THIRD SECTION
CASE OF MEIER v. SWITZERLAND
(Application no. 10109/14)
JUDGMENT
STRASBOURG
9 February 2016
FINAL
09/05/2016
This judgment has become final under Article 44 § 2 of the Convention.
In the case of Meier v. Switzerland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
George Nicolaou,
Helen Keller,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 19 January 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 10109/14) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Mr Beat Meier (“the applicant”), on 26 January 2014.
2. The applicant was represented by Mr B. Rambert, a lawyer practising in Zürich. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann.
3. In the proceedings before the Court, the applicant alleged, in particular, that the requirement for him to work in prison after he had reached retirement age was in breach of Articles 4 and 14 of the Convention.
4. On 10 July 2014 the Government were given notice of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1946 and is currently in detention in Regensdorf.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. By a judgment of 4 July 2003, the Court of Appeal (Obergericht) of the Canton of Zürich sentenced the applicant to four years and four months’ imprisonment for multiple sexual acts with minors and multiple acts of sexual coercion.
8. On 1 March 2010 the Court of Appeal suspended the execution of the custodial sentence, replacing it with preventive detention (Verwahrung) designed to prevent the applicant from reoffending.
9. On 6 December 2011 the applicant requested exemption from the requirement to work in the context of custodial sentences and measures. On 19 March 2012 the Judicial Enforcements Office of the Canton of Zürich refused his request.
10. By a decision of 29 May 2012, the competent authority of Pöschwies Prison placed the applicant under a stricter prison regime, confining him to his cell, and confiscated his television and computer for fourteen days on account of his refusal to work. That decision was revoked on 31 July 2012 by the Directorate of Justice and Internal Affairs following an appeal by the applicant.
11. By a decision of 20 June 2012, the Directorate of Justice and Internal Affairs of the Canton of Zürich dismissed an appeal by the applicant against the decision of 19 March 2012.
12. On 10 January 2013 the Administrative Court of the Canton of Zürich dismissed an appeal by the applicant against the decision of 20 June 2012.
13. On 15 February 2013 the applicant appealed to the Federal Court, arguing in particular that Articles 74, 75 and 81 of the Criminal Code had been wrongly applied, and alleging a violation of his human dignity and personal freedom within the meaning of Articles 7 and 10 respectively of the Federal Constitution (see paragraphs 15-17 below).
14. In judgment 6B_182/2013 of 18 July 2013 (ATF 139 I 180), which was notified to the applicant on 31 July 2013, the Federal Court dismissed the applicant’s appeal.
The Federal Court found that the requirement for prisoners to work was not in itself in breach of human rights, and specifically of Article 4 of the Convention (point 1.5 of the reasoning).
Hence, the purpose of compulsory work in the context of the execution of custodial sentences and measures was to develop, maintain or promote prisoners’ capacity to resume working life after their release. In the Federal Court’s view, the requirement to work contributed to the execution of sentences and fostered appropriate social behaviour and the capacity to avoid reoffending. It was also designed to occupy prisoners, give structure to their daily lives and maintain order in the institution (point 1.6).
The Federal Court added that, as prisoners got older, greater emphasis was placed on the obligation to provide them with the necessary support (necessary-support principle) and on reducing the negative impact of detention (principle of least possible harm). In the case of prisoners over the age of 65, the requirement to work served the purpose of avoiding the harmful effects of detention, for instance the isolation of persons who had reached retirement age, and preventing mental and physical deterioration. The work had to be tailored to the prisoner’s abilities, training and interests, and it was therefore necessary to avoid placing an excessive burden on prisoners over the age of 65. Lastly, in the case of persons who were less physically and mentally able, the occupation could take the form of therapeutic activity (point 1.6).
The Federal Court further held that the Old-Age and Survivors’ Insurance Act was designed to guarantee a living income to persons who were no longer able to work because of their age. However, work performed in connection with the execution of a custodial sentence or measure was not comparable to an employment contract on the competitive labour market, but rather should be regarded as an occupation within a closed system. The Federal Court therefore held that the rules governing persons of pensionable age did not apply to prisoners (point 1.8).
The Federal Court also found that an occupation carried out on a voluntary basis was not apt to fulfil the aims pursued by the requirement to work in prison (point 2.6.2).
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Relevant domestic law
15. Article 7 of the Federal Constitution guarantees human dignity in the following terms.
Article 7
“Human dignity must be respected and protected.”
16. Article 10 of the Constitution enshrines the right to life and to individual freedom.
Article 10
“Every human being shall have the right to life. The death penalty shall be prohibited.
