TrustHLT/LaCour huggingface dataset:
AP4 (Applicant): The government has also pointed to the present case to demonstrate that in spite of the change of judgment, which found that Sweden had not violated Elisa Söderman's rights, that three of seven judges had found that Sweden had not fulfilled its positive obligations according to Article 8 of the convention.
AP4 (Applicant): The very fact that the Swedish government has now proposed this new provision in the criminal code, which criminalizes covert photography in intimate places, is a clear demonstration that there exists a flaw in Sweden's present legislation.
AP4 (Applicant): New criminal laws are not proposed if there isn't a real lack, a lacuna, a flaw in the existing law.
AP4 (Applicant): In its observations from February 15, 2013, to the grand chamber, the Swedish government continues to maintain what we just pointed out, that the present application does not reveal any significant flaw in the Swedish law.
AP4 (Applicant): The government repeats the chamber's statements, and I quote, that although there was no specific provision in Swedish law concerning covert or illicit filming, there was a legal framework in place which could at least in theory cover acts such as the one that the applicant's stepfather was prosecuted for.
AP4 (Applicant): To demonstrate this claim, the government maintains that the stepfather was acquitted due to the lack of requisite evidence concerning certain aspects of his intent, and not due to the lack of applicable criminal provisions.
AP4 (Applicant): In our opinion, this is not a question of evidence, but rather a matter of the construction of the law.
AP4 (Applicant): It was and is possible to construe a criminal provision which criminalizes covert photography or filming as such, whether or not the victim becomes aware of it while it's taking place.
AP4 (Applicant): To construe such a crime is in fact exactly what the government is doing in its new proposal to the Swedish parliament.
AP4 (Applicant): The construction of the crime of sexual or other molestation with the requirement that the perpetrator must have the intention to let the victim become aware of the act at the moment it's carried out may certainly be criticized, since such punishable acts, as in the present case, are otherwise not covered by any other criminal provisions.
AP4 (Applicant): Obviously, it lies in the nature of covert filming that the perpetrator doesn't intend for the victim to discover that she or he is being filmed.
AP4 (Applicant): Thus, if the perpetrator has no intent that the victim, as in the present case, should discover that he was filmed and intended to use the film for his own purposes, it's meaningless, completely meaningless, to discuss in terms of establishing intent.
AP4 (Applicant): In reality, the government's claim that it was only a lack of evidence which was the problem and the reason that the stepfather was acquitted is simply an attempt to hide the flaw in the law, which Elisa's case has demonstrated.
AP4 (Applicant): It should be emphasized that what has been said concerning sexual molestation is equally relevant concerning the crime molestation.
AP4 (Applicant): The government itself, in its proposal for new legislation on offensive photography, stated the following, and I quote, a certain protection against offensive photography is stipulated in the provision concerning molestation in chapter 4, section 7 of the penal code, which protects individuals against different forms of ruthless behavior.
AP4 (Applicant): In order for the provision concerning molestation to apply, it has been found to require that the person being subject to the photographing has been aware of the photographing and in reality has been bothered by it.
AP4 (Applicant): This is the government's own statement.
AP4 (Applicant): Here, the government forgets for some reason to mention the question of the perpetrator's intent.
AP4 (Applicant): But in any case, this means that both the crime of sexual molestation and the crime molestation have the same subjective requirement and are equally inapplicable in most cases concerning covert filming.
AP4 (Applicant): The government also continues to maintain that the applicant could have invoked other grounds for her claim for damages in the criminal proceedings.
AP4 (Applicant): The government claimed that she could have invoked as an alternative ground for her claim for damages that the offender had caused her personal injury by acting negligently, but that she had failed to do so.
AP4 (Applicant): It's sufficient to recall how the alleged liability was qualified by the parties in the present case.
AP4 (Applicant): The prosecutor defined the act in the following way in the indictment.
AP4 (Applicant): The defendant, the stepfather, has during the period September 2002 to autumn 2002 in the municipality of Ludwika been indecent toward Elisa, born in 1987, by on one occasion in September 2002 assembling a video camera in the bathroom and putting it in a recording mode while Elisa undressed for a shower.
