Human Rights of Armed Forces Personnel
“The freedom of expression guaranteed by Article 10 applies to servicemen
just as it does to other persons within the jurisdiction of the Contracting
States. However, the proper functioning of an army is hardly imaginable
without legal rules designed to prevent servicemen from undermining
186
military discipline, for example by writings.”
When assessing whether the right of service personnel to freedom of expression has been
justifiably restricted, the Court has held that it is necessary to take into account the special
conditions of military life and the “specific ‘duties’ and ‘responsibilities’ incumbent on the
members of the armed forces”.187 Measures to restrict the right to freedom of expression
must be necessary and proportionate, even where legitimate military interests are at stake.
Measures to restrict freedom of expression must likewise provide sufficient protection
against arbitrariness and be reasonably foreseeable.188
The proportionality of the restriction will also depend on its aims. Overall, the European
Court of Human Rights has tended to give states a wide margin of appreciation in cases
involving restrictions of the rights of service personnel. Accordingly, the Court found no
violation of Article 10 when two conscripts were imprisoned for a year after distributing
189
material calling for French army units to withdraw from Germany, or when a German
military service member was dismissed for criticizing government policy and condemning
190
modern warfare on television.
In part, this is due to a generally wide margin of appreciation for claims of national security
(at least when voiced by the military). Nevertheless, if a state is unable to show that a
restriction has a legal basis, these restrictions would be in violation of the Convention. The
necessity and proportionality test employed by the Convention system requires that due
consideration be given to the need for, nature of and extent to which a restriction on rights
is justified by a legitimate objective.
The Court’s jurisprudence provides an indication of when limitations on the freedom of
expression of service personnel will not be upheld. Instances where the Court has found
a violation of Article 10 have included: (a) a ban on the distribution of a magazine whose
articles were written in a critical satirical style, but did not call into question the duty of
obedience or the purpose of military service,191 and (b) where a sentence of three months’
96
186
European Court of Human Rights, Engel and others v. The Netherlands, op. cit., note 45, para. 100.
187
European Court of Human Rights, Hadjianastassiou v. Greece, op. cit., note 142, para. 46.
188
European Court of Human Rights, VDSO and Gubi v. Austria, op. cit., note 142, para. 31.
189
European Court of Human Rights, Le Cour Grandmaison and Fritz v. France (Application nos. 11567/85 and
11568/85, Commission decision of 6 July 1987).
190
European Court of Human Rights, E.S. v. Germany, (Application no. 23576/94, Commission decision of 29
November 1995).
191
European Court of Human Rights, VDSO and Gubi v. Austria, op. cit., note 142, para. 49.
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