SMITH AND GRADY v. THE UNITED KINGDOM

• Judgment Date: 27 September 1999
• ECLI: ECLI:CE:ECHR:1999:0927JUD003398596
• Respondent State: United Kingdom
• Date: 27 September 1999
• Application Number: 33985/96;33986/96
• Court: Third Section (European Court of Human Rights)
• Counsel: N/A
• Applied Rules: 3;8;8-1;8-2;10;14;13;14+8
• Official Gazette Publication: [object Object]

THIRD SECTION

CASE OF SMITH AND GRADY

v. THE UNITED KINGDOM

(Applications nos. 33985/96 and 33986/96)

JUDGMENT

STRASBOURG

27 September 1999

FINAL

27/12/1999

In the case of Smith and Grady v. the United Kingdom,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrsH.S. Greve,
MrK. Traja, judges,

and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 18 May and 24 August 1999,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in two applications against the United Kingdom of Great Britain and Northern Ireland lodged by the applicants with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

The first applicant, Ms Jeanette Smith, is a British national born in 1966 and resident in Edinburgh. Her application was introduced on 9 September 1996 and was registered on 27 November 1996 under file no. 33985/96. The second applicant, Mr Graeme Grady, is a British national born in 1963 and resident in London. His application was introduced on 6 September 1996 and was also registered on 27 November 1996 under file no. 33986/96. Both applicants were represented before the Commission and, subsequently, before the Court by Mr P. Leech, a legal director of Liberty which is a civil liberties group based in London.

2. The applicants complained that the investigations into their homosexuality and their discharge from the Royal Air Force on the sole ground that they are homosexual constituted violations of Article 8 of the Convention taken alone and in conjunction with Article 14. They also invoked Articles 3 and 10 of the Convention taken alone and in conjunction with Article 14 in relation to the policy of the Ministry of Defence against homosexuals in the armed forces and the consequent investigations and discharges. They further complained under Article 13 that they did not have an effective domestic remedy for these violations.

3. On 20 May 1997 the Commission (Plenary) decided to give notice of the applications to the United Kingdom Government (“the Government”) and invited them to submit observations on the admissibility and merits of the applications. In addition, the applications were joined to two similar applications (nos. 31417/96 and 32377/96, Lustig-Prean v. the United Kingdom and Beckett v. the United Kingdom).

The Government, represented by Mr M. Eaton and, subsequently, by Mr C. Whomersley, both Agents, Foreign and Commonwealth Office, submitted their observations on 17 October 1997.

4. On 17 January 1998 the Commission decided to adjourn the applications pending the outcome of a reference to the European Court of Justice (“ECJ”) pursuant to Article 177 of the Treaty of Rome by the English High Court on the question of the applicability of the 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”) to a difference of treatment based on sexual orientation.

5. On 17 April 1998 the applicants submitted their observations in response to those of the Government.

6. On 13 July 1998 the High Court delivered its judgment withdrawing its reference of the above question given the decision of the ECJ in the case of R. v. Secretary of State for Defence, ex parte Perkins (13 July 1998).

7. Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with the provisions of Article 5 § 2 thereof, the applications were examined by the Court.

In accordance with Rule 52 § 1 of the Rules of Court[1], the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber constituted within that Section included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr J.-P. Costa, Acting President of the Section and President of the Chamber (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr L. Loucaides, Mr P. Kūris, Mr W. Fuhrmann, Mrs H.S. Greve and Mr K. Traja (Rule 26 § 1 (b)).

8. On 23 February 1998 the Chamber declared the applications admissible[2] and, while it retained the joinder of the present applications, it decided to disjoin them from the Lustig-Prean and Beckett cases. The Chamber also decided to hold a hearing on the merits of the case.

9. On 29 April 1999 the President of the Chamber decided to grant Ms Smith legal aid.

10. The hearing in this case and in the case of Lustig-Prean and Beckett v. the United Kingdom, took place in public in the Human Rights Building, Strasbourg, on 18 May 1999.

There appeared before the Court:

(a) for the Government
MrC. Whomersley, Foreign and Commonwealth Office,Agent,
MrJ. Eadie, Counsel,
MrJ. Betteley,
MsJ. Pfieffer,Advisers;

(b) for the...