Every human being shall have the right to individual freedom, and in particular the right to physical and mental integrity and freedom of movement.
Torture and all other forms of cruel, inhuman or degrading treatment or punishment shall be prohibited.”
17. The Swiss Criminal Code of 21 December 1937 defines as follows the principles governing the execution of custodial sentences and measures.
Article 74 – Principles
“Prisoners and persons subject to custodial measures shall be entitled to respect for their dignity. The exercise of their rights may be restricted only to the extent required by detention and by the requirements of collective living in the institution.”
Article 75 – Execution of custodial sentences/Principles
“1. The execution of the custodial sentence should improve the prisoner’s social skills, and in particular his or her ability to live in a law-abiding manner. It must correspond as closely as possible to the conditions of normal life, provide the prisoner with the necessary support, combat the adverse effects of detention and make proper allowance for the need to protect the community, the staff and other inmates.
2. ...
3. The rules of the institution shall provide for a sentence plan to be drawn up with each prisoner. This shall cover, among other elements, the support provided, the possibility of working and receiving training or further training, redress for the damage caused, relationships with the outside world and preparations for release.
4. Prisoners must participate actively in efforts to promote resocialisation and in preparations for their release.
5. The specific concerns and needs of each prisoner must be taken into consideration, regard being had to the prisoner’s gender.”
Article 81 – Execution of custodial sentences/Work
“1. Prisoners shall be required to work. The work must be matched as closely as possible to prisoners’ abilities, training and interests.
2. Prisoners who consent to such an arrangement may work for a private employer.”
Article 90 – Execution of custodial measures
“...
3. If the person concerned is fit to work he or she must be prompted to do so, provided that his or her treatment or care within the institution requires or permits it. In such cases, Articles 81 to 83 shall apply by analogy.”
18. Article 103 of the Order of 6 December 2006 issued by the Canton of Zürich concerning the execution of sentences (Justizvollzugsverordnung) defines the requirement to work as follows:
“Requirement to work ...
103. 1 In the context of the execution of custodial sentences and measures, whether in a closed setting or on conditional release, convicted persons shall be required to perform the work assigned to them. In assigning work account shall be taken, in so far as possible and reasonable, of individuals’ abilities.
...”
B. Relevant domestic practice
19. A delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) made its most recent visit to Switzerland in October 2011. Among other institutions, the delegation visited Pöschwies, Bochuz and Bostadel Prisons. In its report to the Swiss Federal Council following the visit to those prisons, the CPT found as follows.
“58. Except where a derogation has been obtained, prisoners detained under the ordinary prison regime were required to work, usually full-time, in one of the eleven workshops in Bochuz Prison (printing, painting, electrical, carpentry, etc.) or one of the nine workshops in Bostadel Prison (carpentry, metallurgy, etc.). Special arrangements were possible for prisoners over the age of 65 (possibility of working part-time in Bochuz Prison, for instance). However, some older prisoners whom the delegation met in the course of the visit voiced considerable concern at the legal requirement to work beyond the retirement age for persons outside prison or those with severely reduced mobility. The CPT would like to receive comments from the Swiss authorities in this regard.” [Emphasis in original.]
20. In its reply of 10 October 2012, the Swiss Federal Council stated as follows.
“In accordance with Article 81 of the Swiss Criminal Code (CP, RS 311.0), prisoners are required to work. The requirement to work was retained in the Criminal Code following the revision of the general provisions which came into force on 1 January 2007, as it is an appropriate and necessary tool enabling prisoners to maintain their personal and vocational skills. It was also felt to be essential for keeping order and ensuring the financial management of prisons.
The requirement to work concerns all inmates irrespective of age. Needless to say, it applies only to those prisoners who are actually capable of working. The work must be matched as far as possible to the abilities, training and interests of the prisoner concerned (Article 81 § 1 of the Criminal Code). Work – which, under Article 83 of the Criminal Code, also creates entitlement to payment – should be taken to mean not just gainful employment in the narrow sense but also, for instance, the care of the prisoner’s own children (inside or outside prison). Furthermore, participation in training and further training courses is considered as work and paid under Article 83 § 3 of the Criminal Code.
Under Article 75 § 1 of the Criminal Code, the execution of a custodial sentence should correspond as closely as possible to the conditions of normal life. With regard to prisoners who have reached retirement age, solutions are devised on a case-by-case basis under the above-mentioned provisions.
