CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF
Application no. 33985/96
by Jeanette SMITH
against the United Kingdom
and
Application no. 33986/96
by Graeme GRADY
against the United Kingdom

The European Court of Human Rights (Third Section) sitting on 23 February 1999 as
a Chamber composed of

Mr L. Loucaides, President,
Sir Nicolas Bratza,
Mr P. Kūris,
Mrs F. Tulkens
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja,

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms;

Having regard to the application introduced on 9 September 1996 by Jeanette Smith

against the United Kingdom and registered on 27 November 1996 under file no. 33985/96;

Having regard to the application introduced on 6 September 1996 by

Graeme Grady against the United Kingdom and registered on 27 November 1996 under file
no. 33986/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;
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Having regard to the observations submitted by the respondent Government on

17 October 1997 and the observations in reply submitted by the applicants on 21 April 1998;

Having deliberated;

Decides as follows:
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THE FACTS

The first applicant, a British national, was born in 1966 and she is currently resident
in Edinburgh. The second applicant, a British national, was born in 1963 and he is currently
resident in London. Both are represented before the Court by Philip Leech, a legal director of
Liberty, a civil liberties group based in London. The facts of the case, as submitted by the
parties, may be summarised as follows.

A. Particular facts of the cases

1. The first applicant

On 8 April 1989 the applicant joined the Royal Air Force to serve a nine year
engagement as a nurse. She subsequently obtained the rank of Senior Aircraft Woman
working as a nurse. From February 1993 she lived with her partner in Swindon.

On 12 June 1994 the applicant returned from holiday and found a recorded message
on her answering machine from an unidentified female caller who stated that the caller had
informed the air force authorities of the first applicant’s homosexuality. Consequently, the
applicant did not report as required for duty on 13 June 1994. On the same day a female
caller telephoned the air force police stating that the applicant was a lesbian and making
derogatory remarks about her.

On 15 June 1994 the applicant reported for duty at the Royal Air Force base at
Halton. She was called to a pre-disciplinary interview because of her absence without leave
where she admitted that she was homosexual. Accordingly, the assistance of the air force
Provost and Security Service (PSS) was requested by the officer conducting that interview, a
‘Unit Investigation Report’ was opened and an investigator from the PSS was nominated. The
applicant was then interviewed by that investigator (male) and another officer (female) from
the PSS.

The transcript of the interview shows that her interview lasted approximately 35
minutes. She was cautioned that she did not have to say anything but that anything she did
say could be given in evidence. The applicant agreed to answer questions. Later she
confirmed that her solicitor advised had her not to say anything but she confirmed that she
would answer simple questions and not the “nitty gritty”. She was told that she may be asked
questions which could embarrass her and that if she felt embarrassed she should say so. It
was also explained that the purpose of the questions was to verify that her admission was not
an attempt to obtain an early discharge from the service. The transcript indicates that the
applicant was asked how long she had been a lesbian, about her first relationship and the
name of her first partner, whether she had had relationships with service personnel (a number
of questions), whether she had a sexual relationship with her current partner (the applicant
would not provide other details in that respect despite being asked several times), whether she
or her current partner had had a sexual relationship with their foster child (16 years old),
whether she had taken legal advice, who was her solicitor, what advice he had already given
her and what action the applicant proposed to take after the interview, whether she had
thought about HIV, whether she was being “careful”, what she did in her spare time and
whether she was into “girlie games”.
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The transcript also shows that the applicant agreed that her partner, who was waiting
outside during the interview, could be interviewed. It was also agreed that the applicant
would discuss with a Flight Lieutenant after the interview her placement pending the
outcome of the investigation. Her preferences and the possibilities as regards that placement
were discussed, it being suggested that she could make certain requests, including a request
for a post nearer home. She was assured of confidentiality at the station. The parties dispute
whether the applicant was confined to the hospital building during and after the interview.

The report prepared by the interviewers and dated 15 June 1994 described the
subsequent interview of the applicant’s partner. Her partner confirmed that she had been
involved in a relationship with the applicant for about 18 months and, declining to elaborate
further, confirmed that it was a full sexual relationship. That report was sent to the applicant’s
Commanding Officer who, on 10 August 1994, recommended the applicant’s administrative
discharge. On 16 November 1994 the applicant received a certificate of discharge from the
armed forces on the basis of her homosexuality.

2. The second applicant

On 12 August 1980 the applicant joined the Royal Air Force to serve as a trainee
administrative clerk. He achieved the rank of Sergeant and worked as a Personnel
Administrator. In 1991 he was posted to Washington at the British Defence Intelligence
Liaison Service (North America) - BDILS(NR). On 10 May 1994 a member of the
BDILS(NR) reported that it was suspected that the applicant was involved in the homosexual
community. This followed disclosures to the wife of the head of the BDILA(NR) by their
nanny, the latter being involved with the homosexual community. A unit investigation report
was opened, PSS assistance requested and an officer from PSS nominated as investigator.

On 12 May 1994 the applicant’s security clearance was suspended. On 17 May 1994
the applicant was relieved of his duties by the head of the BDILA(HR) and was informed that
he was being returned to the United Kingdom pending an investigation of a problem with his
security clearance. On the same day the applicant was brought to his home to pack his
belongings and left Washington for the United Kingdom. The applicant was required to
remain at the air force base of Brize Norton.

On 19 May 1994 the head of the BDILS(NR) advised two PSS investigators (who had
by then arrived in Washington) that his own wife, the nanny, the applicant’s wife and another
(female) employee of the BDILS(NR), together with the latter’s husband, should be
interviewed.

The nanny detailed in a statement how, through her own involvement in the
homosexual community, she had come to suspect that the applicant was homosexual. The
wife of the head of the BDILS(NR) revealed in interview confidences made to her by the
applicant’s wife about the applicant’s marriage difficulties and sex life and informed
investigators about a cycling holiday taken by the applicant and a male colleague. It was
decided by investigator’s that her statement would serve no useful purpose. The applicant’s
female colleague and colleague’s husband also spoke of the applicant’s marriage difficulties,
the applicant and his wife’s sleeping arrangements and the applicant’s cycling holiday with a
male colleague. These interviewees were also asked about the possibility of the applicant
having had an extra-marital relationship and of being involved in the homosexual
community.
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The applicant’s wife was then interviewed. The case progress report dated
22 May 1994 describes the interview. It was explained to the applicant’s wife that the
interview related to the applicant’s security clearance and that her husband had been
transferred to the United Kingdom at short notice in accordance with standard procedure. She
agreed to talk to the investigators and during the interview outlined their financial state,
detailed the course of and the current state of her marriage, talked about their sexual habits,
the applicant’s relationship with his two children, answered that her husband’s sexual
tendencies were normal and indicated that her husband had gone on his own on the relevant
cycling holiday.

