Information Note on the Court’s case-law 186
June 2015
Chitos v. Greece - 51637/12
Judgment 4.6.2015 [Section I]
Article 4
Article 4-2
Forced labour
Requirement imposed by the authorities on an army medical officer, despite a stay of execution of the decision, to pay a fee in order to be allowed to resign before the end of his period of service: violation
Facts – The applicant received training as an army medical officer in respect of which he had undertaken, pursuant to the relevant legislation, to serve in the armed forces for a period corresponding to three times the duration of his studies – that is to say 18 years. He subsequently acquired a specialist qualification as an anaesthetist at the expense of the army, which added a further five years to his period of service. The applicant decided to resign. The army informed him that he had to serve a further nine years and four months or else pay the State a fee of approximately EUR 107,000. The Court of Audit granted him a provisional stay of execution of that decision. The application to set aside the decision was dismissed, and the applicant then lodged an appeal on points of law. The Tax Office nevertheless asked the applicant to pay the amount in question, with a surcharge of some EUR 2,500 for miscellaneous expenses. In October 2009 the stay of execution was upheld. In May 2010 the applicant was informed that interest for late payment had been added and that he would consequently have to pay approximately EUR 112,000 before 31 May. He paid the sum requested within the time-limit.
In December 2011 the Court of Audit, sitting in plenary session, partly upheld the appeal on points of law and referred the case to a different Chamber. In December 2013, the Court of Audit ruled that the applicant’s five years of specialisation should be included in the overall period of compulsory service and consequently reduced the amount of the fee to some EUR 50,000. The State thus refunded approximately EUR 60,000 to the applicant.
Law – Article 4 § 2
(a) Scope of the case – Article 4 § 3 (b) of the Convention states that service of a military character is not considered as forced or compulsory labour. After consulting the relevant international instruments and the full text of Article 4 § 3 (b) of the Convention, the Court considered that the latter did not cover work performed by regular members of the armed forces.*
(b) Observance of Article 4 § 2 – The applicant must have been aware of the obligation to serve the army for a specific number of years after obtaining his diploma in return for his free studies, the salary he had been paid and the provision of social benefits normally payable to regular servicemen during their training.
The States had a margin of appreciation in calculating the length of compulsory service by officers trained by the army and in determining the procedure for interrupting such service. The State’s concern to secure a return on investment in the training of army and medical corps officers and to guarantee sufficient support for an appropriate time in relation to the army’s needs justified prohibiting officers from resigning for a certain time and making their early departure subject to a fee to cover expenses incurred during their training.
The obligation on medical officers wishing to leave the army before the end of the compulsory service period to pay the State certain sums in order to reimburse the expenses incurred in training them was fully justified in the light of the privileges which they enjoyed as compared with civilian medical students, such as job security and a steady salary. Thus the actual principle of buying back the remaining years of service did not raise any issues under the proportionality principle.
However, when the applicant had resigned he had been informed by the army that he had to pay the State a fee of some EUR 107,000 for the additional years which he should have served. Nevertheless, the Court of Audit finally reduced the amount of the fee to be paid to the State to approximately EUR 50,000. That amount could not be deemed unreasonable, given that it totalled less than two-thirds of the sum which had been received during the period in question. Moreover, the Court of Audit had stayed the execution of the army’s decision.
In May 2010, however, the tax department of the Ministry of Finance ordered the applicant to pay the sum due, together with approximately 13% interest charges. If the applicant had not agreed to pay the whole sum, that sum would have been increased even further owing to the length of time required by the Court of Audit to reach a decision.
Furthermore, the May 2007 decision had not provided for paying the debt in instalments, even though that was permitted by the relevant legislation.
Having regard to those circumstances, the applicant had been forced to act under duress. The authorities had overridden two judicial decisions binding upon them and persisted in implementing their initial decision of May 2007, which had stipulated that the payment procedure could not be suspended under any appeal lodged by the applicant. By requiring the latter to pay immediately the sum of approximately EUR 110,000, increased to approximately EUR 112,000 with interest, the tax authorities had placed a disproportionate burden on him.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Factsheet on Slavery, servitude and forced labour)
* See, to converse effect, W., X., Y. and Z. v. the United Kingdom, 3435/67 et al., Commission decision of 19 July 1968.
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This summary by the Registry does not bind the Court.
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