Service of a military character or substitute civilian service
THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION 53. The applicant submitted that the requirement imposed on him by domestic law to remain in the armed forces for what he considered a very lengthy period or to pay an excessively large fee to the State in return for ending his engagement constituted forced or compulsory labour, since it imposed a disproportionate burden and an unnecessary restriction on his freedom of employment. He relied on Article 4 § 2 of the Convention, which provides: “No one shall be required to perform forced or compulsory labour. ” 54. The Court considers it appropriate in the present case to refer in addition to the relevant parts of Article 4 § 3 : “3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: ... (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; ” ... B. Merits 1. The parties’ submissions (a) The Government 68. The Government submitted that the situation complained of in the present case did not amount to forced labour within the meaning of Article 4 § 2 of the Convention. They contended that following the applicant’s studies at the military academy, his appointment to the rank of second lieutenant and his specialist training, he had freely undertaken to serve in the armed forces for a period of twelve years, plus a further five years. He had been aware of that obligation, which was expressly prescribed by law, since the relevant statutory provisions formed part of the legal framework governing the career of a military medical officer and he had even personally benefited from the procedures and privileges available within that framework. 69. The Government further submitted that the applicant’s allegation that he had been required to obtain a specialist qualification was unfounded. There was no such obligation to undertake specialist training, which was a matter of relevance solely to the applicant’s own career. He had taken part of his own free will in the competitive examination organised by the army for the recruitment of medical specialists; he had been afforded preferential treatment in that military medical officers were offered supernumerary positions as specialists; and he had benefited from the promotion opportunities available as a result of his specialist qualification (being promoted to the rank of colonel). The applicant had also had the opportunity – by virtue of Article 63 § 4 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, according to the Government – to practise medicine on a private basis. 70. In addition, the Government emphasised that the applicant had been offered a supernumerary position in order to obtain his specialist qualification, whereas civilian medical personnel had to wait for any vacancies to arise before being allocated a place, whether in order of merit or by drawing lots, when new posts were created. The applicant had thus acquired a specialist qualification without having to wait, complete any administrative formalities or incur any costs. Furthermore, throughout his specialist training he had received his salary as a military medical officer. 71. The Government further argued that the applicant was not complaining of a breach of the proportionality principle in his case and that the Court therefore had no jurisdiction to examine that issue. He had not alleged, even in the alternative, that the duration of his compulsory period of service should have been shorter or that he should have paid a smaller fee, but had simply stated that he should have been able to end his engagement without any restrictions and to choose when to leave the army. 72. As to the purpose and proportionality of the restrictions imposed on military medical officers by Article 64 of Legislative Decree no. 1400/1973, the Government referred to the reasoning of the Court of Audit’s judgments nos. 2763/2013 and 3822/2013 ... 73. Lastly, the Government pointed out that the applicant had had the opportunity to avoid paying the sum to the tax office immediately and to await the judgment of the plenary Court of Audit by applying in advance for a stay of execution under Article 94 of Decree no. 721/1970 and Article 51 of Decree no. 1225/1981. He had also been entitled under domestic law to seek permission from the army to repay his debt in instalments. The Government were convinced that the army, enjoying discretion in such matters, would have taken into account the applicant’s financial circumstances, the amount he owed and practice in this area. (b) The applicant 74. Relying on Van der Mussele v. Belgium (23 November 1983, §§ 34 ‑ 35, Series A no. 70) and Mihal v. Slovakia ((dec.), no. 23360/08, §§ 44-47, 28 June 2011), the applicant submitted that, while the burden imposed on him was not criminal in nature, it amounted to “the menace of a penalty”. In particular, it had had significant potential consequences that were sufficiently daunting to lead him to offer his services against his will under the “menace of a penalty”. In that connection, the Government had simply cited examples of similar regulations in other States and listed certain advantages that allegedly eased the burden on him. 75. The applicant, stating that he was relying on the Van der Mussele precedent (cited above), asserted that he had never “offered himself voluntarily” for the work in question. He accepted that he had chosen to become an army officer and therefore was compelled to abide by all the requirements associated with that choice. However, he had merely accepted a general status, which in his submission could not be said to amount to explicit consent to assume obligations that were contrary to the rights enshrined in the Convention. Furthermore, the army authorities had never informed him of his supposed obligation to serve in the army for an additional five years. The invitation issued on 18 January 1996 to officers – including himself – had simply been aimed at encouraging them to apply to undergo specialist training and thereby to gain additional experience that could improve their career prospects in the army. 