On 25 May 1994 the applicant was required to attend an interview with the same two
investigators. It began at 2.35 p.m. and was conducted under caution with an observer (also
from the air force) present at the applicant’s request. The applicant was informed that an
allegation had been made regarding his sexual orientation (the terms “queen” and “out and
out bender” were used) and it was made clear that the investigators had been to Washington
and had spoken to a number of people, one or two of whom thought he was gay. The
applicant denied he was homosexual. He was told that his wife had been interviewed and he
was asked to tell the interviewers about the break up of his marriage and about his and his
wife’s sex life, their financial situation and about the cycling holiday, about a male colleague
and the latter’s sexual orientation. The applicant requested time to think and to take legal
advice. The interview was interrupted at 3.14 p.m. to facilitate this and to allow for a search
of the applicant’s “kit” and room.

The interview re-commenced at 7.44 p.m. with the second applicant’s lawyer and an
observer present. Despite being pressed with numerous questions, the applicant answered ‘no
comment’ to all of the questions posed about his homosexuality. He was informed that one of
the investigators was going back to America and that he would stay out there until he had
“spoken to all the Americans that know you. Expense is not a problem”. The detailed
evidence given by his wife to the investigators was put to the applicant (including matters
relating to the family home of which the applicant was not aware), but he continued to
respond “no comment”. It was explained to the applicant’s solicitor that “the service attitude
in relation to investigations involving acts of alleged homosexuality do not warrant the
provision of legal advice” and that the investigator would return to the United States to talk to
the Americans - so that the applicant’s solicitor was only delaying matters. The investigators
mentioned that it was also a security matter which they would not detail further since his
solicitor did not have security clearance, but that the applicant should not be surprised if some
counter intelligence people came to talk to him and that there would be no legal advice for
that.

The applicant requested time to speak to his lawyer and the interview was interrupted
at 8.10 p.m. The applicant then spoke to his lawyer and asked to think about matters
overnight.

The interview re-commenced at 3.27 p.m. on 26 May 1994 with the same
investigators and an observer, but the applicant did not require a solicitor. The applicant
admitted his homosexuality almost immediately and confirmed that the reason he denied it at
first was that he was not sure about the financial position should he be discharged, and he
wanted to be sure to have money to support his family. However, he had had the time to look
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into this and, since he had found out that his discharge would be administrative and that he
would get his terminal benefits, he could be honest. However, he was still questioned further
about a person called “Randy”, whether his wife knew he was homosexual, whether a male
colleague was homosexual and when he had “come out”. He was questioned about his
homosexual partners, who they were, where they worked, how the applicant met them and
about the nature of his relationship with them including the type of sex they had. During this
interview, the applicant’s impounded personal items were produced and the applicant was
questioned about them including his digital diary, photographs, a torn envelope and a three
page letter to his current homosexual partner. He was questioned further about who knew
about his sexual orientation, his relationship with his wife, HIV and having protected sex
with his wife. Finally, the applicant was warned that there was sufficient evidence to warrant
administrative action against him and the interview terminated at 4.10 p.m.

The investigators prepared a report on 13 June 1994 and on 16 December 1994 the
applicant was administratively discharged from the Royal Air Force.

3. The applicants’ judicial review proceedings (R v. Ministry of Defence ex parte

Smith and Others 2 WLR 305)

Along with Messrs. Lustig-Prean and Beckett (see Nos. 31417/96 and 32377/96,
Lustig-Prean and Beckett v. the United Kingdom, Dec. 23.2.99, as yet unpublished), the
applicants obtained leave to apply for judicial review of the decisions to discharge them from
the armed forces. They argued that the policy against homosexuals in the armed forces was
"irrational", that it was in breach of the European Convention on Human Rights and that it
was against the EU Council Directive on the Implementation of the Principle of Equal
Treatment for Men and Women as regards Access to Employment, Vocational Training and
Promotion and Working Conditions 76/207/EEC (“the Equal Treatment Directive”).

On 7 June 1995 the High Court dismissed the application for judicial review,
Lord Justice Simon Brown giving the main judgment of the court. He noted that the cases
illustrated the hardships resulting from the absolute policy against homosexuals in the armed
forces and also noted that all four of the applicants had exemplary service records, some with
reports written in glowing terms. Moreover, he found that in none of the cases before him
was it suggested that the applicants’ sexual orientation had in any way affected their ability to
carry out their work or had any ill-effect on discipline. The judge also found that the sexual
orientation of two or three of the applicants had been known or suspected without it making
the least difference to the relevant working relationships. There was no reason to doubt that,
but for their discharge on the sole ground of sexual orientation, they would have continued to
perform their service duties entirely efficiently and with the continued support of their
colleagues. The judge considered that the balance of argument lay clearly with the applicants
and was of the view that the tide of history was against the Ministry of Defence. He
considered it improbable, whatever the High Court would say, that the policy could survive
much longer and added “I doubt whether most of those present in court throughout the
proceedings now believe otherwise."

However, applying the conventional Wednesbury principles of judicial review

(adapted to a human rights context) the judge found that, although the justifications may have
seemed to many to be unconvincing, the policy was not “outrageous in its defiance of logic”
and, accordingly, not unlawful. The judge also found that the Equal Treatment Directive was
not applicable to discrimination on grounds of sexual orientation and that the domestic court
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could not rule on Convention matters. He concluded, while expressing hesitation and regret,
that he would refuse the applications for judicial review. He added, having referred to the
Convention and its jurisprudence, that he strongly suspected that the days of the policy were
numbered given the United Kingdom’s international obligations. He also noted that the
United States, Canada, Australia, New Zealand, Ireland, Israel, Germany, France, Norway,
Sweden, Austria and the Netherlands permit homosexuals to serve in their armed forces and
that the evidence indicated that the only countries operating a blanket ban were Turkey and
Luxembourg (and, possibly, Portugal and Greece).

On 3 November 1995 the Court of Appeal dismissed the appeal. Sir Thomas Bingham
M.R (who delivered the main judgment and with whose judgment the other two judges
agreed) found that “irrationality” meant whether the decision was unreasonable in the sense
that it was beyond the range of responses open to a reasonable decision maker and, in judging
whether this margin had been exceeded, the human rights context was important in that the
more substantial the interference with human rights, the more the court would require by way
of justification before it was satisfied that the decision was reasonable.

