THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 43208/98 and 44875/98 by Terence PERKINS and R. against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 5 September 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges , Mr L. Loucaides, Mrs H.S. Greve, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above applications introduced with the European Commission of Human Rights on 13 July and 15 September 1998 and registered on 1 September and 9 December 1998 respectively,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having deliberated, decides as follows:

THE FACTS

The applicants who are British nationals, were born in 1969 and 1972 and live in London and Surrey , respectively. Both are represented before the Court by Stephen Grosz, a solicitor practising in London .

A. The circumstances of the cases

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

1. The first applicant

On 11 February 1991 the applicant joined the Royal Navy as a medical assistant and worked in a Royal Navy Hospital .

Since the naval authorities had received information to the effect that the applicant was homosexual, on 1 August 1995 he was interviewed by the Special Investigations Branch (“SIB”) of the Royal Navy. The applicant confirmed at the outset that the interview took place with his consent and that he was homosexual. He was then questioned about his sexual practices with and about the age of his current partner. He was asked whether his partner was a civilian and about the identities of his former partners in the service (a number of questions were raised in this respect). The interviewers then explained to the applicant that the purpose of the interview was to see if any ‘ offences ’ had been committed and continued questioning him. He was asked, inter alia, if he had committed sexual acts with anyone under the age of 18 years old, how long he had known he was homosexual, how many relationships he had had, whether he had been induced to become a practising homosexual since he joined the navy and about his sexual practices with his past and current partners. The interview lasted approximately 10 minutes.

After the interview the applicant was informed that he would be discharged pursuant to the armed forces ’ policy against homosexuals serving in those forces. The discharge took effect from 24 October 1995.

On 24 January 1996 the applicant applied for leave to take judicial review proceedings on the basis that the policy was “irrational”, that it was in breach of Articles 8 and 14 of the Convention and that it was contrary to the EU 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”).

On 30 April 1996 the European Court of Justice (“ECJ”) decided that transsexuals were protected from discrimination on grounds of their transsexuality under European Community law ( P. v. S. and Cornwall County Council [1996] Industrial Relations Law Reports 347). On 3 July 1996 Mr Perkins was granted leave to take judicial review proceedings.

On the substantive judicial review application, the applicant argued that a reference to the ECJ pursuant to Article 177 of the Treaty of Rome was required. On 13 March 1997 the High Court stayed his judicial review application and referred questions to the ECJ on the Equal Treatment Directive, mainly raising that directive ’ s application to discrimination on grounds of sexual orientation and, in the event that it so applied, the question of the compliance of the policy of the armed forces against homosexuals with that directive (R v. the Secretary of State for Defence ex parte Perkins, judgment of 13 March 1997).

On 17 February 1998 the ECJ found in the Grant case that Article 119 and the Equal Pay Directive did not apply to discrimination on grounds of sexual orientation ( Grant v. South West Trains Ltd [1998] ICR 448) .

Given that decision, the Administrator of the ECJ wrote to the High Court enquiring whether the High Court wished to withdraw its reference to the ECJ in the applicant ’ s case. Following a hearing between the parties, on 13 July 1998 the High Court ordered the withdrawal of its reference in the applicant ’ s case. Leave to appeal that decision was refused. Two Queen ’ s Counsel advised the applicant against appealing that decision of the High Court to the Court of Appeal.

2. The second applicant

The applicant joined the Royal Navy in 1990 and signed on for 22 years ’ service. Following basic training, she trained as a radio operator. At the relevant time she was working on a submarine based in Scotland .

In or around September 1993 the applicant, who was suffering from stress relating to her father ’ s illness, disclosed to a colleague that she had had a brief lesbian relationship with a civilian whilst on leave. The applicant discussed this with no one else. That colleague reported the applicant to the naval authorities.

On 10 September 1993 the applicant was woken up and interrogated by an officer from the SIB for two hours. The interview focussed on matters of an intimate sexual nature and a thorough and intimate search of the applicant ’ s personnel belongings was then conducted. The applicant was asked whether she had any electrical items. She understood the question to refer to particular items of a sexual nature, which understanding was not contradicted by the investigating officer. A number of the applicant ’ s personal belongings, including personal letters, a video, a poster and a film, were confiscated. It is the applicant ’ s belief that her personal letters were read by the officers investigating her case.

On 13 September 1993 she was sent home to inform her parents that she was being investigated with a view to being discharged and, on her return to base, she was moved to a different room so as not to share with the colleague who had informed on her. She was also moved out of direct working contact with that colleague. On 31 October 1993 she was informed that she was going to be discharged and that she had 48 hours to pack her belongings and leave the base. The applicant was then interviewed by an official of the Ministry of Defence in London in order to assess whether or not she was a security risk once she had left the armed forces. The applicant also claims that she was obliged to read and sign the statements of those persons who had been interviewed in connection with her and to sign those statements in order to indicate that she had read them.