76. As to whether the burden was reasonable, the applicant submitted that the opportunity for him to publish scientific articles or practise medicine on a private basis was not sufficient to counterbalance the burden imposed on him by the State. He pointed out that he was an anaesthetist and not a general practitioner. If the purpose of the fee in issue had been, as the Government maintained, to offset the costs borne by the State in training army officers, it should have been calculated on the basis of the training period (and not the entire period of compulsory service) and the amount of the corresponding expenses. Yet the Government had been unable to quantify the relevant sum. 77. The applicant further alleged that, despite the Government’s submissions to that effect, the present case did not fall within the scope of paragraph 3 (b) of Article 4 of the Convention; that paragraph dealt with conscription and was not applicable to regular members of the armed forces. 78. Lastly, the applicant asserted that not only had the authorities never given him the opportunity to pay the sum demanded in several instalments, but he had also been compelled to repay his debt by 31 May 2010 at the latest in order to avoid being charged the full amount of interest for late payment. 2. The Court’s assessment (a) Scope of the case 79. The Court reiterates that the first adjective in the phrase “forced or compulsory labour” brings to mind the idea of physical or mental constraint. As regards the second adjective, it cannot refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise. What there has to be is work “exacted ... under the menace of any penalty” and also performed against the will of the person concerned, that is, work for which he “has not offered himself voluntarily” (see Van der Mussele, cited above, § 34). 80. As the Court has previously held, paragraph 3 of Article 4 is not intended to limit the exercise of the right guaranteed by paragraph 2, but to delimit the very content of this right, for it forms a whole with paragraph 2 and indicates what is not considered forced or compulsory labour (ibid., § 38). In accordance with sub-paragraph 3 (b), forced or compulsory labour does not include “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service”. 81. In its decision in W., X., Y. and Z. v. the United Kingdom (nos. 3435/67 and 3 others, Commission decision of 19 July 1968, Yearbook 11, p. 594), the European Commission of Human Rights held that Article 4 § 3 (b) applied not only to compulsory military service but to all military service, even when entered into voluntarily by regular members of the armed forces. This extensive interpretation of the exception in question, in relation to soldiers who had enlisted before reaching the age of majority, appears to have been based solely on the first part of sub-paragraph (b), which refers to “any service of a military character”. 82. Nevertheless, the Court notes that in the present case the Government have not relied on the exception in Article 4 § 3 (b), apparently taking the view that that provision was not applicable in the case of the applicant, a regular member of the medical corps. 83. In any event, the Court considers that sub-paragraph 3 (b) of Article 4 must be viewed as a whole. A reading of the entire sub-paragraph in its context suggests, for two reasons, that it applies to compulsory military service in States where such a system is in place: firstly, through the reference to conscientious objectors, who will obviously be conscripts and not professional military personnel and, secondly, through the explicit reference to compulsory military service at the end of the sub-paragraph. The Court refers in this connection to the general principle that exceptions to a rule must be strictly construed. This is all the more valid in that the prohibitions set forth in Article 4 §§ 1 and 2 of the Convention form part of the core Convention rights. 84. The Court further notes that Article 2 § 2 (a) of the International Labour Organisation Convention no. 29 provides that forced or compulsory labour does not include “any work or service exacted in virtue of compulsory military service laws for work of a purely military character”, which implies that this exception applies solely in the case of conscription. 85. Similarly, the Council of Europe’s European Committee of Social Rights has, when examining the issue of forced labour, made a distinction between the situation of regular members of the armed forces and that of conscripts. The Committee’s conclusions concerning various countries, including Greece, indicate that it has found that the excessive length of the period during which regular officers were required to remain in service was a ground for non-compliance with Article 1 § 2 of the European Social Charter, on the prohibition of forced labour ... 86. Furthermore, Recommendation CM/Rec(2010)4 of the Committee of Ministers to member States on human rights of members of the armed forces states that the authorities should not impose on members of the armed forces a requirement to serve for a period which would be unreasonable and would amount to forced labour ... 87. On the basis of all these factors, the Court considers, in accordance with the object and purpose of the Convention, that sub-paragraph 3 (b) of Article 4 does not cover work undertaken by regular members of the armed forces. The Court is therefore called upon in the present case to examine the question of compliance with Article 4 § 2. (b) Compliance with Article 4 § 2 88. With this in mind, the Court must ascertain in the present case whether the applicant “offered himself voluntarily” for the work in question, having had prior knowledge of all the possible consequences, and whether his decision not to carry on performing the work up to the end of the period prescribed by law may have been affected by “the menace of a penalty”. 