He observed that the present cases concerned innate qualities of a very personal kind,
that the decisions of which the applicants complained had a profound effect on their careers
and prospects and that the applicants’ rights as human beings were very much in issue. While
the domestic court was not the primary decision-maker and had no power to regulate the
conditions of service in the armed forces, “it had the constitutional role and duty of ensuring
that the rights of citizens are not abused by the unlawful exercise of executive power. While
the Court must properly defer to the expertise of responsible decision-makers, it must not
shrink from its fundamental duty to ‘do right to all manner of people’ ...”.

Having noted the applicants’ challenge to the reasons offered by the Ministry of
Defence, Sir Thomas Bingham M.R commented that the applicants’ arguments were “of very
considerable cogency” and they called to be considered in depth with particular reference to
the past experience of the United Kingdom to that of other countries, and to the development
of a code of conduct instead of the blanket ban. He noted that such a reassessment of the
existing policy was already in train referring, inter alia, to the quiquennial review of the
Select Committee. However, he concluded that the policy could not be considered "irrational"
at the time the applicants were discharged from the armed forces stating that “the threshold of
irrationality is a high one”. He added:

“It is, inevitably, common ground that the United Kingdom’s obligation, binding in
international law, to respect and ensure compliance with <Article 8 of the Convention>
is not one that is enforceable by domestic courts. The relevance of the Convention in
the present context is as background to the complaint of irrationality. The fact that a
decision maker failed to take account of Convention obligations when exercising an
administrative discretion is not of itself a ground for impugning the exercise of that
discretion.”

He was not persuaded by the Ministry’s argument that the policy did not interfere
with the applicants Article 8 rights and that there was room for argument as to whether the
policy answered a ‘pressing social need’ and, in particular, was proportionate to the
legitimate aim pursued. However, he specified that these were not questions which could be
“properly or usefully proffered ” by the Court of Appeal but rather were questions for the
European Court of Human Rights. He further accepted that the Equal Treatment Directive did
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not apply to complaints in relation to sexual orientation. Henry LJ expressly agreed with the
statements of the Master of the Rolls as regards Convention issues before the Court of
Appeal, observing that the Court of Appeal did not entertain “hypothetical questions”. Thorpe
L.J. added that, while the applicants’ submissions as regards a breach of Article 8 of the
Convention were ”persuasive”, the evidence and arguments that would ultimately determine
that issue were not before the Court of Appeal. The policy was, in the latter’s view, “ripe for
review and for consideration of its replacement by a strict conduct code”.

On 19 March 1996 the Appeals Committee of the House of Lords refused leave to
appeal to the House of Lords.

4. The applicants’ Industrial Tribunal proceedings

In or around the time the applicants lodged their applications for leave to take judicial
review proceedings, they also instituted proceedings before the Industrial Tribunal alleging
discrimination contrary to the Sexual Discrimination Act 1975. The latter proceedings were
stayed pending the outcome of the judicial review proceedings.

By letter date 25 November 1998, the applicants confirmed to the Court that they had
requested the withdrawal of the Industrial Tribunal proceedings given the outcome of the
judicial review proceedings and other intervening jurisprudence of the domestic courts and of
the European Court of Justice (“ECJ”).

B. Relevant domestic law and practice

1. De-criminalisation of homosexual acts

Homosexual acts between two consenting adults (at the time meaning 21 years or
over) in private ceased to constitute a criminal offence pursuant to section 1(1) of the Sexual
Offences Act 1967. However, such acts continued to constitute offences under the Army and
Air Force Acts 1955 and the Naval Discipline Act 1957 (Section 1(5) of the 1967 Act).
Section 1(5) of the 1967 Act was repealed by the Criminal Justice and Public Order Act 1994
(which Act also reduced the age of consent to 18 years old). However, section 146(4) of the
1994 Act provides, insofar as relevant, as follows:

"Nothing contained in this section shall prevent a homosexual act (with or without
other acts or circumstances) from constituting a ground for discharging a member of
Her Majesty’s armed forces from the service .... ."

The rationale for section 146(4) of the 1994 Act was (as noted in the Armed Forces’
Policy Guidelines on Homosexuality of December 1994) that there are certain circumstances
in service life where all sexual behaviour is inappropriate and, in such circumstances, both
heterosexual and homosexual behaviour would constitute an offence.
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2. R v. the Secretary of State for Defence ex parte Perkins, judgments of

13 March 1997 and 13 July 1998 and related cases

On 30 April 1996 the ECJ decided that transsexuals were protected from
discrimination on grounds of their transsexuality under European Community law (P v. S and
Cornwall County Council [1996] IRLR 347).

On 13 March 1997, the High Court referred, inter alia, the question of the
applicability of the Equal Treatment Directive to differences of treatment based on sexual
orientation to the European Court of Justice (“ECJ”) pursuant to Article 177 of the Treaty of
Rome (R v. Secretary of State for Defence ex parte Perkins, 13 March 1997). Mr Perkins had
been discharged from the Royal Navy on grounds of his homosexuality.

On 17 February 1998 the ECJ found that the Equal Pay Directive 75/117/EEC did not
apply to discrimination on grounds of sexual orientation (Grant v. South West Trains Ltd
[1998] ICR 449).

Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins’
case whether it wished to maintain the Article 177 reference. After a hearing between the
parties, the High Court decided to withdraw the question from the ECJ (R v. Secretary of
State for Defence ex parte Perkins, 13 July 1998). Leave to appeal was refused.

Claims to an Industrial Tribunal must be lodged within 3 months of the act of which
the individual complains. However, this time may be extended in the case of sex
discrimination allegations where the tribunal considers it “just and equitable” to do so.

3. Ministry of Defence Policy on homosexual personnel in the armed forces

In December 1994 updated Armed Forces’ Policy and Guidelines on Homosexuality

were distributed to the respective service directorates of personnel which document provides,
inter alia, as follows:

“Homosexuality, whether male or female, is considered incompatible with service in

the armed forces. This is not only because of the close physical conditions in which
personnel often have to live and work, but also because homosexual behaviour can
cause offence, polarise relationships, induce ill-discipline and, as a consequence,
damage morale and unit effectiveness. If individuals admit to being homosexual whilst
serving and their Commanding Officer judges that this admission is well founded they
will be required to leave the services. ...

The armed forces’ policy on homosexuality is made clear to all those considering
enlistment. If a potential recruit admits to being homosexual, he/she will not be
enlisted. Even if a potential recruit admits to being homosexual but states that he/she
does not at present nor in the future intend to engage in homosexual activity, he/she
will not be enlisted. ...

