DISSENTING OPINION OF JUDGE KALAYDJIEVA

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 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 of the judgment ) to examine whether Sweden had an adequate legal framework providing the applicant with an acceptable lev el 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 respect for 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 about the lack of such a remedy 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 her 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).

[1] . See Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § 96, ECHR 2012. With regard to minors, the exercise of the right to protection of their image is overseen by their parents (see Reklos and Davourlis v. Greece , no. 1234/05, § 41, 15 January 2009).

[2] . See Reklos and Davourlis , cited above, § 40 .

[3] . See, on images of public figures, Schüssel v. Austria ( dec. ), no. 42409/98, 21 February 2002; Krone Verlag GmbH & Co. KG v. Austria , no. 34315/96, § 37, 26 February 2002; and Von Hannover , cited above, § 57; and , on images of non-public persons, Sciacca v . Italy , no. 50774/99, § 28, ECHR 2005 - I, and Reklos and Davourlis , cited above, § 35.

[4] . See Dudgeon v. the United Kingdom , 22 October 1981, § 52, Series A no. 45; Norris v. Ireland , 26 October 1988, § 46, Series A no. 142; A.D.T. v. the United Kingdom , no. 35765/97, § 38, ECHR 2000 - IX ; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I.

[5] . The Convention has 193 States Parties and the respondent State ratified it in 1990. For the purpose of this opinion, I will consider any person under the age of 18 to be a child, according to the standard set by the U nited N ations Convention. This does not prevent States Parties to the European Convention on Human Rights from extending the legal protection of children beyond that age.

[6] . The Protocol was adopted in 2000 and came into force in 2002. As of October 2013, 166 States are party to the Protocol, including Sweden, which ratified it on 19 January 2007, that is, before the Svea Court of Appeal’s judgment of 16 October 2007. Article 3 (c) of the Protocol requires States Parties to criminalise producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes 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”. The Committee on the Rights of the Child has nevertheless encouraged countries to criminalise mere possession (for example, United Nations Committee on the Rights of the Child, Concluding Observations for Costa Rica of 2 February 2007, §§ 14-15, and for Chile of 1 February 2008, §§ 23-24) .

[7] . The Convention came into force in 2000, and has 174 States Parties. Sweden ratified it in 2001.

[8] . CETS no. 201. The Convention was approved in 2007, entered into force in 2010, has 25 States Parties and was ratified by Sweden in 2013. It contains obligations to criminalise conduct for which criminalisation is not expressly required by the U nited N ations Optional Protocol on the sale of children, child prostitution and child pornography, such as the possession of child pornography, that is, any visual depiction of a child engaged in real or simulated sexually explicit conduct, or any representation of a child’s sexual organs for primarily sexual purposes.

[9] . CETS no. 185. The Convention was approved in 2001, came into force in 2004, has 39 States Parties and has been signed, but not ra tified, by the respondent State .

[10] . Child pornography in the Framework Decision means pornographic material that visually depicts or represents a real child involved or engaged in sexually explicit conduct, including lascivious exhibition of the genitals or the pubic area of a child; or a real person appearing to be a child involved or engaged in the conduct mentioned above; or realistic images of a non-existent child involved or engaged in the conduct mentioned above.

[11] . Child pornography in the Directive has a broader definition, meaning any material that visually depicts a child engaged in real or simulated sexually explicit conduct; any depiction of the sexual organs of a child for primarily sexual purposes; any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, for primarily sexual purposes.

