TrustHLT/LaCour huggingface dataset:
GR1 (Government): This case concerns Sweden's positive obligations under the Convention to provide sufficient protection against the kind of breaches of integrity that the applicant was subjected to by another individual.
GR1 (Government): Initially, I would like to clarify that the government does not question that Article 8 is applicable in the present case.
GR1 (Government): However, in the light of the wide margin of appreciation afforded to states in this area, the government is of the opinion that the gravity of the act carried out by the applicant's stepfather is not such that it can be considered that states are required under the Convention to criminalise it.
GR1 (Government): In this connection, the government finds it pertinent to point out that the disputed act did not contain any physical element and is therefore not comparable to the very grave acts such as rape, for which the Court has considered criminalisation to be necessary.
GR1 (Government): This especially applies since, as concluded by the Court of Appeal, it is unclear whether the act of the stepfather actually resulted in the applicant being filmed.
GR1 (Government): Against this background, I would argue that protection against acts such as the one carried out by the stepfather can be afforded not only by way of criminal law protection, but also through civil law remedies.
GR1 (Government): It is therefore highly relevant to note that apart from the criminal provisions in Swedish law that could apply to the impound measure of the stepfather, there was also a civil remedy available to the applicant in the present case.
GR1 (Government): I will elaborate on this point at a later stage of the presentation.
GR1 (Government): When considering the case before us, I find it important to keep in mind the Court's jurisprudence stating that only significant flaws in legislation and practice can amount to a breach of the state's positive obligations under Article 8 of the Convention.
GR1 (Government): The government finds this standard to be established in the Court's case law through the cases of MC versus Bulgaria, Zeladin versus France, and MNC versus Romania.
GR1 (Government): I therefore cannot agree with the contention in the third-party intervention that the chamber judgment elevated this test to a general principle.
GR1 (Government): On the contrary, it is the government's view that the chamber was correct in applying what the Jummereiser Institute refers to as the significant flaws test, given the case law I just referred to.
GR1 (Government): It should be noted in this connection that the minority of the chamber also appear to be of the view that this test should be applied in this case.
GR1 (Government): I refer in this regard to the last paragraph of the dissenting opinion where the minority held that there was a significant omission in Swedish legislation in the present case.
GR1 (Government): In the government's view, there are strong reasons to uphold the principle that only significant flaws can amount to a breach of a state's positive obligations.
GR1 (Government): This is so since the interest of protecting the rights under Article 8 must be appropriately balanced against other rights under the Convention, such as the freedom of expression.
GR1 (Government): Amending national legislation in this area is therefore a sensitive and very complex exercise where a variety of strong and legitimate interests must be taken into account.
GR1 (Government): In this connection, it's relevant to note the court's case law stipulating that positive obligations should not be interpreted in a manner which imposes a disproportionate burden on the authorities or the legislator.
GR1 (Government): Mr. President, I also find it necessary
GR1 (Government): to address some of the comments made by the Jummereiser Institute concerning the general principles of interpretation regarding the positive obligation of states under the Convention.
GR1 (Government): The case law referred to by the Institute stating that limitations to Convention rights should be interpreted narrowly is, in my view, not relevant to the present case.
GR1 (Government): This is so since this principle has been developed in cases regarding the obligation of states not to introduce arbitrary interferences with the Convention rights, or in other words, the negative undertakings of states, while the present case concerns the scope of Sweden's positive obligations under the Convention.
GR1 (Government): For the same reason, I would argue that the court's jurisprudence, according to which respondents states must provide legitimate reasons for interferences with rights under the Convention, does not have a bearing on the present case.
GR1 (Government): It appears difficult to apply principles developed with regard to cases concerning negative undertakings of states to cases concerning positive obligations.
GR1 (Government): Moreover, it appears there are no examples of this in the court's case law.
GR1 (Government): of whether the Swedish legislation in force at the material time offered sufficient protection against the kind of breaches of integrity that the applicant was subjected to.
GR1 (Government): It is important to stress that covert filming under certain circumstances can constitute a criminal act in Swedish law, although there is no general prohibition against such filming.
GR1 (Government): In the present case, the applicant's stepfather was prosecuted for sexual molestation and also convicted for this crime in the district court.
GR1 (Government): However, the Court of Appeal conceded that in order to establish criminal liability, the stepfather needed to have had the intent that the filming should come to the attention of the applicant.
GR1 (Government): Since it was not possible to establish such intent, the stepfather was acquitted.
GR1 (Government): It should be noted that the issue of whether such actions as the one carried out by the stepfather constituted an offence of sexual molestation was not explicitly addressed in the Travå Preparatoriet for the provisions in its wording at the material time.
