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FIFTH
SECTION
CASE OF
E.S. v. SWEDEN
See also: [2013] ECHR 1128
(Application
no. 5786/08)
JUDGMENT
STRASBOURG
21 June
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of E.S. v. Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
André Potocki, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 15 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5786/08)
against the Kingdom of Sweden lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Swedish national, Ms E.S. (“the applicant”), on
21 January 2008. The President of the
Section acceded to the applicant’s request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Mr J. Södergren, a lawyer
practising in Stockholm. The Swedish Government (“the
Government”) were represented by their Agent, Ms C. Hellner.
3. The
applicant invoked, in particular, that the Swedish State had
failed to comply with its obligations under Article 8 of the
Convention to provide her with remedies against a violating act of
her stepfather. She also invoked Article 13 of the
Convention.
- On
7 January 2009 the President of
the Fifth Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1987.
- In
September 2002, when the applicant was 14 years old, she discovered
that her stepfather had hidden a video camera in the laundry basket
in the bathroom. The camera was directed at the spot where the
applicant had undressed before taking a shower.
- The
incident was reported in 2004 and on 21 October 2005 the public
prosecution indicted the stepfather for sexual molestation (sexuellt
ofredande) under Chapter 6, section 7 of the Penal Code due to
the said event.
- On
20 January 2006, represented by an officially appointed counsel
(målsägandebiträde), the applicant submitted a
claim for damages of 25,000 Swedish kronor (SEK) (approximately EUR 2
750) to be joined to the criminal proceedings. The basis of the claim
was that the stepfather had, through the act for which he was being
prosecuted, severely violated the applicant’s personal
integrity and should therefore pay compensation for the violation and
for her pain and suffering.
- Before
the District Court (Falu Tingsrätt), the applicant, her
stepfather, her mother and a cousin were heard. The applicant
explained that on the relevant day, just before she was about to take
a shower, her stepfather had something to do in the bathroom. When
she discovered the camera, it was in recording mode, making a buzzing
sound and flashing. She did not touch any of the buttons. Crying, she
took the video camera, wrapped in a towel, to her mother. The
stepfather took the camera from the mother. Subsequently, the
applicant saw her mother and stepfather burn a film, but she was not
sure whether it was a recording of her.
- The
applicant’s mother confirmed the applicant’s statement
and added that she did not know whether anything had been recorded
since the film had been burned without her seeing it. She had not
reported the incident to the police until 2004, when she had heard
that the applicant’s cousin had also experienced incidents with
the accused.
- The
stepfather explained that he had lived with the applicant’s
mother from 1997 to the autumn of 2003. They had separated due to,
inter alia, the incident in question. He had wanted to try to
film with a hidden camera, but it was an impulsive act. He was not
sure whether the camera had been in recording mode or whether any
film had been recorded. The applicant’s mother had burned the
film without any of them seeing it.
- By
judgment of 14 February 2006 the District Court convicted the
stepfather. It found it established that he had had a sexual intent
in hiding the camera in the laundry basket and directing it at the
part of the bathroom where it was usual to undress. It added that the
buzzing sound from the camera perceived by the applicant strongly
suggests that the camera was switched on and actually did record.
Otherwise, there would be no point in hiding the camera among the
clothes in the laundry basket. The hole in the laundry basket
indicated that the approach was quite refined. Regardless of the fact
that, afterwards, no one verified the contents of the film, it can
under the present circumstances be considered established that the
stepfather actually filmed the applicant when she appeared nude.
- In
the judgment, in which the stepfather was also convicted of three
additional acts of sexual molestation against the applicant and her
cousin, a suspended sentence combined with compulsory community
service for seventy-five hours was imposed on him. Moreover, he was
ordered to pay the applicant damages in the amount of SEK 20,000.
- On
appeal, by judgment of 16 October 2007, the Court of Appeal (Svea
hovrätt) acquitted the stepfather of the incident in
question.
-
The court found it established that the stepfather had put a camera
in the bathroom and that he had started the recording system before
the applicant was about to take a shower. Whether a recording had
actually been made, however, was unclear. It was apparent, the court
continued, that the stepfather’s motive was to film covertly
the applicant for a sexual purpose. Given this motive, it was also
regarded as certain that the stepfather did not intend the applicant
to find out about the filming. Nor was he, according to the court,
indifferent to the risk that she would find out about it. The court
thereafter assessed whether the act legally constituted sexual
molestation within the meaning of Chapter 6, section 7 of the Penal
Code. It referred to a Supreme Court judgment (NJA 1996 p. 418) in
which the Supreme Court had held, among other things, that the
filming of sexual abuse was not a crime in itself as in Swedish law
there was no general prohibition against filming an individual
without his or her consent. Following that line of reasoning, and
although finding that the act in question constituted a violation of
personal integrity, notably in the light of the applicant’s age
and relationship to her stepfather, the Court of Appeal found that
the stepfather could not be held criminally responsible for the
isolated act of filming the applicant without her knowledge. Even if
she had indeed obtained knowledge of the filming, the court
reiterated, this knowledge was not covered by the stepfather’s
intent.
- The
Court of Appeal went on by pointing out that the act might, at least
theoretically, have constituted an attempted child pornography crime
(försök till barnpornografibrott) considering the
applicant’s age. However, since no charge of that kind had been
brought against the stepfather, the Court of Appeal could not
consider whether he could be held responsible for such a crime. In
conclusion, despite finding the stepfather’s behaviour
extremely reprehensible, he was acquitted and the applicant’s
claim for damages dismissed.
- On
12 December 2007 the Supreme Court (Högsta domstolen) refused
leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Penal Code (Brottsbalken, 1962:700)
include the following:
Chapter 6 on sexual crimes
Section
1
“A person who by violence or threat which
involves, or appears to the threatened person to involve an imminent
danger, forces another person to have sexual intercourse or to engage
in a comparable sexual act, that having regard to the nature of the
violation and the circumstances in general, is comparable to forced
sexual intercourse, shall be sentenced for rape to imprisonment for
at least two and at most six years. Causing helplessness or a similar
state of incapacitation shall be regarded as equivalent to violence.