AP4 (Applicant): Elisa's attorney filed her claim and phrased the foundation for the claim in the following manner.
AP4 (Applicant): Through the indicted act, the defendant has seriously violated Elisa's personal integrity and he shall therefore pay compensation for the violation.
AP4 (Applicant): Concerning compensation for pain and suffering, the compensation concerns mental suffering.
AP4 (Applicant): By the phrase indicted act, the representative referred to the prosecutor's description of the act, which was just quoted.
AP4 (Applicant): Elisa's attorney simply claimed that the stepfather, by his actions, which he admitted, had caused Elisa injury in the form of violation of her personal integrity and pain and suffering.
AP4 (Applicant): He even presented independent evidence to prove that the stepfather had caused this injury and the extent of the injury.
AP4 (Applicant): The Swedish law of torts, chapter 2, section 1, states, and I quote, one, that is, a person who intentionally or due to negligence causes personal injury or material damage shall indemnify the damage.
AP4 (Applicant): In the present case, there can be no doubt that the stepfather caused the personal injury.
AP4 (Applicant): Elisa's attorney presented evidence concerning the nature and extent of the personal injury she'd suffered.
AP4 (Applicant): It was thus possible for the court in Sweden to award damages regardless of whether the stepfather had caused the personal injury willfully or due to negligence.
AP4 (Applicant): The question for the court was causality as such.
AP4 (Applicant): In other words, Elisa's attorney did not fail in any respect by not mentioning the word negligence.
AP4 (Applicant): In this case, the issue of negligence also becomes somewhat bizarre.
AP4 (Applicant): One can hardly hold that the stepfather caused Elisa's injury due to negligence.
AP4 (Applicant): The rules accounted for in what I've just said rather reveal the construction error or the flaw in the law as it has been developed in Swedish domestic case law rather than that there was a failure on the part of the prosecution or Elisa's attorney.
AP4 (Applicant): The government continues to maintain, based on a phrase made obituary dictum in the Svea Court of Appeals decision in this case, and I quote, that the stepfather's conduct, at least in theory, may have constituted an attempted child pornography offense.
AP4 (Applicant): However, this offense was not included in the indictment, and consequently, the Court of Appeal could not assess whether the stepfather could be held liable according to the relevant provision.
AP4 (Applicant): Hence, the stepfather was acquitted, end of quote.
AP4 (Applicant): The government should explain to us what exactly was lacking in the indictment which made it impossible for the Court of Appeal to find the stepfather guilty of this crime.
AP4 (Applicant): Was it simply the fact that the prosecutor had not suggested, alternatively, that this crime might be relevant, or were there other material aspects that were lacking in the indictment?
AP4 (Applicant): Professor Emeritus Madeline Leon-Hubert has, at the applicant's request, submitted a legal opinion on this question.
AP4 (Applicant): Her conclusion is that the film of a 14-year-old girl undressing before taking a shower in an otherwise everyday situation could not by itself be regarded as pornographic within the meaning of the criminal provision concerning child pornography.
AP4 (Applicant): I refer the Court to Professor Leon-Hubert's legal opinion.
AP4 (Applicant): In order for this film, in this case, to become pornographic within the meaning of Chapter 16, Section 10A of the Penal Code, the stepfather would have had to manipulate the film by making it appear that Elisa posed for him voluntarily, or in some other form, put the film in a pornographic context.
AP4 (Applicant): In this case, it was obviously not possible to speculate as to what the stepfather might have done with the film if it hadn't been destroyed.
AP4 (Applicant): For this reason, it was logical that the prosecutor didn't claim that the stepfather's act might be considered an attempted child pornography crime.
AP4 (Applicant): For the same reason, it was logical that Elisa's lawyer didn't either make such a claim, since such a claim would not have had the slightest prospect of success.
AP4 (Applicant): In our view, the discussion regarding an attempted child pornography crime should be dismissed from the agenda in examining the present case, since the government's arguments completely lack substance.
