(Applications nos. 31417/96 and 32377/96)
PARTLY concurring, Partly DISSENTING OPINION OF JUDGE loucaides
I agree with the majority on all points except as regards the finding that there has been a violation of Article 8 of the Convention by reason of the applicants' discharge from the armed forces on account of their homosexuality.
In this respect I have been convinced by the argument of the Government that particular problems might be posed by the communal accommodation arrangements in the armed forces. The applicants would have to share single-sex accommodation and associated facilities (showers, toilets etc.) with their heterosexual colleagues. To my mind, the problems in question are in substance analogous to those which would result from the communal accommodation of male members of the armed forces with female members. What makes it necessary for males not to share accommodation and other associated facilities with females is the difference in their sexual orientation. It is precisely this difference between homosexuals and heterosexuals which makes the position of the Government convincing.
I find the answer given by the majority regarding this aspect of the case unsatisfactory. The Court noted (at paragraph 96 of the judgment) that the HPAT considered that "separate accommodation for homosexuals would not be warranted or wise" and the Court found that, in any case, "it ha[d] not been shown that the conduct codes and disciplinary rules... could not adequately deal with any behavioural issues arising on the part either of homosexuals or of heterosexuals". The fact that separate accommodation is not "warranted or wise" does not justify communal accommodation if such accommodation is really problematic. On the other hand, "conduct codes and disciplinary rules" cannot change the sexual orientation of people and the relevant problems which - for the purposes of the issue under consideration - in the analogous case of women makes it incumbent to accommodate them separately from male soldiers. It is the compulsory living together of groups of people of different sexual orientation which creates the problem. I should add here that if homosexuals had a right to be members of the armed forces their sexual orientation could become known either through them disclosing it or manifesting it in some way.
The aim of not allowing homosexuals in the armed forces was to ensure the operational effectiveness of the armed forces and to this extent the resulting interferences pursued the legitimate aims of "the interests of national security" and the prevention of disorder". This was accepted by the Court. My disagreement with the majority relates to the question of whether the interference in the present case can be considered "necessary in a democratic society" for the aim in question. The majority underlined the principle that when the relevant restrictions to a Convention right concern a most intimate part of an individual's private life there must exist particularly serious reasons before the interferences can satisfy the requirements of Article 8 of the Convention. However, I agree with the Government that the narrow margin of appreciation which is applied to cases involving intimate private-life matters is widened in cases like the present, in which the legitimate aim of the relevant restriction relates to the operational effectiveness of the armed forces and, therefore, to the interests of national security. This, I think, is the logical connotation of the principle that in assessing the pressing social need in cases of interferences with the right to respect for an individual's private life from the standpoint of the protection of national security, the State has a wide margin of appreciation (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p.25, § 59).
Regard must also be had to the principle that limitations incapable of being imposed on civilians may be placed on certain of the rights and freedoms of members of the armed forces (see the Kalaç v. Turkey judgment of 1 July 1997, Reports of judgments and Decisions' 1997-IV, p.1209, § 28).
I believe that the Court should not interfere simply because there is a disagreement with the necessity of the measures taken by a State. Otherwise the concept of the margin of appreciation would be meaningless. The Court may substitute its own view for that of the national authorities only when the measure is patently disproportionate to the aim pursued. I should add that the wider the margin of appreciation allowed to the State, the narrower should be the scope for interference by the Court.
I do not think that the facts of the present case justify our Court's interference. As I have already stated above, the sexual orientation of homosexuals does create the problems highlighted by the Government as a result of the communal accommodation with heterosexuals. There is nothing patently disproportionate in the approach of the Government. On the contrary it was in the circumstances reasonably open to them to adopt the policy of not allowing homosexuals in the armed forces. This condition was made clear to the applicants before their recruitment. It was not imposed afterwards (cf the Young, James and Webster V. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 25, § 62). In this respect it may be useful to add that the Convention does not guarantee the right to serve in the armed forces (see Marangos V. Cyprus,
In the circumstances, I find that the applicants' discharge on account of their homosexuality in pursuance of the Ministry of Defence policy was justified under Article 8 § 2 of the Convention, as being necessary in a democratic society in the interests of national security and the prevention of disorder.
[For the full text of the judgment, visit the European Court's web site, linked to from section 4 of the Aspals Index page].