CEDH · PRESS;GENERAL;ENG — 27 septembre 1999

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THE UNITED KINGDOM AND SMITH AND GRADY v. THE UNITED KINGDOM       In a judgment [1] delivered at Strasbourg on 27 September 1999 in the case of Lustig-Prean and Beckett v. the United Kingdom (application nos.   31417/96 and 32377/96), the European Court of Human Rights held unanimously that there had been a violation of Article   8 (right to respect for private and family life) of the European Convention on Human Rights. In a second judgment delivered on the same day in the case of Smith and Grady v.   the United Kingdom (nos. 33985/96 and 33986/96),   the Court also found a violation of Article 8 together with a violation of Article 13 (right to an effective remedy) of the Convention. The Court reserved for separate judgments the question of an award of just satisfaction under Article 41.   1.   Principal facts     Duncan Lustig-Prean and John Beckett, British nationals, were born in 1959 and 1970 and live in London and Sheffield (United Kingdom) respectively. Jeanette Smith and   Graeme Grady, British nationals, were born in 1966 and 1963 and live in Edinburgh and London (United Kingdom) respectively.     All four applicants, who were at the relevant time members of the United Kingdom armed forces, are homosexual. The Ministry of Defence apply a policy which excludes homosexuals from the armed forces. The applicants, who were each the subject of an investigation by the service police concerning their homosexuality, all admitted their homosexuality and were administratively discharged on the sole ground of their sexual orientation, in accordance with Ministry of Defence policy. They were discharged in January 1995, July 1993, November 1994 and December 1994 respectively. In November 1995 the Court of Appeal rejected their judicial review applications. 2.   Procedure and composition of the Court     The applications were lodged with the European Commission of Human Rights on 23 April, 11 July, 9 September and 6 September 1996 respectively. On 1 November 1998, in accordance with Article 5 § 2 of Protocol No. 11 to the Convention, the cases were transmitted to the Court.     On 23 February 1999 the Court (Third Section) joined Mr Lustig-Prean and Mr Beckett’s applications and joined Ms Smith’s and Mr Grady’s applications. On the same day the Court also declared the complaints admissible.     A hearing in both cases was held on 18 May 1999.     Judgment in each case was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa   (French), President, Nicolas Bratza   (British), Loukis Loucaides   (Cypriot), Pranas Kūris   (Lithuanian), Willi Fuhrmann   (Austrian), Hanne Sophie Greve   (Norwegian), Kristaq Traja   (Albanian), Judges,   and also Sally Dollé, Section Registrar.   3.   Summary of the judgments     Complaints     Mr Lustig-Prean and Mr Beckett complained that the investigations into their sexual orientation and their subsequent discharges violated their right to respect for their private lives, protected by Article 8 of the Convention, and that they had been discriminated against contrary to Article 14.     Ms Smith and Mr Grady made the same complaints under Articles 8 and 14. They further complained that the Ministry of Defence policy against homosexuals and consequent investigations and discharges were degrading contrary to Article 3 (prohibition of inhuman or degrading treatment or punishment), and that the policy limited their right to express their sexual identity in violation of Article 10 (freedom of expression) and that they did not have an effective domestic remedy for their complaints as required by Article 13. Article 14 was also invoked in conjunction with the complaints under Articles 3 and 10.   Decision of the Court in the case of Lustig-Prean and Beckett v. the United Kingdom     Article 8     The Court considered the investigations, and in particular the interviews of the applicants, to have been exceptionally intrusive, it noted that the administrative discharges had a profound effect on the applicants’ careers and prospects and considered the absolute and general character of the policy, which admitted of no exception, to be striking. It therefore considered that the investigations conducted into the applicants’ sexual orientation together with their discharge from the armed forces constituted especially grave interferences with their private lives.     As to whether the Government had demonstrated “particularly convincing and weighty reasons” to justify those interferences, the Court noted that the Government’s core argument was that the presence of homosexuals in the armed forces would have a substantial and negative effect on morale and, consequently, on the fighting power and operational effectiveness of the armed forces. The Government relied, in this respect, on the Report of the Homosexual Policy Assessment Team (HPAT) published in February 1996. The Court found that, insofar as the views of armed forces’ personnel outlined in the HPAT Report could be considered representative, those views were founded solely upon the negative attitudes of heterosexual personnel towards those of homosexual orientation. It was noted that the Ministry of Defence policy was not based on a particular moral standpoint and the physical capability, courage, dependability and skills of homosexual personnel were not in question. Insofar as those negative views represented a predisposed bias on the part of heterosexuals, the Court considered that those negative attitudes could not, of themselves, justify the interferences in question any more than similar negative attitudes towards those of a different race, origin or colour.     While the Court noted the lack of concrete evidence to support the Government’s submissions as to the anticipated damage to morale and operational effectiveness, the Court was prepared to accept that certain difficulties could be anticipated with a change in policy (as was the case with the presence of women and racial minorities in the past). It found that, on the evidence, any such difficulties were essentially conduct-based and could be addressed by a strict code of conduct and disciplinary rules. The usefulness of such codes and rules was not undermined, in the Court’s view, by the Government’s suggestion that homosexuality would give rise to problems of a type and intensity that race and gender did not or by their submission that particular problems would arise with the admission of homosexuals in the context of shared accommodation and associated facilities. Finally, the Court considered that it could not ignore widespread and consistently developing views or the legal changes in the domestic laws of Contracting States in favour of the admission of homosexuals into the armed forces of those States. Accordingly, convincing and weighty reasons had not been offered by the Government to justify the discharge of the applicants.     