FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52770/99 by Christopher W. BROWN against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 4 June 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 28 October 1999 and registered on 22 November 1999,

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 is a United Kingdom national, who was born in 1963 and lives on the Isle of Man . He is represented before the Court by Mr S. Grosz, a solicitor practising in London.

A. The circumstances of the case

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

On 4 December 1979 the applicant joined the Royal Air Force (“RAF”) as an aircraftman . He was 16 years old. After an initial period as a trainee he became leading and then senior aircraftman in 1980, junior technician in 1984, corporal in 1987 and sergeant in 1996.

In 1984 the applicant passed his Aeronautical Engineering Craft Studies with the City and Guilds London Institute and between 1982 and 1994 he completed a number of associated courses described as “specialised courses of civilian value”.

The applicant was awarded three medals in 1991 following his service in Saudi Arabia during the Gulf War, a General Service Medal in 1994 in respect of his service in Northern Ireland, a Long Service and Good Conduct Medal in 1995 (a reward for his “faultless contribution” to the RAF), a medal for air operations in Iraq in 1997 and an Accumulated Campaign Service Medal in 1998.

On 15 February 1999 colleagues of the applicant informed his warrant officer that the applicant had told them that he was homosexual. On 16 February 1999 the applicant was asked by his warrant officer whether it was true that he was homosexual. The applicant confirmed that it was. He was told to report to the Officer Commanding, Personnel Management Squadron (“OCPMS”), who also asked the applicant if he was homosexual. The applicant again confirmed that he was. The OCPMS pointed out to the applicant that, as a result of the Ministry of Defence policy against homosexuals in the armed forces, the OCPMS would have to prepare to effect the applicant’s administrative discharge from the RAF. The applicant expressed his concern that the RAF service police might question his friends and the OCPMS confirmed that it was simply an administrative matter and that the service police would not be involved. The applicant confirms that neither he nor his friends were questioned thereafter.

The OCPMS prepared a minute sheet of his interview with the applicant, on which he recorded that he did not have any reason to doubt the applicant’s admission that he was homosexual.

A report made under Queen’s Regulation (RAF) 529, the first part of which was dated 19 February 1999 and entitled “Recommendation for Administrative Disposal”, recorded, under the heading ‘Station Commander’s Statement and Recommendations’ that the applicant had talked to the OCPMS and had stated that he believed that he had been homosexual for perhaps the previous fifteen years of his service, but that he had only formally acknowledged his sexuality to himself in January 1999; he did not wish to hide his sexuality and had taken the personal decision to be open about it; he had not been willing to declare his sexuality previously out of respect for the feelings of his father, who had died in October 1998; and that, although the applicant was aware of Service policy regarding homosexuality, he had to be honest with himself, while remaining loyal and committed to the RAF. The Station Commander concluded his report by stating that he did not have any reason to doubt the applicant’s admission that he was homosexual. He therefore recommended the applicant’s discharge.

The next part of the report under Queen’s Regulation (RAF) 529 was completed by the Administrative Disposal Board of the Personnel Management Agency of the RAF (“the Board”) on 3 March 1999. The Board referred to the Station Commander’s statement and recommendations (as set out above). All three members of the Board recommended the applicant’s administrative discharge from the RAF by reason of his homosexuality.

On 3 March 1999, the Personnel Management Agency of the RAF sent the Board’s recommendation to the Deciding Officer, who concurred that the applicant should be discharged on the ground of his homosexuality.

Following his interview with the OCPMS on 16 February 1999 the applicant was required to take immediate leave. He was administratively discharged from the RAF with effect from 30 June 1999. The reasons for his discharge were “services not required. Being unable to meet service obligations through circumstances beyond his control”.

On the date of his discharge, after over 19 years of service, the applicant had attained the rank of sergeant and he was earning 24,000 pounds sterling (GBP) per annum.

The applicant’s last available appraisal report prior to his discharge from the armed forces (for the period 2 June 1997 to 3 March 1998) highly recommended him for promotion from the rank of sergeant. The report described him variously as “fully committed to Service life”, as possessing “unrelenting enthusiasm”, as having the “ability to get the very best out of life and his men whether it be at home or on detachment”, as displaying “natural leadership ability”, and as being “a much valued and respected at all ranks within the Squadron” and “a robust and tireless worker”. The ‘Summary Narrative’ section of the report concluded that the applicant had already “shown the strength of character and qualities required for advancement to the next rank, and is worthy of a high recommendation for promotion ahead of most of his peers”.

His certificate of qualifications signed by his commanding officer after his discharge in July 1999 noted that:

“As an aircraft technician, he ... met the high and exacting standards required by the Royal Air Force... He has deputised as a trade manager, planning and supervising the tasks of up to 14 specialist tradesmen. Throughout, he has utilised his leadership ability and resourcefulness to ensure a high degree of professionalism prevailed. ... He is loyal, conscientious and very hard working and has earned the trust and respect of both his senior and junior colleagues. ... [The applicant’s] dedication to duty and attention to detail have made him a valuable member of the service. ... [The applicant] has been an excellent employee and this outstanding Senior Non-commissioned Officer is wholeheartedly recommended to any future employer”.

The part of the report made under Queen’s Regulation (RAF) 529 entitled “Recommendation for Administrative Disposal” pointed out that throughout his career the applicant had given excellent service and approached his work in a proficient and professional manner, that he had worked extremely well whether in a team or individual context, that he had been well liked and respected by his subordinates and seniors alike and that he had been an asset to the RAF. The final recommendation in that document noted that it was clear that the applicant had given exemplary service to the RAF, but that there was no option but to disregard the applicant’s proven record and, “with reluctance”, to recommend his discharge.

