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.