The requirement to work does not apply to all prisoners to an equal extent, but must be tailored, depending on the circumstances, to prisoners’ abilities and especially to their fitness for work and state of health. Persons with physical difficulties are given only light work, usually on a reduced basis. Prisoners who have a medical certificate stating that they are unfit to work are exempted from the obligation to work. The issue of the growing number of prisoners of retirement age has been recognised, although the number is still very small. In 2012 a special wing for retired prisoners was opened in the new Lenzburg Central Prison. The Judicial Enforcements Office of the Canton of Zürich has set up a special project dealing with this issue.”
C. International law
21. The relevant provisions of the International Labour Organization Convention concerning Forced or Compulsory Labour 1930 (no. 29), to which Switzerland is a Party, read as follows.
Article 1
“1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.
...”
Article 2
“1. For the purposes of this Convention the term forced or compulsory labour shall mean 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.
2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include
...
(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;
...”
22. Recommendation No. R (87) 3 of the Committee of Ministers to the member States on the European Prison Rules is a set of guidelines as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of them to their judicial authorities as well as to prison staff and inmates. They were adopted by the Committee of Ministers on 12 February 1987.
23. On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules (Recommendation Rec(2006)2 – “the 2006 Rules”), noting that the 1987 European Prison Rules needed to be substantively revised and updated in order to reflect developments in penal policy, sentencing practice and the overall management of prisons in Europe.
Part I of the 2006 Rules enshrines the following basic principles.
Basic principles
“1. All persons deprived of their liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.
6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.
7. Co-operation with outside social services and as far as possible the involvement of civil society in prison life shall be encouraged.
8. Prison staff carry out an important public service and their recruitment, training and conditions of work shall enable them to maintain high standards in their care of prisoners.
9. All prisons shall be subject to regular government inspection and independent monitoring.
...”
24. The Commentary on the 2006 Rules makes clear that, in accordance with Rule 2, the loss of the right to liberty should not lead to the assumption that prisoners automatically lose their political, civil, social, economic and cultural rights as well, and that there should be as few restrictions as possible. Any further restrictions should be specified in law and should be instituted only when they are essential for maintaining order, safety and security in prison. The restrictions imposed should not derogate from the 2006 Rules.
25. The Commentary specifies that Rule 5 emphasises the positive aspects of “normalisation”. It adds that, while life in prison can never be the same as life in a free society, active steps should nevertheless be taken to make conditions in prison as close to normal life as possible and to ensure that this normalisation does not lead to inhumane prison conditions.
26. Rule 26 deals with prisoners’ work in general.
“Work
26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.
26.2 Prison authorities shall strive to provide sufficient work of a useful nature.
26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release.
26.4 In conformity with Rule 13 there shall be no discrimination on the basis of gender in the type of work provided.
26.5 Work that encompasses vocational training shall be provided for prisoners able to benefit from it and especially for young prisoners.
26.6 Prisoners may choose the type of employment in which they wish to participate, within the limits of what is available, proper vocational selection and the requirements of good order and discipline.
26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life.
26.8 Although the pursuit of financial profit from industries in the institutions can be valuable in raising standards and improving the quality and relevance of training, the interests of the prisoners should not be subordinated to that purpose.
26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in co-operation with private contractors, inside or outside prison.
26.10 In all instances there shall be equitable remuneration of the work of prisoners.
26.11 Prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to allocate a part of their earnings to their families.
26.12 Prisoners may be encouraged to save part of their earnings, which shall be handed over to them on release or be used for other approved purposes.
26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside.
26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside.
26.15 The maximum daily and weekly working hours of the prisoners shall be fixed in conformity with local rules or custom regulating the employment of free workers.
26.16 Prisoners shall have at least one rest day a week and sufficient time for education and other activities.
26.17 As far as possible, prisoners who work shall be included in national social security systems.”
27. Rule 105 deals more specifically with work by sentenced prisoners:
“Work by sentenced prisoners
105.1 A systematic programme of work shall seek to contribute to meeting the objective of the regime for sentenced prisoners.
105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner.
105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.
...”
28. The Commentary points out that Rule 105 reflects the important role that work plays in the regime for sentenced prisoners, and emphasises that it should not in any circumstances be an additional form of punishment. Furthermore, Rule 105 is to be read in conjunction with Rule 26 laying down the general rules on work, and all the safeguards contained in Rule 26 apply to sentenced prisoners as well.
29. On 22 May 2015 the United Nations Commission on Crime Prevention and Criminal Justice, meeting in Vienna, adopted a major revision of the Standard Minimum Rules for the Treatment of Prisoners, which had been in force for sixty years (UN Doc. E/CN.15/2015/L.6/Rev.1). The amendments were adopted by the General Assembly on 17 December 2015. Rules 96 to 103 concern work by prisoners. The relevant parts read as follows.
