EHRM, 12-11-2013, nr. 5786/08

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 Eliza Söderman (‘the applicant’), on 21 January 2008.

The applicant was represented by Mr J. Södergren, Mr K. Lewis and Mr C. Crafoord, lawyers practising in Stockholm. The Swedish Government (‘the Government’) were represented by their Agents, Mr A. Rönquist, Ms G. Isaksson and Mr O. Widgren, from the Ministry of Foreign Affairs.

The applicant alleged that the Swedish State had failed to comply with its obligation under Article 8 of the Convention to provide her with remedies against her stepfather's violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old. She also invoked Article 13 of the Convention.

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Its president acceded to the applicant's request not to have her name disclosed (Rule 47 § 3 of the Rules of Court), and the case was called E.S. v. Sweden. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the application was assigned to the newly composed Fifth Section. On 12 June 2012 a Chamber composed of D. Spielmann, President, E. Fura, K. Jungwiert, M. Villiger, A. Power-Forde, G. Yudkivska, A. Potocki, judges, and also of C. Westerdiek, Section Registrar, delivered its judgment. It decided to examine the complaint under Article 8 alone and unanimously declared it admissible and held, by four votes to three, that there had been no violation of that provision. The joint dissenting opinion of D. Spielmann, M. Villiger and A. Power-Forde was annexed to the judgment.

On 19 September 2012 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted the request on 19 November 2012.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.

The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits.

In addition, third-party comments were received from the Human Rights Centre of Ghent University, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

On 22 March 2013, the President of the Grand Chamber acceded to the applicant's request of 12 March 2013 to lift the anonymity granted to her.

A hearing took place in public in the Human Rights Building, Strasbourg, on 3 April 2013 (Rule 59 § 3).

There appeared before the Court:

The applicant was also present.

The Court heard addresses by Mr Crafoord, Mr Lewis, Mr Södergren and Mr Rönquist, as well as their replies to questions put by Judges Ziemele, Sicilianos, Pinto de Albuquerque and Zupančič.

Holds, by sixteen votes to one, that there has been a violation of Article 8 of the Convention;

Holds, by sixteen votes to one,

Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 November 2013.

Erik Fribergh

Registrar

Josep Casadevall

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

J.C.

E.F.

The Söderman case raises three fundamental legal questions, which are the international obligation to criminalise non-consensual filming or photographing; the limits of an evolutive interpretation of criminal law in accordance with the respondent State's international obligations; and the legal force of the European Convention on Human Rights (the Convention) as a direct basis for awarding compensation for non-pecuniary damage. I concur with the majority in finding a violation of Article 8, though for different reasons. In addition, I would have addressed separately the Article 13 in conjunction with Article 8 complaint and found a violation thereof.

The Convention guarantees the right to protection of one's image. Filming or photographing a person without her or his consent infringes core personality rights, since a person's image constitutes one of the chief attributes of his or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her peers. The right to the protection of one's image is thus one of the essential components of personal development1.. The ambit of protection of this right is defined broadly, to include all situations and events in which a person's image is captured without his or her knowledge and consent and regardless of the private nature of the person's environment. It also covers unauthorised use by the offender, or the offender's permission of use by a third person, of images that have been legally obtained2..

The protection of a person's picture against abuse by others is an obligation of States Parties, which must prevent violations from occurring and provide for remedies for violations that have already occurred3.. States do not have a discretion when providing for these remedies. Where a particularly important facet of the individual's personality is at stake, the State's margin of appreciation is narrow4..

The obligation to criminalise child pornography derives from Articles 16, 19 and 34(c) of the UN Convention on the Rights of the Child5. and Article 3 of the Optional Protocol to the UN Convention on the Rights of the Child, on the sale of children, child prostitution and child pornography6.. Articles 6 and 7(1) of the ILO Worst Forms of Child Labour Convention (no. 182) oblige States Parties to take steps to eliminate, with the necessary penal sanctions, the sale of children, child prostitution and child pornography, including the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances7.. The criminalisation of child pornography is also obligatory under Article 20 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation8. and Article 9 of the Council of Europe Convention on Cybercrime9.. The Council of the European Union adopted, in 2003, the Framework Decision on combating the sexual exploitation of children and child pornography (2004/68/JHA) according to which the Member States are obliged to criminalise the production, distribution, dissemination, transmission, supplying or making available, acquisition and possession of child pornography and provide for a minimum level of maximum penalties incurred for these offences10.. The European Parliament and the Council approved the Directive 2011/93/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, which replaced the Council Framework Decision of 2004, but maintained the criminalisation obligation11.. In Europe, forty-one countries have criminalised child pornography, and in the United States both the federal law and the law of all fifty States make provision for the same offence12.. In view of this broad consensus and constant practice, criminalisation of child pornography, namely, any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes, is now part of international customary law, binding on all States.

