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X. v. AUSTRIA - 1452/62 [1963] ECHR 4 (18 December 1963)
THE FACTSWhereas the facts presented by the parties may be summarised asfollows:The Applicant is a Norwegian dentist, born in 1934 and living inSandejord. His Application was presented by Mr. Johan Hjort, barristerpractising at the Supreme Court of Norway.The facts as represented from the pleadings of the parties appear tobe as follows:1. On 28th July 1949, a Law providing for a public dental service wasenacted. For the purpose of implementing this Act the country wasdivided into districts. In each district there was to be a districtdentist responsible to a regional dentist who would be the head of thepublic dental service in his particular region. It was realised at thetime when the Law was enacted that it would be difficult to fill allthe positions of district dentists which were to be established,especially in northern Norway.In 1950, the Ministry for Social Affairs raised the question ofincreasing the supply of dentists for the public dental service. It wasproposed that students admitted to the Norwegian Dental College as wellas those studying abroad, were to be required, on beginning theirstudies, to make a statement in which they undertook, on completingtheir studies, to work for a period not exceeding two years in thepublic dental service in any district to which they were assigned bythe Ministry. This scheme was brought into effect in 1951 and, in 1954,a Royal Decree was published which amended accordingly the regulationsfor admission to the Norwegian Dental College.In 1955, however, some doubt was expressed in student quarters aboutthe legal force of the undertakings which they had been required tomake and, on 2nd March 1956, the students graduating that year wroteto the Ministry for Social Affairs stating, inter alia, that theyconsidered themselves legally justified in breaking the agreement. Thisled to the passing, on 21st June 1956, of a provisional Act relatingto obligatory public dental service for dentists. The text of this Actwas as follows:"Provisional Act of 21st June, 1956,Relating to Obligatory Public Service for Dentists.Paragraph 1. Persons who in 1955 or later have passed the examinationin dentistry in this Kingdom, or have obtained approval of a foreignexamination in dentistry giving it the same effect as the Norwegianexamination in dentistry pursuant to Act of 8th July 1949, may, on thebasis of a decision of the Ministry for Social Affairs, be required fora period of up to 2 years to take a position in public dental servicewhich, though having been advertised, remains vacant.Unless the dentist concerned agrees to some other arrangement, theassignment shall be given in such a manner that the service can becommenced at latest 3 months after the conclusion of his academicstudies or after the termination of such military service as isimmediately subsequent to his examination, - or - if the dentist haspassed his examination in 1955 - at latest 3 months after this Actenters into force. Assignments may not be made for service whichextends beyond 30th June 1963.Paragraph 2. By public dental service is understood:1. municipal dental care for schools,2. Public Dental Service according to the provisions of the Act of 28thJuly 1949,3. municipal dental care for children and young people, beingrespectively below and above the age of obligatory school attendance.Paragraph 3. For service under paragraph 1. the dentist is entitled tothe remuneration which is stipulated for the position to which theassignment applies. The dentist is moreover entitled to a refund ofreasonable travelling expenses in connection with his assumption of thepost assigned, and for the return journey to his place of ordinaryresidence. The State is responsible for payment and can claimreimbursement by the county or municipality concerned. The King mayissue further regulations concerning the calculation and fixing of theremuneration, etc. under the second paragraph.Paragraph 4. Contravention of an assignment issued under the authorityof this Act is punishable by fine, or by imprisonment up to 3 months.Paragraph 5. This Act enters into force immediately."The Government's Bill was introduced by Parliament on 16th March 1956and was strongly opposed by the Opposition.However, the Act was passed by Parliament by the majority vote of theGovernment Party after some members of the Opposition had argued thatthe Act introduced a compulsory direction of labour and was, therefore,contrary to the Norwegian Constitution and to Article 4 of theConvention. These arguments were rejected by the Government whichmaintained that this direction of labour was necessary to implement apublic dental service.2. The Act was applied to the Applicant in the following circumstances:He passed his matriculation examination in 1953 and then applied foradmission to the Norwegian