In dealing with cases of suspected homosexuality, a Commanding Officer must make a

balanced judgment taking into account all the relevant factors. ... In most
circumstances, however, the interests of the individual and the armed forces will be best
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served by formal investigation of the allegations or suspicion. Depending on the

circumstances, the Commanding Officer will either conduct an internal inquiry, using
his own staff, or he will seek assistance from the Service Police. When conducting an
internal inquiry he will normally discuss the matter with his welfare support staff.
Homosexuality is not a medical matter, but there may be circumstances in which the
Commanding Officer should seek the advice of the Unit Medical Officer on the
individual concerned and may then, if the individual agrees, refer him/her to the Unit
Medical Officer. ...

A written warning in respect of an individual’s conduct or behaviour may be given in

circumstances where there is some evidence of homosexuality but insufficient ... to
apply for administrative discharge ... . If the Commanding Officer is satisfied on a high
standard of proof of an individual’s homosexuality, administrative action to terminate
service ... is to be initiated, .... ."

The affidavit of Air Chief Marshal Sir John Frederick Willis KCB CBE, Vice Chief
of the Defence Staff, Ministry of Defence dated 4 September 1996 submitted to the High
Court (in the case of R v. Secretary of State for Defence ex parte Perkins, 13.7.1998) read,
insofar as relevant, as follows:

“The policy of the Ministry of Defence is that the special nature of homosexual life
precludes the acceptance of homosexuals and homosexuality in the armed forces. The
primary concern of the armed forces is the maintenance of an operationally effective
and efficient force and the consequent need for strict maintenance of discipline. <The
Ministry of Defence> believes that the presence of homosexual personnel has the
potential to undermine this.

The conditions of military life, both on operations and within the service environment,
are very different form those experienced in civilian life. ... The <Ministry of Defence>
believes that these conditions, and the need for absolute trust and confidence between
personnel of all ranks, must dictate its policy towards homosexuality in the armed
forces. It is not a question of a moral judgement, nor is there any suggestion that
homosexuals are any less courageous than heterosexual personnel; the policy derives
from a practical assessment of the implications of homosexuality for fighting power.”

4. Report of the Homosexuality Policy Assessment Team - February 1996

Following the case of R v. Ministry of Defence ex parte Smith and Others (2 WLR
305), the Homosexuality Policy Assessment Team (“HPAT”), composed of armed forces’
personnel, was established by the Ministry of Defence in order to undertake an internal
assessment of the armed forces’ policy on homosexuality.

Given these developments, a “desk level” consultation paper examining the policy
was drafted by the service authorities and circulated to ‘management’ level in the services for
comments prior to the commencement of the taking of evidence by the HPAT. The covering
letter circulating this consultation paper, in referring to the HPAT assessment, pointed out
that the “Minister for the Armed Forces had decided that evidence is to be gathered within the
Ministry of Defence in support of the current policy on homosexuality...”.
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The Report of the HPAT was published in February 1996 and ran to approximately
240 pages together with annexes. The Report assessed the evidence supporting the conclusion
of the Ministry of Defence that the banning of homosexuals from the armed forces was a
necessary practical military judgment based upon the implications of homosexuality for
service life and the study focussed upon the anticipated effects on fighting power of the
inclusion of homosexuals in the armed forces.

It considered, inter alia, advice from military commanders and serving personnel of
all ranks in all three services (the opinions of the latter being obtained through, inter alia,
questionnaires, postal surveys and interviews). The HPAT considered that the best predictors
of the “reality and severity” of the problems of the integration of homosexuals would be the
service people themselves. The investigations concluded that there was overwhelming
support within all three services for a continuation of the existing policy. There was also an
“overwhelmingly held view” that homosexuality was not normal or natural whereas, in
contrast, women and ethnic minorities were ‘normal’ and, consequently, more acceptable
(§ 65 of the Report).

(a) The key problem in integrating homosexuals into the armed forces remained an
anticipated loss in fighting power. It was considered well established that certain matters
were likely to significantly and negatively affect overall fighting power. These matters were
controlling homosexual behaviour and heterosexual animosity, assaults on homosexuals,
bullying and harassment of homosexuals, ostracism and avoidance, ‘cliquishness’ and
pairing, leadership and decision making problems including allegations of favouritism,
discrimination and ineffectiveness (but excluding the question of homosexual officers taking
tactical decisions swayed by sexual preference), sub-cultural friction, privacy/decency issues,
increased dislike and suspicions (polarised relationships), and resentment over imposed
change especially if controls on heterosexual expression also have to be tightened (section F.
II).

(b) The HPAT also assessed other matters it described as “subsidiary” (section G). It
found that, while cost implications of changing the policy were not quantifiable, major
expenditures on accommodation were considered unlikely. Wasted training as regards
discharged homosexuals was not considered to be a significant argument against maintaining
the policy. Should the wider social and legal position change in relation to civilian
homosexual couples, then entitlements for homosexual partners would have to be accepted.
Large amounts of money or time were unlikely to be devoted to homosexual awareness
training, given that it was unlikely to be effective in changing attitudes. There were strong
indications that recruitment and retention rates would go down if there was a change in
policy.

The policy had not presented significant problems when working with the armed
forces of allied nations. The HPAT remarked that British service personnel had shown a
“robust indifference” to arrangements in foreign forces and no concern over what degree of
acceptance closely integrated allies give to homosexuals - the average service person
considers that those others “are not British, have different standards, and are thus only to be
expected to do things differently.” It was observed that any change in the policy could present
new difficulties for the UK in filling exchange and loan postings to friendly non-NATO
countries, that personnel from different nations were usually accommodated apart, that the
evidence from foreign armed forces was that homosexuals in those forces (although not
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formally banned) were not open about their sexual orientation, and that the chances of the
few open homosexuals happening to be in a situation where their sexual orientation would
become a problem with British service personnel was consequently small.

Concerns expressed about the fulfilment of the forces "loco parentis" responsibilities
for young recruits were found not to stand up to close examination.

(c) Medical and security concerns were considered separately (sections H and I,
respectively). While it was noted that medical concerns of personnel (in relation to, inter alia,
HIV) were disproportionate to the clinical risks involved, it was considered that these
concerns would probably need to be met with education packages and compulsory HIV
testing. Otherwise real acceptance and integration of homosexuals would be seriously
prejudiced by emotional reactions and resentments and about the threat of AIDS. The security
issues (including the possibility of blackmail of those suspected of being homosexual) raised
in defence of the policy were found not to stand up to close examination.