“Rule 96
1. Sentenced prisoners shall have the opportunity to work and/or to actively participate in their rehabilitation, subject to a determination of physical and mental fitness by a physician or other qualified health-care professional.
2. Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.”
“Rule 97
1. Prison labour must not be of an afflictive nature.
2. Prisoners shall not be held in slavery or servitude.
3. No prisoner shall be required to work for the personal or private benefit of any prison staff.”
“Rule 98
1. So far as possible the work provided shall be such as will maintain or increase the prisoners’ ability to earn an honest living after release.
2. Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.
3. Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, prisoners shall be able to choose the type of work they wish to perform.”
“Rule 99
1. The organization and methods of work in prisons shall resemble as closely as possible those of similar work outside of prisons, so as to prepare prisoners for the conditions of normal occupational life.
2. The interests of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making a financial profit from an industry in the prison.”
D. Comparative law
30. The Court deemed it appropriate to conduct a comparative survey of the legislation adopted by twenty-eight Council of Europe member States on the subject of the requirement for prisoners having reached retirement age to continue working.
31. The research showed that in sixteen of the member States surveyed, convicted prisoners are not required to work beyond retirement age (Azerbaijan, Belgium, Estonia, Finland, Germany, Hungary, Italy, Latvia, Lithuania, the Republic of Moldova, Portugal, Russia, Slovakia, Sweden, Ukraine and the United Kingdom).
In thirteen of these countries, exemption from compulsory work for prisoners of retirement age arises directly out of the legislation in place. In the remaining three countries (Finland, Italy and Portugal), the issue is dealt with by referring to the relevant provisions of the employment legislation. In other words, the obligation to work ceases when retirement age is reached, in accordance with the Labour Code.
32. In the other twelve member States, the issue is not explicitly addressed in domestic law (Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Ireland, Luxembourg, Poland, Romania, Serbia, Slovenia, the former Yugoslav Republic of Macedonia and Turkey). Consequently, compulsory work for convicted prisoners who have reached retirement age is not formally prohibited. However, most of these countries make provision in practice for exemptions from the requirement for prisoners to work, particularly on grounds of age and ability.
In Bulgaria, for instance, all prisoners who reach retirement age are examined by a doctor who assesses their fitness for work. Similar arrangements apply in Ireland and in the former Yugoslav Republic of Macedonia.
In Slovenia there is no formal legal obstacle to requiring prisoners to work beyond retirement age. However, the decision to continue to require a prisoner to work should be taken on the basis of each prisoner’s individual support plan, which must take account of his or her personal situation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION
33. The applicant alleged a violation of his right not to be required to perform forced or compulsory labour. More specifically, he complained of being obliged to work while serving his sentence, despite having reached retirement age. He relied on Article 4 of the Convention, the relevant parts of which provide:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;
...”
34. The Government contested that argument.
A. Admissibility
35. The Government submitted that the applicant had not raised the complaints alleging a violation of Article 4 of the Convention before the Federal Court and had therefore not exhausted domestic remedies. The applicant contested that assertion.
36. The Court observes that it is not necessary for the Convention right to have been explicitly relied upon in the domestic proceedings provided that the complaint was raised “at least in substance” (see, among other authorities, Castells v. Spain, 23 April 1992, § 32, Series A no. 236; Ahmet Sadık v. Greece, 15 November 1996, § 33, Reports of Judgments and Decisions 1996‑V; and Azinas v. Cyprus [GC], no. 56679/00, §§ 40-41, ECHR 2004‑III).
37. The Court notes that the applicant did not refer explicitly to Article 4 of the Convention in his grounds of appeal to the Federal Court on 15 February 2013. However, he did refer to human dignity and personal freedom within the meaning of Articles 7 and 10 respectively of the Federal Constitution, read in conjunction with Article 81 of the Criminal Code governing work by prisoners. Accordingly, the Court considers that the applicant, at least in substance, exhausted domestic remedies in respect of the crux of his complaint under Article 4 of the Convention.
38. Furthermore, it must be observed that the Federal Court, of its own motion, reclassified the applicant’s complaint in a sense by referring, among other provisions, to Article 4 of the Convention. Accordingly, it cannot be claimed that the applicant did not exhaust domestic remedies in respect of the complaint under Article 4 (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 43-45, ECHR 2009).
39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
40. The applicant submitted that he risked incurring significant disciplinary penalties if he did not comply with the requirement to work. He referred in that regard to the decision taken by the competent authority in Pöschwies Prison on 29 May 2012 placing him under a stricter prison regime, whereby he was confined to his cell, and confiscating his television and computer for fourteen days on account of his refusal to work (see paragraph 10 above).
