CASE OF LUSTIG-PREAN AND BECKETT v. THE UNITED KINGDOM

Violation of Art. 8;No separate issue under Art. 14+8;Just satisfaction reserved

Mr PERSON ( the first applicant ) joined ORG as a radio operator and in DATE commenced a career in ORG . On DATE he became a midshipman in the executive branch of the navy . His evaluation of DATE noted that he was an officer with “ great potential ” and the “ sort of person that ORG needs to attract and retain ” . His evaluation of DATE concluded that the applicant “ is a balanced , enlightened and knowledgeable man who enjoys my complete trust in all matters . He is an outstanding prospect for early promotion to commander . ” In DATE the applicant attained the rank of lieutenant - commander .

For DATE prior to DATE the applicant had been involved in a steady relationship with a civilian partner . In DATE the applicant was informed that ORG ( “ the service police ” ) had been given his name anonymously in connection with an allegation of homosexuality and was investigating the matter . The applicant admitted to his commanding officer that he was homosexual .

The applicant was interviewed on DATE by personnel from the service police about his sexual orientation for TIME . At the beginning of the interview , the applicant was cautioned that he did not have to answer questions and that any responses could be used in evidence later . He was also informed that he could obtain legal advice . The applicant confirmed his awareness of those rights and agreed to be interviewed without legal advice . He then confirmed that he was homosexual , acknowledging that he had been a practising homosexual since his teenage years .

He was then asked , inter alia , whether he had had homosexual contact with service personnel ( CARDINAL questions on this subject ) , what type of sexual relations he had had with a particular person , when and where this had occurred , about his current relationship and whether his parents knew of his homosexuality . The applicant was asked repeatedly about who had tipped him off that he was the subject of an investigation by the service police and he was told that the question was put because the service police had “ a lot of background knowledge about certain things ” and there was somebody “ providing information to us ” . The applicant indicated that he was anxious to assist the service police to make sure that the issue was kept as “ private and discreet as possible ” . He was then informed that a search was normally completed but the search did not take place since , in anticipation , the applicant had already cleared his cabin of any incriminating evidence .

The applicant was again interviewed on DATE for TIME . It was explained to the applicant that the purpose of the interview was to ask him about an allegation , contained in an anonymous letter sent to the applicant ’s commanding officer some time previously , that the applicant had had a relationship with a serviceman . The interviewer then explained that he was “ attempting to keep the need to visit GPE and to investigate this matter to a minimum ” , as the applicant wished . The applicant was then asked whether he had had the relationship as alleged in the letter . The anonymous letter was read . The writer claimed that he had recently had a relationship with the applicant , that the writer was HIV - positive and that he believed that the applicant was involved with a member of the armed forces . The applicant ’s comments were requested , in particular , as to who would have written the letter . The interviewer also enquired of the applicant “ purely as a matter of interest , although it ’s a personal thing ” whether the applicant was HIV - positive . In this context , it was indicated a number of times to the applicant that the purpose of the second interview was to avoid further investigations . He was also told that it would “ come back ” on the applicant ’s interviewer if the latter did not properly follow up on the anonymous letter .

In a final evaluation dated DATE the applicant ’s commander noted that the applicant left the ship “ with a well - deserved reputation for outstanding professional ability and admirable personal qualities ” . He concluded that the applicant ’s “ loyal , dependable and always dignified service ” would be “ sorely missed ” .

On DATE ORG informed the applicant that it had decided to terminate his commission and to discharge him , administratively , from the navy with effect from DATE . The ground for his discharge was his sexual orientation . The applicant ’s commission was removed and most of the bonus which he had received with that promotion was recouped by the naval authorities ( £ MONEY out of £ MONEY ) . His term of service would otherwise have terminated in DATE , with the possibility of renewal .

On DATE Mr PERSON ( the second applicant ) joined ORG , enlisting for DATE service . In DATE he became a substantive weapons engineering mechanic . The applicant ’s report dated CARDINAL DATE noted that he displayed potential in a number of areas essential to good leadership , that he had the ability to become an above - average leading hand and that if he applied his new skills wisely he could , with experience , be considered as a potential officer candidate .

In DATE the applicant had been refused time off to deal with a personal matter ( he wished to collect his Aids test results ) and consequently he spoke with the chaplain , to whom he admitted his sexual orientation . On DATE the applicant was asked by his lieutenant - commander to repeat what he had told the chaplain and he again admitted his homosexuality to that officer . He was then called for interview by the service police . He was cautioned in the same terms as the first applicant and told that he would not be questioned on the above admissions prior to a search of his locker . His consent to the search was requested and given . The interview , which had lasted TIME , was suspended pending the search . During the search , slides ( of himself , his partner and some of his service friends ) and personal postcards were seized .

The applicant ’s interview with the service police then resumed and lasted TIME . The applicant immediately confirmed his homosexuality , later clarifying that he first had “ niggling doubts ” about his sexual orientation DATE previously . He was then questioned about a previous relationship with a woman ; he was asked the woman ’s name and where she was from , when he had that relationship , why it ended , whether they had a sexual relationship , whether he enjoyed their relationship and whether “ she was enough for you ” . Details were sought as to how and what he did when he realised he was homosexual and , in this respect , he was asked what sort of feelings he had for a man , whether he had been “ touched up ” or “ abused ” as a child and whether he had bought pornographic magazines .

The applicant was then questioned about his first and current homosexual relationship which began in DATE and , in this regard , he was asked TIME with his partner , who was “ butch ” and who was “ bitch ” in the relationship and what being “ butch ” meant in sexual terms . Detailed questions were put as to how they had sex and whether they used condoms , lubrication and other sex aids , whether they ever had sex in a public place and how they intended to develop the relationship . He was also asked about gay bars he frequented , whether he had ever joined contact magazines , whether his parents knew about his homosexuality and whether he agreed that his secret life could be used as a basis to blackmail him and render him a weak link in the service . The personal slides and postcards which had been taken from his locker were examined and the applicant was questioned in detail about their contents .

The service police report completed after the applicant ’s interview included several internal documents where it was noted that the applicant , in openly declaring his homosexuality and his relationship with a civilian , had effectively disposed “ of any immediate potential security concern ” . For that reason , it was considered in the report that “ no cause was identified for conducting a security interview with ORG ” . That report also accepted that a case for fraudulent entry into the armed forces would be inappropriate given the date when the applicant had discovered his homosexuality . An officer , who advised ORG on the applicant ’s discharge , noted that the applicant ’s reporting officers had commented on his “ affability , intelligence , dedication and ambition ” and pointed out that , had it not been for the applicant ’s homosexuality , “ his ORG career would have blossomed ” .

Prior to his discharge , the applicant completed his duties and remained in communal sleeping accommodation with no reported difficulties . On DATE the applicant ’s administrative discharge was approved on the basis of his homosexuality . The applicant then complained about the decision to discharge him to ORG and on DATE ORG dismissed the applicant ’s complaint .

Along with PERSON and Mr PERSON ( see paragraph CARDINAL above ) , the applicants obtained leave to apply for judicial review of the decisions to discharge them from the armed forces . The applicants argued that the policy of ORG against homosexuals in the armed forces was “ irrational ” , that it was in breach of the LAW and that it was contrary to LAW . ORG maintained that the policy was necessary mainly to maintain morale and unit effectiveness , in view of the loco parentis role of the services as regards minor recruits and in light of the requirement of communal living in the armed forces .

On DATE ORG dismissed the application for judicial review , Lord Justice PERSON giving the main judgment of the court . He noted that the cases illustrated the hardships resulting from the absolute policy against homosexuals in the armed forces and that all CARDINAL 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 . There was no reason to doubt that , but for their discharge on the sole ground of sexual orientation , they would have continued to perform their service duties entirely efficiently and with the continued support of their colleagues . All were devastated by their discharge .

PERSON reviewed the background to the “ age old ” policy , the relevance of ORG report of DATE , the position in other armed forces around the world , the arguments of ORG ( noting that the security argument was no longer of substantial concern to the Government ) together with the applicants’ arguments against the policy . He considered that the balance of argument clearly lay with the applicants , describing the applicants’ submissions in favour of a conduct - based code as “ powerful ” . In his view , the tide of history was against ORG . He further observed that it was improbable , whatever ORG would say , that the policy could survive for much longer and added , “ I doubt whether most of those present in court throughout the proceedings now believe otherwise . ”

NORP However , having considered arguments as to the test to be applied in the context of these judicial review proceedings , PERSON concluded that the conventional ORG principles , adapted to a human rights context , should be applied .

