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AS TO THE ADMISSIBILITY OF

Application No. 33987/96

by Margaret Fleming

against the United Kingdom

The European Commission of Human Rights sitting in private on

20 May 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 September 1996

by Margaret FLEMING against the United Kingdom and registered on

27 November 1996 under file No. 33987/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a British national, was born in 1964 and she is

currently resident in Edinburgh. She is represented before the

Commission by Jonathan Cooper, barrister working with Liberty, a civil

liberties group based in London.

A. Particular facts of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 8 April 1989 the applicant's partner joined the Royal Air

Force and she subsequently obtained the rank of Senior Aircraft Woman.

Since 1991 the applicant and her partner have had a relationship and

from February 1993 the applicant lived with her partner in Swindon.

On 15 June 1994 the applicant's partner reported, as ordered, to

the Royal Air Force base at Halton where she was interviewed by the air

force authorities as part of an investigation of an allegation that she

was homosexual and in pursuance of the armed forces' policy against the

participation of homosexuals in the armed forces. The applicant's

partner admitted to being a lesbian during her first interview on that

day. During the subsequent and second interview on that day the

applicant's partner again stated that she was a lesbian but she was

further questioned regarding the most intimate details of her private

life including questions as to her sexual practices with the applicant

and other partners and whether she had ever "interfered sexually" with

her sixteen year old foster daughter.

On the same day the applicant, who was not a member of the armed

forces but who had accompanied her partner to Halton, was approached

and asked if she could be interviewed. She was taken to an interview

room where she was to be questioned by the air force authorities. The

applicant requested to see her partner who was subsequently brought

into the room visibly distressed and gave the applicant her consent to

answer the air force authorities' questions. The applicant's partner

was then led away.

The applicant was asked whether she and her partner were

homosexual and the applicant replied in the affirmative. The applicant

was then asked whether her partner slept with other women in the armed

forces, what sexual acts she and her partner performed and whether she

and her partner had had sex with their foster daughter. The applicant

states that she was profoundly distressed, that she felt abused and

shamed and that she was given no warning or notice of the nature or

content of the questions which were to be raised.

On 16 November 1994 the applicant's partner received a

certificate of discharge from the armed forces on the basis of her

homosexuality.

On 23 February 1995 the applicant's partner applied for leave to

take judicial review proceedings as regards the decision to dismiss her

from the armed forces and on 8 March 1995 the High Court granted her

leave to apply for judicial review. Before the High Court the

applicant's partner 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 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 (Equal Treatment Directive).

On 7 June 1995 the High Court dismissed the applicant's partner's

application (together with similar applications of three other members

of the armed forces discharged on grounds of homosexuality) for

judicial review.

Lord Justice Brown (who gave the main judgment of the High Court)

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 and that there was no reason to doubt that, but

for their discharge on the sole ground of their sexual orientation,

they would have continued to perform their service duties entirely

efficiently and with the continued support of their colleagues. Having

reviewed the statutory background and the arguments presented by both

sides, the judge considered that the balance of argument lay clearly

with the applicants and that, whatever the court would find, the

existing policy could not survive for much longer.

However, that judge found that the test to be applied in the

context of the judicial review proceedings was whether the Secretary

of State could show an important competing public interest which he

could reasonably judge sufficient to justify the restriction - only if

the purported justification "outrageously defies logic or accepted

moral standards" could the court properly strike down the policy. The

judge found that, although the justifications may have seemed to many

to be unconvincing, the decision to discharge based on the armed

forces' policy was not unlawful on the basis of the applicable test.

The judge also found that the Equal Treatment Directive was not

applicable to discrimination on grounds of sexual orientation and that

the domestic court could not rule on Convention matters. The judge

concluded, while expressing sympathy, hesitation and regret, that he

had to refuse the application for judicial review. The second judge of

the High Court agreed with Lord Justice Brown's conclusion and his

reasoning in law except that he disagreed that the balance of argument

lay with the applicants or that the policy of the armed forces was

doomed to die an early death.

On 3 November 1995 the Court of Appeal dismissed the applicant's

partner's appeal, that court finding that the applicant's partner's

discharge based on the policy was not "irrational". The test applied

was 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.

That court also accepted that the Equal Treatment Directive did not

apply to complaints in relation to sexual orientation and that it could

not rule on Convention matters.

On 19 March 1996 the Appeal Committee of the House of Lords

refused to grant leave to appeal to the House of Lords.

COMPLAINTS

The applicant complains under Articles 3 and 8 alone and in

conjunction with Article 14 of the Convention about the investigation

carried out by the air force authorities into her private life. She

also complains under Article 13 of the Convention that she had no

domestic remedy in those respects.

THE LAW

The applicant invokes Articles 3 and 8 (Art. 3, 8) alone and in

conjunction with Article 14 (Art. 3+8+14) of the Convention in respect

of the investigation carried out by the air force authorities into her

private life and, in particular, in relation to her sexual orientation

and activities. She also invokes Article 13 (Art. 13) of the Convention

claiming that she had no effective domestic remedy available to her in

relation to these matters.

As regards the timeliness of the introduction of her application,

the applicant argues that she had no domestic remedy to exhaust. She

therefore awaited the outcome of the judicial review proceedings

commenced by, inter alia, her partner. She submits that she would have

felt personally vindicated by a decision in favour of her partner in

those proceedings. Since she introduced her application within six

months of the decision of the House of Lords of 19 March 1996, she

submits that her application was introduced within the time-limit set

down by Article 26 (Art. 26) of the Convention.

The Commission recalls its constant jurisprudence to the effect

that, where no domestic remedy is available, the six-month time-limit

set down by Article 26 (Art. 26) of the Convention runs from the date

of the act which is alleged constitutes a violation of the Convention

(see, for example, No. 14807/89, Dec. 12.2.92, D.R. 72 p. 148).

The Commission notes that the investigation into the applicant's

partner's sexual orientation commenced in June 1994 and that the

applicant's interview with the air force authorities took place on

15 June 1994. By December 1994 the applicant's partner had been

discharged from the air force and the Commission considers that any

investigation which could have involved an investigation of the

applicant and her sexual orientation would have terminated at that

date.

The Commission also notes that the applicant was not a party to

the judicial review proceedings and that neither she nor her situation

was mentioned, referred to or relevant to the domestic decisions. In

such circumstances, the Commission does not accept that those

proceedings, even if the applicant would have felt personally

"vindicated" by a decision in her partner's favour, would constitute

an effective remedy in relation to the applicant's own complaints which

could interrupt the running of the six-month time-limit.

Accordingly, the Commission considers that, even assuming that

the six-month time-limit set down by Article 26 (Art. 26) of the

Convention began to run from December 1994, the introduction of the

application on 18 September 1996 was outside of that time-limit.

It follows that the application must be declared inadmissible

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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FLEMING v. THE UNITED KINGDOM

FLEMING v. THE UNITED KINGDOM

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