(d) The HPAT also assessed the practice in certain other countries (§§ 70-77 of the
Report). The HPAT visited Australia, France, Germany, the Netherlands, Canada and the
United States, together with interviewing an eminent Israeli military psychologist. It observed
that there were a wide variety of official positions and legal arrangements evolving from local
legal and political circumstances and ranging from a formal prohibition of all homosexual
activity (USA) through administrative arrangements falling short of real equality (France and
Germany), to a deliberate policy to create an armed force friendly to homosexuals
(Netherlands). The Report continued:

“But nowhere did HPAT learn that there were significant numbers of open
homosexuals serving in the Forces ... . Whatever the degree of official toleration or
encouragement, informal pressures or threats within the military social system appeared
to prevent the vast majority of homosexuals from choosing to exercise their varying
legal rights to open expression of their active sexual identity in a professional setting. ...
It goes without saying that the continuing reticence of military homosexuals in these
armed forces means that there has been little practical experience of protecting them
against ostracism, harassment or physical attack.

Since this common pattern of a near absence of openly homosexual personnel occurs
irrespective of the formal legal frameworks, it is reasonable to assume that it is the
informal functioning of actual military systems which is largely incompatible with
homosexual self-expression. This is entirely consistent with the pattern of British
service personnel’s attitudes confirmed by the HPAT.”

(e) Alternative options were considered by the HPAT including a code of conduct
applicable to all, a policy based on the individual qualities of homosexual personnel, lifting
the ban and relying on service personnel reticence, the ‘don’t ask, don’t tell’ solution offered
by the USA and a ‘no open homosexuality’ code. It concluded that no policy alternative
could be identified which avoids risks for fighting power with the same certainty as the
present policy and which, in consequence, would not be strongly opposed by the service
population (§§153-175 of the Report).
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(f) Important differences were considered by the HPAT to exist between the armed
forces and other civilian disciplined services including the police, the fire brigade and the
merchant navy who do not operate the same policy against those of homosexual orientation.
It considered that:

“None of these occupations involves the same unremittingly demanding and long-term
working environment as the Armed Forces, or requires the same emphasis on building
rapidly interchangeable, but fiercely committed and self-supporting teams, capable of
retaining their cohesion after months of stress, casualties and discomfort ...” (§ 203 of
the Report).

(g) The HPAT concluded that, while clearly hardship and invasion of privacy was
involved, the risk to fighting power demonstrated why the policy was, nevertheless, justified.
It considered that it was not possible to draw any meaningful distinction between the
integration of homosexuals and of women and ethnic minorities into the armed forces -
“homosexuality raised problems of a type and intensity that gender and race did not”.

The HPAT considered that, in the longer term, evolving social attitudes towards
homosexuality might reduce the risks to fighting power inherent in change but that their
assessment could “only deal with present attitudes and risks”. It went on:

“... certainly, if service people believed that they could work and live alongside
homosexuals without loss of cohesion, far fewer of the anticipated problems would
emerge. But the Ministry must deal with the world as it is. Service attitudes, in as far as
they differ from those of the general population, emerge form the unique conditions of
military life, and represent the current social and psychological realities. They indicate
military risk from a policy change ...

... after collecting the most exhaustive evidence available, it is also evident that in the
UK homosexuality remains in practice incompatible with service life if the armed
services, in their present form, are to be maintained at their full potential fighting
power. ... Furthermore, the justification for the present policy has been overwhelmingly
endorsed by a demonstrated consensus of the profession best able to judge it. It must
follow that a major change to the Ministry’s current Tri-service Guidelines on
homosexuality should be contemplated only for clearly stated non-defence reasons, and
with a full acknowledgement of the impact on Service effectiveness and service
people’s feelings."

5. Reports of the Parliamentary Select Committee

Every five years an armed forces bill goes through parliament and a select committee
conducts a review in connection with that bill. Its report dated 24 April 1991 noted, under the
heading "homosexuality",

"That the present policy causes very real distress and the loss to the services of some
men and women of undoubted competence and good character is beyond dispute.
Society outside the armed forces is now much more tolerant of differences in sexual
orientation than it was, and this may also possibly be true of the armed forces.
Nevertheless, there is considerable force to the <Ministry of Defence’s> argument that
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the presence of people known to be homosexual can cause tension in a group of people
required to live and work sometimes under great stress and physically at very close
quarters, and thus damage its cohesion and fighting effectiveness. It may be that this
will change particularly with the integration of women into hitherto all-male units. We
are not yet persuaded that the time has come to require the armed forces to accept
homosexuals or homosexual activity."

The 1996 Select Committee Report (produced after that committee’s review of the
Armed Forces Act 1996) refers to evidence taken from members of the Ministry of Defence
and from homosexual support groups and to the HPAT Report. Once again, the Committee
did not recommend any change in the Government’s policy. It noted that, since its last
Report, a total of 30 officers and 331 persons of other rank had been discharged or dismissed
on grounds of homosexuality. The committee was satisfied that that no reliable lessons could
be as yet drawn from the experience of other countries. It acknowledged the strength of the
human rights arguments put forward, but noted that there had to be a balance struck between
individual rights and the needs of the whole. It was persuaded by the HPAT summary of the
strength of opposition throughout the armed services to any relaxation of the policy. It
accepted that the presence of openly homosexual servicemen and women would have a
significant adverse impact on morale and, ultimately, on operational effectiveness. The matter
was then debated in the House of Commons and members, by 188 votes to 120, rejected any
change to the existing policy.

6. Information to persons recruited into the armed forces

Prior to September 1995 applicants to the armed forces were informed about the
armed forces’ policy as regards homosexuals in the armed forces by, inter alia, a leaflet
entitled "Your Rights and Responsibilities". To avoid any misunderstanding and so that each
recruit to each of the armed services received identical information, on 1 September 1995 the
armed forces introduced a Service Statement to be read and signed before enlistment.
Paragraph 8 of that statement is headed "Homosexuality" and states that homosexuality is not
considered compatible with service life and "can lead to administrative discharge."

COMPLAINTS

In the first place, the applicants complain that they were subjected to degrading
treatment contrary to Article 3 of the Convention by the armed forces’ policy against those of
homosexual orientation, by the manner in which the investigation into their homosexuality
was carried out and by their discharge based on crude stereotyping and prejudice denying the
applicants’ individuality and dignity.

Secondly, the applicants complain under Article 5 about their detention by the armed
forces’ authorities during and after their interviews.

Thirdly, they also complain under Article 8 of the Convention both in relation to the
investigation and inquiries made into a most intimate part of their private lives, namely their
sexual orientation, and in relation to their subsequent discharges from service pursuant to the
absolute policy against homosexuals in the armed forces.
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Fourthly, they complain under Article 10 of the Convention about the limitation on
their right to give expression to their sexual identity.