Finally, a letter of reference dated 26 February 1999 and signed by the applicant’s commanding flight lieutenant concluded by stating that “any employer who decides to use services will be gaining a first class individual with the highest standards. He will be sorely missed by 31 Squadron’s engineering team”.

The applicant is currently employed as a mechanic with Manx Airlines but, until he receives a licence from the Civil Aviation Authority which he claims may take several years, he cannot work as a technician or aircraft engineer in a civilian establishment.

B. Relevant domestic law and practice

The domestic law and practice relevant to the present application is described in the judgments of the Court in the cases of Lustig-Prean and Beckett v. the United Kingdom , nos. 31417/96 and 32377/96, (Sect. 3) ( bil .), §§ 22-34 and 37-61, 27 September 1999, unreported (Sect. 3) ( bil .), and Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, §§ 29-41 and 44-68, ECHR 1999-VI.

COMPLAINTS

The applicant complains under Article 8 , both alone and in conjunction with Article 14 of the Convention, about the investigation and inquiries into his sexual orientation and about his discharge from the RAF by reason of his homosexuality in pursuance of the policy of the Ministry of Defence against homosexuals in the armed forces.

He also complains about a lack of an effective domestic remedy in these respects, invoking Article 13 of the Convention.

THE LAW

The applicant complains about the investigation and inquiries into his private life and his subsequent discharge from the RAF pursuant to the absolute policy against homosexuals in the armed forces. He invokes Article 8, both alone and in conjunction with Article 14 of the Convention. He further complains under Article 13 of the Convention that he did not have any effective remedy for those complaints.

Article 8 of the Convention reads, in so far as relevant, as follows:

“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, public safety...”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 13 of the Convention reads, in so far as relevant, as follows:

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

The Government do not accept that there has been any breach of the Convention in relation to the events prior to the applicant’s actual discharge from the armed forces. The Government submit that there was no “investigation” into the applicant’s sexual orientation. They state that the applicant had voluntarily admitted his homosexuality to his work colleagues. The initial statement which led to the administrative action had therefore been made by the applicant of his own free will. Thereafter, he was dealt with administratively without any intrusive or searching questions being asked. While the applicant was subsequently asked by the warrant officer and the OCPMS whether the statement he had made voluntarily was true, his confirmation that he was homosexual was believed immediately by the person interviewing him without any further questioning about it thereafter.

The Government further emphasise that the applicant’s sexual orientation was never made public by the RAF. The applicant’s statement that he was homosexual was only recorded in the OCPMS’s minute sheet of his interview with the applicant and in the report made under Queen’s Regulation (RAF) 529. That report was sent through the command chain to the Deciding Officer for the latter’s agreement to the Station Commander’s recommendation that the applicant should be administratively discharged from the RAF. The only RAF personnel who were involved in this process were specialist personnel management staff, who were responsible for advising senior officers on such matters, and the Deciding Officer himself. All the information in the report was treated as confidential.

However, by their letter dated 1 February 2001 the Government have conceded that the applicant’s discharge from the armed forces on the ground of his sexual orientation amounted to a violation of Article 8 of the Convention and that there was a breach of Article 13 in conjunction with Article 8 of the Convention in this respect.

The Government further submit, relying upon paragraphs 109 and 116 respectively of the above-cited judgments of Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom , that the Court should conclude that no separate issue arises under Article 14 of the Convention.

The applicant relies on the judgments of the Court in Lustig-Prean and Beckett v. the United Kingdom and Smith and Grady v. the United Kingdom .

He submits that there was an investigation into his sexual orientation, a most intimate aspect of his private life, prior to his discharge from the armed forces. He was specifically asked about his sexuality by senior officers. While he told his work colleagues about his sexuality, it was not his intention that this information would be passed on to senior officers. However, once that information had been passed on, the applicant was asked by his warrant officer whether he was homosexual. He felt constrained to answer that he was. He was thereafter asked the same question by the OCPMS and again answered that he was homosexual. The applicant accepts that he was not subjected to any further questioning thereafter.

He further points out that his admission that he was homosexual was recorded in the minute sheet of the OCPMS and was recorded within the report made under Queen’s Regulation (RAF) 529. That report was subsequently sent up the chain of command through personnel staff to the Deciding Officer.

The applicant submits that the questioning about, and recording of, his homosexuality, and the circulation of that fact within the service, albeit to only a limited number of people, was itself an intrusion into a most intimate aspect of his private life.

The applicant notes that the Government accept that his discharge from the armed forces as a result of his homosexuality amounted to a breach of Article 8, and of Article 13 in conjunction with Article 8 of the Convention.

The Court recalls that, in its judgments in the above-cited cases of Lustig-Prean and Beckett v. the United Kingdom , and Smith and Grady v. the United Kingdom it found, inter alia , that the investigation of the applicants’ sexual orientation and their discharge from the armed forces on the grounds of their homosexuality pursuant to the absolute policy of the Ministry of Defence against homosexuals in the armed forces amounted to a violation of Article 8 of the Convention. It considered that the complaints under Article 14 did not give rise to any separate issue.

The Court also recalls that in its judgment in the Smith and Grady case it further found that the applicants did not have an effective domestic remedy in relation to the violation of their right to respect for their private lives guaranteed by Article 8 of the Convention and that there had therefore been a violation of Article 13 of the Convention.

The Court notes that prior to the applicant’s discharge he was asked by senior officers whether he was homosexual. The applicant’s answers were recorded and circulated to certain officers within the service to determine whether the applicant should be administratively discharged by reason of his homosexuality. The Court further notes that the applicant was discharged from the armed forces on the sole ground of his homosexuality pursuant to the policy against the presence of homosexuals in the armed forces.

Accordingly, the Court considers that the application raises serious issues under Articles 8, 13 and 14 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 them inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää              Registrar              President