Obligations to criminalise are not new under the Convention. The European Court of Human Rights (the Court) has already considered that rape13., forced labour14., wilful attack on physical integrity of a person15., human trafficking16. and disclosure of certain confidential items of information17. must be criminalised18., but negligent violations of the right to life and physical integrity must not19.. With regard to children, the Court has established the principle that any wilful offence against the physical and moral welfare of children should be criminalised20. and punished with a deterrent penalty21.. Child pornography is certainly among these, having regard to its serious ethical censurability and to its reprehensibility under international customary and treaty law. Yet in view of the threshold of explicitness of the acts depicted and the required sexual purpose of the perpetrator, this criminal offence is subject to evidentiary problems. Thus, in order to provide full and effective protection of children, covert filming of children, with or without a sexual purpose on the part of the perpetrator, and in or outside a pornographic setting, should be criminalised. Such criminalisation is in line with the Convention guarantee of the child's right to protection of his or her image and the prevailing international prohibition of any kind of abuse or violation of the various facets of the child's personality, which includes his or her image.

Furthermore, as a matter of principle, adults deserve the same legal protection as children. There is no plausible reason to criminalise the abuse of a child's image and not that of an adult's, or the other way round. It cannot reasonably be argued that the violation of an adult's image has less ethical weight per se than that of a child. All are human beings, with the same personality right to protection of their own image. In fact, in some cases it is extremely difficult to distinguish an adult from a minor, and uncertainty about the victim's age should not prevent criminal prosecution. Hence, guaranteeing the Convention right to protection of one's image requires the criminalisation of covert filming and photographing of children and adults22..

At the relevant time, there were two criminal provisions that could in theory be applied to the facts: sexual molestation (Chapter 6, Article 7, of the Penal Code) and child pornography (Chapter 16, Article 10a (1), of the same Code)23..

Sexual molestation presupposes a specific action on the part of the offender, namely

In any case the offence requires both the victim's knowledge of the offender's conduct at the moment it is carried out and the offender's intent that the victim find out about the conduct. That means that the core of the offence lies in the improper conduct of the offender with regard to the victim, with the latter's knowledge.

Child pornography also presupposes a specific action by the offender, such as portraying a child in a pornographic picture, disseminating, transferring, granting use, exhibiting, acquiring, offering of such picture, facilitating dealings in such a picture or possessing such picture. The offence requires that the pubertal development of the child be incomplete or that it be apparent from the image or its attendant circumstances that the child is under 18 years of age. This crime is punishable both when brought to its completion and when attempted (Chapter 16, Article 7, and Chapter 23, Article 1). Sweden does not have a detailed legal definition of child pornography, but in the Governmental bill containing this provision it was stated that ‘It was not the intention to criminalise every exposure of naked children or all pictures in which a child's genitals may be perceived, even if such pictures may stimulate some people's sexual instincts. In order for the handling of a picture to be illegal, it is a condition that it be pornographic according to common parlance and general values’24.. It is obvious that such a restrictive formulation of the criminal provision regarding child pornography does not satisfy the respondent State's international obligations, in so far as these require criminalisation of any representation of the sexual parts of a child for primarily sexual purposes.

Lastly, Swedish criminal law did not have a criminal offence of covert photographing or filming at the relevant time. Application by analogy of the criminal offence of sexual molestation to the detriment of the defendant was evidently ruled out. After the amendment to the Penal Code of April 2005, the Sexual Offences Commission considered that the new Chapter 6, Article 10, second paragraph, of the Swedish Penal Code included actions directed at persons unconscious or asleep, and therefore could also encompass covert filming of a person in a sexually intrusive way25.. Yet this very questionable interpretation did not prevail in judicial practice. The Government did not provide the Court with case-law confirming that interpretation. Furthermore, the Government themselves acknowledged that further amendments to the Penal Code were needed to criminalise the conduct of the defendant. That is why the recent bill on intrusive photography and filming was approved. In fact, this legislative initiative cannot but be read as a confession by the Government of the existence of a legal flaw in the domestic criminal-law system26.. It remains to be seen whether that shortcoming is relevant in terms of the protection required by the Convention rights.