AP4 (Applicant): Possibly realizing that the Court may not be convinced that the stepfather's act in this case could have been prosecuted for the crimes of sexual molestation, molestation, or attempted child pornography, the government suggests that his acts might instead be prosecuted under three other sections of the Swedish Penal Code.
AP4 (Applicant): These other crimes are breach of domiciliary peace, unlawful intrusion, or defamation.
AP4 (Applicant): Generally speaking, the lack of substance in the government's arguments becomes even more obvious concerning these other criminal provisions.
AP4 (Applicant): The Court should note that the government has not in any way tried to explain the contents of, or on what grounds, these additional criminal provisions might apply to the present case.
AP4 (Applicant): In the opinion of the applicant, it ought to be the obligation of the government not to forward speculative or poorly substantiated arguments without any shred of support for its opinion.
AP4 (Applicant): This method has unnecessarily and substantially increased the amount of time spent in responding to these points, especially in our March observations.
AP4 (Applicant): The crimes breach of domiciliary peace or unlawful intrusion are quite simple.
AP4 (Applicant): The first one deals with a person who unlawfully intrudes or remains where another person has his living quarters.
AP4 (Applicant): And the second provision is a person who, without authorization, intrudes or remains in an office, factory, or other building or vessel.
AP4 (Applicant): In the present case, it's obvious that we're not dealing with some kind of an office or a factory or other public or private commercial place, but rather the home of the applicant.
AP4 (Applicant): But the stepfather at this time lived with Elisa and her mother with the consent of the rest of the family.
AP4 (Applicant): Since he was allowed to live in the house where the illicit or covert filming took place, the crime breach of domiciliary peace is not applicable to the present case.
AP4 (Applicant): No one has ever claimed that the stepfather unlawfully intruded or remained in the applicant's and her mother's living quarters.
AP4 (Applicant): It was, of course, not his whereabouts which was the subject of the indictment, but rather his act of covert filming.
AP4 (Applicant): Thus, it's obvious that neither of these invoked provisions are applicable in the present situation, since they don't even fulfill the objective criteria for the crimes.
AP4 (Applicant): The issue concerning whether covert or illicit filming may constitute the crime defamation is quite simple.
AP4 (Applicant): To be a crime, the image, the picture, the photo, the film must be spread to a third party, which is clearly not the issue in the present case.
AP4 (Applicant): Such an indictment in this case would fail immediately on this ground.
AP4 (Applicant): For a more complete discussion about defamation, we again refer to our observations from March of this year.
AP4 (Applicant): Thus, in our opinion, the government has failed to demonstrate that any of the crimes which the government has referred to could have provided Elisa with protection of her right to private life and personal integrity, according to Article 8 of the Convention.
AP4 (Applicant): We spent most of our time demonstrating that there is indeed a flaw in Swedish law regarding the protection of the applicant's rights under Article 8.
AP4 (Applicant): The question is whether this flaw is significant and whether the test of the existence of a significant flaw is the right method when this Court decides whether Sweden has fulfilled its positive obligations under Article 8 of the Convention.
AP4 (Applicant): The applicant completely agrees with our learned colleagues from the Human Rights Center of Ghent University in their submissions.
AP4 (Applicant): We especially agree with their definition of positive obligations as twofold.
AP4 (Applicant): States have to develop a regulatory framework containing adequate standards preventing violations of human rights by private actors, if necessary, through criminal provision.
AP4 (Applicant): That is a substantive protection.
AP4 (Applicant): And number two, states have to develop procedures that allow individuals to claim their human rights vis-a-vis other private actors.
AP4 (Applicant): That is procedural protection.
AP4 (Applicant): We also agree that the application of the significant flaws test in the chamber judgment is overly differential and fails to live up to the principles of priority to rights and effectiveness.
AP4 (Applicant): Finally, we would emphasize the importance of their observations regarding the placing of the burden of proof on the parties.
AP4 (Applicant): They point out that the chamber, in their judgment, has placed the burden of proof that there exists a significant flaw on the applicant.
AP4 (Applicant): In their opinion, and in our opinion, the burden of proof that there does not exist a significant flaw should be placed on the state.