Dental College. Alternatively, he asked theDental College to arrange for him to be sent to one of the foreignuniversities whose degrees were recognised as equivalent to Norwegiandegrees. His application was refused on the ground that the marks heobtained for the entrance examination were not adequate. It wasrecommended to him that he should sit once more for the matriculationexamination with a view to improving his marks but, nevertheless, theApplicant went to Germany on his own initiative and passed a dentalexamination at the Medical Academy of Düsseldorf in 1957.An examination diploma from that Academy is recognised in Norway asequivalent to a Norwegian degree and, indeed, the Applicant studied inDüsseldorf together with a number of Norwegian students who had beensent there by the Norwegian Dental College. Since the Applicant startedhis studies at his own expense, without assistance from the NorwegianAgency for Student Loans, he was not required to give any undertakingto serve in the public dental service after the completion of hisstudies, nor has he later made any such statement. In fact, suchwritten declarations have been discontinued in 1956 after thepromulgation of the Provisional Act.On his return to Norway, the Applicant, whose first petition foradmission into the Norwegian Dental College had been rejected in 1957while his second had been accepted in 1958, attended a supplementarycourse at the College which is compulsory for all candidates with aforeign diploma. He passed the test at this course in September 1958and then carried out his military service until December 1959 as amilitary dentist. Towards the end of his service he received from theMinistry for Social Affairs a list of vacancies in the public dentalservice and was asked to indicate the post or posts for which he wantedto apply.On 2nd November 1959 the Applicant sent a letter to the Ministry forSocial Affairs in which he applied for a position in the public dentalservice in southern Norway but, on 4th December 1959, he was informedthat his application could not be considered and that he would bedirected to take over the positions of dentist in the Moskenes districtin the region of Nordland. Since he had performed his military servicein northern Norway the period of his compulsory assignment was limitedto one year and on 7th December 1959 the Applicant applied in vain fora reduction of that period. At a meeting with representatives of theMinistry for Social Affairs, on 14th December 1959, he accepted thispost for the period envisaged by the Ministry and took over theposition in Moskenes on 11th January 1960. However, he gave up his workon 20th May 1960 and left, having in a letter of 21st March 1960informed the Ministry for Social Affairs of his intention to do so.Criminal proceedings were subsequently instituted against the Applicantby writ issued by the Chief of Police of Sandefjord on 3rd November1960. By decision of the Sandefjord Town Court of 20th February 1961,the Applicant was ordered to pay a penalty of kr. 2,000, or,alternatively, to serve a prison sentence of 30 days for violation ofthe Provisional Act of 21st June 1956.The Applicant appealed against this judgment to the Supreme Court bynotice of appeal dated 28th February 1961. He submitted:1) that the Provisional Act of 21st June 1956 was invalid as beingcontrary to the Constitution;2) that the Act was invalid as it was contrary to the EuropeanConvention for the Protection of Human Rights; and3) that the Act was only intended to apply to students who, beforecommencing their studies, has made a statement undertaking for a periodof not more than two years after the completion of their studies, toserve in the public dental service; and that the Act did not thereforeapply to him who had made no such statement.By decision of the Supreme Court of 16th December 1961 the Applicant'sappeal was dismissed. Of the five members of the Supreme Court, threejudges held that none of the three objections could be accepted whilethe other two members of the Court held that objection 3) was valid andthat the Applicant should be acquitted. These two judges felt thatthere was no need to express an opinion on the two other submissionsmade by the Applicant.The majority finding of the Court, as pronounced by Justice Hiorthöy,held as follows:"Defending Counsel's attack on constitutional grounds, on the generalvalidity of the Provisional Act of 21st June 1956 regarding civilianservice for dentists is, I think, clearly ill-founded. I do notentirely rule out the possibility that courts may, in extreme cases,find a Law to be inapplicable because it is contrary to certain generalprinciples of law of a constitutional nature, even if it does notviolate any definite provision in the Constitution. But it goes withoutsaying that it would take a good deal for a Law, enacted by Parliament(Stortinget) and approved by the King, to be ruled