41. In the applicant’s submission, the European Prison Rules (see paragraphs 22 et seq. above), despite their non-binding nature, reflected a trend among European States. According to Rule 105.2 of the 2006 Rules, sentenced prisoners who had not reached the normal retirement age could be required to work, provided that due account was taken of their physical and mental fitness. The applicant maintained that Article 81 of the Criminal Code (see paragraph 17 above), as interpreted by the Federal Court, was in breach of that Rule.
42. The applicant did not dispute that work in prison was aimed at the resocialisation of prisoners. However, that principle should be tailored to his individual situation as a prisoner who had reached retirement age. In view of his advanced age, he should no longer have to adjust to a different occupation.
43. The applicant added that, under Rule 3 of the 2006 Rules (see paragraph 23 above), restrictions placed on persons deprived of their liberty should be the minimum necessary and should be proportionate to the legitimate objective for which they were imposed; this also followed from Article 74 of the Criminal Code (see paragraph 17 above). In his case, the requirement to continue working beyond retirement age would do nothing to contribute to the aims of resocialisation or preventing mental and physical deterioration, or to comply with the authorities’ duty to support prisoners as referred to by the Federal Court.
44. The applicant conceded that prisoners needed a certain amount of structure in their daily lives. However, he did not agree with the authorities that this had to be achieved by requiring prisoners to work, at least not if they had reached retirement age. Other ways of keeping prisoners occupied needed to be found.
45. The applicant referred to Rule 5 of the 2006 Rules, according to which life in prison should approximate as closely as possible the positive aspects of life in the community. In his view, the corollary to this Rule was Article 75 of the Criminal Code (see paragraph 17 above), which stated that detention should correspond as closely as possible to the conditions of normal life. It followed that detention conditions should reflect the current state and trends of contemporary society. In the applicant’s view, a requirement for prisoners to work beyond retirement age was incompatible with that principle.
46. The applicant added that he had been contributing to the pension insurance scheme while in Pöschwies Prison. If he was still required to work even after reaching retirement age, there was no guarantee that he would one day be able to reap the benefits of that insurance. The obligation to contribute to the pension insurance scheme would thus come into conflict with the requirement to continue working beyond retirement age.
47. The applicant also took note of the Government’s detailed observations on the situation regarding employment law in the five prisons described as “representative” (see paragraphs 55 et seq. below). However, he pointed out that he had consistently requested complete exemption from compulsory work. The question in this connection was not what working conditions were appropriate but whether he could actually be required to work in the first place.
48. The applicant did not dispute that the law provided for exemption from compulsory work where the prisoner in question was no longer physically or mentally able to perform the prescribed tasks. However, the law made no provision for prisoners to be exempted on age grounds. The Government’s argument that work in prison was in no way comparable to work outside prison, because of its simplicity and the minimal physical effort it entailed, could not disguise the fact that what was involved was work or services which persons were required to perform if they wished to avoid penalties, and which were not voluntary. In the applicant’s view, the situation therefore came within the scope of Article 2 of the International Labour Organization (ILO) Convention concerning Forced or Compulsory Labour 1930 (no. 29) (“Convention no. 29” – see paragraph 21 above).
49. As to the Government’s argument that the activities offered to the applicant were not comparable to ordinary work, but rather to the activities on offer in psychiatric clinics or sheltered workshops for persons with physical and mental difficulties, the applicant submitted that he had no need of such workshops.
50. According to Article 4 of the Convention, it was primarily the notion of human dignity that determined whether a particular set of tasks should be regarded as forced or compulsory labour. Article 74 of the Criminal Code referred to two key principles with regard to the execution of sentences, namely dignity and proportionality (see paragraph 17 above). Furthermore, all Western civilised nations accepted that it was inhuman to compel people to work until they were old, ill or close to death. That was why all those nations had mechanisms and social regulations in place to ensure that elderly people could manage financially.
51. For all these reasons, the applicant concluded that the requirement for prisoners to work beyond retirement age was in breach of human dignity. Hence, the work he had been required to perform came into the category of forced or compulsory labour within the meaning of Article 4 of the Convention, and there had therefore been a violation of that provision.
(b) The Government
52. The Government submitted at the outset that the requirement for prisoners to work was based on Articles 81 § 1 and 90 § 3 of the Criminal Code and on Article 103 of the Order of 6 December 2006 issued by the Canton of Zürich concerning the execution of sentences (see paragraphs 17‑18 above).