Fifthly, the applicants complain under Article 14, in conjunction with Articles 3, 5, 8
and 10 of the Convention, in relation to the policy and their consequent investigation and
discharge on grounds of their sexual orientation.

Finally, the applicants also complain that they were denied an effective domestic
remedy within the meaning of Article 13 as regards the alleged violations of Articles 3, 8, 10
and 14 of the Convention.

PROCEDURE

The applications were introduced before the European Commission of Human Rights
on 9 September and 6 September 1996, respectively, and both were registered on
27 November 1996.

On 20 May 1997 the Commission decided to communicate the applications to the

respondent Government. It was also decided to join the present applications with application
Nos. 31417/96 and 32377/96 (Lustig-Prean and Beckett v. the United Kingdom,
Dec. 23.2.99, as yet unpublished).

The Government’s written observations were submitted on 17 October 1997, after one
extension of the time-limit fixed for that purpose.

On 17 January 1998 the Commission decided to adjourn the applications pending the
outcome of a reference to the ECJ, pursuant to Article 177 of the treaty of Rome, by the High
Court in a case similar to the present cases on the question of the applicability of the Equal
Treatment Directive to a difference in treatment based on sexual orientation (R v. Secretary of
State for Defence ex parte Perkins, 13 March 1997).

The applicants’ observations were submitted on 17 April 1998 after 3 extensions of the
time-limit fixed for that purpose.

On 13 July 1998 the High Court delivered its judgment withdrawing its reference of the
above-noted question in light of intervening relevant jurisprudence of the ECJ (R v. Secretary
of State for Defence ex parte Perkins, 13 July 1998).

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the

Convention, the cases fell to be examined by the Court in accordance with the provisions of
that Protocol.

On 23 February 1999 the Court decided to maintain the joinder of the present
applications and to disjoin them from the above-cited Lustig-Prean and Beckett cases.
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THE LAW

The applicants complain that the policy excluding homosexuals from the armed forces
of the United Kingdom violated their rights under Articles 3, 5, 8 and 10, alone and in
conjunction with Article 14 of the Convention. They also consider that they did not have an
effective remedy within the meaning of Article 13 in respect of the alleged violations of
Articles 3, 8, 10 and 14 of the Convention

1. Article 5 alone and in conjunction with Article 14 of the Convention

The first applicant complains about being detained by the armed forces authorities on
15 June 1994 and thereafter. The second applicant complains about being detained on
17 May 1994, during his interviews under caution on 25 and 26 May 1994 and thereafter.
Both invoke Article 5 alone and in conjunction with Article 14 in these respects. Article 5 of
the Convention guarantees the right to liberty and security of person and Article 14 ensures
freedom from discrimination in the securement of Convention rights (see p. 18 below).

However, the Court notes that applicants were definitively discharged from the air
force on 16 November and 16 December 1994, respectively and that the domestic
proceedings pursued by them did not relate to any detention matters. Accordingly, even
assuming that the applicants could demonstrate a form of detention within the meaning of
Article 5 during and/or after the investigation of their homosexuality by the armed forces
authorities, and even if the six-month time-limit set down by Article 35 § 1 of the Convention
began to run for both applicants from the date of their discharge from the armed forces, their
respective applications have been introduced (on 9 and 6 September 1996, respectively)
outside of this time-limit.

In such circumstances, their complaints as regards alleged periods of detention prior

to their discharge from the armed forces under Articles 5 and 14 of the Convention are
inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

2. Article 3 of the Convention

The applicants complain that the policy excluding homosexuals from the armed forces
and the consequent investigations and discharges amounted to degrading treatment contrary
to Article 3 of the Convention. In addition, they submit that their discriminatory treatment,
based on crude stereotyping and prejudice, denied and caused affront to their individuality
and dignity (Nos. 4403/70 et subs, East African Asians v. the United Kingdom, Comm.
Report 14.12.73, D.R. 78-A) and, as such, amounted to treatment contrary to Article 3. This
Article reads, insofar as relevant, as follows:

"No one shall be subjected to ... degrading treatment or punishment."

The Government submit that, given the serious and reasonable basis and aim of the
policy (maintaining the fighting power and effectiveness of the armed forces) and in the
absence of any intention to degrade or humiliate, the policy cannot be categorised as
degrading. They would distinguish the above-cited East African Asians case since that case
dealt with racial discrimination. They also defend the investigation procedure arguing that the
aim is not to humiliate persons but to deal with cases as quickly and as discreetly as possible.
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The applicants chose to answer questions having been informed of their right not to so
answer. Indeed the second applicant exercised for a period of time his rights not to answer
and to have a lawyer present. Given the matter at issue, intimate questions are inevitable in
the investigation process and the Government clarify that no reference is made in the
discharge certificate to sexual orientation.

In response, the applicants point out that it is sufficient if the victim is “humiliated in
his own eyes” (Tyer v. United Kingdom judgment of 25 April 1978, Series A no. 26, p. 16, §
32). As to the East African Asians case, the distinction made by the Government is a
technical one - they were labelled and categorised, which process debases and denigrates an
individual’s existence and character. Moreover, treatment contrary to Article 3 cannot ever
have a justification. As to the suggestion that the applicants could have chosen not to
participate in the interviews, they submit that their complaint relates to the entire
investigation and dismissal process, the caution given was in fact the standard caution given
to a criminal suspect, the fact that questions were put was hurtful and degrading, and the
absence of a legal obligation to answer the questions in no way mitigated that effect. In any
event, the questions extended significantly beyond an inquiry into sexual orientation - the
questioning continued after both applicants admitted their sexual orientation and included
allegations that were offensive and unfounded.

In view of the submissions of the parties, the Court considers that the applications raise
complex and serious issues under Article 3 of the Convention which require determination on
the merits. It follows that this complaint cannot be dismissed as manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. No other ground for declaring it
inadmissible has been established.

3. Article 8 of the Convention

The applicants also complain under Article 8 of the Convention about the
investigation and inquiries made into their sexual orientation and about their subsequent
discharge from the armed forces pursuant to the absolute policy against those of homosexual
orientation in the armed forces. Article 8, insofar as relevant, read as follows:

“1. Everyone has the right to respect for his private ... life, ... .

2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety ..., for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.”

