Published on 27 May 2024
THIRD SECTION
Application no. 37608/19
Andreas RETSINAS
against Greece
lodged on 8 July 2019
communicated on 7 May 2024
SUBJECT MATTER OF THE CASE
The applicant is a military officer who submitted a resignation request and was discharged from service. Subsequently, the military administration decided, by virtue of an imputation act, that the applicant had to pay 27,637 euros (EUR) to the State due to resigning prematurely, that is to say before the expiry of the period of obligatory stay in military service.
The applicant appealed against the imputation act, arguing inter alia that he should be exempted from the amount in question because his resignation was due to his mental health condition, which was the result of psychological pressure exercised by his commanding officer. The Court of Auditors (Section V) rejected the appeal. It noted at the outset that an exemption was allowed only in case of discharge for medical reasons on account of physical inability to serve (incurable disease), following an opinion by the Supreme Health Committee (Articles 24 and 35 of Legislative Decree no. 1400/1973). The Court of Auditors further held that, in the present case, regardless of the fact that the Supreme Health Committee had not delivered an opinion, it was not proven that the medical condition of the applicant rendered his discharge imperative, considering (a) that the applicant had not mentioned his medical condition in his resignation request and (b) that the medical documents relied on were issued after his resignation. In any event, these complaints had to be raised by an appeal against the discharge decision and not in the context of the proceedings at hand, which concerned the review of the imputation act. Thus, the above arguments were rejected as unfounded. The applicant’s appeal on points of law was rejected by judgment no. 4/2019 of the Plenary of the Court of Auditors, which confirmed the above findings.
The applicant complains of a violation of Article 8 of the Convention, read alone and in conjunction with Article 13, arguing that his “mental integrity” was not sufficiently considered by the domestic authorities. Further, relying on Article 6 of the Convention, the applicant complains that the proceedings before the Court of Auditors were unfair, because that court did not consider his mental health condition and breached domestic law according to which persons resigning for health reasons are exempted from paying back the relevant amounts. Moreover, under Article 14 of the Convention, the applicant complains that he was subject to discrimination in so far as the domestic authorities ignored his mental health condition. Lastly, the applicant complains of a violation of Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
2. Has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention? In particular, did the review by the Court of Auditors ensure due respect for the interests safeguarded by Article 8 (see, for instance, Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts)), considering the applicant’s allegations regarding his mental health?
3. Did the applicant have an effective remedy at his disposal concerning his Article 8 complaint, as required by Article 13 of the Convention? In particular, would it have been possible for the applicant to be discharged for medical reasons under domestic law and in particular Legislative Decree no. 1400/1973, by invoking grounds pertaining to his mental health?
4. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, did that interference impose an excessive individual burden on the applicant?
5. Has the applicant suffered discrimination in the enjoyment of his Convention rights due to his mental health condition, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1? In particular, has the applicant been subjected to a difference of treatment in comparison with persons being in a physical inability to serve? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?