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| European Commission on Human Rights / European Court of Human Rights
Unlike Lusig-Prean and Beckett, Smith and Grady also argued that Britain's policy contradicted Article 3, which prohibits inhumane or "degrading treatment or punishment." They claimed that that Article 10, which provides for freedom of expression, was violated because the ban against gay service members limited "their right to give expression to their sexual identity." The third violation came under Article 13, which requires that a country provide "an effective remedy before a national assembly" for the applicants' complaints. Smith and Grady lost the Article 3 complaint because the facts of their cases failed to reach the minimum level of severity needed. They lost the Article 10 charge because it was deemed unnecessary since they had won the Article 8 complaint. With Article 13, the Court found the minimum threshold of the rationality test in domestic courts to be so high as effectively to deprive the courts of the opportunity to consider whether the investigations and subsequent discharges of the applicants served the national security claims of the government. With its decision, the Court became the first final appellate court in the world to invalidate a ban on lesbian, gay, and bisexual military personnel under a human rights treaty or constitution. The verdict could not force Britain to change its laws. However, pressure from the Court had a significant impact, particularly since Britain prides itself on its human rights record and its membership in the European community. Consequently, Britain ended its ban in 2000.
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social sciences >> Overview: Greece: Modern social sciences >> Overview: Ireland social sciences >> Overview: Military Culture: European social sciences >> Overview: Portugal social sciences >> Overview: Same-Sex Marriage social sciences >> Overview: United Kingdom II: 1900 to the Present social sciences >> International Lesbian and Gay Association (ILGA) social sciences >> Mason, Angela social sciences >> Norris, David
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| Bibliography | ||
Council of Europe. www.coe.int. Council of Europe. Publications of the European Court of Human Rights: Series A: Judgments and Decisions: Rees Case 24 January 1986. Berlin: Carl Heymanns Verlag KG, 1987. Helfer, Lawrence R. "Finding a Consensus on Equality: The Homosexual Age of Consent and the European Convention on Human Rights." New York University Law Review 65.4 (October 1990): 1044-45, 1059-61. McGhee, Derek. Homosexuality, Law, and Resistance. London: Routledge, 2001. Robertson, A. H. Human Rights in Europe. Manchester: Manchester University Press, 1977. Tatchell, Peter. Europe in the Pink: Lesbian and Gay Equality in the New Europe. London: GMP, 1992. Wintemute, Robert. "European Court of Human Rights Strikes Down British Ban on Lesbians, Gays, and Bisexuals in the Armed Forces." Lesbian/Gay Law Notes (October 1999): 1-5.
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| Citation Information | ||||
| Author: | Neumann, Caryn E. | |||
| Entry Title: | European Commission on Human Rights / European Court of Human Rights | |||
| General Editor: | Claude J. Summers | |||
| Publication Name: | glbtq: An Encyclopedia of Gay, Lesbian,
Bisexual, Transgender, and Queer Culture |
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| Publication Date: | 2004 | |||
| Date Last Updated | November 28, 2005 | |||
| Web Address | www.glbtq.com/social-sciences/eur_comm_hr.html | |||
| Publisher | glbtq, Inc. 1130 West Adams Chicago, IL 60607 |
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| Encyclopedia Copyright: | © 2002-2006, glbtq, Inc. | |||
| Entry Copyright | © 2004, glbtq, inc. | |||
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