Grand Chamber – Article 8
Respect for private life
Lack of clear statutory provisions criminalising act of covertly filming a naked child: violation
Facts – In 2002, when the applicant was fourteen 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. She took it to her mother who burned the film without anyone seeing it. The incident was reported in 2004 when the mother heard that the applicant’s cousin had also experienced incidents with the stepfather. The stepfather was prosecuted and in 2006 convicted by a district court of sexual molestation under Chapter 6, section 7 of the Penal Code, as worded at the material time. However, his conviction was overturned on appeal after the court of appeal found that his act did not come within the definition of the offence of sexual molestation. The court of appeal went on to point out that the conduct might have constituted the separate offence of attempted child pornography, but did not consider the issue further in the absence of any charge. The Supreme Court refused leave to appeal.
In a judgment of 21 June 2012 a Chamber of the Court found, by four votes to three, that there had been no violation of Article 8 of the Convention (see Information Note 153).
Law – Article 8: The Court endorsed the domestic court’s finding that the stepfather’s act had constituted a violation of the applicant’s personal integrity. Even though the event in question had not involved any physical violence, abuse or contact, it had affected the applicant in highly intimate aspects of her private life. There was no evidence that the domestic authorities had failed to comply with their obligation to conduct an effective prosecution. The question before the Court was therefore whether, in the circumstances of the case, Sweden had had an adequate legal framework to protect the applicant against the actions of her stepfather, in compliance with its obligations under Article 8. The Grand Chamber chose a different approach from that followed by the Chamber, which had affirmed 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’. Such a significant-flaw test, while understandable in the context of investigations, had no meaningful role in an assessment as to whether the respondent State had had in place an adequate legal framework in compliance with its positive obligations since the issue before the Court concerned the question of whether the law had afforded an acceptable level of protection to the applicant in the circumstances.
As regards the possibility that the stepfather’s act could have constituted attempted child pornography under the Penal Code, the Court was not convinced that the act had been covered by that offence. There was no information that the prosecutor had considered indicting the stepfather with that crime. Instead, the respondent Government had enumerated a number of reasons why the prosecutor might have decided not to do so; in particular difficulties in providing sufficient evidence to show that there had been a ‘pornographic’ picture. According to the applicant, even if the film – which had been destroyed – had still existed, the material would hardly have qualified as pornographic. The term ‘pornographic picture’ was not defined in the Swedish Penal Code and the preparatory works on the provision on child pornography underlined that its intention was not to criminalise all pictures of naked children.
As regards the provision on the offence of sexual molestation under the Penal Code – which penalised in particular exposure in an offensive manner and indecent behaviour by word or deed – the appeal court had found that the stepfather could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. Under the Swedish law in force at the time, it had been a requirement for the offence of sexual molestation to be made out that the offender intended the victim to find out about it or was indifferent to the risk of his or her doing so. However, that requirement had not been fulfilled in the applicant’s case. It was not on account of a lack of evidence that the stepfather had been acquitted of sexual molestation, but rather because, at the time, his act could not have constituted sexual molestation. The provision on sexual molestation as worded at the material time could not legally have covered the act in question and thus had not protected the applicant against the lack of respect for her private life.
The gaps in protection of her rights had not been remedied by any other provision of criminal law at the time. Indeed, the absence of a provision covering the isolated act of covert or non-consensual filming or photographing had long been a matter of concern in Sweden. New legislation, designed to cover an act such as the one in the applicant’s case, had recently been adopted and had entered into force in 2013.
In the instant case recourse to the criminal law was, in the Court’s view, not necessarily the only way the respondent State could have fulfilled its obligations under Article 8. As regards civil-law remedies, when acquitting the stepfather, the appeal court had also dismissed the applicant’s civil claim for damages. Under the Code of Judicial Procedure, when a civil claim was joined to a prosecution, the courts’ finding on the question of criminal liability was binding for the decision on the civil claim. There were, moreover, no other grounds on which the applicant could have relied in support of her claim for damages. Finally, the Court was not persuaded that the Swedish courts could have awarded her compensation on the basis of finding a breach of the Convention alone.
In conclusion, the Court was not satisfied that the relevant Swedish law, as in force at the time, had ensured protection of the applicant’s right to respect for her private life in a manner that complied with the State’s obligations under Article 8. The act committed by her stepfather had violated her integrity and had been aggravated by the fact that she was a minor, that the incident had taken place in her home, and that the offender was a person whom she was entitled and expected to trust.
Conclusion: violation (sixteen votes to one).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
Josep Casadevall, P
5786/08 – Grand Chamber Judgment,  ECHR 1128, 5786/08 – Legal Summary,  ECHR 1287,  ECHR 1357, (2014) 58 EHRR 36
Bailii, Bailii, Bailii
European Convention on Human Rights
Updated: 26 November 2021; Ref: scu.517785