act of 28th
June 1962. Under Section 4 of the Act of 1956, violation of its
provisions was a misdemeanour subject to fine or imprisonment of a
maximum of 3 months.

The purely social and humanitarian aspects of this enactment must of
themselves be sufficient for the evaluation of the question as to
whether or not the Government had acted in conformity with its
obligations under the Convention. The Norwegian legislature deemed the
Act to be both necessary and reasonable and the Commission had neither
the competence nor the necessary facts available to overrule the
Government's discretion in this respect.

The Respondent Government then dealt with the allegations regarding
particular provisions of the Convention. As to the interpretation of
Article 4, the Government submitted that this provision was designed
in the light of Nazi excesses and Soviet ideology. Neither the "travaux
préparatoires" to the Convention nor previous anti-slavery instruments
and "B" mandate agreements defined "forced labour". They did not
distinguish between "forced" and "compulsory" labour, nor did the 1926
Slavery Convention or the ILO Conventions of 1930 and 1957. The
background of these Conventions, which were dealing with conditions in
colonies and other dependent territories, shows that "forced labour"
was regarded as not far from "slavery". It was not correct, as alleged
by the Applicant, that "compulsory labour" had a wider or different
scope than "forced labour".

Paragraph (2) of Article 4, which deals with "forced labour" must be
viewed in its context and read in connection with paragraph (1), which
deals with slavery and servitude. It was obvious that the Provisional
Act of 1956 had imposed upon the Applicant neither slavery nor
servitude. The Government had introduced the Act of 1956 in its
struggle to improve the lot of the population, as it considered it to
be, within reasonable limits, part of the fundamental human rights of
the population of Western democracies that they should have a minimum
of medical facilities available such as doctors, dentists and
hospitals. Article 4 could not allow untimely interference with the
necessary and natural functioning of a democratic society and
institutions and the obstruction of measures of social importance.

Viewed in its historic context, it was obvious that the Article
envisaged the suppression of concentration and labour camps and was
never meant to apply to reasonable steps taken by democratic
governments to solve pressing humanitarian and social needs.

The Government could not accept the objection that it could only resort
to compulsory measures if it was evident that it could not achieve its
legitimate ends by other means. The underlying exceptional
circumstances must weigh heavily for the decision of the question
pending before the Commission, particularly when these facts were of
a humanitarian character. In any event, it was not for one individual
to decide whether or not the Provisional Act of 1956 was necessary. The
Norwegian Parliament and Government promulgated the Act because they
deemed it necessary and expedient and it was held to be valid and
binding on the Applicant by the Norwegian Courts.

The Government also contested that it had a duty to show that it was
impossible to achieve the aims of the Public Dental Service Act of 1949
without resorting to compulsory measures.

The burden of proof was on the Applicant in respect of his allegation
that sufficient inducements of pecuniary or other character to attract
voluntary personnel had not been used. In any case, this allegation was
entirely incorrect. The salary paid to a young and inexperienced
dentist was very high and even considered by some to be out of
proportion.

The Government did not agree with the Applicant that Article 4
prohibited 3 sorts of measures:

a. slavery or servitude,
b. forced labour,
c. compulsory labour.

The splitting up of this provision was immaterial to the correct
interpretation of Article 4 but it must be divided into either 4 or 2
categories, if at all.

As expressly stated in Article 4, provision is made for 2 main
categories of violations:

(1) 4, paragraph (1) - slavery or servitude
(2) 4, paragraph (2) - forced or compulsory labour.

Article 4 could not be interpreted as restricting every kind of
compulsion in modern society and must therefore be subject to
reasonable interpretations as are specifically provided for in other
Articles of the Convention.

The ILO Conventions of 1930 and 1957 were of a certain importance for
the interpretation of Article 4. Article 2, paragraph (1), of the
former contained the following definition of the term "forced or
compulsory labour": "... 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". It should not be overlooked,
however, that this definition was given for a specific set of problems,
namely, the forced labour of nations in colonial or dependent
territories and that it was not adopted in the 1957 Convention nor in
any other international instrument.