The public prosecutor chose to charge the defendant with sexual molestation. This proved to be the wrong legal avenue, since there was obviously no conduct falling within the offence of sexual molestation: no touching, no inducing, no coercion, no seduction, no improper influence, no exposure or indecent behaviour of the defendant. Furthermore, the relevant criminal intent that the applicant should find out about the filming could not be established. The Government maintained that this was a problem of evidence, but the applicant replied that it was rather a problem of erroneous interpretation of penal law by the public prosecutor. The applicant is right, since the requisite subjective element of the offence of sexual molestation (namely, the perpetrator's intention that the victim be aware of the illegal conduct while it is taking place) is incompatible per se with any covert action of filming or photographing.

The public prosecutor did not charge the defendant with child pornography. No reasons were given for that approach. The Government assumed that it was because there was no film, and no physical evidence of the completed crime. As the applicant argued, it is clear that the non-existence of the film did not preclude charges of attempted child pornography, especially in a case where the defendant confessed to the facts, and there were two witnesses: the victim, who discovered the film, and the mother, who destroyed it. The confession was thus supported by sufficient additional evidence. Hence, there was no evidentiary problem with regard to the offence of child pornography either.

Whilst the criminal offence of sexual molestation could not be applied to the facts of the case, the offence of attempted child pornography could have guaranteed the applicant's Convention right to protection of her image, had the Court of Appeal had regard to Sweden's international obligations. Although it admitted that the offence of attempted child pornography was in theory applicable to the facts, the Court of Appeal was not willing to give an evolutive interpretation of the concept of child pornography, and preferred to follow the historical interpretation of the corresponding incriminating provision, based on the preparatory works of the Penal Code referred to above. That construction of the child pornography offence adopted by the Court of Appeal, which was in line with the practice of the Supreme Court and the Government's own view, could not provide any redress to the applicant.

Indeed, the Court of Appeal had two alternatives for the purposes of guaranteeing the victim's right to protection of her image: either to adopt an evolutive interpretation of the concept of child pornography, correct the erroneous legal characterisation given to the facts by the first-instance court and convict the defendant of the crime of attempted child pornography; or to stick to the historical interpretation of the concept of child pornography and acquit the defendant, but at least award compensation for non-pecuniary damage, as claimed by the applicant on the basis of the violation of her personal integrity by her stepfather's conduct.

The first alternative could have been pursued under Chapter 30, Article 3, of the Code of Judicial Procedure: when examining a complaint the domestic courts are not bound by the legal characterisation of the offence or the applicable provisions of law. In Sweden, as in many European countries, the criminal court is bound by the facts of the indictment, but not by its legal characterisation of the offence27..

The fact is that the domestic courts did not use the power they had under Chapter 30, Article 3, of the Code of Judicial Procedure. No reasons were given by the domestic courts for not using that alternative, although they could have used it of their own motion. In spite of the restrictive intention of the Swedish legislature when it introduced the criminal offence of child pornography, as reflected in the relevant preparatory works, the domestic courts could, and should, have adopted an evolutive interpretation of the concept of child pornography, in order to include any representation of the sexual parts of a child for primarily sexual purposes. An evolutive interpretation of penal law is acceptable provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. This interpretation would at the same time be in accordance with the international obligations of Sweden and the general principles of interpretation of penal law28.. The facts imputed to the stepfather would be sufficient to make out this offence, in its ancillary and preparatory form of attempted child pornography: the images of a fourteen-year-old girl undressing before taking a shower in an otherwise everyday situation do certainly fall within the concept of ‘any representation of the sexual parts of a child’ and the stepfather completed all the necessary steps to obtain images of the sexual parts of a child for primarily sexual purposes, which he ultimately did not obtain on account of the fortuitous circumstance that the girl discovered the hidden camera29.. No additional reference to pornography in the indictment was necessary, since it already included all the relevant elements of the offence of attempted child pornography, interpreted in the light of Sweden's above-mentioned international obligations. It was up to the domestic courts to change the legal characterisation of the offence and adopt an evolutive interpretation of the concept of child pornography compatible with Sweden's international obligations30.. The domestic courts took neither of those steps, thus leaving unpunished highly reprehensible conduct that should have been punished in the light of the international obligations of the respondent State. To the legislature's long-standing inertia in clarifying the legal situation the courts added their unwillingness to apply the criminal law according to the canon of evolutive interpretation.

