Information Note on the Court’s case-law 49

January 2003

August v. the United Kingdom (dec.) - 36505/02

Decision 21.1.2003 [Section IV]

Article 8

Article 8-1

Respect for private life

Minor considered to have consented to sexual offences and therefore not eligible for victim compensation: inadmissible

Article 6

Civil proceedings

Article 6-1

Fair hearing

Refusal of compensation for minor considered to have consen ted to sexual offences: inadmissible

T he applicant was born in 1976 and taken into voluntary care by the local authority at the age of 8. He was subsequently diagnosed as being a disturbed child, in need of psychiatric assessment. In 1990, at the age of 13 and in residential care, the applican t engaged in sexual acts with a 53 year-old man (C.) in a public lavatory for payment. Further sexual acts were performed in the subsequent months. In 1993, C. was convicted of one count of buggery involving the applicant, in which the evidence was that th e former had been the passive participant, as well as two other offences. A sentence of 7 years’ imprisonment was imposed. This was reduced to 5 years on appeal, in particular in light of the applicant’s active and willing participation. In 1997, the appli cant applied to the Criminal Injuries Compensation Authority (CICA). His application was rejected on the basis that he was not a victim within the meaning of the law, had contributed to the incident and had since committed a series of criminal offences him self. The applicant appealed, arguing that although he had voluntarily engaged in sexual acts with an adult, as a minor he was incapable of consenting. He further cited the fact that he was in care and had a history of sexual abuse. The Appeal Panel reject ed his appeal, finding that there had not been a crime of violence. The applicant sought judicial review, producing a psychiatric report that indicated he was a damaged and vulnerable child, a type preyed upon by paedophiles, and arguing that in view of C. ’s age it could not be said that the applicant’s choice was informed. The High Court ruled that the absence of consent did not render the crime violent. Rather this was a matter of fact. The applicant appealed unsuccessfully to the Court of Appeal. Leave t o appeal to the House of Lords was refused.

Inadmissible under Article 8: The situation in this case was significantly different from X and Y v. the Netherlands , since C. had been prosecuted, convicted and sentenced to a substantial term of imprisonment. I t could not be said that United Kingdom criminal law condoned or permitted the acts that C. performed. Regarding the applicant’s unsuccessful claim for compensation, Article 8 did not include as such the right to compensation. Nor could it be argued that t he provision of an ex gratia award by the State to the applicant formed part of the deterrent framework to protect children effectively against adult abusers. The decision of the courts not to equate sexual offences against children with crimes of violence in all circumstances did not deprive the applicant of protection of his physical and moral integrity. The applicant had been a willing, active participant in the sexual acts and sought to make money from them. It was not inconsistent with the acknowledgem ent of the applicant’s vulnerable and damaged character to find that he was not a victim of violence: manifestly ill-founded .

Inadmissible under Article 6 § 1: The Criminal Injuries Compensation scheme was not concerned with civil or tortious liability for injury, rather with ex gratia payments. Even assuming that the proceedings before the CICA and the Appeal Panel did come within the scope of Article 6(1), this provision did not guarantee any particular content for “rights and obligations” within the domestic legal order. The decision s taken by the relevant bodies regarding the substantive content of any “right” were matters which in general fell outside the scope of the Court’s supervision. As the applicant had had access to the courts with legal representation and the opportunity to make his arguments, there was no appearance of unfairness in the proceedings: manifestly ill-founded .

Inadmissible under Article 14: Even assuming that the applicant’s complaints could, arguably, fall within the scope of either Article 8 or Article 6, he c ould not claim to be a victim of discrimination. The compensation scheme was restricted to certain categories of criminal offences, particularly “crimes of violence”. This criterion applied to adults and children alike, with each decision as to whether the crime was violent being made on the facts of each case. The taking into account of the applicant’s participation in the offences did not disclose a difference of treatment based on any element of his personal status. Though children were often more vulner able and more in need of protection than adults, this was not a general justification for different considerations when assessing eligibility for compensation for criminal injuries. The restriction of the compensation scheme to particularly serious crimes of violence fell within the State’s margin of appreciation and could be regarded as having objective and reasonable justification: manifestly ill-founded .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Co urt.

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