If having regard to the nature of the violence or the
threat and the circumstances in general, the crime is considered less
serious, a sentence of imprisonment for at most four years shall be
imposed. If the crime is gross, a sentence of imprisonment for at
least four and at most ten years shall be imposed for gross rape. In
assessing whether the crime is gross, special consideration shall be
given to whether the violence involved a danger to life or whether
the perpetrator caused serious injury or serious illness or, having
regard to the method used or the victim’s youth or other
circumstances, exhibited particular ruthlessness or brutality.”
Section 2
“A person who, under circumstances other than
those defined in Section 1, makes someone engage in a sexual act by
unlawful coercion shall be sentenced for sexual coercion to
imprisonment for at most two years. If the person who committed the
act exhibited particular ruthlessness or if the crime is otherwise
considered gross, a sentence of at least six months and at most four
years shall be imposed for gross sexual coercion.”
Section 3
“A person who induces another person to engage in
a sexual act by gross abuse of his or her dependent state shall be
sentenced for sexual exploitation to imprisonment for at most two
years. The same shall apply to a person who engages in a sexual act
with another person by improperly taking advantage of the fact that
the latter is helpless or in some other state of incapacitation or is
suffering from a mental disturbance. If the accused has exhibited
particular ruthlessness or if the crime is otherwise to be considered
gross, imprisonment for at least six months and at most six years
shall be imposed for gross sexual exploitation.”
Section 4
“A person who engages in a sexual act with someone
under eighteen years of age and who is that person’s offspring
or for whose upbringing he or she is responsible, or for whose care
or supervision he or she is responsible by decision of a public
authority, shall be sentenced for sexual exploitation of a minor to
imprisonment for at most four years. This also applies to a person
who, in circumstances other than those mentioned previously in this
Chapter, engages in a sexual act with a child of under fifteen years.
If the person who committed the act exhibited particular lack of
regard for the minor or if the crime by reason of the minor’s
young age or otherwise is regarded as gross, imprisonment for at
least two and at most eight years shall be imposed for gross sexual
exploitation of a minor.”
Section 5
Repealed
Section 6
“If a person has sexual intercourse otherwise than
as previously provided in this Chapter with his or her own child or
its offspring, imprisonment for at most two years shall be imposed
for sexual intercourse with offspring. A person who has sexual
intercourse with a blood sibling shall be sentenced to imprisonment
for at most one year for sexual intercourse with a sibling. The
provisions of this Section do not apply to a person who has been made
to commit the act by unlawful coercion or other improper means.”
Section 7
Before 1 April 2005 the
section provided, in as far as relevant, the following:
“If a person sexually touches a child less than
fifteen years of age otherwise than as previously provided in this
Chapter, or induces the child to undertake or participate in an act
with sexual implication, a fine or imprisonment for at most two years
shall be imposed for sexual molestation.
A sentence for sexual molestation shall also be imposed
on a person who by coercion, seduction or other improper influence
induces a person who has attained the age of fifteen but not eighteen
to undertake or participate in an act with sexual implication if the
act is an element in the production of pornographic pictures or
constitutes pornographic posing in circumstances other than those
relating to the production of a picture.
This shall also apply if a person exposes himself or
herself in such a manner that the nature thereof gives offence or
otherwise manifestly behaves indecently by word or deed towards the
latter in a way that flagrantly violates a sense of propriety.”
(Law 1994:1499)”
Currently, the relevant
legislation is placed in Chapter 6, section 10 and reads as follows:
“A person who, otherwise than as previously
provided in this Chapter, sexually touches a child under fifteen
years of age or induces the child to undertake or participate in an
act with sexual implications, shall be sentenced for sexual
molestation to a fine or imprisonment for at most two years.
This also applies to a person who exposes himself or
herself to another person in a manner that is likely to cause
discomfort or who otherwise by word or deed molests a person in a way
that is likely to violate that person’s sexual integrity.”
(Law 2005:90)”
Section 8
“A person who promotes or improperly financially
exploits casual sexual relations for payment of another person shall
be sentenced for procuring to imprisonment for at most four
years. A person who, holding the right to the use of premises, grants
the right to use them to another in the knowledge that the premises
are wholly or to a substantial extent used for casual sexual
relations for payment and omits to do what can reasonably be expected
to terminate the granted right, he or she shall, if the activity
continues or is resumed at the premises, be considered to have
promoted the activity and shall be sentenced in accordance with the
first paragraph.”
Section 9
“If the crime provided for in Section 8 is gross,
imprisonment for at least two and at most six years shall be imposed
for gross procuring. In assessing whether the crime is gross,
special consideration shall be given to whether the accused promoted
casual sexual relations for payment on a large scale or ruthlessly
exploited another.”
Section 10
“A person who, by promising or giving recompense,
obtains or tries to obtain casual sexual relations with someone under
eighteen years of age, shall be sentenced for seduction of youth to a
fine or imprisonment for at most six months.”
Section 11
“Criminal responsibility as provided for in this
Chapter for an act committed against someone under a given age shall
be required of a perpetrator who did not realise, but had reasonable
grounds for assuming, that the other person had not attained such
age.”
Section 12
“An attempt to commit rape, gross rape, sexual
coercion, gross sexual coercion, sexual exploitation, gross sexual
exploitation, sexual exploitation of a minor, gross sexual
exploitation of a minor, procuring and gross procuring shall be dealt
with in accordance with the provisions of Chapter 23. This also
applies to preparation for and conspiracy to commit rape, gross rape,
gross sexual exploitation of a minor and gross procuring, together
with failure to reveal such crime.”
Section 13
“If, in a case of sexual exploitation of a minor
under Section 4, first paragraph, second sentence or an attempt to
commit such a crime, or in a case of sexual molestation under Section
7, first paragraph, there is little difference in age and development
between the person who committed the act and the child, public
prosecution shall not occur unless it is called for in the public
interest.”
Chapter 16 on crimes against public order
Section
10 a
“A person who
1) portrays a child in a pornographic picture;
2) disseminates, transfers, grants use, exhibits or in
any other way makes such a picture of a child available to some other
person;
3) acquires or offers such a picture of a child;
4) brings about contact between a buyer and a seller of
such pictures of children or takes any other similar step to
facilitate dealing in such pictures; or
5) possesses such a picture of a child
shall be sentenced for committing a child pornography
crime to imprisonment for at most two years, or, if the crime
is petty, to a fine or imprisonment for at most six months.