53. The Government referred to the dispatch issued by the Federal Council in 1998 regarding Article 75 of the Criminal Code (see paragraph 17 above), according to which
“[d]eveloping prisoners’ social skills, and in particular their ability to live in a law‑abiding manner, is the primary aim pursued by the execution of sentences. It can be inferred from this that the task of the authorities responsible for execution consists first and foremost in putting socialisation programmes in place. The same paragraph emphasises the need to provide living conditions that are as close as possible to those of normal life, to provide support, to reduce the negative impact of detention and to protect the community ...” (Feuille fédérale [FF – Federal Gazette] 1999 1787, 1917).
According to the same dispatch, Article 90 § 3 of the Criminal Code qualified the requirement to work under Article 81 of the Code. While some individuals subject to custodial measures were wholly unfit for work, for those who were fit, work might not just be permissible – as in the case of young adults – but even necessary.
54. Referring to the Federal Court’s judgment in the instant case, the Government stressed that as prisoners got older greater emphasis was placed on the obligation to provide them with the necessary support (necessary-support principle) and on reducing the negative impact of detention (principle of least possible harm). The first of these principles consisted in providing prisoners with the requisite support regarding their health-related, social, religious, financial and legal needs. The second recommended that the authorities responsible for the execution of sentences take all necessary steps to compensate for and reduce the harmful effects of detention and its negative impact on the prisoner’s personality and social skills.
55. The Government stated that the overview of practice set out in the following paragraphs was based on the information received from five closed institutions (Pöschwies, Lenzburg, Bostadel, Bochuz and Hindelbank). These were considered to be representative because they housed prisoners aged over 65 and prisoners serving lengthy custodial sentences. The practice of compulsory work for prisoners aged over 65 was applied in these five closed institutions, which considered it to be useful and appropriate in so far as the requirement to work had a beneficial effect on these older prisoners from a psychological and social point of view.
56. Like the Federal Court, the Government stressed that the work performed in the context of the execution of custodial sentences and measures did not correspond to work in the conventional labour market, but rather to work in a closed system. The work which prisoners aged over 65 were required to carry out in this closed system had three main characteristics. Firstly, the five closed institutions in question sought to devise individual programmes for prisoners aged over 65 in order to find appropriate activities that matched their abilities. Secondly, the work carried out by these prisoners usually had little in common with ordinary work carried out by employees outside prison or by prisoners who had not reached retirement age. Thirdly, the emphasis was on giving structure to everyday life and maintaining a suitable level of activity. In other words, the requirement for prisoners aged over 65 to work was designed to enable them to remain as autonomous as possible and to maintain their cognitive, intellectual and motor faculties.
57. Pöschwies Prison currently housed six prisoners who had reached retirement age, including the applicant. Five of them, including the applicant, were in the “dependent and retired prisoners” wing (Abteilung für Sucht und Pensionäre). Prisoners’ activities were geared to their physical and mental abilities, irrespective of the nature and length of their sentence. On account of their simplicity and the minimal physical effort they entailed, the activities offered in that wing could not be compared to the work carried out in the other prison workshops, but more closely resembled the activities on offer in psychiatric clinics or sheltered workshops for persons with physical or mental difficulties.
58. The doctor at Pöschwies Prison also issued a certificate to all prisoners aged over 65 with limited capacity, stating that their degree of capacity to work should be lowered to reflect their individual situation. Where a reduction of working hours was granted on medical grounds, the persons concerned did not suffer any loss of earnings.
59. With regard to the specific case of the applicant, he had not alleged before the Court that the work he was required to perform exceeded his capabilities. Moreover, the work was perfectly appropriate to his age. Since reaching retirement age, the applicant had been detained in the “dependent and retired prisoners” wing of Pöschwies Prison, apart from the period from 4 July 2012 to 17 July 2013 when he had been held in the “integration” unit.
60. The activity group to which the applicant now belonged was required to carry out tasks under supervision and with assistance. The applicant had a medical certificate stating that his degree of capacity to work was 50%; accordingly, he was required to work for an average of three hours per working day. Hence, his working time totalled eighteen hours and twenty minutes a week. The applicant was required to take part only in supervised activities such as colouring mandalas, cleaning his cell or making sculptures from driftwood; these occupations were designed solely to stabilise his current condition and give continued structure to his daily life. Moreover, the applicant had volunteered several times to carry out additional tasks in the afternoon, although he was not required to take part in afternoon activities.
