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.