out in this way asbeing contrary to the spirit and principles of the Constitution. Inview of the history and background of the above-mentioned Law, themanner in which it is applied and the restrictions as to time governingboth the Law and the orders of assignments which are based on it, itseems to me quite clear that the Law cannot be ruled out on suchgrounds.The position is much the same as regards the claim that the Law isinvalid, as being contrary to Article 4 of the European Convention of4th November 1950 for the Protection of Human Rights and FundamentalFreedoms. There is little doubt to my mind that the Convention'sstipulation that no one shall be required to perform forced orcompulsory labour cannot be reasonably interpreted as applying to theobligations of a public nature arising in the present case. The workin question is of short duration, well-paid, based on the professionalqualifications of the person concerned and in immediate continuationof his completed studies. Even if, at the time, such service is, as mayoccur in many cases, contrary to the interests of the individualconcerned, it is clear to me that it cannot be regarded as aninfringement, let alone a violation, of Human Rights. As, therefore,I do not find that there is any conflict between the Convention and theNorwegian Law in question, there is no need for me to go into thequestion as to which should be given preference in the event of aconflict."The Applicant has paid the fine imposed upon him.The allegations of the Applicant3. Whereas the Applicant's counsel submits that the Act and the orderassigning the Applicant to the dental district of Moskenes are contraryto Article 4 of the Convention. His particular submissions in supportof this allegation are set out below (paragraphs 6 - 9). He furtheralleges that Articles 8 and 11 of the Convention have been infringed(paragraph 10).The claims of the Applicant4. Whereas, in his letter of 8th June 1962, the Applicant's counselclaims "that the Provisional Act of June 21st, 1956 is invalid as beingcontrary to Article 4 of the Convention. It follows that the order ofthe Ministry for Social Affairs directing him to take over the positionof district dentist in Moskenes is invalid and that the judgment passedon him by the national courts cannot be enforced."In his Reply of 1st March 1963 the Applicant's counsel, admitting thathis above claims were perhaps misleading, restated his claims to theeffect that the Commission, after an examination of the Applicationa) should state its opinion that the Provisional Act of 1956, asapplied to the Applicant by order of the Ministry, is contrary toArticle 4 of the Convention;b) should make such proposals as it sees fit in accordance with Article31 of the Convention. He added that the Commission was called upon todecide "the general issue whether or not the Act itself was contraryto the provisions of the Convention".The submissions of the Parties5. Whereas the submissions of the Parties may be summarised as follows:The Respondent Government, in its observations of 7th January 1963, itsReply of 1st June 1963 and its oral submissions on 30th and 31stOctober 1963 raised the following four objections to the admissibilityof the Application:a. that the Application had been lodged out of time and should berejected in accordance with Article 27, paragraph (3), of theConvention, for non-observance of the six months' rule laid down inArticle 26 (see paragraph 6).b. that the Application was incompatible with the provisions of theConvention and should be rejected in accordance with Article 27,paragraph (2), of the Convention (see paragraph 7).c. that the Application was an abuse of the right of petition underArticle 25 of the Convention and should be rejected in accordance withArticle 27, paragraph (2), of the Convention (see paragraph 8).d. that the Application was manifestly ill-founded and should berejected in accordance with Article 27, paragraph (2), of theConvention (see paragraph 51).6. As regards the contention that the Applicant did not observe the sixmonths' time-limit laid down in Article 26 of the ConventionThe Respondent Government, in its observations of 7th January 1963,submitted that the final decision in the criminal proceedings againstthe Applicant was given by the Supreme Court of Norway on 16th December1961. Accordingly the six months' time-limit prescribed in Article 26expired on 16th June 1962. The Application was dated 8th June 1962 butwas received and registered by the Secretariat of the Commission on18th June. Rule 48 of the Rules of Procedure of the Commission statedthat, for the purpose of determining any time-limits, the date of thefiling of the pleadings with the Secretariat General should alone betaken into consideration. Consequently the Commission could not and didnot deal with the matter within the six months' time-limit laid downin Article 26 of the Convention[/align]