[12] . In addition to Sweden, these are Albania ( Article 117 of the Criminal Code ), Austria ( Article 207a § 1, no. 1, of the Austrian Criminal Code ), Azerbaijan ( Article 242 of the Criminal Code), Belgium ( Article 383 bis of the Criminal Code), Bosnia and Herzegovina ( Article 199 of the Criminal Code of Republika Srpska and Article 211 of the Criminal Code of the Federation of Bosnia and Herzegovina), Bulgaria ( Article 159 of the Criminal Code), Croatia ( Article 163 of the Criminal Code), Czech Republic ( Article 192 of the Criminal Code), Denmark ( Article 230 of the Criminal Code), Estonia ( Article 178 of the Criminal Code), Finland (Articles 18, 18a and 19 of Chapter 17 of the Criminal Code), France ( Article 227-23 of the Criminal Code), Georgia ( Article 255 of the Criminal Code), Germany ( Article 184b § 4 of the Criminal Code), Greece ( Article 348 of the Criminal Code), Hungary ( Article 204 of the Criminal Code), Iceland (Articles 209 and 210a of the Criminal Code and section 99(3) of the Child Protection Act), Ireland ( s ection 3(2) of the Child Trafficking and Pornography Act), Italy ( Article 610 quater of the Criminal Code), Latvia ( s ection 1(1) of the Limitation of Pornography Act 2007), Liechtenstein ( Article 219 § 1, no. 1, of the Criminal Code), Lithuania ( Article 162 of the Criminal Code), Luxembourg ( Article 384 of the Criminal Code), Macedonia ( Article 193a § 1 of the Criminal Code), Moldova ( Article 208 of the Criminal Code), Monaco ( Article 294-3 of the Criminal Code), Montenegro ( Article 211 of the Criminal Code), the Netherlands ( Article 240 b of the Criminal Code), Norway ( Article 201 of the Criminal Code, according to the case-law), Poland ( Article 202 § 4 of the Criminal Code), Portugal ( Article 176 of the Criminal Code), Romania ( s ection 51 of Law no. 161/2003), Russia ( Article 242.1 and 2 of the Criminal Code), Slovakia (Articles 368 and 370 of the Criminal Code), Slovenia ( Article 176 § 2 of the Criminal Code), Spain (Articles 189 and 197 § 6 of the Criminal Code), Switzerland ( Article 197 § 3 of the Criminal Code), Turkey ( Article 226 § 3 of the Criminal Code), the United Kingdom ( s ection 1 of the Protection of Children Act 1978), United States of America ( s ection 18 USC §§ 2251, 2252 and 2252a) and Ukraine (Article 301 § 4 of the Criminal Code).

[13] . See X and Y v. the Netherlands , 26 March 1985, § 27, Series A no. 91, and M.C. v. Bulgaria , no. 39272/98, §§ 50, 166, ECHR 2003 ‑ XII.

[14] . Siliadin v. France , no. 73316/01, § 112, ECHR 2005 - VII, and C.N. and V. v. France , no. 67724/09, §§ 105-08, 11 October 2012.

[15] . Sandra Jankovi ć v. Croatia , no. 38478/05, § 36, 5 March 2009.

[16] . Rantsev v. Cyprus and Russia , no. 25965/04, §§ 284 and 288, ECHR 2010.

[17] . Stoll v. Switzerland [GC], no. 69698/01, § 155, ECHR 2007 - V.

[18] . The Court not only reviews the political decision not to criminalise certain conduct, but also the excessive or disproportionate criminalisation of certain conduct, such as in Dudgeon , cited above , § 60 ; Norris , cited above, § 46 ; Modinos v. Cyprus , 22 April 1993, § 24, Series A no. 259 ; A.D.T . , cited above, § 38 (private homosexual acts between consenting adults) ; S.L. v. Austria , no. 45330/99, § 44, ECHR 2003 - I ( homosexual acts of adult men with consenting adolescents between 14 and 18 years of age ) ; Vajnai v. Hungary , no. 33629/06, § 54-56, ECHR 2008 (wearing of red star) ; Altug Taner Akçam v. Turkey , no. 27520/07, §§ 93-95, 25 October 2011 (insulting Turkishness ) ; Mosley v. the United Kingdom , no. 48009/08, § 129, 10 May 2011 (non-compliance with pre-notification requirement to publish news on private life) ; Akgöl and Göl v. Turkey , nos. 28495/06 and 28 5 16/06, § 43, 17 May 2011 (participation in an unlawful but peaceful demonstration) ; Wizerkaniuk v. Poland , no. 18990/05, §§ 82-83 and 86, 5 July 2011 (publication of unauthorised verbatim quotations) ; Mallah v. France , no. 29681/08, § 40, 10 November 2011 (assisting illegal entry, circulation or stay of foreigner in the national territory) ; Gillberg v. Sweden [GC], no. 41723/06, §§ 68-71, 3 April 2012 (misuse of office due to refusal of access to research material owned by a public university), Stübing v. Germany , no. 43547/08, §§ 63-65, 12 April 2012 (incest) ; and Ş ükran Ayd ı n and Others v. Turkey , nos. 49197/06, 23196/07, 50242/08, 60912/08 and 14871/09, § 55, 22 January 2013 (use of mother tongue in political campaign).

[19] . See Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 - I; Vo v. France [GC], no. 53924/00, §§ 90-94, ECHR 2004 - VIII; Dodov v. Bulgaria , no. 59548/00, § 87, 17 January 2008; Branko Tomašić and Others v. Croatia , no. 46598/06, § 64, 15 January 2009; and Maiorano and Others v. Italy , no. 28634/06, § 128, 15 December 2009 .