The applicant ’ s discharge came into effect on 26 November 1993. Her certificate of qualifications which she received on discharge pointed out that the applicant had:

“displayed an above average level of intelligence and an ability to absorb and use new information quickly. She is of good appearance, has a sociable nature and works well as a member of a team. She has shown the potential to be considered for officer training and the drive required to learn and work under her own volition.

She is a competent and reliable Communications rating with good keyboard skills and an understanding of Mainframe Computer Operations. has potential and drive which should make her a sought after asset by a future employer.”

Given the applicant ’ s distress relating to her discharge and to her father ’ s illness and because, in any event, she considered the state of national law to be such that she had no prospects of a successful claim, she did not immediately issue any domestic proceedings.

However, in view of, inter alia , the above-cited judgment of the ECJ on 30 April 1996 in the Cornwall County Council case and the Article 177 reference to the ECJ by the High Court in the first applicant ’ s case in March 1997, she lodged, on 28 January 1998, an application in the Industrial Tribunal alleging unfair dismissal (although this complaint was later withdrawn) and sexual discrimination contrary to the provisions of the Sex Discrimination Act 1975 and the Equal Treatment Directive. She also requested the Industrial Tribunal to stay her case pending the outcome of the afore-mentioned Article 177 reference in Mr Perkins ’ case.

On 26 March 1998 the Chairman of the Industrial Tribunal, nevertheless, considered the applicant ’ s case and found that, in the light of the subsequent above-cited decision of the ECJ on 17 February 1998 in the Grant case, the applicant ’ s case was not strong. He also decided, having regard to the judgment in the Grant case and because the applicant could have lodged her proceedings earlier, that he would not extend time to allow the applicant ’ s claim to proceed.

Since the Article 177 reference in Mr Perkins ’ case had not yet been determined, the applicant appealed that decision to the Employment Appeals Tribunal on 22 May 1998. However, following the withdrawal by the High Court of that Article 177 reference on 13 July 1998, the applicant requested the withdrawal of her own appeal. On 23 July 1998 the Employment Appeals Tribunal dismissed the applicant ’ s appeal on the basis that it had been withdrawn.

B. Relevant domestic law and practice

The domestic law and practice relevant to the present applications 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, 27.9.1999, and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27.9.1999.

The time-limit for making a complaint of sex discrimination to the Industrial Tribunal is three months from the date of the action of which the individual complains (section 76(1) of the Sex Discrimination Act 1975). That time-limit can be extended if the tribunal considers it “just and equitable” to do so.

COMPLAINTS

The applicants complain under Article 8, alone and in conjunction with Article 14 of the Convention, in relation to the investigation into a most intimate part of their private lives (including, in the second applicant ’ s case, the search and confiscation of her personal belongings) and in relation to their subsequent discharge from the armed forces pursuant to the absolute policy against homosexuals in the armed forces.

THE LAW

The applicants complain about both the investigation into their private lives and their subsequent discharge from the armed forces pursuant to the policy of the Ministry of Defence against homosexuals in the armed forces. They invoke Article 8 both alone and in conjunction with Article 14 of the Convention.

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.”

In their letter dated 19 October 1999 the applicants pointed out that they did not consider that their cases were materially different from the above-cited cases of Lustig-Prean and Beckett v. the United Kingdom, and Smith and Grady v. the United Kingdom. By letter dated 14 January 2000 the Government also stated that they did not believe that the Court ’ s consideration of the present cases should lead to conclusions different to those reached in those four judgments.

The Court recalls that, in its judgments in the 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 of the Convention did not give rise to any separate issue.

The Court notes that the Government do not contest that, in bringing proceedings raising, inter alia , the applicability of the Equal Treatment Directive to a difference of treatment on grounds of sexual orientation, the applicants were exhausting their domestic remedies for the purposes of Article 35 § 1 of the Convention. Indeed, it is noted that the High Court considered it necessary to refer a question to the ECJ on this point in the first applicant ’ s case on 13 March 1997 and that, consequently, the second applicant raised the same matter before the Industrial Tribunal. Neither does the Government argue that the fact that the applicants withdrew those proceedings prior to the respective appeal stages, in the light of the judgment of the High Court of 13 July 1998 in the first applicant ’ s case, amounted to a failure to exhaust their domestic remedies. It is further noted that both applications were introduced within six months of that High Court judgment. In such circumstances, the Court does not consider that the applications can be considered inadmissible by reason of a failure to comply with Article 35 § 1 of the Convention.

The Court further notes that the sexual orientation of the present applicants was investigated and that they were discharged from the armed forces on the sole ground of their homosexuality pursuant to the Ministry of Defence policy against the presence of homosexuals in the armed forces.

Accordingly, the Court considers that the applications raise serious issues under Articles 8 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 APPLICATIONS ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President