Accordingly , where fundamental human rights were being restricted , the Minister of Defence needed to show that there was an important competing interest to justify the restriction . The primary decision was for him and the secondary judgment of the court amounted to asking whether a reasonable Minister , on the material before him , could have reasonably made that primary judgment . He later clarified that it was only if the purported justification “ outrageously defies logic or accepted moral standards ” that the court could strike down the Minister ’s decision . He noted that within the limited scope of that review , the court had to be scrupulous to ensure that no recognised ground of challenge was in truth available to an applicant before rejecting the application . When the most fundamental human rights are threatened , the court would not , for example , be inclined to overlook some minor flaw in the decision - making process , or to adopt a particularly benevolent view of the Minister ’s evidence , or to exercise its discretion to withhold relief . However , he emphasised that , even where the most fundamental human rights were being restricted , “ the threshold of unreasonableness is not lowered ” .

It was clear that the Secretary of ORG had cited an important competing public interest . But the central question was whether it was reasonable for the Secretary of ORG to take the view that allowing homosexuals into the forces would imperil that interest . He pointed out that , although he might have considered the Minister wrong ,

“ … [ the courts ] owe a duty ... to remain within their constitutional bounds and not trespass beyond them . Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this ORG now to remove the issue entirely from the hands of both the military and of the government . If the Convention … were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to the benefits then clearly the primary judgment … would be for us and not others : the constitutional balance would shift . But that is not the position . In exercising merely a secondary judgment , this ORG is bound to act with some reticence . Our approach must reflect , not overlook , where responsibility ultimately lies for the defence of the realm and recognise too that ORG is exercising a continuing supervision over this area of prerogative power . ”

Accordingly , while the Minister ’s suggested justification for the ban may have seemed “ unconvincing ” , the Minister ’s stand could not properly be said to be unlawful . It followed that the applications had to be rejected “ albeit with hesitation and regret ” . A brief analysis of the ORG ’s case - law led the judge to comment that he strongly suspected that , as far as GPE obligations were concerned , DATE of the policy were numbered .

Simon Brown LJ also found that LAW was not applicable to discrimination on grounds of sexual orientation and that the domestic courts could not rule on Convention matters . He also observed that GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and the GPE permitted homosexuals to serve in their armed forces and that the evidence indicated that the only countries operating a blanket ban were GPE and GPE ( and , possibly , GPE and GPE ) .

In DATE a consultation paper was circulated by ORG to “ management ” levels in the armed forces relating to ORG policy against homosexuals in those forces . The covering letter circulating this paper pointed out that the “ Minister for ORG has decided that evidence is to be gathered within ORG in support of the current policy on homosexuality ” . It was indicated that the case was likely to progress to the NORP courts and that the applicants in the judicial review proceedings had argued that ORG position was “ bereft of factual evidence ” but that this was not surprising since evidence was difficult to amass given that homosexuals were not permitted to serve . Since “ this should not be allowed to weaken the arguments for maintaining the policy ” , the addressees of the letter were invited to comment on the consultation paper and “ to provide any additional evidence in support of the current policy by DATE ” . The consultation paper attached referred , inter alia , to CARDINAL incidents which were considered damaging to unit cohesion . The first involved a homosexual who had had a relationship with a sergeant ’s mess waiter and the other involved an NORP on secondment whose behaviour was described as “ so disruptive ” that his attachment was terminated .

On DATE ORG dismissed the ORG appeal . The Master of the Rolls , Sir PERSON , delivered the main judgment ( with which the CARDINAL other judges of ORG agreed ) .

As to the court ’s approach to the issue of “ irrationality ” , he considered that the following submission was an accurate distillation of the relevant jurisprudence on the subject :

“ the court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision- maker . But in judging whether the decision - maker has exceeded this margin of appreciation the human rights context is important . The more substantial the interference with human rights , the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above . ”

He went on to quote from , inter alia , the judgment of FAC in NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL Appeal Cases CARDINAL , where it was pointed out that :

“ the primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of ORG to whom ORG has entrusted the discretion . But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of ORG , on the material before him , could reasonably make that primary judgment . ”

Moreover , he considered that the greater the policy content of the decision and the more remote the subject matter of a decision from ordinary judicial experience , the more hesitant the court had to be in holding a decision to be irrational .

Prior to applying this test of irrationality , the Master of the Rolls noted that the case concerned innate qualities of a very personal kind , that the decisions of which the applicants complained had had a profound effect on their careers and prospects and that the applicants’ rights as human beings were very much in issue . While the domestic court was not the primary decision - maker and while it was not the role of the courts to regulate the conditions of service in the armed forces , “ it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power . While the court must properly defer to the expertise of responsible decision - makers , it must not shrink from its fundamental duty to ‘ do right to all manner of people’ … ” .

He then reviewed , by reference to the test of irrationality outlined above , the submissions of the parties in favour of and against the policy , commenting that the applicants’ arguments were “ of very considerable cogency ” which called to be considered in depth with particular reference to past experience in GPE , to the developing experience of other countries and to the potential effectiveness of a detailed prescriptive code in place of the present blanket ban . However , he concluded that the policy could not be considered “ irrational ” at the time the applicants were discharged from the armed forces , finding that the threshold of irrationality was “ a high one ” and that it had not been crossed in this case .

On the Convention , the Master of the Rolls noted as follows :

“ It is , inevitably , common ground that GPE obligation , binding in international law , to respect and ensure compliance with [ LAW ] is not one that is enforceable by domestic courts . The relevance of the LAW in the present context is as background to the complaint of irrationality . The fact that a decision - maker failed to take account of LAW when exercising an administrative discretion is not of itself a ground for impugning the exercise of that discretion . ”

He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference , and to interrogate him or her about private sexual behaviour , would not appear to show respect for that person ’s private and family life and that there might be room for argument as to whether the policy answered a “ pressing social need ” and , in particular , was proportionate to the legitimate aim pursued . However , he held that these were not questions to which answers could be properly or usefully proffered by ORG , but rather were questions for ORG to which court the applicants might have to pursue their claim . He further accepted that ORG did not apply to complaints in relation to sexual orientation .

PERSON of ORG agreed with the judgment of the Master of the Rolls and , in particular , with the latter ’s approach to the irrationality test and with his view on the inability of the court to resolve Convention issues . He questioned the utility of a debate as to the likely fate of the “ longstanding ” policy of ORG before ORG with which the primary adjudicating role on the Convention lay . ORG did not entertain “ hypothetical questions ” . In PERSON view , the only relevance of the ORG was as “ background to the complaint of irrationality ” , which point had been already made by the Master of the Rolls . It was important to highlight this point since ORG had not given the domestic courts primary jurisdiction over human rights issues contained in the ORG and because the evidence and submissions before ORG related to that court ’s secondary jurisdiction and not to its primary jurisdiction .

PERSON of ORG agreed with both preceding judgments and , in particular , with the views expressed on the rationality test to be applied and on its application in the particular case . The applicants’ arguments that their rights under LAW had been breached were “ persuasive ” but the evidence and arguments that would ultimately determine that issue were not before ORG . He also found that the ORG challenge to the arguments in support of the policy was “ completely persuasive ” and added that what impressed him most in relation to the merits was the complete absence of illustration and substantiation by specific examples , not only in the Secretary of ORG ’s evidence filed in ORG , but also in the case presented to ORG in DATE . The policy was , in his view , “ ripe for review and for consideration of its replacement by a strict conduct code ” . However , the applicants’ attack on the Secretary of ORG ’s rationality fell “ a long way short of success ” .

On DATE ORG of ORG refused leave to appeal to ORG .

NORP In DATE Mr PERSON issued proceedings in the ORG claiming unfair dismissal and sexual discrimination contrary to LAW DATE . Those proceedings were adjourned pending the above - described application for leave to appeal to ORG . Further to the rejection of the application , he requested the withdrawal of his ORG proceedings and those proceedings were dismissed by ORG on DATE .

In DATE PERSON also issued proceedings in ORG claiming sexual discrimination contrary to LAW . In the light of subsequent decisions of the ECJ and of the domestic courts , the second applicant subsequently requested the withdrawal of those proceedings which were , on DATE , dismissed by ORG .

By virtue of section CARDINAL(CARDINAL ) of LAW , homosexual acts in private between CARDINAL consenting adults ( at the time meaning DATE or over ) ceased to be criminal offences . However , such acts continued to constitute offences under the ORG and ORG Acts DATE and LAW DATE ( Section CARDINAL(CARDINAL ) of LAW ) . Section CARDINAL(CARDINAL ) of LAW was repealed by ORG which LAW also reduced the age of consent to DATE ) . However , section CARDINAL ) of the DATE Act provided that nothing in that section prevented a homosexual act ( with or without other acts or circumstances ) from constituting a ground for discharging a member of the armed forces .

On DATE the ECJ decided that transsexuals were protected from discrimination on grounds of their transsexuality under ORG law ( PERSON and ORG [ DATE ] ORG CARDINAL ) .

On DATE ORG referred to the ECJ pursuant to LAW the question of the applicability of LAW to differences of treatment based on sexual orientation ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . PERSON had been discharged from ORG on grounds of his homosexuality .

On DATE the ECJ found that the Equal Pay Directive CARDINAL/CARDINAL/EEC did not apply to discrimination on grounds of sexual orientation ( Grant v. ORG [ DATE ] ORG CARDINAL ) .

Consequently , on DATE the ECJ enquired of ORG in the GPE case whether it wished to maintain the Article CARDINAL reference . After a hearing between the parties , ORG decided to withdraw the question from the ECJ ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . Leave to appeal was refused .

As a consequence of the changes made by ORG , updated Armed Forces’ Policy and Guidelines on Homosexuality ( “ the LAW ) were distributed to the respective service directorates of personnel in DATE . The Guidelines provided , inter alia , as follows :

“ Homosexuality , whether male or female , is considered incompatible with service in the armed forces . This is not only because of the close physical conditions in which personnel often have to live and work , but also because homosexual behaviour can cause offence , polarise relationships , induce ill - discipline and , as a consequence , damage morale and unit effectiveness . If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well - founded they will be required to leave the services . ...

The armed forces’ policy on homosexuality is made clear to all those considering enlistment . If a potential recruit admits to being homosexual , he / she will not be enlisted . Even if a potential recruit admits to being homosexual but states that he / she does not at present nor in the future intend to engage in homosexual activity , he / she will not be enlisted . ...

In dealing with cases of suspected homosexuality , a Commanding Officer must make a balanced judgment taking into account all the relevant factors . ... In most circumstances , however , the interests of the individual and the armed forces will be best served by formal investigation of the allegations or suspicion . Depending on the circumstances , the Commanding Officer will either conduct an internal inquiry , using his own staff , or he will seek assistance from ORG . When conducting an internal inquiry he will normally discuss the matter with his welfare support staff . Homosexuality is not a medical matter , but there may be circumstances in which the Commanding Officer should seek the advice of ORG on the individual concerned and may then , if the individual agrees , refer him / her to the ORG . ...

A written warning in respect of an individual ’s conduct or behaviour may be given in circumstances where there is some evidence of homosexuality but insufficient ... to apply for administrative discharge ... . If the Commanding Officer is satisfied on a high standard of proof of an individual ’s homosexuality , administrative action to terminate service ... is to be initiated , ... . "

CARDINAL of the purposes of the Guidelines was the reduction of the involvement of the service police whose investigatory methods , based on criminal procedures , had been strongly resented and widely publicised in the past ( confirmed at paragraph CARDINAL of the Homosexual Policy Assessment Team ’s report of DATE which is summarised at paragraphs DATE below . However , paragraph CARDINAL of this report indicated that investigation into homosexuality is part of “ normal service police duties ” . )

The affidavit of Air Chief Marshal Sir PERSON , ORG , Vice Chief of ORG , ORG dated DATE , which was submitted to ORG in the case of NORP v. Secretary of ORG , ex parte Perkins ( DATE ) , read , in so far as relevant , as follows :

“ The policy of ORG is that the special nature of homosexual life precludes the acceptance of homosexuals and homosexuality in the armed forces . The primary concern of the armed forces is the maintenance of an operationally effective and efficient force and the consequent need for strict maintenance of discipline . [ ORG ] believes that the presence of homosexual personnel has the potential to undermine this .

The conditions of military life , both on operations and within the service environment , are very different from those experienced in civilian life . … The [ ORG ] believes that these conditions , and the need for absolute trust and confidence between personnel of all ranks , must dictate its policy towards homosexuality in the armed forces . It is not a question of a moral judgement , nor is there any suggestion that homosexuals are any less courageous than heterosexual personnel ; the policy derives from a practical assessment of the implications of homosexuality for fighting power . ”

Following the decision in the case of NORP v. ORG , ex parte ORG , ORG ( “ HPAT ” ) was established by ORG in order to undertake an internal assessment of the armed forces’ policy on homosexuality . The ORG was composed of ORG civil servants and representatives of the CARDINAL services . The ORG ’s assessment was to form the basis of the ORG ’s evidence to the next ORG ( as confirmed in the affidavit of ORG Marshal Sir PERSON referred to at paragraph CARDINAL above ) . The ORG was to consult ORG , the armed forces’ personnel of all ranks , service and civilian staff responsible for carrying out the policy together with members of the legal adviser ’s staff . It was also to examine the policies of other nations ( Annex D to the ORG report ) .

The report of the ORG was published in DATE and ran to CARDINAL pages , together with voluminous annexes . The starting - point of the assessment was an assumption that homosexual men and women were in themselves no less physically capable , brave , dependable and skilled than heterosexuals . It was considered that any problems to be identified would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals . The ORG considered that the best predictors of the “ reality and severity ” of the problems of the integration of homosexuals would be the service personnel themselves ( paragraph CARDINAL of the report ) .

There were CARDINAL main areas of investigation ( paragraph CARDINAL of the report ) :

( a ) The ORG consulted with policy - makers in ORG . The latter emphasised the uniqueness of the military environment and the distinctly NORP approach to service life and the ORG found little disagreement with this general perspective from the service people it interviewed ( paragraph CARDINAL ) ;

( b ) A signal was sent to all members of the services , including the reserve forces , requesting any written views on the issues . By DATE the ORG had received CARDINAL letters . CARDINAL of these letters were against any change in the policy , CARDINAL of which were multiply signed . CARDINAL of those letters were anonymous ( paragraphs CARDINAL ) ;

( c ) The ORG attitude survey consisted of a questionnaire administered to a total of CARDINAL service personnel chosen as representative of the services . The questionnaires were administered in examination - type conditions and were to be completed anonymously . The results indicated that there was “ overwhelming support across the services ” for the policy excluding homosexuals from the armed forces . Service personnel viewed homosexuality as clearly more acceptable in civilian than in service life ( paragraphs CARDINAL and ORG ) ;

( d ) During the ORG ’s visit to CARDINAL military bases in DATE in order to administer the above questionnaire , individual one - to - CARDINAL interviews were conducted with personnel who had completed the attitude questionnaire . CARDINAL interviewees randomly selected from certain ranks and occupational areas were selected from each of the CARDINAL units visited . Given the small number of interviewees , the responses were analysed qualitatively rather than quantitatively ( Annex G ) ;

( e ) A number of single - service focus group discussions were held with randomly selected personnel from representative ranks and functions ( ORG refers to CARDINAL such discussions whereas paragraph CARDINAL of the report refers to CARDINAL ) . The purpose of the group discussions was to examine the breadth and depth of military views and to provide insights that would complement the survey results . The ORG commented that the nature of the discussions showed little reticence in honestly and fully putting forward views ; there was an “ overwhelming view that homosexuality was not ‘ normal’ or ‘ natural’ whereas women and ethnic minorities were ‘ normal’ ” . The vast majority of participants believed that the present ban on homosexuals should remain ( paragraphs CARDINAL - CARDINAL and ORG ) ;

( f ) CARDINAL sub - team of the ORG went to GPE , GPE and GPE and the other visited GPE , GPE and GPE . The HPAT interviewed an eminent NORP military psychologist since the NORP military would not accept the ORG visit ( paragraphs CARDINAL and ORG ) . It is also apparent that the ORG spoke to representatives of the police , the fire service and the merchant navy ( paragraphs CARDINAL - CARDINAL ) ;

( g ) Tri - service regional focus discussion groups were also held to examine the breadth and depth of the personnel ’s views . The groups were drawn from the CARDINAL services and from different units . CARDINAL such discussion groups were held and overall the results were the same as those from the single - service focus groups ( paragraphs CARDINAL - CARDINAL and ORG ) ;

( h ) Postal single - service attitude surveys were also completed by a randomly selected sample of personnel stratified by rank , age and gender . The surveys were distributed to CARDINAL ( PERCENT ) of ORG and ORG personnel , to CARDINAL ( PERCENT ) of the ORG personnel and to CARDINAL ( PERCENT ) of the ORG personnel . On CARDINAL of the surveys were returned ( paragraphs CARDINAL and ORG ) .

The ORG report defined “ fighting power ” ( often used interchangeably with combat effectiveness , operational efficiency or operational effectiveness ) as the “ ability to fight ” which is in turn made up of CARDINAL components . These are the “ conceptual ” and “ physical ” components together with the “ moral component ” , the latter being defined as “ the ability to get people to fight including morale , comradeship , motivation , leadership and management ” .

The focus throughout the assessment was upon the anticipated effects on fighting power and this was found to be the “ key problem ” in integrating homosexuals into the armed forces . It was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioural and emotional responses and problems which would affect morale and , in turn , significantly and negatively affect the fighting power of the armed forces .

These anticipated problems included controlling homosexual behaviour and heterosexual animosity , assaults on homosexuals , bullying and harassment of homosexuals , ostracism and avoidance , “ cliquishness ” and pairing , leadership and decision - making problems including allegations of favouritism , discrimination and ineffectiveness ( but excluding the question of homosexual officers taking tactical decisions swayed by sexual preference ) , sub - cultural friction , privacy / decency issues , increased dislike and suspicions ( polarised relationships ) , and resentment over imposed change especially if controls on heterosexual expression also had to be tightened ( see Section F.II of the report ) .

The ORG also assessed other matters it described as “ subsidiary ” ( Section G and paragraph CARDINAL of the report ) . It found that , while cost implications of changing the policy were not quantifiable , it was not considered that separate accommodation for homosexuals would be warranted or wise and , accordingly , major expenditures on accommodation were considered unlikely ( paragraphs CARDINAL - CARDINAL ) . Wasted training as regards discharged homosexuals was not considered to be a significant argument against maintaining the policy ( paragraphs CARDINAL - CARDINAL ) . Should the wider social and legal position change in relation to civilian homosexual couples , then entitlements for homosexual partners would have to be accepted ( paragraph CARDINAL ) . Large amounts of money or time were unlikely to be devoted to homosexual awareness training , given that it was unlikely to be effective in changing attitudes . It was remarked that , if required , tolerance training would probably be best addressed as “ part of an integrated programme for equal opportunities training in the military ” ( paragraph CARDINAL ) . There were strong indications that recruitment and retention rates would go down if there was a change in policy ( paragraphs CARDINAL - CARDINAL ) .

Concerns expressed about the fulfilment of the forces’ loco parentis responsibilities for young recruits were found not to stand up to close examination ( paragraph CARDINAL ) .

Medical and security concerns were considered separately ( Sections H and I , respectively , and paragraph CARDINAL of the report ) . While it was noted that medical concerns of personnel ( in relation to , inter alia , Aids ) were disproportionate to the clinical risks involved , it was considered that these concerns would probably need to be met with education packages and compulsory Aids testing . Otherwise , real acceptance and integration of homosexuals would be seriously prejudiced by emotional reactions and resentments and by concerns about the threat of Aids . The security issues ( including the possibility of blackmail of those suspected of being homosexual ) raised in defence of the policy were found not to stand up to close examination .

The ORG observed that there were a wide variety of official positions and legal arrangements evolving from local legal and political circumstances and ranging from a formal prohibition of all homosexual activity ( GPE ) , to administrative arrangements falling short of real equality ( GPE and GPE ) , to a deliberate policy to create an armed force friendly to homosexuals ( the GPE ) . According to the ORG , those countries which had no legal ban on homosexuals were more tolerant , had written constitutions and therefore a greater tradition of respect for human rights . The report continued :

“ But nowhere did ORG learn that there were significant numbers of open homosexuals serving in ORG . Whatever the degree of official toleration or encouragement , informal pressures or threats within the military social system appeared to prevent the vast majority of homosexuals from choosing to exercise their varying legal rights to open expression of their active sexual identity in a professional setting . … It goes without saying that the continuing reticence of military homosexuals in these armed forces means that there has been little practical experience of protecting them against ostracism , harassment or physical attack .

Since this common pattern of a near absence of openly homosexual personnel occurs irrespective of the formal legal frameworks , it is reasonable to assume that it is the informal functioning of actual military systems which is largely incompatible with homosexual self - expression . This is entirely consistent with the pattern of NORP service personnel ’s attitudes confirmed by the ORG . ”

In DATE there were over CARDINAL NORP service personnel ( PERCENT approximately of the NORP armed forces ) deployed overseas on operations , more than any other ORG country in LOC ( paragraph CARDINAL ) .

The ORG concluded , nevertheless , that the policy had not presented significant problems when working with the armed forces of allied nations . The ORG remarked that NORP service personnel had shown a “ robust indifference ” to arrangements in foreign forces and no concern over what degree of acceptance closely integrated allies give to homosexuals . This is because the average service person considers that those others “ are not NORP , have different standards , and are thus only to be expected to do things differently ” and because personnel from different nations are accommodated apart . It was also due to the fact that homosexuals in foreign forces , where they were not formally banned , were not open about their sexual orientation . Consequently , the chances were small of the few open homosexuals happening to be in a situation where their sexual orientation would become a problem with NORP service personnel ( paragraph CARDINAL ) .

Important differences were considered by the ORG to exist between the armed forces and civilian disciplined services in GPE including the police , the fire brigade and the merchant navy which did not operate the same policy against homosexuals . It considered that :

“ None of these occupations involves the same unremittingly demanding and long - term working environment as ORG , or requires the same emphasis on building rapidly interchangeable , but fiercely committed and self - supporting teams , capable of retaining their cohesion after DATE of stress , casualties and discomfort … ” ( paragraph CARDINAL )

Alternative options were considered by the ORG including a code of conduct applicable to all , a policy based on the individual qualities of homosexual personnel , lifting the ban and relying on service personnel reticence , the “ do n’t ask , do n’t tell ” solution offered by the GPE and a “ no open homosexuality ” code . It concluded that no policy alternative could be identified which avoided risks for fighting power with the same certainty as the present policy and which , in consequence , would not be strongly opposed by the service population ( paragraphs CARDINAL ) .

The ORG found that :

“ the key problem remains and its intractability has indeed been re - confirmed . The evidence for an anticipated loss in fighting power has been set out in section F and forms the centrepiece of this assessment . The various steps in the argument and the overall conclusion have been shown not only by the ORG authorities but by the great majority of Service personnel in all ranks ” .

Current service attitudes were considered unlikely to change in the near future . While clearly hardship and invasion of privacy were involved , the risk to fighting power demonstrated why the policy was , nevertheless , justified . It considered that it was not possible to draw any meaningful comparison between the integration of homosexuals and of women and ethnic minorities into the armed forces since homosexuality raised problems of a type and intensity that gender and race did not .

The ORG considered that , in the longer term , evolving social attitudes towards homosexuality might reduce the risks to fighting power inherent in change but that their assessment could “ only deal with present attitudes and risks ” . It went on :

“ … certainly , if service people believed that they could work and live alongside homosexuals without loss of cohesion , far fewer of the anticipated problems would emerge . But the ORG must deal with the world as it is . Service attitudes , in as far as they differ from those of the general population , emerge from the unique conditions of military life , and represent the current social and psychological realities . They indicate military risk from a policy change …

… after collecting the most exhaustive evidence available , it is also evident that in the GPE homosexuality remains in practice incompatible with service life if the armed services , in their present form , are to be maintained at their full potential fighting power . ... Furthermore , the justification for the present policy has been overwhelmingly endorsed by a demonstrated consensus of the profession best able to judge it . It must follow that a major change to the ORG ’s current GPE - service Guidelines on homosexuality should be contemplated only for clearly stated non - defence reasons , and with a full acknowledgement of the impact on Service effectiveness and service people ’s feelings . ”

ORG “ Code of Practice on Race Relations ” issued in DATE declared the armed forces to be equal opportunity employers . It stated that no form of racial discrimination , harassment or abuse would be tolerated , that allegations would be investigated and , if proved , disciplinary action would be taken . It provided for a complaints procedure in relation to discrimination or harassment and it warned against the victimisation of service personnel who made use of their right of complaint and redress .

In DATE the army published an Equal Opportunities Directive dealing with racial and sexual harassment and bullying . The policy document contained , as a preamble , a statement of ORG which reads as follows :

“ The reality of conflict requires high levels of teamwork in which individual soldiers can rely absolutely on their comrades and their leaders . There can , therefore , be no place in the ORG for harassment , bullying and discrimination which will affect morale and break down the trust and cohesion of the group .

It is the duty of every soldier to ensure that the ORG is kept free of such behaviour which would affect cohesion and efficiency . ORG policy is clear : all soldiers must be treated equally on the basis of their ability to perform their duty .

I look to each one of you to uphold this policy and to ensure that we retain our acknowledged reputation as a highly professional ORG . ”

The Directive provided definitions of racial and sexual harassment , indicated that the army wanted to prevent all forms of offensive and unfair behaviour in these respects and pointed out that it was the duty of each soldier not to behave in a way that could be offensive to others or to allow others to behave in that way . It also defined bullying and indicated that , although the army fosters an aggressive spirit in soldiers who will have to go to war , controlled aggression , self - sufficiency and strong leadership must not be confused with thoughtless and meaningless use of intimidation and violence which characterise bullying . Bullying undermines morale and creates fear and stress both in the individual and the group being bullied and in the organisation . The army was noted to be a close - knit community where team work , cohesion and trust are paramount . Thus , high standards of personal conduct and respect for others were demanded from all .

The Directive endorsed the use of military law by commanders . Supplementary leaflets promoting the Directive were issued to every individual soldier . In addition , specific equal opportunities posts were created in personnel centres and a substantial training programme in LAW DATE was initiated .

Every DATE PERSON Forces’ Bill goes through ORG and a ORG conducts a review in connection with that bill .

The report of ORG dated DATE noted , under the heading “ Homosexuality ” :

“ That the present policy causes very real distress and the loss to the services of some men and women of undoubted competence and good character is beyond dispute . Society outside the armed forces is now much more tolerant of differences in sexual orientation than it was , and this may also possibly be true of the armed forces . Nevertheless , there is considerable force to the [ ORG ] argument that the presence of people known to be homosexual can cause tension in a group of people required to live and work sometimes under great stress and physically DATE , and thus damage its cohesion and fighting effectiveness . It may be that this will change particularly with the integration of women into hitherto all - male units . We are not yet persuaded that the time has come to require the armed forces to accept homosexuals or homosexual activity . ”

The DATE ORG report ( produced after that committee ’s review of LAW ) referred to evidence taken from members of ORG and from homosexual support groups and to ORG . Once again , the committee did not recommend any change in the ORG ’s policy . It noted that , since its last report , a total of CARDINAL officers and CARDINAL persons of other rank had been discharged or dismissed on grounds of homosexuality . The committee was satisfied that no reliable lessons could as yet be drawn from the experience of other countries . It acknowledged the strength of the human rights arguments put forward , but noted that there had to be a balance struck between individual rights and the needs of the whole . It was persuaded by the ORG summary of the strength of opposition throughout the armed services to any relaxation of the policy . It accepted that the presence of openly homosexual servicemen and women would have a significant adverse impact on morale and , ultimately , on operational effectiveness . The matter was then debated in ORG and members , by CARDINAL votes to CARDINAL , rejected any change to the existing policy .

Prior to DATE , applicants to the armed forces were informed about the armed forces’ policy as regards homosexuals in the armed forces by means of a leaflet entitled “ Your Rights and Responsibilities ” . To avoid any misunderstanding and so that each recruit to each of the armed services received identical information , on DATE the armed forces introduced a Service Statement to be read and signed before enlistment . Paragraph CARDINAL of that statement is headed “ Homosexuality ” and states that homosexuality is not considered compatible with service life and “ can lead to administrative discharge ” .


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant , PERSON , is an NORP national who lives in GPE . She was represented before the ORG by Mr. PERSON , a lawyer practising in GPE

The applicant is a school traffic warden . She took part in a prison visiting project for which she provided her personal details to the prison authorities for security purposes . During the project she became acquainted with N ( in prison for the murder of CARDINAL persons and charged with the murder of CARDINAL others ) and they began a personal relationship .

At CARDINAL on DATE ( DATE ) the applicant was visited at home by a journalist from ORG newspaper . The journalist sought information on the applicant ’s relationship with ORG from confirming that she knew N , the applicant refused to comment further . TIME the journalist returned and the applicant did not make any comment . At CARDINAL that day a letter from the journalist was delivered to the applicant ’s home : the journalist was writing an article about the applicant ’s relationship with N , she was sure of its validity based as it was on information from prison sources and she wanted to give the applicant the opportunity to tell her side of the story . The article would be published the following DATE ( DATE ) .

On DATE the applicant went to visit N. As she entered the prison , she was approached by the journalist and photographed . As she left , the journalist requested the applicant to tell her side of the story . The applicant made no comment and contacted her solicitor who sent a letter by facsimile to the newspaper on DATE . The letter underlined that the proposed article concerned the applicant ’s private affairs and was devoid of any real public interest so that its publication would breach the code of practice of ORG as well as the applicant ’s constitutional and Convention rights . Since her vital personal interests would be irreparably damaged , the letter called on the newspaper not to publish the story . A response was requested by CARDINAL the following day , failing which the applicant would apply to ORG for protection . The newspaper did not respond .

On CARDINAL DATE the applicant ’s solicitors contacted ORG duty judge ( it was a DATE ) . They applied to that judge , on an ex parte basis and grounded upon a draft ORG and the applicant ’s affidavit , for an interim injunction restraining publication of any material disclosing her relationship with N ; for a declaration that any such publication would infringe her right to privacy contrary to the Convention and the LAW ; and for damages for breach of her LAW and constitutional right to privacy . The applicant ’s grounding affidavit underlined that she was a private person of modest means and pointed to the prejudicial impact of the inevitable media scrutiny on her , her CARDINAL young sons and her ongoing employment . Since the story was not a matter of any real public interest , the devastating consequences for her and her family ’s personal dignity and private life would be disproportionate .

In an ex tempore judgment dated DATE ORG refused to grant the injunction . She was a private citizen with a right to respect for her private life and there was no public interest in revealing that she was in a relationship with ORG which invaded private life in the threatened manner was meretricious and worthless . However , in ORG ( [ DATE ] IEHC CARDINAL ) , ORG had found that the common law rule enunciated in PERSON ( [ DATE ] CARDINAL Ch CARDINAL ) had survived LAW DATE in GPE and applied in GPE . The rule provides that , in all but exceptional cases , the court should refuse injunctions . It can only grant such injunctions where it is shown that there is no prospect of successfully defending the substantive action . ORG judge considered this was a limited protection as it seemed to allow even worthless publication the same level of protection as is accorded to journalism that has redeeming characteristics . He noted ORG recent confirmation that the ORG does not have direct applicability in NORP law and only arises when that law falls to be interpreted in some fashion . He queried whether the rule in GPE would survive a LAW challenge but acknowledged that this was a matter for DATE and another court . Applying the rule in the applicant ’s case , ORG judge concluded that he could not make an order restraining the publication .

On DATE ORG published on its front page a story entitled “ Lady and PERSON . It contained a series of photographs of the applicant and the associated article read , in so far as relevant , as follows :

“ Meet the lollipop lady who has struck up an unlikely bond with double murderer TIME [ the applicant ] helps primary school kids across the road at a plush south GPE school . But once her work is done , the mum - of - CARDINAL regularly cycles into town to visit high - profile convicted double killer N. ... Prison sources have revealed the pair have been seen being openly affectionate in the visitors’ centre at the jail . For DATE , [ the applicant ] , from ORG , has been visiting psycho PERSON twice DATE in [ prison ] . Jail sources have told Star Sunday that killer DATE who has admitted that he is mentally ill – is “ besotted ” with the attractive woman .

... “ [ the applicant ] always sits up on the table between her and PERSON in order to be closer to him , ” said a source . “ She often snuggles in to his chest and they embrace a lot , which can often be a bit embarrassing for the other visitors . ” However , when [ the applicant ] was confronted by Star Sunday at her home on DATE TIME , she denied she was romantically involved with N.

.... Sources at the jail said [ the applicant ] visits the killer twice a week , usually DATE between TIME . ”

On DATE the applicant formally filed ORG on which she had relied when she applied for the interim injunction and in which she claims damages for a breach of privacy . It would appear that this substantive action has not been pursued further .

On DATE the applicant ’s Counsel advised that , since the application for an injunction had been refused and the article published the following day , there were no further steps open to the applicant through which she could have prevented the publication . In so concluding , Counsel noted that it had not been open to her to appeal to ORG on DATE because that court was not sitting on either of DATE .

In this case ORG outlined the criteria for deciding interlocutory injunction requests . It recalled the judgment of ORG in Campus Oil v. Minister for ORG ( No . CARDINAL ) ( [ DATE ] I.R. CARDINAL ) and noted the guidelines for the granting of an interlocutory prohibitory injunction . A plaintiff had to demonstrate :

( a ) the existence of a serious question to be tried ;

( b ) the inadequacy of damages ; and

( c ) that the balance of convenience lies in favour of the grant of the injunction .

While resolving these issues in favour of an applicant would , in many cases , result in an injunction being granted , it was not always so . In addition to these CARDINAL questions , there might be many other special factors to be taken into consideration in the particular circumstances of individual cases . Over DATE , a number of cases had been identified where the guidelines , even if satisfied , do not result in an interlocutory injunction being granted . A good example of this was the rule in PERSON ( [ DATE ] CARDINAL Ch CARDINAL ) which ORG in GPE deemed to be of ‘ some ORG to an application for an injunction restraining publication . Although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief , the rule in PERSON provides that in all but exceptional circumstances they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail . The rule was based on the need not to restrict the right of free speech by interfering before the final determination of the matter save in a clear case of an untrue libel . ORG in PERSON noted that the right to freedom of expression as provided for in the LAW and in the LAW is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceedings . While refusing to restrict the defendant ’s right between the making of the application for an injunction and the trial of the action , it did , however , direct an early trial and heard submissions on the delivery of accelerated pleadings .

The rule in PERSON was approved and followed by ORG in PERSON v. PERSON ( [ DATE ] I.R. CARDINAL ) .

This rule reads as follows :

“ CARDINAL . Where an ex parte application has been refused in whole or in part by ORG an application for a similar purpose may be made to ORG ex parte within DATE from the date of such refusal , or within such enlarged time as ORG may allow . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Aleš Pejchal;André Potocki;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych;Paul Lemmens

The applicant , PERSON Samoylovich , is a NORP national who was born in DATE and lives in PERSON .

On DATE the GPE district prosecutor ’s office at ORG opened criminal proceedings against the applicant , who was serving as a police officer at that time , on suspicion that he had abused his authority .

On DATE the ORG convicted the applicant of abusing his authority and sentenced him to DATE imprisonment .

On DATE that decision was quashed and the case was sent back for a retrial and further investigation .

On DATE the prosecutor ’s office discontinued the proceedings on exonerative grounds as it could find no reason to believe that a crime had been committed .

According to the Government , on DATE that decision was served on the applicant in PERSON no . CARDINAL pre - trial detention facility ( GPE ) , where he was being detained at that time in connection with another set of criminal proceedings .

NORP On DATE the applicant was arrested and detained on suspicion of robbery of the NORP family .

On DATE the prosecutor ’s office of GPE ( “ ARC ” ) authorised the applicant ’s detention on remand for DATE pending an investigation , on account of the gravity of the charges laid against him and the need to carry out certain procedural steps . Subsequently ( on DATE , DATE and DATE ) the prosecutor ’s office extended the applicant ’s detention for further terms of CARDINAL , DATE , respectively , on the same grounds as those referred to in the order of CARDINAL DATE .

In DATE the applicant challenged his detention before ORG of Simferopol , maintaining that it was in breach of a number of applicable provisions of the procedural law in force at the material time .

On DATE the court refused to examine the applicant ’s complaint on the merits , finding that he had been lawfully detained following his conviction on DATE for abusing his authority and that there was no prosecutor ’s order of CARDINAL DATE for his detention on remand in the file on his case .

In DATE the criminal case against the applicant was joined with another case , which concerned the activity of a gang led by P. , another police officer from PERSON , who was also charged with participating in the robbery of the PERSON family .

During the pre - trial investigation , the authorities questioned CARDINAL witnesses concerning CARDINAL criminal acts attributed to the gang members , carried out CARDINAL reconstructions of the crime scenes and ordered numerous expert assessments .

On DATE the pre - trial investigation was completed and the applicant , along with CARDINAL other individuals suspected of having committed various crimes as members of the aforementioned gang , was committed for trial before ORG of the ARC ( subsequently renamed ORG of the ARC , and hereinafter “ ORG ) .

On DATE , following the familiarisation of the defendants with the material in the case file and the completion of other procedural formalities , ORG held a preliminary hearing in the case and scheduled the trial for DATE . The court also decided that there were no grounds for releasing the applicant pending trial .

Having held DATE hearings DATE , ORG adjourned the proceedings following a request by CARDINAL of the defendants that the hearings be recorded , no recording devices being available at the time .

On CARDINAL DATE ORG resumed its consideration of the case .

On various dates the applicant made requests to ORG to release him from custody . He contended that he had no reason to abscond , as he was innocent , had a permanent address in PERSON and a family ( wife , daughter of minor age and elderly mother ) , and that he was suffering from duodenal ulcers , aggravated as a result of his being in the GPE . In his submissions the applicant also pointed to various procedural irregularities in the documents on which his detention was based . In particular , he noted that , according to the court decision of DATE , there was no record of any order of CARDINAL DATE , serving as the basis for his detention .

Those requests were rejected by ORG on the basis of the gravity of the charges laid against the applicant .

On DATE ORG stated that there was no arbitrariness in the order for the applicant ’s detention and that the order of CARDINAL DATE had been lawful .

On several occasions the applicant unsuccessfully attempted to institute criminal proceedings against the police officers and the prosecutor ’s office , citing various procedural irregularities in his placement in custody .

On DATE ORG of PERSON overturned the refusal by the prosecutor ’s office to institute criminal proceedings concerning the lawfulness of the applicant ’s detention , referring to a number of procedural irregularities in the drafting of the documents concerning the applicant ’s detention . It noted , in particular , that there were CARDINAL different copies of the above - mentioned order of CARDINAL DATE . According to that presented by the prosecutor ’s office , the applicant had been shown a copy of the order for his detention on DATE and had refused to sign it . Nevertheless , a copy held in the GPE records bore the signature of the applicant dated DATE . The court next instructed the prosecutor ’s office to investigate this and other procedural irregularities in the applicant ’s case file .

On DATE the prosecutor ’s office again refused to institute criminal proceedings . It found , in particular , that it was unclear why there were CARDINAL different copies of the detention order . However , neither this nor any other procedural irregularity in the case file was such as to warrant the opening of criminal proceedings .

On DATE and DATE ORG of PERSON and ORG respectively upheld the prosecutor ’s office ’s refusal to institute criminal proceedings concerning the lawfulness of the applicant ’s detention .

DATE and DATE ORG held CARDINAL hearings in the case .

On DATE ORG ARC delivered a judgment , CARDINAL pages long , which stated that the applicant was convicted of being a member of ORG ’s gang and taking part in the robbery of the PERSON family . The applicant was further sentenced to CARDINAL years’ imprisonment , to run from the date of his arrest ( DATE ) .

On DATE ORG held a hearing in the applicant ’s presence and dismissed a cassation appeal he had lodged .

In DATE the applicant was released , having served the term of his prison sentence in full .

From DATE until DATE the applicant was detained in the PERSON .

According to the applicant , the physical conditions of his detention in the ORG had been intolerable . He emphasised , in particular , that the size of the cells had allowed for CARDINAL space per detainee . Cell no . DATE , officially designated for CARDINAL inmates , had in fact , contained CARDINAL beds and at times had been occupied by CARDINAL persons , who had needed to take turns to sleep . The detainees had not been given bedding or toiletries and towels , and had had no access to laundry facilities so had to wash and dry their laundry in the cell , which became very humid .

Food , especially during the period DATE , had been insufficient and of poor quality . The bread had been made of such low - grade flour that it rather resembled dark brown gum . The detainees had been given hot cereal ( каша ) without salt , sugar or fat , CARDINAL times per day . For lunch they had also been given a bowl of soup , which had , in fact , consisted of the same cereal or dumplings made from poor quality flour floating in water . The portions had been meagre .

The applicant had been confined to his cell for most of DATE . He was able to take a DATE walk outside for TIME although sometimes , particularly in bad weather , there had been no outdoor exercise at all . The situation had been particularly difficult during the period DATE , when the walks had taken place on a highly irregular basis . The exercise yard had measured QUANTITY . It had been bare concrete with no benches or exercise facilities and had smelled of human excrement .

In DATE the applicant had been placed in a disciplinary cell for DATE , where the conditions had been even more severe than in the ordinary cells .

On numerous occasions the applicant had complained about the physical conditions of his detention and the quality of nutrition in his diet to various authorities , including to ORG during the hearings . However , his complaints had been to no avail .

On several occasions the authorities had acknowledged some breaches of the applicant ’s and other inmates’ rights . In particular , according to some correspondence from the PERSON administration , it had not been provided with a sufficient quantity of meat or fresh produce to ensure a varied diet for the inmates and had been obliged to make dietary substitutions . However , notwithstanding its acknowledgment of the problems complained of , the situation had not been remedied .

According to the Government , the conditions of the applicant ’s detention had been adequate and sufficient for meeting his basic needs .

As regards the living conditions , from DATE until DATE the applicant had been held in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds . From DATE until DATE the applicant had been held in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds ; from DATE until DATE the applicant had been detained in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds . During the remaining period of his detention the applicant had been held in cell no . DATE , which measured QUANTITY and had CARDINAL beds . According to the records , the number of detainees held in those cells during the periods in question , had not exceeded the number of beds available and each detainee had had his own sleeping place .

Each cell had been equipped with both natural and artificial ventilation , a centralised CARDINAL heating system , water supply and a sanitation system . All cells had been provided with windows , letting in daylight . At night electric light of a sufficient strength had been available to enable the detainees to read or write . The cells had been equipped with the necessary amenities , including toilets , wash basins , tables , benches and storage boxes . The applicant had been provided with dishes and bed linen ( which had been changed DATE ) .

DATE the detainees had been afforded a TIME walk in the outdoor courtyard , which measured QUANTITY . A light canopy above the courtyard had offered protection from rain and snow and had enabled the detainees to take outdoor exercise in any weather . The courtyard had been cleaned on a DATE basis .

The GPE diet had been prepared in compliance with applicable domestic standards and had been sufficient to meet their nutritional needs . For example , in their DATE diet the detainees had received QUANTITY of fish or meat , QUANTITY of vegetable oil , QUANTITY of fat and a sufficient quantity of fresh vegetables from which to obtain the necessary vitamins .

According to the applicant ’s submissions , during routine searches the prison authorities had thrown the GPE food , shoes and other belongings out of the cell into a dirty corridor . Often the authorities had confiscated objects which could not have presented any threat to prison security , such as plastic water bottles , newspapers or spoons .

The applicant also submitted that in detention he had never received a visit from a pastor and had had no opportunity to pray in private , as he had never been left alone . His relatives had only been able to see him through a glass partition during their visits . As a result of that lack of family contact the applicant ’s wife had divorced him in DATE . The applicant had been expelled from the university on account of the impossibility of pursuing regular studies while in detention . The administration had regularly interfered with his correspondence and communication with the outside world and had not provided him with adequate medical and dental assistance . According to the case file , the applicant had n’t raised any of the complaints listed in this and the preceding paragraph at domestic level .

The applicant further submitted that on DATE when he had attended the court hearings , in DATE , he and his co - accused would often spend DATE in the courtroom without being provided with lunch or dinner . As the applicant had continually protested against this situation , in DATE the judge had ordered him to be removed from the courtroom until the end of the trial , for contempt of court .

At various times the applicant had unsuccessfully attempted to lodge civil actions against the police of the ARC ( his former employer ) , alleging various violations of his labour rights . On several occasions the courts had refused to consider the merits of his application because he had not complied with the applicable procedural formalities .

Relevant provisions of domestic law concerning arrest and detention pending criminal investigation and trial can be found in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) .

Relevant international materials concerning the conditions of detention can be found in the judgment in the case of GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of P1-3;Violation of Art. 14+P1-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant applied to ORG , requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of DATE .

On DATE ORG refused to enrol the applicant . ORG specified that , by virtue of LAW , members of the NORP - Cypriot community could not be registered on the NORP - Cypriot electoral roll . Furthermore , the ORG informed the applicant that the matter was under consideration by the Attorney - General of the Republic and that he would be informed of any developments .

On DATE the applicant lodged an application with ORG against the decision of ORG . He relied on LAW and submitted that , following the dissolution of ORG , the NORP government had failed to set up CARDINAL electoral lists in order to protect the electoral rights of members of both communities .

On DATE ORG dismissed the application on the following grounds :

“ ... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community . The ideal of democracy – CARDINAL person , CARDINAL vote in the person 's place of residence DATE does not provide any grounds for the ORG to assume the power to reform the LAW . Such competence is not vested in us , nor can the judicial authorities claim such power . This would be against the principle of the separation of powers on which the LAW is based ...

Article CARDINAL is contained in Part IV of the LAW , which governs the matters pertaining to ORG and provides for the compilation of separate electoral lists in which the members of each community are included . The applicant belongs to the NORP community and is one of the small number of NORP residing in the part of the territory of GPE under the control of GPE . The denunciation by the applicant of the NORP invasion and his loyalty to the law do not alter what the LAW provides with respect to the election of the members of the legislative body .

LAW of ORG ] PERSON makes the right to vote conditional on the provisions of LAW . The applicant admits , as it transpires from his counsel 's address , that the proviso to which the right to vote is subject under LAW , if construed literally , excludes the inclusion in the electoral list of any person other than members of the NORP community in GPE . Nevertheless , he suggested that this reservation must be interpreted in the light of the current situation in GPE , which renders the compilation of an electoral list of the members of the NORP community impossible . Given this fact , it had to be surmised that when ORG enacted LAW it had this situation in mind and the impossibility of compiling an electoral list of the members of the NORP community . Hence , this justified the interpretation of the reservation contained in DATE as referring only to those provisions of LAW which were rendered inactive .

Adopting the interpretation of LAW proposed by the applicant would amount to it being reworded . The fact that the legislator was apprised of all the facts relating to the situation in GPE and chose to place the right safeguarded by LAW under the reservation of LAW , supports the opposite of what the applicant is suggesting ; it indicates an intention by the legislature to subject the compilation of the electoral list to the statutory provisions of LAW . From the wording of LAW we conclude that the legislature 's intention was to place the right to vote under the reservation of all provisions of LAW . This conclusion refutes the allegation of the illegality of the administrative decision under appeal .

The second ground on which the applicant 's appeal is based is the law of necessity . The necessity of his inclusion in the electoral list ... is derived from the impossibility of compiling an electoral list of the members of the NORP community . Given this state of affairs , PERSON submitted that the inclusion of the applicant in the electoral list of electors of the NORP community was justified and gave him the right to participate as an elector in the forthcoming parliamentary election . This was justified by the fact that the applicant resided in the areas controlled by GPE where he operates , having the same rights and obligations as every other citizen . ...

Assessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature . The competence of the judiciary is limited , provided the matter is submitted to it or arises in a case brought before it , to determining the constitutionality of the law ... It is not for the judiciary to assess the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them , which is basically what the applicant pursues with his application . ”

Articles DATE , CARDINAL and DATE of LAW provide as follows :

“ Every citizen has , subject to the provisions of this LAW and any electoral law of the Republic or of the relevant ORG made thereunder , the right to vote in any election held under this LAW or any such law . ”

“ CARDINAL . The number of representatives shall be CARDINAL :

Provided that such number may be altered by a resolution of ORG carried by a majority comprising CARDINAL of the Representatives elected by the NORP community and CARDINAL of the representatives elected by the NORP community .

NORP Out of the number of representatives provided in paragraph CARDINAL of this LAW shall be elected by the NORP community and MONEY by the NORP community separately from amongst their members respectively , and in the case of a contested election , by universal suffrage and by direct and secret ballot held on DATE . ... ”

“ CARDINAL . Subject to paragraph CARDINAL of this Article every citizen of the Republic who has attained DATE , and has such residential qualifications as may be prescribed by LAW , shall have the right to be registered as an elector in either the NORP or the NORP electoral list :

Provided that the members of the NORP community shall only be registered in the NORP electoral list and the members of the NORP community shall only be registered in the NORP electoral list .

No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of LAW . ”

LAW of ORG ( Law CARDINAL/CARDINAL ) provides as follows :

“ The right to elect belongs to those who have the qualifications provided for under LAW , that is to say citizens of the Republic who have attained the age of CARDINAL and have had their ordinary residence in GPE for a period of DATE immediately before the date fixed by the Minister , by publication in ORG , as the date of acquisition of the electoral qualifications . ”

Article CARDINAL of the NORP Constitution grants the ORG exclusive jurisdiction to adjudicate finally on applications made to it complaining , inter alia , that a decision , act or omission of any organ , authority or person exercising any executive or administrative authority is contrary to any of the provisions of the LAW or any law , or is made in excess or in abuse of powers vested in such organ , authority or person .


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .

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

On DATE the applicant instituted civil proceedings against ORG ( GPE za državne caste ) and GPE in ORG ( PERSON sodišče v PERSON ) seeking restoration of a wall on his property which had allegedly been damaged during road building works .

On DATE the applicant urged the court to proceed with his case .

On DATE and CARDINAL DATE the applicant made written submissions .

Hearings were held on DATE , CARDINAL DATE and DATE .

During the proceedings the court obtained an expert opinion .

On DATE the court adopted a judgment rejecting the applicant ’s claim , which was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON ) .

On DATE the court dismissed the applicant ’s appeal .

It would appear that this judgment was served on the applicant on DATE .

NORP On DATE the respondent Government were given notice of the present application .

On DATE the State Attorney ’s ORG sent a settlement proposal to the applicant under LAW of the LAW on the Protection of the Right to a Trial without undue Delay ( “ the CARDINAL Act ” ) . In its proposal , the ORG Attorney ’s ORG acknowledged the violation of the right to a trial within a reasonable time and , taking into account the fact that the applicant had not stated a claim as to the amount of just satisfaction sought in his application to the ORG , offered the applicant a written statement in accordance with section CARDINAL of LAW . He was requested to reply or state his counter - proposal .

On DATE the applicant informed the State Attorney ’s Office that he disagreed with the proposal and that he wanted this Court to rule on the matter .

On DATE the ORG Attorney ’s ORG sent a new letter to the applicant , explaining its proposal and proposing the applicant to specify the amount of compensation claimed in respect of non - pecuniary damage . The State Attorney ’s ORG assured the applicant it would immediately examine his claim and respond to it . He was requested to reply in DATE .

The applicant did not reply to the State Attorney ’s ORG ’s proposal , but instead , on DATE , he informed ORG that he insisted that the case be decided by ORG . The applicant also explained that he had not responded to ORG ’s letter of DATE because it was in substance the same as the initial one .

ORG adopted on DATE a ORG on ORG , the “ FAC ” . Its goal is the elimination of backlogs in NORP courts and ORG offices by DATE , by providing for structural and managerial reform of the judiciary . As a part of the “ FAC ” the ORG adopted LAW ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) which has been implemented since DATE .

Section CARDINAL of LAW lays down the following transitional rules in relation to applications already pending before the ORG :

“ ( CARDINAL ) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest .....

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE of receiving the ORG Attorney ’s ORG reply that the party ’s proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”

The following parts of LAW are relevant as regards the “ claim for just satisfaction ” and other means aimed at providing redress :

“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”

( CARDINAL ) Just satisfaction shall be provided by :

i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay ;

ii . a written statement from ORG that the party ’s right to a trial without undue delay has been infringed ;

iii . the publication of a judgment that the party ’s right to a trial without undue delay has been infringed . ”

“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by an infringement of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .

( CARDINAL ) Monetary compensation for individual finally decided cases shall be granted in amounts from MONEY .

( CARDINAL ) Given the circumstances of the case , the State Attorney ’s ORG may , by agreement with the party under LAW and taking account of criteria referred to in LAW , paragraph CARDINAL of this Act , make a written statement without monetary compensation to the party as a compensation for non - pecuniary damage caused by the violation of the right to a trial without undue delay . If the right to a trial without undue delay has been seriously violated and at the request of the party , ORG may in addition to the monetary compensation also make a written statement .

( CARDINAL ) The written statement shall include data referred to in LAW CARDINAL , paragraph CARDINAL , subparagraphs CARDINAL , CARDINAL , DATE and CARDINAL of this Act , an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay .

( CARDINAL ) A written statement shall be made by ORG within the concluded settlement referred to in LAW . At the party ’s request , the written statement shall be published on the website of ORG which shall cover the costs thereof . The written statement shall be made public for DATE and thereupon archived within the website or deleted within DATE of receipt of a request from the party or the majority of parties concerning the written statement .

( CARDINAL ) Territorial jurisdiction for decision - making on an action for damages under LAW shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office .

( CARDINAL ) Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court .

( CARDINAL ) Appeal on points of law shall be excluded for disputes on damage under LAW . ”

( CARDINAL ) The ORG Attorney ’s Office shall pay monetary compensation and the party ’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings , under LAW of the present LAW . ”

“ Funds ... shall be earmarked in LAW within the framework of the financial plan of ORG . ”


The applicants were born in born in DATE , DATE , DATE , DATE and DATE and live in PERSON , PERSON and GPE , respectively .

Under the rules of Act no . DATE , the shareholders of agricultural co - operatives became entitled to claim from the local “ land distribution committees”– which consisted of lay members elected by the shareholders – the reallocation of plots of arable land to them , at a value corresponding to that of the land which had been surrendered by the original owners to the co - operatives under the socialist legislation .

The applicants , all in this legal position , filed their respective claims with regard to the “ PERSON CARDINAL ” plot , situated in the PERSON historical wine region , within the statutory DATE time - limit counted from the entry into force of the LAW on DATE . The distribution committee had an obligation under the procedural law to proceed with such claims within a deadline of DATE running from the expiry of that time - limit . However , it was not until DATE that it organised a meeting of the claimants of plot no . DATE .

The decisions adopted at the meeting were susceptible to administrative remedies . On appeal , on DATE ORG , a ORG authority , quashed the decisions and instructed the committee to resume the proceedings . The complainants ' procedural appeals against the remittal were dismissed by ORG and ORG on DATE and DATE , respectively .

NORP However , at that point neither the distribution committee nor its legal successor – ORG itself DATE resumed the administrative proceedings .

Meanwhile , in DATE ORG challenged the legality of the decision of DATE . On DATE ORG finally discontinued these proceedings , since the prosecution 's motion was incompatible ratione materiae with the relevant provisions of LAW .

Once the legality proceedings had been terminated , ORG was appointed , at some time in DATE , to process the PERSON land distribution . The applicants filed an administrative appeal against the decisions of this body , arguing that the individuals who had in the meantime been granted land belonging to plot no . CARDINAL had not been so entitled .

Although the applicants ' administrative appeal was largely unsuccessful , the actual owners nevertheless sought judicial review .

On DATE the ORG quashed the administrative decisions adopted in the case hitherto and ordered ORG to resume its proceedings . It held that the case had been unlawfully assigned to ORG .

On DATE ORG adopted certain decisions in the case . The administrative appeals against these decisions were to no avail . According to the information provided by the parties and the elements available in the case file to date , the judicial review of these decisions before ORG has not yet ended .

Criminal proceedings which the applicants had sought against various officials involved in the case were to no avail .