European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 40160/03
by Peter HOCKING
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 7 October 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 18 December 2003,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Peter Hocking, is a British national who was born in 1972 and lives in Manchester. He was represented before the Court by Wacks Caller, a firm of solicitors based in Manchester. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Background facts

The applicant was, at the material time, a Flight Lieutenant in the Royal Air Force. He claimed that he was dismissed from the armed forces on 2 February 1999 pursuant to the policy of the Ministry of Defence against homosexuals in the armed forces.

2.  Domestic proceedings

On 30 April 1999 the applicant commenced proceedings in the Croyden Employment Tribunal arguing that his dismissal, and the treatment to which he was subjected, breached the Sex Discrimination Act 1975 (“the 1975 Act”). As a result of the House of Lords' judgment in MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland) dated 19 June 2003, the Tribunal ordered his case to be struck out on 24 October 2003.

B.  Relevant domestic law and practice

The law and practice in force at the relevant time concerning the dismissal of homosexuals from the armed forces are described in the judgments of the Court in the cases of Lustig-Prean and Beckett v. the United Kingdom (nos. 31417/96 and 32377/96, 27 September 1999) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, ECHR 1999-VI).

COMPLAINTS

The applicant complained under Article 8 of the Convention alone and in conjunction with Article 14 of the Convention, about:

(a) his dismissal from the armed forces pursuant to the absolute policy against homosexuals in those forces; and

(b) the harassment to which he had been subjected in the process of his dismissal.

He further complained under Article 13 of the Convention about the lack of an effective remedy in respect of the above matters.

THE LAW

Article 37 § 1 of the Convention provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;...

(b) the matter has been resolved; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”

On 20 December 2005 the respondent Government were given notice of the application and requested to submit their written observations on the admissibility and merits of the case.

In their submissions dated 28 April 2006 the Government accepted that the tribunal proceedings lodged by the applicant were effective within the meaning of Article 35 § 1 of the Convention so that his claim had therefore been introduced with the Court within the six-month time-limit laid down by the same provision. They further accepted that the applicant's dismissal from the armed forces, as well as the investigation into his sexual orientation, violated Article 8 of the Convention alone and in conjunction with Article 13.

On 2 May 2006 the applicant's representative informed the Court that the case had been settled and that the applicant wished to withdraw his claim. On 16 May 2006 the parties were requested to provide the Court with the terms of their settlement. On 23 May 2006 the applicant's representative submitted the agreement to the Court. On 5 June 2006 the Government informed the Court that the amounts specified in the agreement had been paid to the applicant. The Court has had regard to the terms of the agreement reached between the applicant and the respondent Government and finds that the applicant does not intend to pursue his petition within the meaning of Article 37 § 1 (a) and that the matter has been resolved within the meaning of Article 37 § 1 (b).

Having regard to the Court's findings in, inter alia, Lustig-Prean and Beckett v. the United Kingdom (cited above) and Smith and Grady v. the United Kingdom (cited above) as well as the Government's admissions in the terms of the agreement and payment of the amounts agreed to the applicant, the Court concludes that respect for human rights as defined in the Convention and its Protocols does not require a continuation of the examination of the case. It therefore decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) and (b) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President