By child is meant a person whose pubertal development is
not complete or who is less than 18 years of age. If a person’s
pubertal development is completed, liability will be imposed for
deeds committed under points 2-5 above only if is apparent from the
picture or its attendant circumstances that the depicted person is
less than 18 years of age.
....” (Law 2010:1357)”
Before
1 January 2011, the second paragraph of the section read:
“By child is meant a person whose pubertal
development is not complete or, if it is apparent from the picture
and its attendant circumstances, who is less than 18 years of age.
...”
Chapter 16, section 17
“A person preparing or conspiring to mutiny [...]
shall be sentenced in accordance with the provisions of Chapter 23.
The same shall also apply [...] to the crime of attempting to commit
a child pornography crime described in section 10a, first paragraph
.... (Law 2010:399)
...”
Chapter 23, section 1
“A person who has begun to commit a crime without
bringing it to completion shall, in cases where specific provisions
exist for the purpose, be sentenced for attempting to commit a crime
if there was a danger that the act would lead to the completion of
the crime or such danger had been precluded only because of
fortuitous circumstances.
Punishment for attempt shall be at most what is
applicable to a completed crime and not less than imprisonment if the
least punishment for the completed crime is imprisonment for two
years or more.”
19. The
Code of Judicial Procedure (Rättegångsbalken 1942:740)
provides in so far as relevant:
Chapter 17, section 3
“A judgment may not be given for something else or
more than that properly demanded by a party. In cases amenable to
out-of-court settlement, the judgment may not be based on
circumstances other than those pleaded by a party as the foundation
of his action.”
Chapter 30, section 3
“The judgment may relate only to an act for which
a prosecution was properly instituted or to a matter referred by
statute to the court’s criminal jurisdiction. The court is not
bound by a claim regarding the legal characterisation of the offence
or applicable provisions of law.”
- The
Tort Liability Act (Skadeståndslag 1972:207) provides in
so far as relevant:
Chapter 2, section 1
“Anyone who deliberately or negligently causes a
personal injury or damage to property shall compensate the injury or
damage inferred. (SFS 2001:732)”
Chapter 2, section 3
“Anyone who seriously violates another person
through a crime involving an attack against the person, freedom,
serenity or honour of that person shall compensate the damage the
violation inferred. (SFS 2001:732)”
A. Domestic practice concerning covert filming
- In
a judgment of 16 October 1992 (NJA 1992 p. 594) concerning a person
who had secretly filmed sexual intercourse between himself and his
girlfriend and who had subsequently shown the film to several
persons, the Supreme Court noted that it was not prohibited under
Swedish law to film another person without his or her consent or to
show the film to others. This was so, the court continued, even in
situations where the deed in question deeply violated the personal
integrity of the person concerned. Apart from certain exceptional
situations, the only general sanctions available were the criminal
provisions on defamation in conjunction with Chapter 1, section 3 of
the Torts Liability Act (now Chapter 2, section 3 of the named act).
The court found that the accused person had committed defamation by
showing the film to others.
- A
further judgment dated 27 June 1996 (NJA 1996 p. 418) concerned a man
who had filmed and photographed a sleeping woman while assaulting her
and committing sexual offences against her. The District Court found
his acts to constitute, inter alia, sexual molestation. The
Court of Appeal and the Supreme Court held that the filming and
photographing did not constitute criminal offences under Swedish law
and that these acts were thus to be disregarded when assessing the
man’s conduct under criminal law.
- Yet
another judgment dated 23 October 2008 (NJA 2008 p. 946) concerned,
inter alia, a person who had covertly filmed his ex-girlfriend
with another man in an intimate situation and who had subsequently
e mailed the film, together with certain descriptive messages,
to others. The Court of Appeal found the filming to constitute
molestation and the sending of some of the e-mails to amount to
defamation. It also awarded the ex girlfriend damages for, inter
alia, violation of personal integrity. The Supreme Court granted
leave to appeal concerning only the former alleged offence, namely
the sexual molestation, and the issue of damages. The court
reiterated that Swedish law contained no general prohibition against
covert filming. The court also noted that in cases where the covert
filming did not constitute a crime, no damages could be awarded.
Although the need for a strengthened legal scheme in this regard had
been acknowledged in Swedish legislative work already in the 1960s,
the Court further noted, it had so far not led to any concrete
results. According to the court, it was highly questionable whether
the fact that acts of filming of an individual in situations where
such filming deeply violated the personal integrity of the person
concerned were left wholly unsanctioned under Swedish law, was
compatible with the requirements of Article 8 of the Convention.
Given this finding, the court continued, it was legitimate to examine
whether sanctions could be provided by interpreting otherwise
non-applicable domestic provisions in a treaty-conform manner. In
this regard, the court referred to domestic case-law concerning
compensation for violations of the Convention (see paragraphs 27-29
and 30). However, the court noted, another requirement under the
Convention was that no one should be punished for an act which, at
the time when it was committed, was not clearly criminalised by law.
After having found that the filming in the present case did not fall
under any applicable criminal provision, it was left unsanctioned and
no damages were awarded.
B. Pending legislative work concerning covert filming
- In
January 2011 the Swedish Ministry of Justice issued a report on
illicit photographing (Ds 2011:1) in which it proposed to criminalise
such photographing - the term being used as meaning both
photographing and filming - in certain situations. The aim of the
proposal was in particular to protect individuals from interference
in their private sphere by other individuals. It was proposed that
the new criminal provision should cover anyone who, in a manner
violating another individual’s personal integrity, photographed
or by other technical means recorded a picture of the individual in a
home, bathroom, changing closet or a similar space. Moreover, the
provision was proposed also to cover photographing or recording in
any other space than the ones mentioned, if the act was committed in
a pushy, covert or intrusive manner or if it constituted a serious
violation of another individual’s personal integrity in his or
her capacity as a private person. It was proposed that sentences
under the provision could range from penalties to imprisonment of up
to one year. According to the report, no need to criminalise
attempted photographing had emerged and it was therefore proposed
that such acts, an example being the placing of technical equipment
with the aim to film someone, were not to be covered by the new
provision.
