CEDH · PRESS;GENERAL;ENG — 25 juillet 2000

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THE UNITED KINGDOM AND SMITH AND GRADY v. THE UNITED KINGDOM   The European Court of Human Rights has today notified in writing judgments [1] in the cases of Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom, concerning just satisfaction under Article 41 of the European Convention on Human Rights.     For non-pecuniary damage, the Court awarded each applicant 19,000 pounds sterling (GBP). For pecuniary damage, Duncan Lustig-Prean was awarded GBP 94,875, John Beckett GBP   55,000, Jeanette Smith GBP 59,000 and Graeme Grady GBP 40,000. For costs and expenses, Mr Lustig-Prean was awarded a total of GBP 34,000 and Mr Beckett GBP 15,000. Ms   Smith and Mr Grady were jointly awarded GBP 32,000, with a further GBP 200 awarded to Mr Grady in relation to costs and expenses in domestic proceedings.   In its principal judgments delivered at Strasbourg on 27 September 1999, the European Court of Human Rights held unanimously that there had been a violation of Article 8 (right to respect for private life) concerning the investigation into all four applicants’ sexual orientation and their discharge from the armed forces. In the second case, the Court also found a violation of Article 13 (right to an effective remedy).   1.   Principal facts   Mr Lustig-Prean and Mr Beckett, British nationals, were born in 1959 and 1970 and live in London and Sheffield (United Kingdom) respectively. Ms Smith and Mr Grady, British nationals, were born in 1966 and 1963 and live in Edinburgh and London respectively.   All four applicants, who were at the relevant time members of the United Kingdom armed forces, are homosexual. The Ministry of Defence applies 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.   Composition of the Court   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   Non-Pecuniary damage   The applicants essentially submitted that the investigations and their discharge because of their homosexuality were insulting, humiliating and degrading events and that the discharge deprived each of them of chosen and successful careers. Ms Smith also stressed the substantial and continuing negative psychological effect of her discharge and the preceding investigation.   The Court referred to the reasons noted in its principal judgments as to why it considered the interferences with the applicants’ Convention rights to have been “especially grave” and it found that the investigations and the discharge of each applicant were profoundly destabilising events in their lives which had, and it was not excluded, continued to have a significant emotional and psychological impact on each of them. It awarded each applicant GBP 19,000 and rejected the claims for aggravated damages and interest.   Pecuniary damage   The applicants claimed compensation amounting to the difference between what would have been their service income and benefits (including the benefits from the service non-contributory pension scheme) and their civilian income and benefits. All made certain presumptions about the potential progress of their service careers had they not been dismissed and also described their civilian employment record since discharge.   On the date of the present judgments, Mr Lustig-Prean is running his own property company, Mr Beckett has been employed by the police since 1996, Ms Smith has worked very little since her discharge and was unemployed and Mr Grady is an administrator in the London office of the Chicago Board of Trade.   The Court recalled that, in principle, a judgment in which the Court finds a violation of the Convention imposes on the respondent State a legal obligation to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. However, in the present cases, the Court was of the view that a precise calculation of the sums necessary to make complete reparation in respect of pecuniary losses was prevented by the inherently uncertain character of the damage flowing from the violation. While the Court did not accept the Government’s contention that no award should be made in respect of future losses, given the large number of imponderables involved in its assessment, it did consider that the greater the interval since the discharge of the applicants the more uncertain the damage became. Accordingly, the Court stated that the question to be decided was the level of just satisfaction, in respect of both past and future pecuniary loss, which it was necessary to award to each applicant.   The Court went on to note the reasons, detailed in the principal judgements, as to why it had found that the discharge of the applicants had a profound effect on their careers and prospects, pointing out that the significant differences between civilian and service life and qualifications, together with the emotional and psychological impact of the investigations and of the consequent discharges, rendered it difficult for the applicants to find equivalent civilian careers. It also noted the applicants’ service career prospects had they not been discharged and found the loss of a non-contributory pension to be significant.   The Court awarded compensation (inclusive of interest) to Mr Lustig-Prean of GBP 39,875 (past loss of earnings), GBP 25,000 (future loss of earnings) and GBP 30,000 (loss of the benefit of the non-contributory service pension scheme), making a total of GBP 94,875. It also awarded compensation (inclusive of interest) to Mr Beckett of GBP 34,000 (past loss of earnings), GBP 7,000 (future loss of earnings) and GBP 14,000 (loss of the benefit of the non-contributory service pension scheme), making a total of GBP 55,000.   On the same basis, the Court awarded compensation (inclusive of interest claimed) to Ms   Smith of GBP 30,000 (past loss of earnings), GBP 15,000 (future loss of earnings) and GBP   14,000 (loss of the benefit of the non-contributory service pension scheme), making a total of GBP 59,000 and (inclusive of interest claimed) to Mr Grady, GBP 25,000 (future loss of earnings) and GBP 15,000 (loss of the benefit of the non-contributory service pension scheme), making a total of GBP 40,000.   Costs and expenses   All applicants claimed costs and expenses in relation to the Convention proceedings, for which the Court awarded GBP 16,000 to Mr Lustig-Prean, GBP 15,000 to Mr Beckett and a total sum of GBP 32,000 to Ms Smith and Mr Grady, who were jointly represented before the Court. Mr Lustig-Prean also claimed reimbursement of the costs and expenses of his domestic judicial review proceedings, for which the Court awarded him GBP 18,000 (inclusive of VAT). Mr Grady was awarded GBP 200 for costs in domestic proceedings.   *** 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] Under Article 43 of the European Convention on Human Rights, within three months from the date of a 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.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.