AP4 (Applicant): By not doing so, the applicant has been placed in a disadvantaged position, and it creates a presumption that the state has discharged its positive obligation.
AP4 (Applicant): Your Honor, the flaw in Swedish law concerning the protection of personal integrity has been discussed by the Swedish government and parliament since 1966.
AP4 (Applicant): The only result of all these discussions has been one law prohibiting illegal recordings, for instance, wiretapping.
AP4 (Applicant): That is, of sounds and speech, which this law came into effect in 1975.
AP4 (Applicant): There are still no sanctions in Swedish law for the type of covert filming, as in Elisa Söderman's case.
AP4 (Applicant): It's difficult to see that this flaw was less than significant or that Sweden has fulfilled its positive obligations under the convention.
AP4 (Applicant): My colleague, Jan Söderman, will now develop this aspect of the case.
AP4 (Applicant): Thank you.
Josep Casadevall (JudgeP): Thank you, Mr. Lewis, Mr Södergren.
AP3 (Applicant): Honorable European judges, learned colleagues, in theory, this court is not required to settle disputes of purely private nature.
AP3 (Applicant): But that being said, this court cannot remain passive where a national court's interpretation of a legal act appears unreasonable, arbitrary, or otherwise inconsistent with the principles underlying the convention.
AP3 (Applicant): This was held in the Swedish Kursid, Mustafa, and Tadzibachi versus Sweden case from 2008 in paragraph 33.
AP3 (Applicant): In effect, this imposes quite far-reaching obligations on the domestic judiciary to protect the rights already national.
AP3 (Applicant): However, the Supreme Court of Sweden does seem to have a little bit different view on this.
AP3 (Applicant): It held in NJA 2007, page 747, that overriding reasons speaks against that a private party may be liable to pay damages due to a violation of Article 8 in situations where such liability does not follow from applicable Swedish tort law, not even through a trioty-conform interpretation.
AP3 (Applicant): Instead, the Supreme Court said that this was a matter for the legislator to handle.
AP3 (Applicant): Sorry.
AP3 (Applicant): It is not uncommon that Swedish courts drops difficult issues in the lap of the legislator.
AP3 (Applicant): Again, we must refer to this case from 2008, NJA 2008, 946.
AP3 (Applicant): Although the Supreme Court noted its concern regarding the total lack of sanctions in the context of Article 8, it went on saying that it must, and I quote, be the task of the legislator to decide whether such criminalization should be adopted, and if so, how it should be changed.
AP3 (Applicant): This constitutes, pure and simple, denidjustice.
AP3 (Applicant): To refer to the legislator issues concerning the already incorporated convention instead of ruling the matter comes at variance with Articles 13 and the subsidiarity and effectiveness principles.
AP3 (Applicant): Well, the government argues that there is no duty for the domestic judiciary, for the national legislator to impose damages with the direct application of Article 8 because there is no duty under the convention to incorporate the convention.
AP3 (Applicant): But this is a huge gap in the line of argumentation by the government.
AP3 (Applicant): What is meant by this is that the incorporation might not be the only method to effectively protect the rights at the national level.
AP3 (Applicant): However, whatever method of incorporation used, the level of protection must, of course, principally be the same.
AP3 (Applicant): The effect of the argumentation by the government leads to a requirement in practice of a double incorporation.
AP3 (Applicant): I mean that in areas where the protection for the rights in the convention in the domestic conditions is insufficient, further domestic legislative measures are still needed according to this approach.
AP3 (Applicant): The incorporated convention is not sufficient, but it has to be followed by domestic legislative measures issue by issue.
AP3 (Applicant): This creates an inertia in the system for the protection of human rights in the national system.
AP3 (Applicant): I must therefore put this question here today to the government.
AP3 (Applicant): Why did we incorporate the convention if the judiciary is not allowed to apply the convention directly, but has to await legislation from the parliament when the domestic law is bad?
AP3 (Applicant): I just want to make clear, we are not arguing that the stepfather in this case should be convicted at the time for a crime with the application of deficient criminal provisions as in the present case.
AP3 (Applicant): That would come into conflict with the sentence nulla poena sine lege.