- In
outlining the reasons for the proposal it was stated, inter alia,
that acts of covert or unauthorized filming of individuals by other
individuals had constituted a general problem for a long time and
that the problem was growing. The technical development had resulted
in that individuals could be photographed at in principal any place,
at any time and in any circumstances. It was also acknowledged that
such acts may violate an individual’s personal integrity
regardless of whether he or she was made aware of the filming while
it was ongoing or found out about it at a later stage. The report
also referred to domestic case-law and noted that although the
showing of a photograph or film to other people had been found to
constitute a criminal act in some cases, the mere filming had been
left unsanctioned. The report furthermore referred to Article 8 of
the Convention and to the State’s positive obligations under
the article. In all, the report concluded, it was held unsatisfactory
that acts such as the ones at issue were not prohibited by law.
C. Domestic practice concerning child pornography crime
- In
a judgment of 25 February 2005 (NJA 2005 p. 80), which concerned the
photographing and filming of certain young individuals aged over 15
but under 18, the Supreme Court held that the pubertal development of
the individuals was clearly complete and that it was impossible, from
the pictures alone, to determine whether they had attained the age of
18 or not. Their age could moreover not be read from any text
accompanying the pictures or any other attending circumstances. In
such a situation, and regardless of whether the person responsible
for the pictures was aware of the individuals’ age or not, the
act could not be held to constitute a child pornography crime.
D. Domestic practice and ongoing legislative work
concerning compensation for violations of the Convention
- In
a judgment of 9 June 2005 (NJA 2005 p. 462) concerning a claim for
damages brought by an individual against the Swedish State, inter
alia, on the basis of an alleged violation of Article 6 of the
Convention on account of the excessive length of criminal
proceedings, the Supreme Court held that the plaintiff’s right
under Article 6 of the Convention had been violated. Based on this
finding, and with reference, inter alia, to Articles 6 and 13
of the Convention and the Court’s case-law under these
provisions, in particular the case of Kudła v. Poland ([GC],
no. 30210/96, ECHR 2000 XI), the Supreme Court concluded that
the plaintiff was entitled to compensation under Swedish law for both
pecuniary and non-pecuniary damages.
- In
a decision of 4 May 2007 (NJA 2007 p. 295), concerning length of
detention, the Supreme Court held that the principle concerning a
right to damages established in the above-mentioned case of 9 June
2005 also applied with regard to the rights contained in Article 5 of
the Convention. The Supreme Court stated that the plaintiff’s
right to damages on account of a violation of the Article should be
assessed in the first place under domestic law which, to the extent
necessary, should be interpreted in accordance with the Convention.
If Sweden’s obligations under Article 5 § 5 could not
be met by such an interpretation, the domestic courts should award
compensation without the support of specific legal provisions.
- In
a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court
held that the plaintiffs’ right to respect for their private
life under Article 8 of the Convention had been violated as a police
decision on a medical examination of some of them had not been “in
accordance with the law”. Having found that compensation for
the violation could not be awarded directly on the basis of the Tort
Liability Act, the Supreme Court held that there was no reason to
limit the scope of application of the principle established in the
above-mentioned two cases to violations of Articles 5 and 6 of the
Convention and concluded that the plaintiffs should be awarded
non-pecuniary damages for the violation of Article 8.
- A
further Supreme Court decision of 29 October 2007 (NJA 2007 p. 747)
concerned a claim for damages brought by an individual against a
private insurance company. The claim concerned an alleged violation
of Article 8 of the Convention related to secret surveillance
undertaken in respect of the plaintiff. The Supreme Court noted that
the Convention did not impose duties on individuals. Even if the
State may have positive obligations under the Convention, the court
continued, in view of the rule of-law-value held by the
principle of predictability, an individual could not be obliged to
compensate another individual directly on the basis of the
Convention.
- Yet
another Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891)
concerned a claim for damages against the Swedish State on the basis
of an alleged violation of Article 2 of the Convention relating to
the suicide of the plaintiff’s father while in detention. The
Supreme Court concluded that the case revealed no violation of
Article 2. However, in its reasoning leading to this conclusion, the
Supreme Court noted, inter alia, that according to the Court’s
case-law there was a right to an effective remedy under Article 13
connected to the State’s duty under the Convention to take
measures to protect the lives of individuals in custody or who were
otherwise deprived of their liberty, which should, in principle,
include a possibility of obtaining compensation for damage.
- In
a judgment in 2009 (NJA 2009 n 70), which concerned length of tax
proceedings, the Supreme Court referred to the abovementioned
case law and held it to be a general principle that in so far as
the State had the obligation to compensate someone due to a
Convention violation and such compensation could not be awarded on
the basis of national law, the obligation was to be fulfilled by
awarding compensation without a particular reference to domestic law.
The ruling of the Supreme Court concerned only the amount of
compensation awarded.
- In
a judgment of 16 June 2010 (NJA 2010 p. 363), lastly, which
concerned, inter alia, length of proceedings before the
District Court and the Court of Appeal in a civil case against the
State, the Supreme Court found violations of Articles 6 and 13 of the
Convention and awarded the plaintiff compensation.
- Furthermore,
the Chancellor of Justice has delivered decisions concerning
compensation to individuals for violations of the Convention. In a
decision of 23 June 2009, the Chancellor of Justice awarded an
individual damages for violations found under, inter alia,
Articles 8 and 13. The case concerned, inter alia, storage of
certain personal information concerning the applicants in the data
bases of the Swedish Security Service.
- In
May 2009 the Government decided to set up a working group on tort
liability and the Convention to study the current legal situation. In
December 2010 the working group submitted its report (Skadestånd
och Europakonventionen, SOU 2010:87) to the Government. In the
report it is proposed that the Tort Liability Act be amended in order
to allow natural and legal persons to obtain damages from the State
or a municipality for violations of the Convention. Such an action
against public authorities would be examined by a general court which
would need first to establish that a right provided by the Convention
has been violated. The aim of the proposal is to provide a legal
basis for granting non-pecuniary damage arising from disregard of the
Convention, and to fulfil, together with the other already existing
legal remedies, Sweden’s obligations under Article 13 of the
Convention.
