Procedure imposed on a resigned army officer for buying back his remaining years of service was contrary to the Convention
JUDGMENT:
Chitos v. Greece 04.06.2015 (no. 51637/12)
SUMMARY:
The case concerned an army officer who had been forced to pay a fee to the State in order to resign before the end of his period of service. This is the first time that the Court has ruled on this matter. The Court considered that the State’s desire to secure a return on its investment in the training of army officers and military medical officers and to ensure adequate staff numbers justified prohibiting their resignation from the forces for a specified period – to be determined by the State – and to subject them to paying a fee in order to cover the subsistence and training costs which it had incurred during their years of training, in addition to paying remuneration and social benefits.
The Court added that military medical officers enjoyed privileges unavailable to civilian medical students during their studies and specialist training. Nevertheless, by ordering Mr Chitos to pay the sum due in order to buy back his remaining years of service, to the tune of 109,527 euros, without any facility for paying in instalments, even though he had had an appeal pending before the Court of Audit, the authorities had failed to strike a fair balance between protecting Mr Chitos’ individual right and the interests of the community at large.
PROVISION
Article 4 § 2
PRINCIPAL FACTS
The applicant, Georgios Chitos, is a Greek national who was born in 1968 and lives in Thessaloniki
(Greece). He is reportedly now working in a major private hospital in that city.
In 1986 Mr Chitos was admitted to the Corps Officers’ Military Academy (medical section). He was
paid a salary and was entitled to welfare benefits. For six years he pursued academic studies free of
charge at the University of Thessaloniki’s Faculty of Medicine, taking the course for medical
professionals in the national health system. He was required by law to subsequently serve in the
armed forces for a period corresponding to twice the duration of his studies – that is, 12 years. In
1996 he embarked on specialist medical training, which lasted for approximately five years.
Mr Chitos resigned from the armed forces on 22 January 2006, with the rank of anaesthetist-colonel.
In September 2006 he was informed that he had to serve in the army for a further nine years, four
months and 12 days, or else pay the State a fee, the amount of which was set at 106,960 euros (EUR)
by the Army General Staff in a decision of 26 May 2007. Mr Chitos appealed to the Court of Audit,
which granted a stay of execution of the decision. However, he was ordered by the Thessaloniki Tax
Office to pay the sum of 106,960 euros (EUR), plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. On 10 May 2010 the tax authorities informed Mr Chitos that interest for late payment had been charged on the amount due and asked him to make the payment by 31 May, which he did. In a judgment of 12 December 2013 the Court of Audit held that Mr Chitos’ five years of specialist training should be counted as part of the overall term of compulsory service and accordingly reduced the amount of the fee to EUR 49,978.33.
The State reimbursed the sum of EUR 59,749.61 to Mr Chitos, corresponding to the difference between the payment already made and the amount determined in the Court of Audit’s judgment.
THE DECISION OF THE COURT
Article 4 § 2 (prohibition of forced labour)
The Court first of all held that Mr Chitos could not legitimately contend that he had been unaware
that the quid pro quo for studying free of charge and for the remuneration and social advantages
which he had enjoyed in the armed forces was an undertaking to serve for a specified number of
years after obtaining his diploma. The Court specified that the fee to be paid by Mr Chitos had been
calculated on the basis of Law No. 3257/20042.
The Court considered that the obligation for army officers to serve for a specified period after the
end of their training was inherent in their mission and that the length of that period was a matter for
the States’ room for manoeuvre (“margin of appreciation”) to secure a return on its investment in
the training of army officers and military medical officers.
The Court then noted that Mr Chitos had studied medicine and obtained his specialist qualification
as an anaesthetist through the intermediary of the army, and that he had had opportunities to
exercise private medicine outside his working hours. Furthermore, during their studies and specialist
training, military medical officers enjoyed privileges unavailable to civilian medical students,
including job security and salaried employment.
Nevertheless, the Court considered that the procedure for buying back the remaining years of
service had failed to strike a fair balance between protecting Mr Chitos’ individual right and the
interests of the community at large. Although the sum of EUR 49,978.33 which Mr Chitos had finally
been asked to pay had not been unreasonable – given that it represented less than two-thirds of the
total amount received by the applicant over the period at issue – he had been ordered to pay EUR
109,527 despite the stay of execution of the decision of 26 May 2007 and even though the
proceedings before the Court of Audit had scarcely begun, with the risk that the amount might be
further increased with interest for late payment owing to the time required by the Court of Audit to
reach a decision.
Moreover, the Court noted that the decision of 26 May 2007 had not mentioned the possibility that
Mr Chitos could pay the amount he owed in instalments. By forcing Mr Chitos immediately to pay
the sum of EUR 109,527 , increased to EUR 112,155.69, the tax authorities imposed a
disproportionate burden on Mr Chitos, in breach of Article 4 § 2.
Article 4 § 2 combined with Article 14 (prohibition of discrimination)
The Court noted that the obligation of five years’ additional service in the event of medical specialist
training was incumbent on medical officers in all three branches of the armed forces and that the
law solely provided that persons wishing to acquire a specialist qualification could only do so
through the intermediary of the army. Consequently, the Court declared that part of the application
inadmissible as being manifestly ill-founded.
Article 41 (just satisfaction)
The Court held that Greece was to pay Mr Chitos 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 5,000 in respect of costs and expenses(echrcaselaw.com editing).