The Government accept that neither the applicants’ service records nor their conduct
would give any grounds for complaint and that there is no evidence that, prior to the
discovery of their sexual orientation, such orientation adversely affected the performance by
them or by their colleagues of their duties. Nor is it contended by the Government that
homosexuals are less physically capable, brave, dependable or skilled than heterosexuals. The
Government also accept that there has been an interference with the applicants’ private lives
and considers that the discharges were ‘in accordance with the law’.
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However, the Government underline the wide margin of appreciation which is properly
open to a State in this context (Leander v. Sweden judgment of 26 March 1987, Series A no.
116, p. 25, § 59) by reference to four matters. In the first place, they refer to the intense
debate in recent years in the United Kingdom on the subject. Secondly, given the national
security dimension and the special nature of life and duties in the armed forces, the
complaints are made in a special armed forces’ context to which different and more stricter
rules can apply (Engel v. the Netherlands judgment of 8 June 1976, Series A No. 22, , p. 24,
§ 57 and Kalaç v. Turkey judgment of 23 June 1997, Reports of Judgments and Decisions
1997-IV, no. 41, p. 1209, § 28). Thirdly, the Government point out that the applicants are
requesting the Court to interfere in a field which risks damaging the operational efficacy of
the armed forces. Finally, it is argued that the diverse legal and practical positions in other
countries as well as the comparatively recent legal changes in many of those countries
indicate that the treatment of this controversial issue is still in a transitional period.

The Government consider that the observations and conclusions in the HPAT Report of
February 1996 demonstrate that the present policy is justifiable. The view that changing the
policy at this time would involve a clear and unacceptable risk to fighting power and,
consequently, to the effectiveness of the armed forces is, according to the Government, a
reasonable and legitimate conclusion on a sensitive and controversial question. Further, it is a
conclusion which is not undermined by the lack of a similar ban in other disciplined but
civilian contexts in the United Kingdom or by the fact that certain other countries have
changed their laws to admit homosexuals into their armed forces.

The Government also deal in their observations with certain of the applicants’
submissions to the domestic courts. The applicants had claimed that there was no evidence
that their or others’ homosexual orientation caused the type of problems anticipated by the
HPAT. The Government point out that the discharge of all persons of established homosexual
orientation ‘before such damage results’ means that concrete evidence establishing the risks
identified by the HPAT may not be available. In any event, the Government note that the
risks envisaged “would result from the general relaxation of the policy, rather than its
modification in any particular instance”. The applicants had also argued in favour of a
conduct based code. The Government note that this option was rejected by the HPAT on the
basis that any such code would not avoid the real risk to the effectiveness of the armed forces
because the risk was not dependent on homosexual conduct but on the “presence in the armed
forces of those of known or strongly suspected homosexual orientation”.

Finally, the Government explain that homosexuality will be investigated in order to

ensure that personnel are not attempting to obtain early discharge on the basis of false
representations of homosexuality. An investigation usually implies questioning the individual
and seeking corroborative evidence and, given the nature of the subject matter, will
necessarily cover intimate and personal issues. The Government also defend the conduct of
the interviews pointing out that both applicants were informed at the outset that they did not
have to say anything unless they wished to do so but they both, nevertheless, chose to co-
operate.
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Accordingly, the Government submit that the interferences with the applicants’ private
lives by the investigations and discharges were proportionate. In such circumstances, the
Government argue that the applicants’ complaints are manifestly ill-founded, within the
meaning of Article 35 § 3, or, in the alternative, do not give rise to a violation of the
Convention.

The applicants submit that both their investigation and discharge from the armed forces
constituted serious interferences with their private lives for which the armed forces have not
offered any objective or “particularly serious reasons” by way of justification (Dudgeon v.
the United Kingdom judgment of 22 October 1981, Series A no. p. 21, § 52 and Vogt v.
Germany judgment of 26 September 1995, Series A no. 323, pp. 22-23, §§ 42-44). They
refer, inter alia, to their good service records and to the lack of any allegations of
inappropriate conduct contrasted with the absolute nature of the policy against homosexuals
(the only matter for which an absolute policy of discharge is pursued). They also contrast the
position in foreign armed forces and in other civilian but disciplined forces. They note the
contents of the HPAT Report observing that the main argument contained therein in favour of
the policy (the maintenance of morale and fighting power) amounts to pandering to the
prejudice of others against those of homosexual orientation. Indeed they note that the same
argument could be used to exclude women, ethnic minorities and those of different religions.

The applicants deal in some detail in their observations with the HPAT assessment
and Report submitting that both are fundamentally flawed and unsustainable.

In the first place, the applicants contend that the HPAT assessment is not objective
and was designed to defend the continuation of the ban. Secondly, the methodology adopted
by the HPAT is also suspect - the basic hypothesis upon which the assessment was based
demonstrated prejudice and traditional stereo-typing of homosexual behaviour and the
assessment set out to prove this flawed hypothesis. The phrasing of the questions in the
questionnaire reinforced the “party line”, validated popular prejudice and induced fear in the
respondents about a change in the policy. There were no guarantees of confidentiality as
regards the responses and there was, in any event, a minimal response from service
personnel. Thirdly, the conclusions drawn by the HPAT in its Report do not withstand
scrutiny. The results are based entirely on group prejudice that does not reflect the reality of
how individuals behave towards each other in practice. The HPAT ignored the considerable
importance of information it had obtained from foreign armed forces and other British
civilian disciplined forces. The HPAT also failed to take into account certain important
factors including the responsibility of the armed forces to combat discrimination, the
continued service of individuals of homosexual orientation in the armed forces, the
experience of those who admitted their homosexuality, the reduction of the risk of blackmail,
the cost implications of dismissing trained personnel, the fact that homosexuals served in
both World Wars without effecting combat effectiveness and the views of the women in the
armed forces who were largely in favour of lifting the ban. Moreover, certain factors were
erroneously taken into account including the increased costs associated with combating
discrimination and the "image” of the services.

As to Article 8 of the Convention specifically, the applicants argue, inter alia, that the
Government must show that the ‘legitimate aim’ is achieved, at least to some extent, by the
policy pursued. Since the reduction in fighting power cannot be sustained, then neither can
the aim of national security. Insofar as the policy is aimed at the prevention of disorder
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arising from fears of harassment of homosexuals, then this cannot be accepted as a

‘legitimate’ aim, allowing as it does the exclusion of a minority group based on perceived
fears of their harassment.

As to the proportionality of the interferences, the applicants adopt the submissions in

this respect of Mr Lustig-Prean (No. 31417/96, Dec. 23.2.99, as yet unpublished) before the
Court adding that, such are the democratic ideals and the notion of respect and protection of
individual rights upon which the Convention is founded, the prejudice of a majority can never
constitute a justification for the infringement of minority rights. Moreover, the applicants add
that, since the Government argue that it is the knowledge of homosexuality which would
undermine morale and fighting power, had there been no investigation by the authorities,
there would have been no such knowledge.