III. COUNCIL OF EUROPE SOURCES
- In
the Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse, drafted in October 2007, the Council
of Europe observed, inter alia, that the sexual exploitation
of children, in particular child pornography and prostitution, were
destructive to children’s health and psycho-social development
and that sexual exploitation and abuse of children had grown to
worrying proportions at both national and international level, in
particular as regards the increased use by both children and
perpetrators of information and communication technologies. The
Convention therefore obliged its Parties to take the necessary
legislative or other measures to prevent all forms of sexual
exploitation and sexual abuse of children and to criminalise certain
intentional conducts, including offences concerning child
pornography. The Convention was ratified by Sweden on 25 October 2007
and entered into force on 1 July 2010.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE
CONVENTION
- The
applicant complained that the Swedish State failed to comply with its
obligations under Article 8 to provide her with remedies against the
act of her stepfather. She also invoked Article 13 and complained
that her claims had not been effectively examined by the domestic
courts because the Court of Appeal had failed to award her
compensation from her stepfather based on the direct application of
the Convention.
- The Court recalls that it is the master of the
characterisation to be given in law to the facts of a case. In the
present case, it considers that the applicant’s complaint is
entirely directed against the remedies available to her against her
stepfather and that it does not include a complaint of lack of a
remedy against the State to enforce the substance of a Convention
right or freedom at the national level. The complaint is therefore to
be examined under Article 8 of the Convention alone, which provides
as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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 national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested the applicant’s claims.
A. Admissibility
- The
Court finds, and this is common ground between the parties, that the
applicant’s complaint concerned her moral integrity within the
concept of “private life” as defined by Article 8.
- The
Government maintained that the application was inadmissible because
the applicant had not exhausted the domestic remedies in respect of
claiming damages from the State due to the alleged violation of
Article 8 of the Convention. They referred to the Swedish Supreme
Court’s decisions and judgments of 9 June 2005, 4 May 2007, 21
September 2007 and 28 November 2007 as well as the Chancellor of
Justice’s decision of 23 June 2009 (see paragraphs 27-29,
31 and 34), in which individuals had been awarded compensation for
pecuniary and non-pecuniary damage due to the violation of various
Articles of the Convention. In the Government’s opinion,
Swedish law thus provided a remedy in the form of compensation for
both pecuniary and non-pecuniary damage in respect of any violation
of the Convention, including under Article 8. The application was
lodged with the Court two and a half years after the delivery of the
first of the mentioned Supreme Court judgments and four months after
the judgment of 21 September 2007 concerning Article 8 in
particular. Accordingly, the legal position under domestic law had to
be considered to have been sufficiently clear at the time when the
present application was introduced before the Court.
- The
applicant disagreed and maintained that the domestic remedies had
been exhausted. The applicant noted that a crucial feature
distinguishing the judgments referred to by the Government from the
present case was that the latter concerned an act committed by an
individual and not the State or any other part of the public sector
for which the State was directly or indirectly responsible.
Furthermore, the applicant noted the ongoing legislative work on the
subject (see paragraph 35) and maintained that the results of the
work as well as the final content of any proposed law in this field
would remain uncertain for a long period ahead.
- The
Court reiterates that the purpose of the requirement of exhaustion of
domestic remedies under Article 35 § 1 of the Convention is to
afford the Contracting States the opportunity to prevent or put right
the violations alleged against them before those allegations are
submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they
have had an opportunity to put matters right through their own legal
system. That rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available in respect of the alleged
breach in the domestic system. In this way, it is an important aspect
of the principle that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human
rights. Thus the complaint intended to be made subsequently to the
Court must first have been made – at least in substance –
to the appropriate domestic body, and in compliance with the formal
requirements and time-limits laid down in domestic law (see Selmouni
v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with
further references).
- Turning to the present case, the Court notes that the
early judgments referred to by the Government concerned matters under
Articles 5 and 6 of the Convention and that a judgment awarding
damages under Article 8 was delivered only four months before the
application at issue was lodged with the Court. Moreover, the
judgments and decisions referred to by the Government concerned acts
committed by the state or by organs under direct or indirect control
of the state while the present case concerns an alleged failure of
the State’s positive obligations due to an act committed by an
individual. The underlying issues in the cases mentioned by the
Government were thus different from those raised in the present case
and do not resemble the situation in the case at issue. While the
Court welcomes the development in Swedish law concerning the
possibility to claim compensation on the basis of alleged violations
of the Convention, it must be kept in mind that this development is a
rather recent one. Consequently, it cannot generally be required of
an individual applicant to pursue a compensation claim in respect of
Convention issues that have not been determined by the domestic
courts or are not closely related to issues that have been so
determined. The reason for this is that, in many of these cases, the
existence of the remedy cannot yet be considered as sufficiently
certain (see, for example, Bladh v. Sweden (dec.),
no. 46125/06, §§ 23-27, 10 November 2009 and
Fexler v. Sweden, no. 36801/06, §
44, 13 October 2011).
- In
these circumstances, in the Court’s view, it has not been shown
with sufficient clarity that, at the time of the applicant’s
lodging the present application, there existed a remedy which was
able to afford redress in respect of the violation alleged by the
applicant and which she should be required to have pursued. The
Government’s objection as to the exhaustion of domestic
remedies must therefore be dismissed.
- The
Court consequently notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant maintained that the Swedish legal
system contained no specific provision concerning acts of covert or
illicit filming and that it did not offer any remedy to protect her
against the concrete act of her stepfather. She pointed out the
outcome of the domestic proceedings and submitted that there was
nothing that she could have done differently in a procedural sense in
order to have a remedy in the national proceedings.
- The
applicant did not wish to argue that the behaviour was of such
character as necessarily to confer upon Sweden an obligation to set
up a system of criminal prosecution and punishment. However, by not
even awarding her non-pecuniary damages in the domestic proceedings
on the basis of the Torts Liability Act or the Convention alone, the
State had failed to fulfil its positive obligations under the
Convention. She argued that these obligations were particularly
important concerning vulnerable individuals like children and that
her vulnerability was accentuated in the present case as she had had
reason to have faith in the stepfather and as she was practically
under his custody.
- The
Government contended that it had fulfilled its positive obligations
under Article 8 in the present case.