AP3 (Applicant): However, there is no such thing as non-damnum sine lege principle, at least not in Sweden.
AP3 (Applicant): The sanctioned damages is of course not a punishment, but it's aimed to repair the damages inflicted.
AP3 (Applicant): Furthermore, the Swedish 1972 tort act was the codification of previous case law, and it was held in the preparatory works that the codification should not be prevent further developments in the case law.
AP3 (Applicant): Surely, we can all agree that the imposition of criminal sanctions require much stricter criteria than the imposition of damages aimed at reparation, both according to the convention and Swedish law.
AP3 (Applicant): What has been wrong in the Swedish judiciary regarding the situation at issue is that it seemed to have presupposed a penalty that seemed to have presupposed that damages may not be awarded unless the offender actually was convicted for the criminal act.
AP3 (Applicant): Thereby, the national judiciary has overlooked that the convention is Swedish law by the incorporation act, which the Swedish judges must uphold according to natural law, and in fact have sworn to do in Chapter 7, Section 11 in the Judicial Code.
AP3 (Applicant): Since the compensation for damages flowing for a breach of the convention should, in principle, be available as part of the range of the rodess, the national court should have awarded Elisa Söderman damages imposed on a stepfather, even though he was acquitted from the criminal charge.
AP3 (Applicant): The legal ground for this should have been the incorporation act, in this case Article 8 of the incorporation if the convention could not have been applied directly.
AP3 (Applicant): However, the court of appeal did not, and I'm going back to where I started, that this court cannot remain passive where a national court's interpretation of a legal act appears unreasonable, arbitrary, or otherwise inconsistent with the principle underlying the convention.
AP3 (Applicant): It's in fact a violation of Article 13 in conjunction with Article 8.
AP3 (Applicant): And I thank you.
Josep Casadevall (JudgeP): Thank you, Mr. Södergren, Mr. Rönquist.
GR1 (Government): the present case refers to an attempt by a stepfather to film his 14-year-old stepdaughter, Elisa Södermann, while she was undressing to take a shower in the bathroom of their home.
GR1 (Government): The government considers this act to be a breach of the applicant's right to respect for her privacy, a breach that should be regarded as serious, especially considering her young age.
GR1 (Government): There is no reason to defend the act of the stepfather, nor are there any countervailing interests that could justify it.
GR1 (Government): However, the issue in this case is not whether the stepfather's act was justifiable.
GR1 (Government): Instead, the main issue is whether there was sufficient protection in Swedish law against the kind of breaches of integrity that the applicant was subjected to.
GR1 (Government): Considering the state's obligations under Article 8 of the Convention and the margin of appreciation afforded for securing the right to respect for private life in the sphere of relations between individuals, the government holds that there was such sufficient protection at the relevant time.
GR1 (Government): There were criminal provisions that could apply to the act of the stepfather, and the applicant also had access to a civil law remedy.
GR1 (Government): For the sake of clarity, I would initially like to state that the government fully maintains its position as stated in the written memorial submitted to the Grand Chamber on 15 February this year.
GR1 (Government): These oral observations will be used to highlight some of the government's arguments that I find particularly relevant to the assessment of the case.
GR1 (Government): I will also make a few comments with regard to the additional observations submitted by the applicant and to the third-party intervention made by the Human Rights Centre at Ghent University.
GR1 (Government): Mr. President,
GR1 (Government): the relevant facts of the case do not seem to be in dispute.
GR1 (Government): I do not find it necessary to make any remarks in this regard, nor do I find it necessary to comment on the admissibility of the complaint, as I believe the government's position on this matter is clearly explained in the memorial to the Grand Chamber.
GR1 (Government): When it comes to the merits of the case, I note initially that the applicant's complaint under Article 13 was never dealt with by the Chamber, nor has the Grand Chamber posed any questions relating to this issue.
GR1 (Government): In this part, I therefore find it sufficient to refer to what the government has submitted in its memorial, paragraphs 40 to 43.
GR1 (Government): I will instead focus on the various aspects of Article 8 of the Convention that the present case gives rise to.