CASE OF CHITOS v. GREECE
Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-2 - Compulsory labour;Forced labour);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1968 and lives in Thessaloniki. 6. On 15 September 1986 he was admitted to the Corps Officers’ Military Academy (medical section). He was paid a salary and was granted welfare benefits. He pursued academic studies free of charge at the University of Thessaloniki’s Faculty of Medicine, taking the six-year degree course for medical professionals in the national health system. 7. On 3 June 1993, on completion of his studies, he was appointed to the rank of second lieutenant in the army medical corps. 8. In accordance with Article 64 § 1 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, as applicable at the material time, the applicant had undertaken to serve in the armed forces for a period corresponding to three times the duration of his studies at the military academy – that is, eighteen years. The relevant provision was later amended by section 1 of Law no. 3257/2004 and the period in question was reduced to twice the duration of his studies – that is, twelve years. 9. On 18 January 1996 the Army General Staff organised a competitive examination for the recruitment of medical specialists. Officers in the medical corps, such as the applicant, were invited to apply in order to acquire a specialist qualification. The applicant was attached to the 424 General Military Hospital in Thessaloniki, where he worked as an intern from 26 July 1996 to 30 July 1997. Subsequently, from 30 July 1997 to 27 July 2001, he occupied a paid supernumerary position (by virtue of section 8 of Law no. 123/1975) at the Papanikolaou General Regional Hospital in Thessaloniki as a junior doctor specialising in anaesthesiology. 10. After completing his specialist training, which lasted approximately five years – during which time he was paid his salary as an army officer – the applicant gave an undertaking, in accordance with Article 64 § 7 of Legislative Decree no. 1400/1973, to serve in the army for a further five years. He provided a sworn declaration to that effect as required by Article 67 § 10 of the Legislative Decree. 11. The applicant served in the armed forces until 22 January 2006, when he resigned at the age of 37 as an anaesthetist with the rank of colonel. 12. By a notice of 12 September 2006 the Army General Staff informed the applicant that, pursuant to Article 64 of Decree no. 1400/1973, he was required either to serve in the armed forces for a further nine years, four months and twelve days or to pay the State a fee calculated on the basis of the period remaining to be served. 13. In a decision of 26 May 2007 the accounts department of the Army General Staff assessed the amount of the fee at 106,960 euros (EUR). The decision stated that the applicant could apply to the Court of Audit for judicial review, but that the application would not have suspensive effect as far as the payment procedure was concerned. 14. On 25 June 2007 the applicant applied to the Fifth Division of the Court of Audit for judicial review of the notice of 12 September 2006. He argued that Article 64 of Decree no. 1400/1973 was in breach of Article 22 § 4 of the Constitution (prohibition of all forms of compulsory labour) and Article 4 § 2 of the Convention, read separately and in conjunction with Article 14. On 27 June 2007 the applicant also applied for a stay of execution of the decision of 26 May 2007. 15. On 5 July 2007 a division president of the Court of Audit made an interim order staying the execution of the decision of 26 May 2007. On 29 October 2007 the Fifth Division of the Court of Audit confirmed the stay of execution sought by the applicant. 16. In judgment no. 175/2009 of 13 February 2009 the Fifth Division of the Court of Audit dismissed the applicant’s application for judicial review as ill-founded. It held in particular that the fee to be paid by the applicant did not constitute a menace of a penalty, did not infringe the proportionality principle, had been calculated objectively and was designed to ensure that the State was refunded the expenses it had incurred in training regular members of the armed forces, who were also paid a salary throughout their basic and specialist training. 17. On 3 March 2009 the applicant appealed on points of law to the plenary Court of Audit. On 4 March 2009 he applied to the same court for a stay of execution of the decision of 26 May 2007. 18. On 17 March 2009 the president of the plenary Court of Audit made an interim order staying the execution of the decision in question. On 18 March and 9 April 2009, while those proceedings were ongoing, the Thessaloniki Tax Office ordered the applicant to pay the sum of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. 19. On 21 October 2009 the plenary Court of Audit confirmed the stay of execution sought by the applicant. 20. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that because the amount assessed in the decision of 26 May 2007 had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest. 21. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office. 22. In judgment no. 3230/2011 of 7 December 2011 (served on the applicant on 10 February 2012) the plenary Court of Audit partly allowed the appeal on points of law. 23. It found that the failure to include a period of five years – which had been essential for the applicant to complete his specialist training – as part of his total length of service was in breach of the proportionality principle enshrined in Article 25 of the Constitution. 24. It held that the period during which a medical officer worked towards obtaining a specialist qualification formed part of the officer’s actual military service. Accordingly, it quashed the Fifth Division’s decision as regards the finding that the applicant’s period of specialist training constituted years of study that should not be included in the calculation of his overall period of compulsory service. 25. It dismissed as ill-founded the ground of appeal alleging a violation of the Convention, reasoning as follows: “Paragraph 7 of Article 64 of the Decree ... is compatible with the provisions of the Constitution, the Social Charter and the Convention, in view of the fact that during the period of five years the medical officer serves the armed forces that have trained him or her, and it achieves the aim pursued, namely providing supervisory personnel for the armed forces, without the officer being required to work. As to the fee to be calculated in accordance with paragraph 16 of the same Article, this is a means of offsetting the expenditure incurred by the State in training officers and on no account constitutes a penalty.” 26. The plenary Court of Audit remitted the case to a different bench of the Fifth Division. The only question referred was that of the reassessment of the fee by counting the applicant’s five years of specialist training as part of his overall length of service. 27. In judgment no. 4909/2013 of 12 December 2013 (served on the applicant on 10 January 2014) the Fifth Division of the Court of Audit varied the decision of 26 May 2007 issued by the accounts department of the Army General Staff by reducing the amount payable by the applicant to EUR 49,978.33. 28. In particular, the Court of Audit held firstly that the decision of 26 May 2007 was lawful in that the applicant had left the army before completion of the period of eighteen years’ compulsory service. However, it found that the length of his remaining period of compulsory service was not nine years, four months and twelve days, as the Army General Staff had calculated, but four years, four months and ten days. It pointed out that the period already served by the applicant should have included his specialist training, which had begun on 26 July 1996 and ended on 27 July 2001, since, as judgment no. 3230/2011 had made clear, the period of specialist training was to be counted as part of the actual service performed. 29. On 13 March 2014 the State reimbursed the applicant the sum of EUR 59,749.61, corresponding to the difference between the payment he had already made and the amount determined in judgment no. 4909/2013. 30. According to information supplied by the Government, the applicant is now working in a large private hospital in Thessaloniki. ...