61. The Government therefore concluded that the work the applicant had been required to perform was appropriate to his age and that the requirement to work was proportionate. Echoing the reasoning of the Federal Court (see paragraph 14 above), they submitted that a voluntary occupation would not achieve the desired objectives. Accordingly, the work the applicant had been required to perform came within the scope of Article 4 § 3 (a) of the Convention and did not constitute forced or compulsory labour within the meaning of Article 4 § 2 of the Convention. In the Government’s submission, therefore, the complaint alleging a violation of Article 4 was manifestly ill-founded.
2. The Court’s assessment
(a) General principles and summary of the relevant case-law
62. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005‑VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010).
63. Article 4 § 2 of the Convention prohibits “forced or compulsory labour”. In interpreting that provision, the Court has in previous cases taken into account the relevant ILO conventions, which are binding on almost all of the Council of Europe’s member States, including Switzerland, and especially Convention no. 29 (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115).
64. In those cases the Court noted that there was a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the European Convention and paragraph 2 of Article 2 of Convention no. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of Convention no. 29, the term “forced or compulsory labour” shall mean “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” (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention’s special features or of the fact that it was a living instrument to be read “in the light of the notions currently prevailing in democratic States” (see Van der Mussele, cited above, § 32).
65. The Court also stresses the specific structure of Article 4. Paragraph 3 is not intended to “limit” the exercise of the right guaranteed by paragraph 2, but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include. This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four sub-paragraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291‑B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006‑VIII).
66. The Court’s case-law concerning prison work is rather sparse. In one of its early judgments, the Court had to consider the work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work in issue was compulsory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) had been met. In the Court’s view, the work required had not gone beyond what was “ordinary” in this context since it had been calculated to assist the applicant in reintegrating into society and had as its legal basis provisions which had an equivalent in certain other member States of the Council of Europe (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89‑90, Series A no. 12).
67. In Stummer v. Austria ([GC], no. 37452/02, §§ 132 et seq., ECHR 2011), the Grand Chamber found that there was not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system to give rise to an obligation under Article 4 of the Convention. Consequently, the compulsory work performed by the applicant as a prisoner without being affiliated to the old-age pension system was to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a) of the Convention.
(b) Application of the above-mentioned principles
68. This is the first time that the Court has had to address the issue of the requirement for a prisoner to work after reaching retirement age.
69. The Court must ascertain whether the present case involved “forced or compulsory labour” contrary to Article 4 of the Convention. It notes that the applicant was required to work under Article 81 § 1 of the Criminal Code. Refusing to perform the work assigned to him constituted an offence for which he would have to face the consequences, as demonstrated by the decision of the competent authority of Pöschwies Prison of 29 May 2012 placing the applicant under a stricter prison regime and confiscating his television and computer for fourteen days on account of his refusal to work (see paragraph 10 above). Although that decision was subsequently revoked, the Court accepts that the penalty imposed on the applicant appears quite harsh.
70. In any event, taking the definition of forced or compulsory labour contained in Article 2 § 1 of Convention no. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32-34, and Stummer, cited above, § 125), the Court has no doubt that the applicant was performing work “under the menace of [a] penalty and for which [he had] not offered himself voluntarily”.
71. While the parties appear to be in agreement on this point, they disagree as to whether the work performed by the applicant was covered by Article 4 § 3 (a) of the Convention, which excludes “any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of the Convention” from the term “forced or compulsory labour”.
72. The Court observes at the outset that the wording of the Convention does not give any indication as regards the issue of the requirement for prisoners who have reached retirement age to work. However, the Court considers that the question of the applicability of Article 4 § 3 (a) of the Convention to such situations should be examined in the light of the aim of the work imposed, its nature, its extent and the manner in which it has to be performed.
73. As regards the aim of the work imposed, the Court accepts the Government’s argument that the requirement for prisoners to continue working even after retirement age forms part of efforts to reduce the harmful impact of detention. It acknowledges that suitable and reasonable work may help to structure daily life and maintain an appropriate level of activity, both of which are important goals as regards the well-being of long-term prisoners. In that connection the Court considers that the domestic authorities provided sufficient reasons to demonstrate the distinction between work carried out in the course of execution of a custodial sentence or measure, corresponding to a closed system, and work performed outside prison under free-market conditions.