The jurisprudence of the ILO bodies was also important for determining
the scope of Article 4. It was clear that reasonable sanctions for a
breach of contract could not be contrary to the Convention on Human
Rights. The Greek legislation of 1960 regarding the medical service had
the same object as the Norwegian Act of 1956 and was also far from
being a violation of the Convention. Criticisms by ILO of various
systems of direction of labour in the Eastern European countries were
based on facts which differed greatly from the Norwegian Act of 1956,
in particular, as to the ideology behind these systems, namely, a
general channelling of labour, and the exaggerated, often indefinite,
length of the compulsion to work.

The ILO had no objection to the practice that certain work was required
as a condition for admission to universities for scholarships of for
state-financed studies, or as a condition for the exercise of a
profession. If any such scheme had been operative in Norway, the
Applicant would have been faced with the same obligation as he now had
according to the Provisional Act of 1956 and would have had no standing
before the Commission. The conclusion to be drawn from the ILO
practices was that the Act of 1956 could in no way be condemned as
introducing measures which amounted to forced or compulsory labour.

Article 4, paragraph (2) itself was couched in general terms and an
exhaustive definition of the term "forced or compulsory labour" was not
possible. The Government submitted that the following factors had
bearing on the interpretation of the term "forced and compulsory
labour":

1. the scope and purpose of the Act of 29th June 1956;

2. the temporary and provisional character of these legislative
measures imposed conditions in no way analogous to conditions of
slavery;

3. the duration of the service;

4. the remuneration and social status in which respect the Government
pointed out that the salary paid was considerably over average incomes
for dentists in southern Norway;

5. the fact that the service was within one's own profession and in
immediate connection with graduation or completion of military service;

6. the nature of the sanctions involved for violation of the Act, in
particular, the lightness of the penal sanction and the fact that the
Applicant in the present case was neither imprisoned nor forced to
return to Moskenes, nor deprived of his right to practise as a dentist
in the future; and

7. the voluntary or contractual aspects of the present case.

It was also important to consider that the Ministry always endeavoured
to take individual considerations into account when posting young
dentists as was shown by the reduction of the Applicant's service from
two years to one year.

Too broad an interpretation of the Article would make it apply also to
career diplomats and officers in the armed forces who were transferred
against their wills. Such interpretation was clearly unreasonable but
these examples did not differ in any way from the Applicant's case.

The Government then returned to the particular facts of the present
case and pointed out that the Applicant knew of the effect of the 1949
and 1956 Acts and voluntarily entered into an agreement with the
competent authorities. By his conversations with officials in the
Ministry for Social Affairs and his consent to being posted in Moskenes
the relationship between the Applicant and the Ministry had assumed a
contractual nature which excluded any application of Article 4 of the
Convention. In this respect, the Government submitted that the
Applicant applied for the supplementary courses in Norway 1 1/2 - 2
years after the promulgation of the Provisional Act of June 1956. He
knew of the consequences of his application and did not question his
obligation to comply with the request of the Ministry for Social
Affairs. It had been stressed repeatedly in official notifications that
those students going abroad to study could not expect to obtain a
licentia practicandi. Nevertheless, the Applicant applied for admission
to these courses, though he was in no way obliged to do so.
Furthermore, in December 1959 the Applicant concluded an agreement with
the competent Ministry to the effect that he should take over the
position as a dentist in Moskenes which he did on 11th January 1960.
This agreement, entered into voluntarily by him, was wilfully broken
by him four months later. It was not usual to reduce the period to one
year and this had been done in only a few cases. The Applicant thanked
the Ministry "for handsome treatment".

In the light of his application for the supplementary courses, his
application for licentia practicandi and his agreement with the
Ministry, it was not possible to pretend that the service required from
the Applicant could be termed "forced or compulsory labour" within the
meaning of Article 4, paragraph (2), of the Convention. In this
respect, reference was made to the Supreme Court's decision of 16th
December 1961.

The Applicant's Counsel, in his counter-observations his rejoinder and
during the oral hearing, submitted that the service required from the
Applicant constituted "compulsory labour" within the meaning of Article
4 of the Convention.

The conditions in northern Norway might call for a special solution but
it did not follow that they justified compulsory measures. The
Government could only resort to such measures if it was evident that
it could not achieve its legitimate ends by other means and it had a
duty to show that it would be impossible otherwise to achieve the aims
of the Public Dental Service Act, 1949. The Applicant challenged the
suggestion that it would entail "heavy financial implications for the
State Budget" to carry out the scheme by means of economic inducement
to dentists to fill the vacant posts. It was not the duty of a small
group of dentists to shoulder the burden for the whole nation.

