[align=left]he Respondent Government, during the oral hearing, submitted as a
subsidiary argument and without prejudice to its main conclusion, that
no violation of Article 4, paragraph (2), had occurred. It submitted
that, if a rigid and strict interpretation were given to paragraph (2),
the exceptions in paragraph (3) should correspondingly be given a wider
interpretation in order to make the Article as a whole reasonable and
workable. In respect of sub-paragraph (c), the Government emphasised
the extraordinary geographical conditions of northern Norway.

The Applicant's Counsel submitted that there was no emergency in the
provinces of northern Norway which could justify a compulsory direction
of dentists to posts which had not been filled on a voluntary basis,
and that the situation did not amount to a threat to the life or
well-being of these communities. He referred to the ILO Convention of
1930, which in its Article 2, paragraph (2), sub-paragraph (d) gave
examples of what could be termed cases of emergency, namely, war, fire,
flood, famine, earthquake and epidemic diseases. Public dental care
could not be considered to fall within any of these categories.
Furthermore, the term "emergency" could not be construed so as to apply
to an Act which had been in force for more than seven years and would
remain in force for yet three more years. The exception for emergencies
envisaged only short-termed situations of extraordinary nature, quite
different from the one existing in northern Norway.

c. As regards the question of the applicability of Article 4, paragraph
(3), sub-paragraph (d), of the Convention - "any work or service which
forms part of normal civic obligations"

The Respondent Government, in its observations of 7th January 1963, its
Reply and during the oral hearing, submitted without prejudice to its
main conclusion, that it was a part of "normal civic obligations" for
a young dentist to serve in the public dental service and, in any
event, for the Applicant to fulfill the agreement which he entered into
with the Ministry for Social Affairs, to serve one year as a district
dentist in Moskenes.

The Applicant's Counsel submitted that the compulsory service imposed
upon dentists was not a part of the general civic obligations of all
nationals but affected only a very limited group of people. The Act of
1956 was clearly not covered by paragraph (3), sub-paragraph (d). Two
conditions inherent in this clause were that the service must be
"normal" that was part of the usual and ordinary obligations in the
State, and must be a "civic obligation", that was to say, the kind of
work or service which could be asked on an equal basis from all or a
substantial part of the citizens. Neither of these conditions was
fulfilled.

10. As regards the alleged violations of Articles 8 and 11 of the
Convention

As regards the alleged violations of Articles 8 and 11 of the
Convention

The Respondent Government made no submissions in respect of these
alleged violations.

The Applicant's Counsel, in his rejoinder and during the oral hearing,
submitted that the compulsory direction of dentists to posts in which
they did not wish to serve would amount to an unwarranted interference
with their rights to respect for private and family life under Article
8 and with their freedom of association under Article 11. He referred,
in respect of the latter issue, to the ILO Conventions Numbers 87 and
98 concerning the Freedom of Association and the Right to Bargain
Collectively.

THE LAW

As regards the contention that the Applicant did not observe the six
months' time-limit laid down in Article 26 (Art. 26) of the Convention

Whereas Article 26 (Art. 26) provides that "the Commission may only
deal with a matter ... within a period of six months from the date on
which the final decision was taken"; whereas the decision of the
Supreme Court, which was the final decision in this case, was given on
16th December 1961;

Whereas, in regard to this Application, the first letter sent by the
Applicant's counsel to the Secretary of the Commission was dated 8th
June 1962; whereas this letter arrived at the Council of Europe on 12th
June 1962;

Whereas the Respondent Government has submitted that the date of the
filing of this Application should be considered as 18th June 1962,
being the date on which the Application was entered in the special
register provided for in Rule 13 of the Commission's Rules of
Procedure; whereas, in this connection, the Government has referred to
Rule 48, paragraph (2), of the Rules of Procedure which provides as
follows: "... For the purpose of determining any time-limit, the date
of the filing of the pleading with the Secretariat-General of the
Council of Europe shall alone be taken into consideration";

Whereas it is necessary to distinguish in the introduction of an
Application between its deposit with the Secretariat-General and its
registration by the Commission; and whereas, if Rule 48, paragraph (2)
is applicable to the introduction of an Application, it is clear,
particularly from the French text, that the date of its deposit is at
the latest the date of its acknowledged arrival in the
Secretariat-General; and whereas, since the Application in the present
case was dated 8th June and arrived in the Secretariat-General on 12th
June, the time limit required by Article 26 (Art. 26) was observed;

Whereas, consequently, the Commission unanimously rejects this first
objection made by the Respondent Government as to the admissibility of
the present Application.

