Information Note on the Court’s case-law 153

June 2012

E.S. v. Sweden - 5786/08

Judgment 21.6.2012 [Section V]

Article 8

Positive obligations

Article 8-1

Respect for private life

Lack of clear statutory provisions criminalising act of covertly filming a naked child: no violation

[This case was referred to the Grand Chamber on 19 November 2012]

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 seein g 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, sec tion 7 of the Penal Code, as worded at the material time. His conviction was, however, 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.

Law – Article 8: The matter had been exa mined in criminal proceedings before three levels of jurisdiction, before which the applicant had been represented by counsel and had had the possibility of claiming damages. With regard to the outcome of the domestic proceedings, the court of appeal had f ound that the act could not constitute sexual molestation under the Penal Code. Nevertheless, there were no indications that it had been clear to the prosecuting authorities or to the district court that the stepfather’s act was not covered by the provisio n on sexual molestation. For its part, the court of appeal had pointed out that the act might, at least in theory, constitute the offence of attempted child pornography. It was not for the Court to speculate on why such a charge had not been brought agains t the stepfather. In sum, it could not be concluded that at the relevant time the stepfather’s act was not in theory covered by the Penal Code. Nor could it be concluded that any procedural requirements had made it impossible for the applicant to enjoy pra ctical and effective protection by the Penal Code, and civil-law remedies had also been available to her.

The question remained whether the absence of a provision in the Penal Code on attempted covert or illicit filming had constituted a significant flaw i n the domestic legislation. In this connection, the Court reiterated that increased vigilance in protecting private life was necessary to contend with new communication technologies which made it possible to store and reproduce personal data. Sweden had, h owever, taken active steps 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 violated the personal integrity of the person filmed. Therefo re, having regard to the special circumstances of the case, and notably the fact that at the relevant time the stepfather’s act had in theory been covered by the provision in the Penal Code concerning sexual molestation and by the provision on attempted ch ild pornography, the Swedish legislation and practice and their application in the instant case had not suffered from flaws so significant as to amount to a breach of Sweden’s positive obligations.

Conclusion : no violation (four votes to three).

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

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