FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no s . 10578/05 and 10605/05 by Carl Andrew David HUNT and Alan MILLER against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 October 2008 as a Chamber composed of:

Lech Garlicki , President, Nicolas Bratza , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application s lodged on 12 November 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant s , Mr Carl Andrew David Hunt and Mr Alan Miller are British national s who were born in 1966 and 1960 respectively. The first applicant lives in Poole and the second applicant lives in Glasgow . Both applicants are represented before the Court by Tyndallwoods , a firm of solicitors based i n Birmingham . The United Kingdom Government (“the Government”) are r epresented by their Agent, Mr J. Grainger , Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants were, at the material time, serving members of the United Kingdom armed forces. The first applicant was a trained medical a s sistant and the second applicant was an electrician by trade. They claim that they were subject to investigations into their sexual orientation and that during the investigations they were asked intimate and explicit questions. The first applicant claims to have been subject to “numerous” investigations during the last two and a half years of his service. During the first such investigation, in 1991, he was interviewed for a period of around nine hours over three-four days. His locker was searched and items were confiscated. Military personnel attended his private home address and sought to question his partner and search his flat. The second applicant alleges that he was questioned in 1989 on five occasions, for about two-three hours per interview, that his cabin was searched and that a number of personal items were confiscated.

Neither applicant was dismissed following the investigations. The first applicant was moved to another ship following the launch of a first investigation, which concluded some 18 months later when he was finally cleared. During a second investigation, he was moved to a royal navy hospital to await the results. For over two years he had been placed in administrative duties and was not permitted to work as a medical assistant as a result of the investigations. The second applicant was removed from his ship following his investigation, and given a job in the barracks for a period. In 1990 he was returned to his ship. Both applicants subsequently resigned from the armed forces. They claim that they were forced to leave because life in the armed forces had become unbearable. Colleagues were aware of the investigations and as a result they were harassed and bullied. The first applicant also complains that he was unable to do the job for which he had been trained.

2. Domestic proceedings

The applicants submitted a claim to the Employment Tribunal (“ET”) arguing constructive dismissal in breach of the Sex Discrimination Act 1975. As a result of the House of Lords ' judgment in MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) ( S cotland ) 19 June 2003, [2003] UKHL 34, the applicants withdrew their domestic proceedings on 13 November 2003.

B. Relevant domestic law and practice

The law and practice in force at the relevant time concerning the dismissal of homosexuals from the armed forces are described in the decision of the Court in the case of MacDonald v. the United Kingdom , no . 301, 6 February 2007.

COMPLAINTS

The applicant s complain under Article 8 of the Convention that the investigations into their sexual orientation and their constructive dismissal breached their right to respect for private life .

They complain under Article 13 that they had no domestic remedy to address the violations of their Article 8 rights.

They also complain under Article 3 together with Article 14 that they were subjected to degrading treatment.

THE LAW

A. Complaints under Articles 8 and 13 of the Conve n tion

The applicants complain that the investigations into their sexual orientation and their subsequent constructive dismissal from the armed forces constituted a violation of their right to respect for their private lives. Article 8, in so far as is relevant, provides that:

“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, ... for the prevention of disorder ...”

The applicants further complain that they were denied an effective remedy before the domestic courts. Article 13 provides, in so far as is relevant, that:

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

On 20 December 2005 the respondent Government were given notice of the application and were requested to submit their written observations on the admissibility and merits of the case. In their submissions, they reserved their position as to whether investigations of the nature outlined by the applicants took place and indicated that they had been unable to locate documents relating to such investigations. However, they accepted that if the applicants ' claims were substantiated, then there had been an unjustified interference with Article 8, taken alone and in conjunction with Article 13. The Government disputed that the applicants ' departure from the armed forces amounted to a violation of Article 8, taken alone and in conjunction with Article 13. They emphasised that the applicants were not discharged but resigned as a result of the combined effect of the investigations and subsequent bullying by fellow servicemen.

The applicants maintained that they resigned as a direct consequence of the investigations into their sexuality.

In view of the submissions of the parties, the Court considers that the applications raise complex and serious issues under Articles 8 and 13 of the Convention which require determination on the merits. It follows that these complaints 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.

B. Complain t s under Article s 3 and 14 of the Convention

The applicants complain that they were subjected to degrading treatment in that they were asked questions of an intimate, intrusive and embarrassing nature in the context of investigations into their sexual orientation. Article 3, so far as is relevant, reads as follows:

“No one shall be subjected to ... degrading treatment or punishment.”

The Court previously found that the investigation of individuals ' sexual orientation by military personnel did not reach the minimum threshold of severity required to bring it within the scope of Article 3 ( Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, § 122 , ECHR 1999 ‑ VI ). There is no evidence that the treatment in the present cases reached the minimum level of severity which would bring it within the scope of Article 3. It follows that the complaint under Article 3 in conjunction with Article 14 must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares inadmissible the applicants ' complaints under Article 3 in conjunction with Article 14;

Declares the remainder of the application admissible, without pr ejudging the merits of the case.

Lawrence Early Lech Garlicki Registrar President