It was true that the 1949 Act was passed unanimously, but this might
not have been so had it been thought that it would be necessary to
resort to compulsory labour. It was wrong to use the unanimity vote in
1949 on the Public Dental Service as an argument to justify the later
compulsory measures provided for in the Act of 1956. As to the
background of the Act of 1956, it was submitted that students were
required as from 1951 to sign a declaration to work in the Public
Dental Service as a condition for admission to the Dental College, but
it was doubtful whether the authorities had legal power to enforce
these declarations. This was remedied by the Decree of 1954.

In 1955 the odontological students did not claim that the Decree of
1954 was illegal but that the above condition could not be imposed
before the Decree came into force.

The letter from the graduating students dated 2nd March 1956 gave the
impression of a threat. Examination of the letter did not, however,
reveal a refusal to fulfil the obligations undertaken in the
declarations but only unwillingness to serve on a committee set up to
allocate the vacant posts. The attitude of the students did not make
legislation necessary. It was a misunderstanding that 23 students
refused to co-operate. The Government could have counted on the
co-operation of all, or practically all, of the odontological students
but it refused to try and find a voluntary solution to the problem. The
new declarations given in exchange for a withdrawal of the Draft Bill
would have been enforceable as contracts.

It was stated that the Government had asserted that the Act was only
intended to apply to students who had, at the commencement of their
studies, stated that they would serve up to two years, after completing
their studies, in the public dental service. It would therefore not be
unreasonable in its effects, since it did not impose obligations which
had not been accepted by the students when they began their studies.

It was submitted that, as maintained by certain parliamentarians during
the debate in 1956, the Act of 1956 was unnecessary. This aspect was
relevant in considering if that Act was a breach of the Convention.

It could not be accepted that the social and humanitarian aspects of
the enactment were sufficient for the appreciation of the question
whether the Government had acted in conformity with its obligations
under the Convention or not. It was wrong to assume that an idealistic
goal was decisive in the issue whether or not a State was acting within
the obligations of the Convention. The ends could not justify the
means. The order to post the Applicant to Moskenes should be considered
in relation to Article 4 of the Convention and not solely to the
motives behind the measures taken. Neither the period of service nor
the pay was relevant to the case since it was not a question of the
degree of hardship but the fact that the service was compulsory.

As to the interpretation of Article 4, the Applicant submitted that
this provision, taken as a whole, prohibited three different kinds of
infringement on the individual's liberty, namely:

a) slavery or servitude,
b) forced labour,
c) compulsory labour.

It was wrong to equate b) with c).

Clearly, "compulsory labour" covered a wider field than "forced
labour". This was evident from the French and German terms: "travail
obligatoire" and "Pflichtarbeit" have wider scope than "travail forcé"
and "Zwangsarbeit".

The events during and after World War II were important in ascertaining
the immediate motives of the Convention but it was incorrect to
maintain that the intention only was to prevent future inhumanities
comparable with war crimes. The preparatory works on the Convention
showed clearly the intention of establishing a much wider scope than
merely to prevent outright criminal acts.

It was to describe only one side of the picture to say that Article 4
of the Convention "was not meant to ... allow untimely interference
with the necessary and natural functioning of democratic societies".
The other aspect was the side of the individual. It was clear that the
individual and the State would often hold different opinions as to what
"the necessary and natural functioning" of society demanded in terms
of individual sacrifice. To strike a balance, paragraph (3) of Article
(4) of the Convention had been adopted and a compulsory measure must
come under one of its four heads. It was not open to doubt that
paragraph (2) was applicable in the present case. By a "sensible and
reasonable interpretation" no other result could be arrived at. The
protection of the individual should not give way to the convenience of
the State.

The fundamental right of a minimum of facilities was irrelevant to the
issue; these social services had nothing to do with the fundamental
human rights as defined in the Convention. It was more relevant to ask
if these measures could only be rendered through compulsory measures
and, if this was the case, were these measures contrary to the
Convention?

The Applicant could not accept the contention that his comparison with
career diplomats and regular officers was valid since the latter
accepted transfers as a normal part of their chosen professions. It was
a different matter to force a small number of people in a special
profession into the temporary employment of the State and direct them
to take up work at places against their own wishes. This was a clear
case of compulsion.