While the applicants’ administrative discharges were a direct consequence of their homosexuality, the investigations conducted into the applicants’ sexual orientation deserved separate consideration, because the investigations continued after the applicants had admitted their homosexuality. The Government suggested that the investigations continued in order to verify the admissions of homosexuality so as to avoid false claims by those seeking an administrative discharge from the armed forces. This argument was rejected by the Court because both applicants wished to remain in the armed forces. In addition, the Court was not persuaded by the Government’s argument that medical, security and disciplinary reasons necessitated the investigations. The Court rejected the Government’s submission that the applicants knew they were not obliged to participate in the interviews, finding, in this latter respect, that the applicants had no real choice but to co-operate, as they wished to keep the investigations as discreet as possible. Accordingly, the investigations conducted after the applicants’ confirmed their homosexuality were also considered unjustified.     The Court therefore took the view that neither the investigations nor the discharges of the applicants were justified within the meaning of Article 8 § 2.     Article 14 in conjunction with Article 8     The applicants argued that they had been subjected to discriminatory treatment as a result of the Ministry of Defence policy against homosexuals in the armed forces. The Court considered that this complaint did not give rise to any issue separate to that already considered under Article 8.     Article 41     The Court considered that the issue of just satisfaction was not yet ready for decision and reserved the question for a separate judgment.   Decision of the Court in the case of Smith and Grady v. the United Kingdom     Article 8 alone and in conjunction with 14     Since these complaints were similar to those of Mr Lustig-Prean and Mr Beckett, the Court adopted the same reasoning and reached the same conclusion.     Article 3 alone and in conjunction with Article 14     The Court noted that it had already indicated, in the context of the complaints under Article 8, why it considered that the investigation and discharge together with the blanket nature of the policy of the Ministry of Defence were of a particularly grave nature. In addition, the Court did not exclude that treatment grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority as in the present case could, in principle, fall within the scope of Article 3. It also accepted that the Ministry of Defence policy together with the consequent investigations and discharges were undoubtedly distressing and humiliating for each of the applicants. However, the Court did not consider that, in the circumstances of the case, the treatment reached the minimum level of severity which would bring it within the scope of Article 3.     It accordingly concluded that there had been no violation of Article 3 either alone or in conjunction with Article 14.       Article 10 alone and in conjunction with Article 14     The Court considered that the freedom of expression element of the case was subsidiary to the applicants’ right to respect for their private lives which was principally at issue. The Court therefore found that it was not necessary to examine the applicants’ complaints under Article 10 either alone or in conjunction with Article 14.     Article 13 in conjunction with Article 8     The applicants argued that the judicial review proceedings did not constitute an effective domestic remedy within the meaning of Article 13.     The Court noted that the sole issue before the domestic courts in the context of the judicial review proceedings was whether the policy was irrational and that the test of irrationality was that expounded by Sir Thomas Bingham MR in the Court of Appeal. According to that test, a court was not entitled to interfere with the exercise of an administrative discretion on substantive grounds save where that court was satisfied that the decision was unreasonable, in the sense that it was beyond the range of responses open to a reasonable decision-maker. In judging whether the decision-maker had exceeded this margin of appreciation, the human rights context was important, so 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.     The Court also noted that Sir Thomas Bingham MR emphasised that the threshold beyond which a decision would be considered irrational was a high one and it considered that this was confirmed by the judgments of the High Court and of the Court of Appeal. Both of those courts had commented very favourably on the applicants’ submissions challenging the Government’s justification of the policy and both courts considered that there was an argument to be made that the policy was in breach of the United Kingdom’s Convention obligations. The Court observed that, nevertheless, those domestic courts were bound to conclude, given the test of irrationality applicable, that the Ministry of Defence policy could not be said to be irrational.     The Court therefore found that the threshold at which the domestic courts could find the policy of the Ministry of Defence irrational had been placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ private lives had answered a pressing social need or was proportionate to the national security and public order aims pursued by the Government, principles which lie at the heart of the Court’s analysis under Article 8.     The Court concluded, accordingly, that the applicants did not have an effective domestic remedy in relation to the violation of their right to respect for their private lives.     Article 41     As in the Lustig-Prean and Beckett case, the Court considered that the issue of just satisfaction was not yet ready for decision and reserved the question for separate judgment.     Judge Loucaides expressed in both cases a partly dissenting and partly concurring opinion which is annexed to the judgments.     The Court’s judgments are accessible on its Internet site ( http://www.dhcour.coe.fr ) on the day of their delivery.   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92) or   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91     The European Court of Human Rights was set up in 1959 in Strasbourg to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Commission. [1] The judgment becomes final subject to Articles 43 and 44 of the Convention:   Under Article 43 , within three months from the date of the Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   A panel of five judges accepts the request if the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance.   Under Article 44 , the Chamber judgment becomes final (a) when the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) when the panel of the Grand Chamber rejects the request to refer under Article 43.