Assuming, for the sake of argument, that the first alternative was not an available legal avenue in the instant case, in accordance with the historical interpretation of the criminal provision of child pornography, the alternative to guaranteeing the victim's right to protection of her image could have been to award the applicant reparation for non-pecuniary damage. Indeed, the applicant referred to the facts set out in the indictment that had caused her pain and suffering and even adduced independent evidence of the nature and extent of the injury that she had suffered.

The legal basis for that award was Chapter 22, Article 7, of the Swedish Code of Judicial Procedure31. This provision was not used by the Court of Appeal, although it could have used it of its own motion. The Court of Appeal dismissed the claim for compensation because no crime had been proven, but did not determine the civil action, as it could have done. Even assuming that no crime was made out and therefore damages based on Chapter 2, section 3, of the Tort Liability Act could not be awarded, the Court of Appeal could still have invoked Chapter 2, section 1 of the same Act, which covered both wilful and negligent physical and psychological injury, for the purpose of awarding damages to the applicant. By not doing so, for no plausible reason, it left the applicant's proven personal injury without compensation32..

Last but not the least, the Court of Appeal refrained from awarding compensation based on the Convention. This approach is in line with the case-law of the Swedish Supreme Court according to which in disputes between individuals there is no civil liability based on Convention violations when these are not simultaneously violations of the domestic law. There are two reasons for this: first, the Convention does not impose duties on individuals, and second, individuals cannot foresee the grounds for compensation when there have been only breaches of the Convention33..

This line of argument is at odds with the Convention's direct effect in the legal order of the respondent State, the principle of subsidiarity and the principle of interpretation of human-rights treaties in a way which is most protective of the rights and freedoms which they foresee34.. Since the Convention is applied directly in the domestic State, and violations of it must primarily be resolved by the national authorities, there should be provision for compensation for victims of Convention breaches, even when domestic law has not been violated. The argument of unforeseeability does not stand, in so far as the Convention is part of national law and therefore the grounds for compensation deriving from the Court's case-law are predictable. The Court's interpretation of the Convention regarding grounds for compensation for breaches of Convention rights is as binding for national courts as the rest of the Court's case-law, and should therefore be implemented by the national courts whenever national law fails to provide such compensation. In addition, if damages awarded for a State's violations of the Convention are predictable, even where there are no specific provisions on civil liability in national law, as the Swedish Supreme Court correctly admits, the same applies to awards for violations perpetrated by individuals who are not State agents, such as the one in this case35.. In such a case, the State would be neglecting its obligations to protect Convention rights if it did not ensure a means of civil redress in circumstances where no criminal sanctions were applicable despite the ethical censurability and the reprehensibility under international customary and treaty law of the conduct. To put it positively, whenever criminal remedies are lacking for such conduct committed by individuals who are not State agents, the Contracting Parties to the Convention should nonetheless provide for civil remedies. An obligation is placed upon the State to provide for an effective civil remedy to deal with the substance of an ‘arguable complaint’ of a breach of the Convention, in accordance with Article 13 in conjunction with Article 8, not upon the individuals themselves. Hence, the domestic courts failed to repair the applicant's injury, in spite of the available civil-law remedy based solely on the Convention.

The applicant had a right to be protected and the State had an obligation to protect that right. The parties accept both points. The dispute between the parties revolves around one point: the existence of effective remedies for this violation in the legal order of the respondent State. Sweden had a child pornography provision, but that offence was ignored by the courts, which did not apply it in the instant case. Moreover, the offence was insufficient to punish the stepfather's conduct on account of its strict judicial construction which read into the provision an implied requirement of explicit sexual behaviour of the victim. The 2005 law reforming the criminal offence of sexual molestation, which does not include covert filming and photographing, could not in any case be applied to the facts, owing to the basic principle of prohibition of retroactive application of penal law to the detriment of the defendant. Lastly, the civil remedy was not used, owing to the Court of Appeal's unjustified refusal to apply the Tort Liability Act and the Supreme Court's strict interpretation of the conditions of civil liability based on breaches of the Convention. Thus, no legal avenue was afforded, in practical terms, for guaranteeing the applicant's right to protection of her image36..

