SECOND SECTION

DECISION

Application no. 44263/98 by Stephen AUSTIN against the United Kingdom

The European Court of Human Rights (Second Section) , sitting on 3 September 2002 as a Chamber composed of

Mr J.-P. Costa , President , Sir Nicolas Bratza , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 10 August 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, Stephen Austin, is a United Kingdom national, who was born in 1958 and lives in Worcester . He was represented before the Court by Mr J. Welch, a lawyer from Liberty, London. The respondent Government were represented by Mr H. Llewellyn, Foreign and Commonwealth Office, London.

A. The circumstances of the case

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

Between 1991 and 1996 the applicant had engaged in mutual masturbation and oral sex with two other adult males on private premises. Later, one of the people involved no longer wished to be involved in a relationship with the applicant. He therefore contacted his father, a police inspector. A police investigation followed resulting in criminal proceedings against the applicant. On 23 January 1997 the applicant was reported for two offences of indecent assault and two offences of gross indecency. The proceedings lasted until 13 February 1998 when the applicant was sentenced to a 12 month conditional discharge for two offences of gross indecency, contrary to section 13 of the Sexual Offences Act 1956, to which he had pleaded guilty.

The applicant did not appeal against the conviction or sentence as he was advised by counsel that he had no grounds for appealing.

COMPLAINTS

The applicant complained that the prosecution and conviction for gross indecency amounted to a violation of his right to respect for his private life as protected by Article 8 of the Convention. He further complained that he suffered discrimination on the grounds of sex and sexual orientation, in breach of Article 14 of the Convention in conjunction with Article 8, because there is no equivalent offence to Section 13 of the 1956 Act governing heterosexual activity and lesbian activity.

THE LAW

By letter dated 25 June 2002 the applicant’s representative notified the Court that he had accepted the Government’s offer to settle the case on the payment of GBP 30,000 by way of compensation and GBP 5,317.92 for costs and expenses and that both sums had been paid. He also stated his wish that the case should be struck out of the list of cases.

The Court notes that the applicant has reached agreement with the Government and wishes to withdraw his application in the light of the payment of GBP 35,317.92.

The Court finds that the applicant no longer wishes to pursue his application within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocol which require the examination of the application be continued. It therefore grants the applicant’s request.

For these reasons, the Court unanimously

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

S. Dollé J.-P. Costa Registrar President