- It
initially pointed out that even in cases of very severe offences,
such as the rape of a minor, the Court had repeatedly stated that
States enjoyed a wide margin of appreciation with regard to ensuring
adequate protection under Article 8 and that only significant flaws
in legislation and practice, and their application, would amount to a
breach of a State’s positive obligations under the said
provision.
- The
offence at issue, however, could not be characterised as a very
severe offence because, inter alia, there was no element of
physical contact between the applicant and her stepfather. The State
should therefore be afforded a very wide margin of appreciation and
could in this view not be considered obliged to introduce a general
prohibition against the photographing or filming of individuals
without their consent. The Government also noted that the applicant
did not argue that the act was such as to confer upon Sweden an
obligation to set up a system of criminal prosecution and punishment.
- The
Government further submitted that while there was no such general
prohibition in place under Swedish law, filming or the conduct of the
person filming could under certain circumstances constitute criminal
behaviour, in particular sexual molestation and child pornography
offence. Other penal provisions that may be applicable were breach of
domicile peace or, with regard to the handling of images, defamation.
- In
the present case, the Government observed, the Court of Appeal had
found that the stepfather’s act corresponded to the objective
criteria that constituted the offence of sexual molestation under
Chapter 6, section 7 of the Penal Code but that it was not possible
to prove the subjective element required for criminal liability under
that provision, namely his intent that the applicant would find out
about the filming. The domestic court had also held that the act
could, at least in theory, constitute an attempted child pornography
offence but that the indictment did not cover such an offence. The
Government pointed out, however, that it would have been difficult
for the public prosecution to establish such an offence because a
finding of a child pornography crime required a picture of a
pornographic nature and because, in the present case, the video tape
had been destroyed by the applicant’s mother without anyone
seeing it.
- In
sum, according to the Government, it was clear in the present case
that the act at issue fell within the scope of Swedish criminal
legislation, notably the provisions concerning sexual molestation and
child pornography offence. It was also clear that the stepfather had
been prosecuted for the act but could not be convicted due to, inter
alia, the lack of requisite evidence. Thus deterrent sanctions
existed in this case and were backed up by an effective
law-enforcement machinery. The Government recalled in this context
that the Convention did not require a guarantee that a prosecution
should result in a conviction (see, for example
Öneryıldız v. Turkey
[GC], no. 48939/99, § 96 and
147, ECHR 2004 XII).
- As
to the applicant’s claim for damage, the Government noted that
it had not been possible for the Court of Appeal to award damages
based on Chapter 2, section 3 of the Torts Liability Act as no crime
within the meaning of the Penal Code had been found. Nor could the
court award damages based on Article 8 of the Convention as a sole
legal ground. Finally, the applicant did not have the possibility of
claiming damages from the stepfather in subsequent civil proceedings,
as both the prosecution of the stepfather and her claim for damages
in connection to his act were finally adjudicated when the judgment
in the criminal proceedings gained legal force.
- In
the Government’s view, though, the applicant could in the
criminal proceedings have invoked other grounds for her claim for
damages directed against her stepfather than the act cited in the
indictment, notably that he had caused her personal injury by acting
negligently under chapter 2, section 1, of the Tort Liability Act.
This provision would have covered any physical and psychological
injury.
2. The Court’s assessment
(a) General principles
- The Court reiterates that although the object of
Article 8 is essentially that of protecting the individual against
arbitrary interference by the public authorities, it does not merely
compel the State to abstain from such interference: in addition to
this primarily negative undertaking, there may be positive
obligations inherent in an effective respect for private or family
life. These obligations may involve the adoption of measures designed
to secure respect for private life even in the sphere of the
relations of individuals between themselves (see Airey v. Ireland,
9 October 1979, § 32, Series A no. 32 and X and Y v. the
Netherlands, 26 March 1985, § 23, Series A no. 91).
- The
choice of the means calculated to secure compliance with Article 8 of
the Convention in the sphere of the relations of individuals between
themselves is in principle a matter that falls within the Contracting
States’ margin of appreciation, whether the obligations on the
State are positive or negative. There are different ways of ensuring
respect for private life and the nature of the State’s
obligation will depend on the particular aspect of private life that
is at issue (see, for example, Von Hannover v. Germany (no. 2)
[GC], nos. 40660/08 and 60641/08, § 104,
7 February 2012). Thus, where a particularly important facet
of an individual’s existence or identity is at stake, the
margin allowed to the State is correspondingly narrowed. The same is
true where the activities at stake involve a most intimate aspect of
private life (see, among others, Evans v. the United Kingdom
[GC], no. 6339/05, § 77, ECHR 2007 I and Mosley v.
the United Kingdom, no. 48009/08, § 109,
10 May 2011). The states are to maintain and apply in practice
an adequate legal framework affording protection against acts of
violence by private individuals (see, for example, A v. Croatia,
no. 55164/08, § 60, 14 October 2010). While recourse to the
criminal law is not necessarily the only answer, effective deterrence
against grave acts where fundamental values and essential aspects of
private life are at stake requires efficient criminal law provisions
(see, for example, X and Y v. the Netherlands cited above, §§
24 and 27, M.C. v. Bulgaria, no. 39272/98, §
150, ECHR 2003 XII and K.U. v. Finland, no. 2872/02,
§ 43, 2 December 2008).
As to lesser grave acts, the protection afforded by civil law
may be sufficient (see, mutatis mutandis, X and Y v. the
Netherlands cited above, § 27).
- It
must also be kept in mind that only significant flaws in legislation
and practice, and their application, would amount to a breach of the
State’s positive obligations under Article 8. The Court can not
replace the domestic authorities in the assessment of the facts of
the case; nor can it decide on the alleged perpetrator’s
criminal responsibility (see M.C. v. Bulgaria cited above, §
167-168). Nonetheless, the limits of the national authorities’
margin of appreciation are circumscribed by the Convention
provisions. In interpreting them, since the Convention is first and
foremost a system for the protection of human rights, the Court must
have regard to the changing conditions within Contracting States and
respond, for example, to any evolving convergence as to the standards
to be achieved (see, for example, Christine Goodwin v. the United
Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).