89. The Court observes that the applicant was admitted to the Corps Officers’ Military Academy (medical section) in 1986, and on that basis enrolled on a six-year medical degree course at the University of Thessaloniki’s Faculty of Medicine. During that time he was paid a salary. On 3 June 1993, after completing the course, he was appointed to the rank of second lieutenant in the army medical corps and, in accordance with Article 64 § 1 of Legislative Decree no. 1400/1973, undertook to serve for a period corresponding to three times the duration of his studies – that is, eighteen years. 90. Later, at the invitation of the army, the applicant decided to specialise in anaesthesiology and, through the army, obtained a placement as an intern in the 424 General Military Hospital in Thessaloniki from 26 July 1996 to 30 July 1997. He was subsequently offered a paid position, again through the army, in the Papanikolaou General Regional Hospital in Thessaloniki from 30 July 1997 to 27 July 2001, as a junior doctor specialising in anaesthesiology. After completing his specialist training, he was required by Article 64 § 7 of Legislative Decree no. 1400/1973 to serve in the armed forces for a further five years. 91. The Court notes that while the applicant was undergoing his specialist training, a new Law (no. 3257/2004) came into force, altering the conditions for the early departure of officers. Section 1 of the Law reduced the length of compulsory service for officers to twice the duration of their studies at military academy, while maintaining the requirement for officers who had acquired a specialist qualification to serve for a further five years and affording them the opportunity to end their engagement before completing the prescribed term of service by paying the State a fee corresponding to the basic wage for their grade multiplied by the number of months remaining to be served. Accordingly, the Court’s examination of whether the work required of the applicant was forced or compulsory in nature will have regard to the legislative framework in force on 22 January 2006, the date of his decision to resign at the age of 37. 92. The Court notes at the outset that the applicant cannot legitimately maintain that he was unaware of the rationale and scope of the obligations he had entered into when embarking on a career as an officer in the army medical corps. One of the main benefits deriving from enlistment in the armed forces is being able to study free of charge. The armed forces cover the tuition fees of the officers concerned during their course, pay them a salary and grant them access to the welfare benefits available to regular members of the forces. In return, they require them to undertake to serve for a certain number of years after obtaining their qualification. 93. The Court notes that the requirement in the original version of Article 64 of Legislative Decree no. 1400/1973 for officers to serve for a period corresponding to three times the duration of their studies without the possibility of ending their engagement was found by the Supreme Administrative Court (judgment no. 1571/2010) to be in breach of Article 1 § 2 of the European Social Charter. This requirement was relaxed with the entry into force on 29 July 2004 of Law no. 3257/2004, which formed the basis for the calculation of the fee payable by the applicant. 94. The Court considers that the requirement for army officers to continue serving for a specified period after the end of their training is an integral part of the duties they assume. The calculation of the length of the engagement of officers who have received training through the army and the conditions for ending their engagement are matters falling within the State’s margin of appreciation. The State’s concern to secure a return on investment in the training of army and medical corps officers and to ensure that the army has sufficient supervisory personnel for an appropriate period in relation to its needs justifies prohibiting officers from resigning for a certain time and making their early departure subject to a fee to cover the living expenses and tuition costs which the State covered during their training, when it also paid them a salary and granted them welfare benefits. 95. In this connection, the Court considers it relevant to refer to the reasoning in the Court of Audit’s judgments nos. 2763/2013 and 3822/2013 to the effect that the regulations in issue were intended, among other things, to avoid sudden and premature mass departures of officers and the risk of undermining the country’s defence capabilities. 96. It remains to be determined whether the applicant was subjected to a disproportionate burden, the only factor that could lead the Court to find a violation of Article 4 § 2 of the Convention in the present case. 97. In Van der Mussele (cited above, § 37) the Court held that if a service that was required in order to gain access to a given profession imposed a burden which was so excessive or disproportionate to the advantages attached to the future practice of that profession that the service could not be treated as “having been voluntarily accepted”, the service in question fell within the prohibition of compulsory labour. In order to determine whether the obligations imposed on the applicant prevailed over the advantages linked to his chosen profession, the Court will not consider the situation at the time when he was admitted to the military academy and opted to acquire a specialist qualification, but rather in 2004, when the law amending Legislative Decree no. 1400/1973 took effect, since the Legislative Decree as amended was the law in force at the time when the applicant decided to end his engagement and he had to comply with the requirements set out therein. 