In view of the submissions of the parties, the Court considers that the applications
raise complex and serious issues under Article 8 of the Convention which require
determination on the merits. It follows that this complaint cannot be dismissed as manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for
declaring it inadmissible has been established.

4. Article 10 of the Convention

The applicants further complain under Article 10 of the Convention about the
limitation imposed by the policy on their right to give expression to their sexual identity.
Article 10, insofar as relevant, reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority ... .

2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security, ...
for the prevention of disorder ... .”

The Government contend that freedom of expression is not an issue in these cases.
The applicants were free to express information and ideas and to inform others of their sexual
orientation. Their discharge was not a result of any expression of information or ideas - rather
it was a consequence of the fact of their homosexuality which, until they came under
investigation, they had chosen to conceal. In any event, any interference with the applicants’
freedom of expression was justified for the same reasons advanced by the Government in the
context of Article 8 and, accordingly, no separate issue arises under Article 10.

The applicants argue that the right to give expression to one’s sexuality encapsulates
opinions, ideas and information essential to an individual and their identity. The policy forced
the applicants to live secret lives denying them the simple opportunity to communicate
openly and freely their own sexual identity which, in turn, had a chilling effect on them and
was a powerful inhibiting factor in their right to express themselves. For the reasons outlined
in the context of Article 8, the applicants submit that the interference with their right to
freedom of expression did not have a legitimate aim and/or was not necessary and/or was not
proportionate.
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In their observations, the applicants refer to the Government’s submission about their
freedom to express their homosexuality as ‘hardly credible’. If the applicants had done so
they would have been immediately investigated and dismissed and, in any event, that is what
effectively happened. The applicants note that the Government rely, in this context, on the
justification offered for the interferences with their private lives and that they make no
attempt to provide justification for what is an extreme limitation on expression or for the
substantial consequences suffered by the applicants for expressing their homosexuality.

The applicants would add to their submissions under Article 8 § 2 that the expression
of one’s homosexual orientation is a necessary and essential part of one’s sense of being,
one’s existence as an individual and one’s self-fulfilment. Exceptions to the right of freedom
of expression must be narrowly interpreted. Given the fact that expression which might
shock, offend or disturb is protected, the mere fact that members of the armed forces would,
as the Government submit, be upset by the presence of known homosexuals is insufficient
justification for an interference under Article 10. The case of Kalaç v. Turkey (loc. cit) can be
distinguished - the applicant in that case was able to express and practice his religious
opinions and beliefs and he was discharged, not for his religious beliefs and opinions, but
rather as a result of his conduct, the latter of which is not an issue in the present cases.

In view of the submissions of the parties, the Court considers that the applications raise
complex and serious issues under Article 10 of the Convention which require determination
on the merits. It follows that this complaint cannot be dismissed as manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it
inadmissible has been established.

5. Article 14 in conjunction with Articles 3, 8 and 10 of the Convention

The applicants also invoke Article 14 of the Convention in conjunction with Articles
3, 8 and 10 of the Convention. Article 14, insofar as relevant, reads as follows:

“ The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, ... political or other opinion,
... or other status.”

The Government submit that the complaint under Article 14 in conjunction with Article
3 does not give rise to any separate issue. They also consider that there is no separate issue
under Article 14 in conjunction with Article 8 (Dudgeon v. the United Kingdom judgment of
22 October 1981, Series A no. 45, pp. 25-26. §§ 64-70) or, in the alternative, that any
difference in treatment is justified for the same reasons submitted in the context of Article 8
§ 2.

The applicants consider that they have been treated differently in relation to these
Convention rights on the basis of “sex” (which should be interpreted to include sexual
orientation) and/or “other status”. They submit that, even if the policy against homosexuals in
the armed forces pursued a legitimate aim (which they dispute), it was not proportionate to
aim sought to be realised.
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The applicants observe that the Government have not offered any added reasons to
justify the difference in treatment. However, the case-law shows that the State must show
“very weighty reasons” in order to establish justification for a difference in treatment
(Abudulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985,
Series A no. 94, pp. 37-38, § 78 and Karlheinz Schmidt v. Germany judgment of 18 July
1994, Series A no. 291-B, p. 32, § 34) and that a narrow margin of appreciation applies in
considering whether sufficient justification has been provided.

In view of the submissions of the parties, the Court considers that the applications raise
complex and serious issues under Article 14 of the Convention which require determination
on the merits. It follows that this complaint cannot be dismissed as manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it
inadmissible has been established.

6. Article 13 of the Convention

Finally, the applicants complain that the judicial review proceedings did not constitute
an effective remedy, within the meaning of Article 13 of the Convention, for the alleged
violations of Articles 3, 8, 10 and 14. Article 13 reads, insofar as relevant, as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall
have an effective remedy before a national authority ... .”

The Government submit, in the first place, that there is no arguable claim in relation
to any of the applicants’ complaints. In any event, they argue, referring to the Vilvarajah
case, that judicial review does provide an effective remedy (Vilvarajah and Others v. the
United Kingdom judgment of 30 October 1991, Series A no. 215). In particular, the substance
of the Convention arguments could be, and was, advanced before the domestic courts and the
same arguments relied on by the applicants before the Court were relied on by them before
the domestic courts. They consider that any difference between the judicial review test and
the margin of appreciation was not central to the issues in these cases and the essential
reasoning of the Court of Appeal mirrors that which underpins the Convention margin of
appreciation - both the domestic courts and the Convention organs retain a supervisory role to
ensure that the State does not abuse its powers or exceed its margin of appreciation.

The applicants submit that the test applied in the judicial review proceedings is too
limited to provide an effective remedy. It is much wider than the margin of appreciation
accorded to States and cannot take account of the requirements of objective justification and
proportionality of interferences with individual rights.

The applicants also contend that the Government’s arguments are not sustainable. Their
complaints are clearly arguable. Moreover, the Court of Appeal expressly rejected its
jurisdiction to consider arguments under Article 8 of the Convention including issues such as
‘pressing social need’ and proportionality. Moreover, it was clear that the large difference
between the margin of appreciation and the “high” standard of irrationality which had to be
applied by the Court of Appeal was the main reason why that court was obliged to dismiss
the judicial review applications despite having considered the applicants’ submissions
persuasive.
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In view of the submissions of the parties, the Court considers that the applications raise
complex and serious issues under Article 13, in connection with Articles 3, 8, 10 and 14 of
the Convention, which require determination on the merits. It follows that this complaint
cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES INADMISSIBLE the applicants’ complaints under Article 5 alone and

in conjunction with Article 14 of the Convention;

DECLARES ADMISSIBLE, without prejudging the merits of the cases, the

remainder of the applications.

S. Dollé L. Loucaides
Registrar President