(b) Application of the principles to the
present case
- The
Government maintained that the act at issue fell within the scope of
Swedish criminal legislation, notably the provisions concerning
sexual molestation and child pornography offence. They pointed out in
this respect that although Swedish criminal law contained no specific
provisions concerning acts of covert or illicit filming, such acts
could nevertheless involve criminal behaviour under general Swedish
legislation, such as for example sexual molestation, child
pornography, breach of domicile peace or, with regard to the handling
of images, defamation. Swedish legislation also included civil law
rules providing for compensation due to violations of personal
integrity and personal injury. In support thereof, they pointed to
various domestic case law. Having regard thereto, the Court is
satisfied that, although Swedish law contained no specific provisions
concerning covert or illicit filming, there was a legal framework in
place which could, at least in theory, cover acts such as the one at
issue.
- The
incident took place in September 2002 and was reported to the police
in 2004. Acting thereon, the authorities initiated criminal
investigations against the stepfather, who was indicted of sexual
molestation on 21 October 2005. The matter was examined in criminal
proceedings before three legal instances, before which the applicant
was represented by an officially appointed counsel and had the
possibility to claim damages from the stepfather.
- With
regard to the outcome of the domestic proceedings, it will be
recalled that on 14 February 2006 the District Court convicted the
stepfather of sexual molestation. On 16 October 2007, the stepfather
was acquitted by the Court of Appeal. The latter found it unclear
whether a recording had actually taken place since the video tape had
been destroyed without anyone seeing it. The case before it thus
concerned an attempted act of covert filming as opposed to a
completed act. Moreover, although finding that the stepfather’s
aim had been to film the applicant covertly for a sexual purpose, it
also found he had not intended her to find out about the filming, nor
been indifferent to the risk that she may find out about the act.
Given this lack of requisite intent, the Court of Appeal found that
the act could not constitute sexual molestation under the Swedish
Penal Code. Consequently, the applicant’s claim for damages was
rejected. On 12 December 2007 the Supreme Court refused leave to
appeal.
- The
Court notes that at the relevant time similar outcomes had been seen
in Swedish case-law (see for example NJA 1996 p. 418, paragraph 22).
Nevertheless, there are no indications that it was clear to the
authorities, notably to the public prosecution, when indicting the
stepfather, or to the District Court, when convicting him on 14
February 2006, that the disputed act could not be covered by the
provision on sexual molestation. Shortly after the final judgment in
the current case, namely in October 2008, the Swedish Supreme Court
passed a judgment in another case (NJA 2008 p. 946, see
paragraph 23), in which it found inter alia that an impugned
completed act of covert filming did not constitute sexual
molestation. At the same time it expressed its view that it was
highly questionable whether the fact that acts of filming of an
individual in situations where such filming deeply violated the
personal integrity of the person concerned were left wholly
unsanctioned under Swedish law, was compatible with the requirements
of Article 8 of the Convention. It goes without saying, that the
authorities in the present case could not at the relevant time have
been aware of the subsequent Supreme Court judgment.
- It
will be recalled that the Court of Appeal in its judgment of
16 October 2007, acquitting the stepfather of sexual
molestation, pointed out that considering the applicant’s age
the act might, at least theoretically, have constituted an attempted
child pornography crime. However, since no charge of that kind had
been brought against the stepfather, the court could not consider
whether he could be held responsible for such a crime. The Government
maintained that it would have been difficult to establish such an
offence because that would have required at least a picture of
pornographic nature, which did not exist in the present case since
the video tape had been destroyed by the applicant’s mother.
The Court finds reason to add in this respect that obviously the
authorities could not be held responsible for the lack of evidence in
the form of a film, nor for the possibility that other elements may
also have been lacking for the offence to have constituted attempted
child pornography crime. Nevertheless, it notes that by virtue of
Chapter 16, section 17, a person could be convicted of attempted
child pornography described in section 10a, first paragraph, and that
the Court of Appeal specifically pointed to that possibility, at
least theoretically. It is not for the Court to speculate on why a
charge of attempted child pornography was not brought against the
stepfather in the present case. In any event it recalls that only
significant flaws in legislation and practice, and their application,
can constitute a breach of the State’s positive obligations
under Article 8. The Court cannot replace the domestic authorities in
the assessment of the facts of the case, nor decide on the alleged
perpetrator’s criminal responsibility.
- Having
regard to the findings above, it cannot be concluded that at the
relevant time the disputed act of the stepfather was not in theory
covered by the Penal Code. It could fall within the provision
concerning sexual molestation and attempted child pornography under
Chapter 6, section 7 and Chapter 16, sections 10 a) and 17. Nor can
it be concluded that any procedural requirements made it impossible
for the applicant to enjoy practical and effective protection by the
Penal Code. The case thus differs from, for example, X and Y v.
the Netherlands (cited above, §§ 29-30) in which the
main reason why the Dutch Penal Code could not provide Y practical
and effective protection against the serious physical sexual offence
to which she was subjected, was the procedural requirement in
Article 248 ter, that a complaint had to be lodged by Y as the
actual victim, and the fact that in the case of an individual like Y,
the legal representative could not act on her behalf for that
purpose. Finally, in the present case there were no obstacles, for
which the authorities could be held responsible, to launching an
effective investigation to identify and prosecute the perpetrator (as
opposed to for example, K.U. v. Finland, cited above, §
49).
- The
question remains of whether, in the special circumstances of the
present case, where the stepfather was acquitted of sexual
molestation, and no charge of attempted child pornography was brought
against him, it was a significant flaw in Swedish legislation that
the Penal Code did not contain another provision which could have
covered the act at issue. More concretely, it could be argued that if
the Penal Code at the relevant time had contained specific provisions
concerning acts of covert or illicit filming, completed and
attempted, such provisions could also have covered the act at issue
in the present case. In that assessment, it should be recalled
though, that civil law remedies were also available to the applicant
and that she, represented by counsel, chose to join her claim for
damages to the criminal proceedings.
-
The Court reiterates that, in cases arising from individual
petitions, its task is not to review the relevant legislation in the
abstract. It must confine itself, as far as possible, to examining
the issues raised by the case before it. Accordingly, its task is not
to assess in the abstract the absence in Swedish legislation of
specific provisions concerning acts of covert or illicit filming, nor
to assess the domestic case-law referred to in paragraphs 21-23, in
which acts of covert filming deeply violated the personal integrity
of the persons concerned but were left wholly unsanctioned.