[20] . K.U. v. Finland , no. 2872/02, § 46, ECHR 2008. The case dealt with a minor of 12 years of age who was the subject of an unauthorised advertisement of a sexual nature on an Internet dating site. In C.A.S. and C.S. v. Romania (no. 26692/05, 20 March 2012), the Court clearly recognised that States had an obligation under Articles 3 and 8 to ensure the effective criminal investigation of cases involving violence against children, referring to the international obligations the respondent State had entered into for the protection of children against any form of abuse.

[21] . See Okkal ı v. Turkey , no. 52067/99, § 73, ECHR 2006 -XII , and Darraj v. France , 34588/07, § 49, 4 November 2010.

[22] . Evidently, all grounds of justification and exculpation shall apply, such as in the case of undercover photograph y or filming by journalists when this contributes to a debate of public interest. Domestic courts and prosecutors must take into account fundamental rights, such as freedom of expression, wh en implementing criminal-law provisions, and specifically the provision criminalising covert filming or photographing of adults and children. In addition, States Parties may provide a defence in respect of conduct related to “ pornographic material ” having artistic, medical, scientific or similar merit.

[23] . Other criminal-law provisions invoked by the Government, such as breach of domiciliary peace, unlawful intrusion or defamation (Government observations to the Grand Chamber, para graph 22), are not applicable, for obvious reasons. No case-law was submitted by the Government to support their contention that these provisions could be applied, and a merely literal interpretation of these provisions shows that they are not applicable. The case did not raise a question of breach of domiciliary peace, simply because the offender lived at the house in question, nor of defamation, since the applicant’s stepfather did not intend to release the film to third persons.

[24] . The Government reiterated and sustained this interpretation in para graph 45 of their observations to the Grand Chamber.

[25] . Government’s observations to the Grand Chamber, para graph 66.

[26] . Para graph 76 of the Government’s observations to the Grand Chamber.

[27] . The Government said, in their observations to the Grand Chamber, para graph 54: “In Swedish criminal procedure, the court is not formally bound in its assessment by what offence has been put before it, i.e. , the court may examine on its own initiative questions concerning the classification of a criminal offence and the applicable section of law (Chapter 30, Article 3 , of the Code of Judicial Procedure) . ”

[28] . The Court has already stated that “ the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see S.W. v. the United Kingdom , 22 November 1995, §§ 34-36, Series A no. 335-B, and C.R. v. the United Kingdom , 22 November 1995, Series A no. 335-C ). Hence, I cannot agree with the Grand Chamber’s statement in paragraph 97 of the present judgment.

[29] . Thus, the applicant’s stepfather started to commit the crime without bringing it to its completion and the danger that the act would lead to the completion of the crime was only averted because of unforeseen and unwanted circumstances. All the requisite elements of the attempted offence were fulfilled (Chapter 23, Article 1, of the Penal Code).

[30] . It goes without saying that, in accordance with the national law and the European standard, the amended criminal charge should be communicated to the defendant, in order to give him the opportunity to contest it.

[31] . As the applicant argued, the procedural legal situation in Sweden resembles the situation in Y v. Norway , no. 56568 /00 , §§ 23-24, ECHR 2003-II in that a private claim may be upheld in the same proceedings as a criminal case even if the defendant has been acquitt ed of the offence .

[32] . The Government argued that, in order to benefit from Chapter 2, section 1, of the Tort Liability Act, the applicant should have claimed “that he had caused her personal injury by acting negligently in respect of her” (Government observations to the Grand Chamber, para graph 35). This interpretation of the said provision sounds very abstruse, for two reasons. First ly , the said provision encompasses literally wilful (or deliberate) and negligent injuries. Second ly , the applicant’s stepfather acted wilfully and not negligently.

[33] . Swedish Supreme Court judgment of 29 October 2007 (NJA 2007, p. 747): “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 . ”

[34] . See Wemhoff v. Germany , 27 June 1968, § 8, Series A no. 7, and my separate opinion in Fabris v. France [ GC ] , no. 16574/08 , ECHR 2013 .

[35] . The Court has accepted that damages provide an adequate remedy for violations of Article 8 rights arising from a dispute between private persons (see Von Hannover v. Germany , no. 59320/00, §§ 72-74, ECHR 2004-VI, and Armonienė v. Lithuania , no. 36919/02, §§ 45-48, 25 November 2008). In addition, in Kontrová v. Slovakia (no. 7510/04, 31 May 2007) , the Court found a violation of Article 2 on the ground of the authorities’ failure to protect the children’s lives, and a violation of Article 13 because their mother had been denied the possibility of seeking compensation from the offender.

[36] . As the visionary Supreme Court judgment of 23 October 2008 (NJA 2008, p. 946) concluded, when it stated that the non- criminalisation of covert filming of adults could amount to a breach of Article 8. A fortiori the same reasoning has to be applied to covert filming of children.