In view of the Convention obligation to criminalise non-consensual filming and photographing regardless of any sexual purpose on the part of the perpetrator and to provide compensation based directly on breaches of Article 8, the national legislature's failure to satisfy the first obligation, and the domestic courts' unwillingness to satisfy the second, I find that there has been a violation of Article 8 taken alone and in conjunction with Article 13.

I fully agree with the majority that the applicant's personal integrity was violated by the acts committed by her stepfather and that her situation was aggravated by the fact that she was a minor, that the covert filming of her while undressing took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. The Grand Chamber undertook (see paragraph 89) to examine whether Sweden had an adequate legal framework providing the applicant with an acceptable level of protection (see paragraph 91) and to assess, to this end, each of the remedies available to her (see paragraph 89). To my regret, I fail to understand the logic followed by the majority in finding and providing a legal response to these questions and for this reason I also find myself unable to agree with the conclusions reached.

The applicant did not claim that recourse to criminal law was the only way that Sweden could fulfil its obligation under Article 8 to protect her against her stepfather's act (see paragraph 87) and did not criticise the prosecution for not complying with an obligation to indict crimes, but rather found that the legislator had failed in its positive obligation to criminalise the act of covert filming of a minor in a situation which upset the essential aspects of personal integrity. She pointed out that the ‘weak protection in this area had been known and discussed since 1966’. This, in her view, ‘sufficed to conclude that the protection for the right to private life was — and still is — insufficient’ (see paragraphs 62–63).

In response to this complaint, while noting that the impugned acts ‘did not attain the seriousness of the grave acts … considered not only under Article 8 but also Article 3 of the Convention’, the majority failed to state clearly whether (similarly to the cases mentioned in paragraphs 83 and 84) positive obligations arose in the present case — as maintained by the applicant — and if so which ones, or whether a criminal-law remedy was nevertheless necessary to achieve the appropriate and acceptable level of protection of the applicant's rights under Article 8, or — alternatively — that the decision whether or not to criminalise and prosecute such acts remained within the Swedish authorities' margin of appreciation. In this connection it is difficult to understand the source of the majority's dissatisfaction with the fact that ‘notwithstanding the … margin of appreciation’, Swedish law did not provide a criminal remedy for the effective protection of the applicant.

The majority also failed to specify (compare and contrast Calvelli and Ciglio v. Italy ([GC], no. 32967/96, ECHR 2002-I) whether a civil-law remedy — if available — might in principle have sufficed for the appropriate protection of the applicant and instead addressed the fact that the criminal courts did not award any compensation for damage resulting from a crime as the impugned acts did not constitute a crime. In this regard the applicant insisted that — being the masters of the classification of the law — the criminal courts should have reclassified and determined her claim on other grounds. However, she never complained that no such remedy existed in the civil courts (see paragraph 64). I remain unconvinced that the fact that the criminal courts dismissed the applicant's civil claim for damages resulting from a crime suffices to conclude that no other civil remedy existed under Swedish law to redress the substance of her complaints (see paragraph 117).

As a result, noting first that ‘[t]he choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of relations of individuals between themselves is in principle a matter that falls within the Contracting States' margin of appreciation’ (see paragraph 79), the majority arrived at the conclusion that the proceedings before the criminal courts offered neither criminal nor civil redress — as the applicant had initially complained. This conclusion only reflects the facts of the case, and does not necessarily provide a legal response to the Grand Chamber's undertaking to establish whether Swedish law, as it stood in September 2002, ensured appropriate protection of the applicant's ‘right to respect for private life’. Indeed, it seems to me that in the absence of criteria defining the required ‘acceptable level of protection’ in specific terms, a comparison between the failed and the undefined remedies will inevitably lead to dissatisfaction ‘notwithstanding the respondent State's margin of appreciation’ in this area (see paragraph 117).