As regards the contention that the Application is incompatible with the
provisions of the Convention

Whereas the Respondent Government has contended that the Application
is incompatible with the provisions of the Convention in that the
Applicant, in his application form, claims a form of redress which is
outside the competence of the Commission; whereas it was further
submitted by the Government that the claims as "re-written" by the
Applicant in his counter-observations of 1st March 1963 also fell
outside the scope of the competence of the Commission;

Whereas it is true that the Convention does not confer upon the
Commission any competence to declare invalid an Act passed by a
national parliament, or to declare invalid an administrative order
issued by a competent national authority or to give a decision that a
judgment of a national court cannot be enforced;

Whereas, however, in his application form, the Applicant, in
unequivocal terms, made the allegation that the Provisional Act of
1956, as applied to the Applicant, violates Article 4 (Art. 4) of the
Convention; whereas he has thus clearly indicated the legal basis of
his Application and left no doubt as to the issue of which he seized
the Commission in pursuance of Article 25 (Art. 25) of the Convention,
so that the precise form in which he summarised his claims may be
disregarded;

Whereas, in respect of the "amendments" to the claims contained in the
Applicant's counter-observations of 1st March 1963, the Commission
finds that he has not amended the substance of the Application in a
manner which amounts to a "re-writing" of the Application; whereas the
text of these counter-observations make it clear that the basic issue
raised by the Applicant was still the conformity of the application to
himself of the Provisional Act of 1956 with Article 4 (Art. 4) of the
Convention;

Whereas, therefore, the Commission has competence to examine and
pronounce upon the allegations contained in the Application;

Whereas, consequently, the Commission unanimously rejects this second
objection made by the Respondent Government as to the admissibility of
the present Application.

As regards the contention that the Application was an abuse of the
right of petition

Whereas the Respondent Government has contended that the Application
was abusive on the grounds that it was designed to make use of the
Commission as a forum for domestic politics and that it relied upon
loose and unsubstantiated accusations;

Whereas, in respect of the first submission, the Commission refers to
its decision on the admissibility of Application Number 332/57 (Lawless
v. Ireland - Yearbook II, page 308 [338] in which it held as follows:

"Whereas the fact that the Applicant was inspired by motives of
publicity and political propaganda, even if established, would not by
itself necessarily have the consequence that the Application was an
abuse of the right of petition"; whereas the Commission has taken into
consideration the undisputed fact that the present case raises issues
which caused considerable political interest in Norway; whereas,
nevertheless, the Commission does not find it established that the
Applicant has unduly emphasised the political aspect of his case in the
present proceedings;

Whereas, in respect of the second submission, the Commission finds that
the allegations made by the Applicant were sufficiently clear and
substantiated as to permit the Commission to pronounce upon the issues
raised;

Whereas, therefore, the present Application does not constitute an
abuse of the right of petition under Article 25 (Art. 25) of the
Convention;

Whereas, consequently, the Commission unanimously rejects this third
objection made by the Respondent Government as to the admissibility of
the present Application.

As regards the contention that the Application is manifestly
ill-founded

Whereas the majority, consisting of six members out of the ten members
present and voting, consider that the service of Iversen in Moskenes
was not forced or compulsory labour within the meaning of Article 4
(Art. 4) of the Convention;

Whereas the Commission has had regard to the importance of the question
of principle raised in the Application, and has had further regard to
the exhaustive written and oral submissions made to it by both parties
in which all the material facts have been set out; whereas,
consequently, the Commission has thought it right to depart, in the
exceptional circumstances of this case, from its usual practice and to
indicate to vote by which the decision upon the issue of admissibility
was taken;

Whereas four members of the majority, considering that: although
Article 4, paragraph (3) (Art. 4-3), of the Convention delimits the
scope of Article 4, paragraph (2) (Art. 4-2) by declaring that four
categories of work or service do not constitute forced or compulsory
labour for the purpose of the Convention, the expression "forced or
compulsory labour" is not defined in the Convention and no
authoritative description of what it comprises is to be found
elsewhere; the concept of compulsory or forced labour cannot be
understood solely in terms of the literal meaning of the words, and has
in fact come to be regarded, in international law and practice as
evidenced in part by the provisions and application of ILO Conventions
and Resolutions on Forced Labour, as having certain elements, and that
it is reasonable, in the interpretation of Article 4, paragraph (2)
(Art. 4-2), of the Convention, to have due regard to those elements;
these elements of forced or compulsory labour are first, that the work
or service is performed by the worker against his will and, secondly,
that the requirement that the work or service be performed is unjust
or oppressive or the work or service itself involves avoidable
hardship; the attribution of these elements to "forced and compulsory
labour" in Article 4, paragraph (2) (Art. 4-2) of the Convention is not
inconsistent with the other provisions of that Article or of the
Convention; it is true that the Provisional Act of 1956 imposed
obligatory service, but since such service was for a short period,
provided favourable remuneration, did not involve any diversion from
chosen professional work, was only applied in the case of posts not
filled after being-duly advertised, and did not involve any
discriminatory, arbitrary or punitive application, the requirement to
perform that service was not unjust or oppressive; the Law of 1956 was
properly applied to Iversen when he was directed to take up the post
at Moskenes; further, in the particular case of the Applicant, the
hardship of the post was mitigated by the reduction in the required
term of his service from 2 years to 1 year; hold that the service of
Iversen in Moskenes was manifestly not forced or compulsory labour
under Article 4, paragraph (2) (Art. 4-2), of the Convention and they
therefore find it unnecessary to express any opinion on the
applicability to the case of Article 4, paragraph (3) (Art. 4-3) of the
Convention;[/align]