98. The Court cannot ignore the fact that it was through the intermediary of the army that the applicant pursued his medical studies and obtained his specialist qualification as an anaesthetist by working from 1996 to 2001, initially at the 424 General Military Hospital in Thessaloniki and later at the Papanikolaou General Regional Hospital in Thessaloniki. It observes in this connection that section 38(2) of Law no. 1397/1983 prohibited doctors from undertaking specialist training in hospitals beyond the number of available places, but provided that supernumerary positions of this kind could be created for regular medical officers in the armed forces, a possibility of which the applicant took advantage. Furthermore, Greek legislation gives officers such as the applicant a choice between serving for a specified period in the armed forces and resigning before the end of their fixed engagement in exchange for a fee. 99. The Court also notes that, following the entry into force of the above-mentioned Law no. 3257/2004, officers in the army medical corps, such as the applicant, were permitted to practise medicine on a private basis outside their working hours. 100. These aspects show that during their ordinary and specialist training, military medical officers are entitled to privileges that are not available to civilian medical students, such as job security. Bearing in mind the additional fact that military medical officers receive a salary for the duration of their studies, there is ample justification for the requirement for those wishing to leave the army before the end of their compulsory term of service to pay certain sums to the State by way of reimbursement of the expenses incurred in training them. The Court therefore considers that the actual principle of buying back the remaining years of service does not raise any issues in terms of the proportionality principle. 101. However, the Court takes the view that the conditions governing the buying-back process may in certain cases contribute to upsetting the balance that has to be struck between the protection of the individual right of the officer concerned and that of the interests of the community. 102. In the present case the Court notes, firstly, that when the applicant tendered his resignation the Army General Staff informed him that he was required to serve for a further nine years, four months and twelve days or, failing that, to pay the State a fee of EUR 106,960 (decision of 26 May 2007). It observes, secondly, that the Court of Audit eventually concluded on 12 December 2013 that the applicant’s five years of specialist training should be counted as part of the overall period of eighteen years’ compulsory service and accordingly reduced the fee payable to the State to EUR 49,978.33. 103. The Court notes that neither the applicant nor the Government were able to indicate the precise amount of the salary and allowances received by the applicant during his degree course and his specialist training as an anaesthetist. However, it observes that according to their own estimations, the applicant and the Government agreed that he must have received a total amount of between EUR 86,976 and EUR 91,476 during the periods from September 1986 to June 1993 and from August 1996 to July 2001. 104. The Court observes that the sum of EUR 49,978.33, which the applicant was eventually asked to pay in accordance with the Court of Audit’s judgment of 12 December 2013, represented less than two-thirds of the total amount he had received during the relevant time (between EUR 86,976 and EUR 91,476) and cannot on that account be considered unreasonable. 105. The Court further notes that, following a request by the applicant to that effect, the President of the plenary Court of Audit made an interim order on 17 March 2009 staying the execution of the decision of 26 May 2007, and that the stay of execution was confirmed on 21 October 2009 by the plenary Court of Audit. 106. The stay of execution did not prevent the Thessaloniki Tax Office from ordering the applicant, on 18 March and 9 April 2009, to pay the sum of EUR 109,527, comprising the above-mentioned fee of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that, because the amount due 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. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office. 107. Despite the stay of execution granted to the applicant, first by the President of the plenary Court of Audit and subsequently by the plenary Court of Audit itself, and notwithstanding the fact that the proceedings before the plenary Court of Audit had scarcely begun, the intervention of the Revenue Department of the Ministry of Finance on 10 May 2010 meant that he was required to pay the sum due, on which interest of between 12% and 13% had already been charged. If he had not agreed to pay that amount in full, it would have been increased even further on account of the time required by the Court of Audit to reach its decision. 108. In addition, the Court notes that, while Article 3 § 1 of the State Revenue Collection Code and Article 96 of Legislative Decree no. 721/1970, as interpreted by Opinion no. 120/2002 of the State Legal Council, provide that debts owed by officers to the armed forces may be paid in instalments, that option has to be mentioned in the decision imposing the fee. However, no such information was included in the decision of 26 May 2007. 109. Having regard to these circumstances, the Court has no doubt that the applicant was obliged under constraint to act as he did (see, mutatis mutandis, Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35). The Court observes that the authorities disregarded two judicial decisions that were binding on them and persisted in enforcing their initial decision of 26 May 2007, which stated that the payment process could not be suspended in the event of an appeal by the applicant (see, mutatis mutandis, Georgoulis and Others v. Greece, no. 38752/04, § 25, 21 June 2007). By requiring the immediate payment of the sum of EUR 109,527, increased to EUR 112,155.69 with interest, the tax authorities imposed a disproportionate burden on the applicant. There has therefore been a violation of Article 4 § 2 of the Convention. ...
The Court held that there had been a violation of Article 4 § 2 (prohibition of forced labour) of the Convention. It considered in particular 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 the applicant 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 the applicant’s individual right and the interests of the community at large.