- Accordingly,
the Court must confine itself to examining whether, in the present
case, in September 2002 when the incident took place, the absence of
a provision in the Penal Code on attempted covert filming constituted
a significant flaw in Swedish legislation. More specifically, in the
present case, should the legislators have foreseen that in a case of
attempted covert filming of a minor for a sexual purpose, where the
film was subsequently destroyed without anyone having seen it, and
where the person who filmed did not intend the minor to find out
about the filming, the provision of sexual molestation could not
cover the act, and a charge of attempted child pornography offence
would not necessarily be brought.
- In
this assessment, the Court reiterates the principle that only the law
can define a crime and prescribe a penalty (nullum crimen, nulla
poena sine lege) and the principle that the criminal law must not
be extensively construed to an accused’s detriment, for
instance by analogy. From these principles it follows that an offence
must be clearly defined in the law. However clearly drafted a legal
provision may be, in any system of law, including criminal law, there
is an inevitable element of judicial interpretation. There will
always be a need for elucidation of doubtful points and for adapting
to changing circumstances. Indeed, in the Convention States, the
progressive development of the criminal law through judicial
law-making is a well-entrenched and necessary part of legal tradition
(see, among others, Korbely v. Hungary [GC], no. 9174/02,
§§70-71, ECHR 2008).
- These
considerations are the expression of the general principles as stated
above (see paragraph 58) that the choice of means calculated to
secure compliance with Article 8 of the Convention in the sphere of
individuals between themselves is in principle a matter that falls
within the Contracting States’ margin of appreciation.
- The
Court also observes the technical developments in the sphere of
filming and photography and reiterates that increased vigilance in
protecting private life is necessary to contend with new
communication technologies which make it possible to store and
reproduce personal data (see Von Hannover v. Germany, no.
59320/00, § 70, ECHR 2004 VI with further references). In
this context, it notes that Sweden has taken active steps in order to
combat the general problem of illicit or covert filming of
individuals by issuing a proposal to criminalise certain acts of such
filming in situations where the act violates the personal integrity
of the filmed person.
- In
the light of the above, and having regard to the special
circumstances of the present case, notably the fact that at the
relevant time, in September 2002, the disputed act of the stepfather
was in theory covered by the provision in the Penal Code concerning
sexual molestation and by the provision on attempted child
pornography, in the Court’s view the Swedish legislation and
practice and their application to the case before it, did not suffer
from such significant flaws that it could amount to a breach of
Sweden’s positive obligations under Article 8 of the
Convention.
- Therefore,
there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the application
admissible;
- Holds by four votes to three that
there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 21 June 2102, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Spielmann, Villiger and Power-Forde is annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGES SPIELMANN, VILLIGER AND
POWER-FORDE
We
disagree, respectfully, with the majority’s view that there has
been no violation of Article 8 of the Convention.
In
our opinion, the starting point in our analysis is the principles
laid down in the case X. and Y. v. Netherlands (application
no. 8978/80). There, for the first time the Court developed the
notion of positive obligations under Article 8. In particular, it
found a breach of these obligations in that the respondent Government
had, in that case, failed to provide legislation which enabled the
offence of indecent assault upon a mentally handicapped person to be
punishable. As the Court stated in § 27 of that judgment, it was
confronted with “a case where fundamental values and essential
aspects of private life are at stake. Effective deterrence is
indispensable in this area and it can be achieved only by
criminal-law provisions”.
According
to this case-law, a breach of positive obligations under Article 8
requires two conditions: (i) that the case concerns fundamental
values and essential aspects of family life; and (ii) that there is a
lacuna in the legislation which fails to protect these values.
As
regards the first condition, it is indisputable, in our view, that
what was in issue in this case was a very serious offence and,
indeed, one where fundamental values and essential aspects of the
applicant’s private life were at stake. Those core values were,
initially, protected in that the applicant’s stepfather was
convicted by the District Court on 14 February 2006. That court found
that he had filmed the applicant, then an adolescent, when she was
nude. However, that judgment was later quashed by the Court of
Appeal’s judgment of 16 October 2007 in circumstances where
that court, nevertheless, confirmed that the act in question
constituted a violation of the applicant’s personal integrity
and that the stepfather’s conduct was extremely reprehensible.
As
regards the second condition, we note that the Court of Appeal in
second instance found that what the applicant’s stepfather had
done did not amount to a crime under Swedish law since there was no
general prohibition against filming an individual without his or her
consent. That court clearly acknowledged that there was a lacuna in
the Swedish legislation.
In
this context we are concerned by the argument that the applicant’s
stepfather could not be convicted because he had not intended the
victim to find out about the filming nor been indifferent to the risk
that she might find out about the act (§ 62). We have difficulty
in accepting the principle that for a criminal offence to have been
committed, the victim (in this case an individual being filmed in a
covert and clandestine manner in circumstances where an intimate
aspect of her private and person life is being invaded) must have
knowledge of the offence. To our minds, both the mens rea and
the actus rea were sufficiently present once the domestic
courts accepted that the stepfather had intended to film the
applicant secretly and had proceeded to do so. It may be that the
Swedish legislation is directed, primarily, at situations where an
individual is filming persons in the open, say, on a public street,
and where only an unequivocal refusal by the persons concerned could
possibly lead to a criminal conviction. But that is not at all the
situation here.
Finally,
we note that in the present case the stepfather could have been
prosecuted on other grounds, namely, on account of attempted child
pornography, though no charges were eventually brought. Of course,
positive obligations are an obligation of means, not of result; they
do not imply that a person must be convicted in all circumstances.
There may be good reasons why a prosecution is not brought, such as,
for example, where an offence is time-barred or where there is
insufficient evidence upon which to prosecute. We can also accept
that the Public Prosecutor’s Office is free to prosecute or not
according to the “principle of opportunity” (principe
d’opportunité des poursuites) well known in criminal
procedures in Europe. But we have not been made aware of any such
reasons – and the fact remains that the stepfather was not
prosecuted.
On
the whole, we find that there was a significant omission in the
relevant Swedish legislation which resulted in the applicant being
left without protection. This leads us to conclude that there has
been a failure on the part of the respondent Government to discharge
its positive obligations under Article 8 of the Convention and, that,
consequently, there has been a breach of that provision.