74. As to the nature of the work carried out by prisoners who have reached retirement age, it is clear from the observations made by the Federal Council on 10 October 2012, in response to the CPT report on the latter’s visit to Switzerland in October 2011 (see paragraphs 19-20 above), that the requirement to work does not apply to all prisoners to an equal extent and that it has to be tailored, depending on the circumstances, to prisoners’ abilities and especially to their capacity for work and their state of health. Furthermore, according to the Federal Council, persons with physical difficulties are required only to perform light tasks, usually on a reduced basis. Prisoners who are unfit to work, as certified by a doctor, are exempted from the requirement to work. As to the specific situation of the applicant, his work appears to comply with these guidelines; it is clear from the Government’s observations that the applicant is required only to take part in supervised work such as colouring mandalas, cleaning his cell and making sculptures from driftwood. The Court shares the Government’s view that these activities are wholly appropriate to the applicant’s age and physical capacities, an assertion which the applicant did not dispute.
75. As to the extent of the requirement to work, the Court considers that this too is suited to the circumstances and the applicant’s individual situation, in so far as he works only for around three hours a day, that is to say, for eighteen hours and twenty minutes a week.
76. Lastly, with regard to the manner in which his work has to be performed, the Court observes that the applicant, together with other prisoners who have reached retirement age, has been placed in the “dependent and retired prisoners” wing of Pöschwies Prison. Furthermore, the applicant is paid for his work and, according to the Government, he does not suffer any loss of earnings if his capacity for work is reduced for medical reasons. As to the applicant’s claim that there is no guarantee that he will receive benefits from the pension insurance scheme given that he is required to continue working, the Court considers that he has not substantiated this argument in any way, for instance by providing the Court with decisions to that effect by the competent authorities.
77. In establishing what is to be considered “work required to be done in the ordinary course of detention”, the Court will also have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59, and Stummer, cited above, §§ 131 et seq.). As regards the practice of the Council of Europe member States, the Court notes that the comparative survey of twenty-eight countries shows that, in sixteen of those countries, sentenced prisoners are not required to work after reaching retirement age. In the remaining twelve member States surveyed, the issue is not explicitly addressed in domestic law. However, these countries usually provide for exemptions from the requirement for prisoners to work, notably on account of their capacities and their age. Consequently, the arrangements put in place by these countries resemble the approach taken in Switzerland. The Court therefore concludes that, in the absence of sufficient consensus among the Council of Europe member States on the requirement for prisoners to work after they have reached retirement age, the Swiss authorities enjoyed a considerable margin of appreciation (see, mutatis mutandis, Stummer, cited above, § 132).
78. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “[a]ny relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010, and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18).
In this connection the Court observes that Rule 105.2 of the 2006 European Prison Rules (see paragraph 27 above) states that “[s]entenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner”.
Although the aforementioned European Prison Rules do not have binding legal force, the Court has always attributed considerable importance to them in its case-law. In the case before it, it observes that the wording of Rule 105.2 is quite open and that it does not impose a uniform regime as regards the requirement for prisoners who have reached retirement age to work. In any event, the Court considers that this Rule should not necessarily be interpreted as completely prohibiting the member States from requiring prisoners who have reached retirement age to work. In the present case the Court does not deem it necessary to provide a definitive answer to this question, bearing in mind that the member States enjoy a certain margin of appreciation when it comes to implementation of this Rule by the prison authorities, who are in any event better placed than the Court to assess issues linked to conditions of detention and the treatment of prisoners. In that regard the Court takes the view that it is primarily for the domestic authorities to establish effective and practicable conditions and arrangements with a view to organising their prison systems, while at the same time complying with the requirements of the Convention.
79. In sum, and particularly in the absence of consensus among the Council of Europe member States on the issue of the requirement for prisoners to work after reaching retirement age, no absolute prohibition can be inferred from Article 4 of the Convention. The compulsory work performed by the applicant while in detention, including the work carried out since he reached retirement age, can therefore be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a) of the Convention. Accordingly, that work did not amount to “forced or compulsory labour” within the meaning of Article 4 § 2.
80. In view of the foregoing considerations, and noting that the applicant in the present case confined himself to challenging the actual principle of requiring prisoners to work after reaching retirement age and did not complain of the manner in which the work assigned to him by the Swiss authorities had to be performed, the Court finds that there has been no violation of Article 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 4 OF THE CONVENTION
81. The applicant also alleged that he had been discriminated against as a prisoner having reached retirement age compared with persons outside prison, who, he argued, were not required to continue working. In support of his complaint he relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
82. The Government submitted that the applicant had not exhausted domestic remedies in respect of this complaint.
83. The applicant contested that argument.
84. The Court notes that the applicant, who was duly represented by a lawyer, did not present arguments before the Federal Court, even in substance, in support of his discrimination complaint.
85. It follows that this complaint must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible as regards the complaint under Article 4 of the Convention, and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 4 of the Convention.
Done in French, and notified in writing on 9 February 2016 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena TsirliLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy