KJ, SK. Group 9
This section opens with a detailed account of the Lustig- Prean and Beckett case that came before the European Court of Human Rights.
These two British nationals complained that investigations into their homosexuality their discharge from the Royal Navy on the sole ground that they are homosexual violated Article 8 of the European convention.
Article 8 reads:
1) Everyone has the right to respect for his private life…
2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security…for the prevention of disorder.
Lustig-Prean had been working in the Royal navy since 1982 and through various recommendations and evaluations were promoted to lieutenant commander. Early in 1994, the Royal Navy Special Investigation Branch had anonymously been given an allegation of his homosexuality. In December of the same year, Lustig-Prean was discharged on grounds of his sexual orientation.
A homosexuality Policy Assessment Team( HPAT) was established by the Ministry of defense to make an internal assessment of the armed forces policy. It was considered that any problems would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals. The assessment centered around the notion “that it was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioral and emotional responses and problems which would affect the morale and in turn significantly and negatively affect the fighting power of the armed forces.”
The matter was debated in the House of Commons and the majority rejected any change to the existing policy. ( 188 votes to 120)
Taking into consideration article 8, the Court could consider the investigation into the private lives of these two officials in the Royal navy justified if the second paragraph’s inferences of “in accordance with the law” and “ necessary in a democratic society” could be disputed.
The Government emphasized that this was indeed a special case as it was ultimately linked to the nation’s security. While not denying the member of the armed forces the right to the convention’s protection they claimed that stricter rules applied in this special case of national security. Furthermore, the government’s core argument in support of the policy was that the presence of open or suspected homosexuals in the armed forces would have a substantial or negative effect on morale and on the fighting power and effectiveness of the armed forces.
The court of the other hand noted the lack of concrete evidence to substantiate the alleged damage to morale and fighting power that any change in policy would entail. The Court found that neither the investigation conducted into the applicants sexual orientation, nor their discharge on the grounds of their homosexuality were justified under article 8 section 2.
Comment on blasphemy cases.
This section evaluates the issues of conflicts between the rights of freedom of expression found in Article 10 and the rights freedom of religion found in Article 9. The cases of Otto-Preminger-Institut v. Austria and Wingrove v. United Kingdom are used to illustrate the problems that arise. In both cases films were made that were considered religiously offensive by the state portraying biblical characters malign and sultry. In the first case the film was seized and forfeited by the state under claims that it infringed upon the rights of others to freedom of religion by disrespecting other’s religious feelings. The creators of the film argued that their rights to freedom of expression had been violated by the state. Similarly, the director of the other film in the second case claimed that his rights to freedom of expression had also been violated by the United Kingdom when they would not grant him a distribution certificate for his video. In both cases the Court decided that there was no violation of article 10 due to the fact that the states actions were merited and “necessary in a democratic society”. (note that in the first case three judges dissented due to the efforts of the association that created the film to prevent offence to viewers)
The margin of Appreciation:
“One analysis of the European court asserts that this concept lies at the heart of virtually all major cases.” Definitions of this concept and its impact of court decision varies.
The margin of appreciation as described by Paul Mahoney an interpretation tool that is needed to draw the line between what is properly a matter for each community to decide at a local level and what is so fundamental that it entails the same requirement for all countries whatever the variations in tradition and culture
Another view, by Franz Matscher is that the theory of the margin or appreciation is the expression of a realistic judicial self-restraint.
1)Taking into consideration the special context of living conditions of Royal Navy members, should there be an exception of this type of discrimination based on sexual orientation. ( note comments made by Judge Loucdaides) pg 831.
2) If the Royal Navy was not allowed to discriminated based sexual orientation, and thus allowed homosexuals to be in the navy, is making special provisions as they do for women an option? How would implementing this plan of action be problematic?
3) Is the margin of appreciation a confusing concept that does not necessarily add to the court’s decision? Would it be better if the European court handled issues based on whether state-imposed limitations on the right of freedom can be viewed as “necessary in a democratic society, or is there a needed space for this concept?