Resolution ResDH (2002)35 concerning the judgments of the European Court of Human Rights of 27 September 1999 (final on 27 December 1999) and of 25 July 2000 (final on 25 October 2000) (Article 41) in the case of Smith and Grady against the United Kingdom

(Adopted by the Committee of Ministers on 30 April 2002 at the 792nd meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”), Having regard to the judgments of the European Court of Human Rights in the Smith and Grady case delivered on 27 September 1999 and 25 July 2000 and transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention; Recalling that the case originated in two applications (Nos. 33985/96 and 33986/96) against the United Kingdom, lodged with the European Commission of Human Rights on 9 September 1996 and 6 September 1996 under former Article 25 of the Convention, respectively, by Ms Jeannette Smith and Mr Graeme Grady, two British nationals, and that the Court, seized of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaint of a breach of their right to respect for their private and family life on account of investigations concerning their homosexuality and their subsequent dismissal from the Royal Air Force in accordance with the policy banning homosexuals from the United Kingdom armed forces, and also for the lack of an effective remedy in domestic law; Whereas in its judgment of 27 September 1999 the Court unanimously: - held that there had been a violation of Article 8 of the Convention; - held that no separate issue arose under Article 14 of the Convention taken in conjunction with Article 8; - held that there had been no violation of Article 3 of the Convention taken either alone or in conjunction with Article 14; - held that it was not necessary to examine the applicants’ complaints under Article 10 of the Convention taken either alone or in conjunction with Article 14; - held that there had been a violation of Article 13 of the Convention;

- held that the question of the application of Article 41 of the Convention was not ready for decision, and consequently: a) reserved the said question; b) invited the parties to notify the Court of any agreement they may have had reached; c) reserved the further procedure and delegated to the President the power to fix the same at need; Whereas in its judgment of 25 July 2000 (Article 41) the Court: 1. held by six votes to one a) that the government of the respondent state was to pay the first applicant, within three months from the date on which the judgment became final according to Article 44, paragraph 2, of the Convention, the following amounts: - 19 000 pounds sterling in respect of non-pecuniary damage; - 59 000 pounds sterling in respect of pecuniary damage; b) that simple interest at an annual rate of 8% would be payable from the expiry of the above-mentioned three months until settlement; 2. held by six votes to one a) that the government of the respondent state was to pay the second applicant, within three months from the date on which the judgment became final according to Article 44, paragraph 2, of the Convention, the following amounts: - 19 000 pounds sterling in respect of non-pecuniary damage; - 40 000 pounds sterling in respect of pecuniary damage; - 200 pounds sterling for the costs and expenses of the domestic proceedings; b) that simple interest at an annual rate of 8% would be payable from the expiry of the above-mentioned three months until settlement; 3. held by six votes to one a) that the government of the respondent state was to pay the first applicant, within three months from the date on which the judgment became final according to Article 44, paragraph 2, of the Convention, 32 000 pounds sterling for the costs and expense of the proceedings before the Convention organs (inclusive of value-added tax), less amounts paid by the Council of Europe in legal aid to the applicants; b) that simple interest at an annual rate of 8% would be payable from the expiry of the above-mentioned three months until settlement; 4. Dismissed unanimously the remainder of the applicants’ claims for just satisfaction. Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgments of 27 September 1999 and 25 July 2000, having regard to the United Kingdom’s obligation under Article 46, paragraph 1, of the Convention to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 24 August 2000, within the time-limit set, the government of the respondent state had paid the applicants the sums provided for in the judgment of 25 July 2000, Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2002)35

Information provided by the Government of the United Kingdom during the examination of the Smith and Grady case by the Committee of Ministers

On 12 January 2000, and in response to the Court’s judgments on the merits in the Lustig-Pream and Beckett and the Smith and Grady cases, the Government of the United Kingdom introduced The Armed Forces Code of Social Conduct Policy Statement lifting the ban on gays serving in the military. The Code is intended to explain the Armed Forces’ revised policy on personal relationships involving Service personnel and applies to all members of the Armed Forces, regardless of their gender, sexual orientation, rank or status, and provide a clear framework within which people in the services can live and work. Furthermore, it complements existing policies, such as zero tolerance towards harassment, discrimination and bullying. Under paragraph 5 of the Policy Statement, when considering possible cases of social misconduct, and in determining whether the Service has a duty to intervene in the personal lives of its personnel, Commanding Officers at every level must consider each case against a Service Test based on whether the actions or behaviour of an individual has adversely impacted or is likely to impact on the efficiency or operational effectiveness of the Service and not on the sexual orientation of the personnel. Furthermore , Guidance Notes for Commanding officers have been issued in order to explain the Code of Conduct and to give officers detailed guidance on how it should be implemented. Finally, the judgment has received extensive press coverage, both at national and international level (such as The Times, The Guardian, The Independent, The Daily Mail, The Daily Telegraph, Le Monde, La Repubblica , Corriere della Sera, La Stampa , La Croix, le Figaro, Libération , Frankfurter Allgemeine Zeitung , el País , el Mundo , etc). The government of the United Kingdom considers that the measures taken will prevent the repetition of any new violations similar to those found in this case and that it has therefore fulfilled its obligations under Article 46, paragraph 1, of the Convention.