by Luke SMALL
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 2 June 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 12 February 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Luke Small, is a British national who was born in 1989 and lives in Jersey. He was represented before the Court by Mr A. Begg, an advocate practising in Jersey. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton 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.
The applicant is homosexual. At the time of lodging this application, he was sixteen years of age. He became aware of his attraction to other men when he was thirteen years of age. He had his first homosexual encounter when he was sixteen with another person of his own age who was also homosexual. They had sexual relations but both worried about the relevant law of Jersey at the material time which only decriminalised homosexual acts in private if the parties consented and were at least eighteen years of age. He further alleged that the Jersey police investigated his private life and attempted to prosecute his partner under this law.
B. Relevant domestic law
At the material time, section 1(1) of the Sexual Offences (Jersey) Law 1990 provided that a homosexual act in private was not punishable as sodomy if the parties to the act consented and had attained eighteen years of age. Acts of homosexuality between women were not criminal offences and it was an offence for a man to have sexual intercourse with a girl under sixteen years of age.
The applicant complained that the fixing of the minimum age for lawful homosexual activities between men at eighteen years of age, rather than sixteen as for heterosexual activities, violated his right to respect for private life under Article 8 of the Convention and was discriminatory in breach of that Article taken in conjunction with Article 14.
On 20 March 2009 the Court received the following declaration from the Government:
“[T]he Government would therefore be prepared to pay the sum 5,830 Euros in full and final settlement of the applicant’s claim, including all alleged and non-pecuniary damage and costs. The Government also note the following as a term of this friendly settlement. The Sexual Offences (Jersey) Law 2007 reduced the age of consent for sexual activities for homosexual men from 18 to 16, thereby equalising the age of consent between homosexual men with the age of consent between men and women. The 2007 Law entered into force on 12 January 2007.”
On 28 April 2009 the Court received the following declaration signed by the applicant’s representative on the applicant’s behalf:
“I, Luke Small, note that the Government of the United Kingdom are prepared to pay me EUR 5,830 (five thousand eight hundred and thirty euros), covering pecuniary and non-pecuniary damage and costs and expenses, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum will be free of any taxes that may be applicable. The sum in euros will be converted into pounds sterling at the rate applicable on the date of payment. The sums will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against the United Kingdom in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention), having regard in particular to the legislative changes mentioned in the Government’s declaration. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Lech Garlicki
Deputy Registrar President