CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 mai 2003

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Pellonpää , President ,   Sir   Nicolas Bratza ,   Mrs   E. Palm ,   Mr   M. Fischbach ,   Mr   J. Casadevall ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 9 August 1998, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:                 THE FACTS The applicant is a United Kingdom national, who was born in 1957 and lives in London. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The events described below took place between January 1998 and February 1999. The applicant contacted the police after he was attacked by a young man with whom he had had homosexual relations. The applicant was arrested for allegedly engaging in buggery with a young man aged 16 years of age contrary to section 12(1) and schedule 2 of the Sexual Offences Act 1956. He was released on police bail the following day and was subsequently formally charged. The applicant attended before the Magistrates’ Court on four occasions and each time he was bailed to re-appear. During this period, the applicant wrote to the Crown Prosecution Service (CPS) and other government officials stating that the criminal proceedings against him violated his human rights, citing the case of Sutherland v. the United Kingdom (no.   25186/94, Commission’s report of 1 July 1997, unreported). The applicant subsequently applied for leave to apply for judicial review of the CPS decision to prosecute him but this application was rejected. He was committed for trial at the Central Criminal Court but the criminal trial was adjourned pending the outcome of his renewed application for leave to apply for judicial review. The latter application was rejected by the High Court. The CPS later advised the applicant by letter that it had decided not to proceed with the case against him and that he should accordingly attend the Central Criminal Court on a particular date. On that date he was formally acquitted by that court. B.     Relevant domestic law 1.     The law applicable at the time of the relevant events Section 12(1) of the Sexual Offences Act 1956 (“the 1956 Act”) made it an offence for a person to commit buggery with another person. Pursuant to Section 13 of the 1956 Act it was an offence for a man to commit an act of “gross indecency” with another man, whether in public or private. Section 14(1) of the 1956 Act made it an offence for a person to commit indecent assault on a woman. Section 14(2) of the 1956 Act provided that a girl under the age of sixteen years of age could not give any consent which would prevent an act being an assault for the purposes of the section. Section 1 of the Sexual Offences Act 1967 (“the 1967 Act”) provided, inter alia , as follows: “(1)     Notwithstanding any statutory or common law provision ... a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years. ... (7)     For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act ...” The subsequent Criminal Justice and Public Order Act 1994 (“the 1994 Act”) replaced twenty-one years in the 1967 Act with eighteen years. 2.     The Sexual Offences (Amendment) Act 2000 (“the 2000 Act”) This Act entered into force on 8 January 2001. Section 1 reads: “(1)     In the Sexual Offences Act 1956- (a)     in subsections (1A) and (1C) of section 12 (buggery); and (b)     in sub-paragraphs (a) and (b) of paragraph 16 (indecency between men etc.) of Schedule 2 (punishments etc.), for the word ‘eighteen’ there shall be substituted the word ‘sixteen’.” COMPLAINTS A.     The applicant complains under Articles 8 and 14 of the Convention that he was discriminated against on the grounds of his sexual orientation by the existence of, and by his prosecution under, legislation that made it a criminal offence to engage in homosexual activities with men under 18 years of age whereas the age of consent for heterosexual activities was fixed at 16 years of age. He also complains under those Articles that he was discriminated against on the grounds of age by the decision to prosecute him while failing to prosecute the sixteen-year-old boy who would technically have been as guilty as he was of the same offence. B.     He further complains under Article 5 §§ 1 and 5 that he was arrested and placed on bail according to legislation which was incompatible with the Convention and that he had no enforceable right to compensation for this. He also complains about separate violations of Article 8: he argues that the existence and operation of the relevant legislation was an unjustifiable interference with his private life and he takes issue with the actions of police in searching his home, taking intimate samples and retaining his clothes. He also invokes Article 13 of the Convention. THE LAW A.     Complaints under Articles 14 in conjunction with Article 8 The applicant alleges discrimination on the grounds of his sexual orientation contrary to Article 14 in conjunction with Article 8 due to the existence of, and his prosecution under, legislation which made set down an age of consent for male homosexual relations different to the age of consent for heterosexual relations. He further alleges discrimination under these Articles on the grounds of age as he was prosecuted while the sixteen-year-old young man was not, although he was technically guilty of the same offence. Article 8, in so far as relevant, reads as follows: “1.     Everyone has the right to respect for his private ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ..., for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14, in so far as relevant, reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, ... or other status.” The Government concede that, on the facts of this application, the existence of, and prosecution of the applicant, under legislation providing for different ages of consent for homosexual and heterosexual activities constituted a violation of Article 14 taken together with Article 8 of the Convention. The Government remind the Court that the age of consent for homosexual and heterosexual activities has been equalised since 2001 and that they are now engaged in a comprehensive review of the law relating to sexual offences to ensure, inter alia , that legislation does not differentiate unnecessarily on the grounds of gender or sexual orientation. The Government further recall that, although prosecution proceedings were commenced against the present applicant, the CPS decided not to proceed with the charges and he was formally acquitted. The applicant submits that the CPS and the domestic courts ignored his warnings that the criminal proceedings against him violated his human rights and that his prosecution was contrary to the Commission’s approach in the case of Sutherland v. the United Kingdom (cited above). He emphasises that the prosecution was discontinued, not out of respect for the Convention, but because the complainant declined to testify. He notes that many other people have been convicted of the offence for which he was prosecuted and have served prison sentences. He recalls that the matter only came to the attention of the police because he reported being attacked by the complainant and he observes that, instead of being protected by the State, he was prosecuted in violation of the Convention. The Court considers, in the light of the parties’ submissions, that these complaints raise serious issues of fact and law under Article 14 in conjunction with Article 8 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaints are not manifestly ill-founded within the meaning of Article   35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. B.     Complaints under Articles 5, 8 and 13 By facsimile dated 10 January 2003 the applicant submitted further complaints to the Court. He complains that Article 5 §§ 1 and 5 of the Convention were violated as his arrest and bail were unlawful because they took place under legislation which was not compatible with the Convention and as he did not have an enforceable right to compensation. He also complains under Article 8 that the relevant legislation and the actions of the police (searching his house, taking intimate samples and retaining his clothes) constituted unjustifiable interferences with his private life. Further to his additional facsimile to the Court of 24 March 2003, he also invokes Article 13 of the Convention. The Court finds that his complaints under Article 5, under Article 8 (concerning his prosecution and the actions of the police to which he refers) and any connected complaint under Article 13 were introduced on 10   January and 24 March 2003. However, the proceedings (during which he was arrested, released on bail and the police actions are alleged to have taken place) terminated in February 1999. He also complains under Article 8 that the existence of “the law” constituted an unjustifiable interference with his private life. The Court considers that this complaint alleges a continuing violation of the Convention by the criminalisation of homosexual acts for persons under 18 years of age (the age of consent fixed by the 1994 Act). However, that age of consent was reduced to 16 years of age by the 2000 Act which came into force on 8 January 2001. This complaint under Article 8 as well as any connected complaint under Article 13 of the Convention were also introduced by the applicant on 10 January and 24 March 2003. In such circumstances, these complaints under Articles 5, 8 and 13 have been introduced outside of the time-limit set down by Article 35 § 1 of the Convention and must be declared inadmissible pursuant to Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 14 in conjunction with Article 8 concerning discrimination on the grounds of his sexual orientation and age; and Declares the remainder of the application inadmissible.   Michael O’Boyle   Matti Pellonpää   Registrar   President