The Applicant submitted that the ILO Conventions and the European
Convention must be interpreted along the same lines. It was true that
the 1930 Convention mainly aimed at suppressing forced labour in
overseas colonial territories but it was obvious that the protection
should not be less effective in respect of the populations of more
civilised and advanced countries. The provisions of the 1930 Convention
proved that the liberty of the individual was considered more important
than the speeding up of the economic development of a territory. The
definition of "forced or compulsory labour" in Article 2, paragraph
(1), of the 1930 Convention was highly relevant to the present case.

The Applicant concluded that the 1956 Act would have been considered
contrary to the ILO Conventions if it had been submitted to the ILO
bodies for examination.

The specification under the headings (a) to (c) of Article 1 of the ILO
Convention of 1957 gave a broad illustration of what was considered as
"forced or compulsory labour". It showed clearly that these terms could
not be given a narrow and restrictive interpretation. In particular,
heading (b), which suppressed forced or compulsory labour "as a method
of mobilising and using labour for purposes of economic development",
was important in the present case. The public dental service was a
special aspect of a broad economic development. The Applicant referred
in particular to certain practices in the Eastern European countries
which had been criticised by ILO authorities and which showed a certain
similarity to the Norwegian Act of 1956.

Concerning the factors enumerated by the Government as having bearing
on the interpretation of the term "forced or compulsory labour", the
Applicant made the following observations:

re 1. Purpose of the Act: - The Government had not shown that the Act
was necessary in order that society would function in a reasonable and
natural manner.

re 2. Temporary character of the measures: - The Act was promulgated
in 1956 and prolonged until 1966. Ten years was a long period and this
was also the expert opinion of the organisation of dentists which had
protested.

re 3. Duration of the obligatory service: - Two years (now 18 months)
was a considerable hardship but the duration was of no relevance in
respect of Article 4 of the Convention.

re 4. The remuneration and social status: - It was an exaggeration to
say that dentists performing obligatory service were among the highest
paid officials, also that they achieved high and advanced positions in
the Norwegian Health Service. Remuneration, however, had no bearing on
the question of whether or not the compulsory service was within the
scope of the Convention.

re 5. The service was within the Applicant's chosen profession and in
immediate connection with graduation: - It was misleading to compare
the compulsory service demanded in the present case with other kinds
of service which students of various kinds must undertake as part of
their education. In these cases the students could decide for
themselves whether or not they would accept the different postings and
thereby complete their education.

re 6. The nature of the sanctions involved: - This was only of
importance in the appreciation of the degree of hardship and was
irrelevant to the principle involved.

The "contractual aspects" of the case, which were stressed by the
Respondent Government, were not relevant: First, they had no bearing
on the fundamental issue of the case, i.e. whether or not the 1956 Act
was contrary to the Convention. Secondly, the term 'agreement' was
misleading since the Applicant was faced with an order directing him
to Moskenes. It was a necessary element in a contract that both parties
had freedom of action. The Applicant, however, knew that he was under
the threat of a criminal prosecution. The fact that he accepted this
alternative did not make his behaviour a breach of contract. It was
also contested that, by applying for the supplementary courses at the
Norwegian Dental College, he had entered into a contractual relation
with the Government. The Applicant could not know that the Act of 1956
applied to him. Indeed, the dissenting minority in the Supreme Court
was of the opinion that it did not. The fact that the Applicant applied
for certain posts in the Public Dental Service was also irrelevant
since appointment to one of these posts would have had as it bases a
voluntary agreement. He did not get one of these posts, however, but
was sent to Moskenes by a compulsory order.

Furthermore, the "contractual" point of view now taken by the
Respondent Government had not been argued by the prosecution in the
national courts. The Government had not sued the Applicant for breach
of contract but he had been charged with a violation of the Act of 1956
and the prosecution had chosen to defend the Act on its merits. The
Government should not be entitled to use arguments before the
Commission which had not been used before the national courts.

It had not been a special favour to the Applicant to reduce his service
to one year and to give him the position as a Class A dentist. The
reduction to one year was the usual practice in difficult districts and
the choice of class was left to the dentist himself.

b. As regards the question of the applicability of Article 4, paragraph
(3), sub-paragraph (c), of the Convention - "any service exacted in
case of an emergency or calamity threatening the life or well-being of
the community"[/align]