GR1 (Government): Moreover, the stepfather was convicted for this offence in the district court, as I mentioned.
GR1 (Government): Accordingly, there was room for different interpretations on whether acts such as the one conducted by the stepfather could constitute sexual molestation.
GR1 (Government): The Court of Appeal mentioned in its judgment that the stepfather's filming or attempted filming of the applicant may have constituted a child pornography offence.
GR1 (Government): As stated in the government's memorial, it is not possible to conclude why a prosecution was never brought in respect of this offence.
GR1 (Government): However, no images were retained from the recording or attempted recording by the stepfather, and needless to say, the prosecutor may under such circumstances find it difficult to prove that an attempted child pornography offence has been committed.
GR1 (Government): Against this background, the government maintains that the provision regarding offences of child pornography under certain circumstances can be applicable to acts such as the one carried out in the present case.
GR1 (Government): The applicant's assertion in this regard or the legal opinion she has submitted do not give reason to alter this view.
GR1 (Government): In the present case, the intention of the stepfather was to film a 14-year-old girl who was undressing in the bathroom in order to take a shower.
GR1 (Government): The sole purpose of the act was to stimulate the viewer's sexual fantasies.
GR1 (Government): It was done covertly in an intimate place.
GR1 (Government): It is therefore not the type of situation which the legislature intended to exclude from the applicability of the crime of child pornography.
GR1 (Government): On the contrary, in the Travaux Preparatoire, it is stated that the provision on crimes of child pornography could also apply to the recording of images of children participating in non-sexual situations.
GR1 (Government): It may be mentioned in this connection that the government fully recognizes what is put forward in the third-party intervention about the particular importance of protecting minors against sexual abuse.
GR1 (Government): Moreover, I believe that the strong interest in doing so is reflected in Swedish legislation inter-related by the provisions on sexual crimes against children and the provision on the crime of child pornography.
GR1 (Government): Mr. President, I find it pertinent to draw attention
GR1 (Government): to the Chamber's statement that it cannot be concluded that the disputed act of the stepfather was not in theory covered by the Swedish penal code.
GR1 (Government): This is so since this statement is questioned by the applicant and in the third-party intervention as being consistent with the principle developed in the court's case law that rights under the convention should be practical and effective as opposed to theoretical and illusory.
GR1 (Government): The government does not share this view of the statement in question.
GR1 (Government): In my opinion, the statement must be considered a reflection of the fact that even if a certain act falls within the scope of criminal law provisions, it may not always be possible to prosecute or convict the alleged perpetrator of the act, for instance, due to matters of evidence.
GR1 (Government): Moreover, as the majority of the Chamber pointed out, the fact that the disputed act of the stepfather could have fallen within the scope of Swedish criminal law makes this case distinct from the cases of X and Y versus the Netherlands and KU versus Finland, where the court concluded that the respondent states had not fulfilled their positive obligations under Article 8.
GR1 (Government): In the present case, there were neither any procedural requirements which made it impossible for the applicant to enjoy effective protection of her rights, nor any obstacles to launching an effective investigation.
GR1 (Government): It should also be noted in this regard that there will always be room for judicial interpretation, however clearly drafted a provision may be.
GR1 (Government): It should also be noted that there is, of course, no requirement under the Convention that a prosecution must result in a conviction.
GR1 (Government): Mr. President, in sum, the government maintains
GR1 (Government): that at the material time, there were provisions of Swedish criminal law applicable to acts such as the one carried out by the stepfather, notably the provisions regarding sexual molestation and the crime of child pornography.
GR1 (Government): Swedish criminal law thus offered protection against the kind of breaches of integrity that the applicant was subjected to.
GR1 (Government): In its written submission, the government has referred to the court's case law, stating that because the criminal law is not necessarily the legislature's only way of ensuring respect for private life, hence civil law remedies may also be appropriate for this purpose.
GR1 (Government): It is therefore of particular relevance to note that there was a civil remedy available to the applicant in the present case.
GR1 (Government): It should be noted in this regard that there was nothing that prevented the applicant from invoking as an alternative ground for damages that the stepfather had acted negligently in respect of her and that he therefore should be liable to compensate her for the psychological injury that she may have sustained as a result of his actions.
GR1 (Government): Such a claim could have been granted under Chapter 2, Section 1 of the Tort Liability Act.
GR1 (Government): This principle follows from Inter alia, the Supreme Court case referred to as NDA 1990, page 210, where the Supreme Court rejected the claim for damages in a criminal case after having acquitted the defendant.
GR1 (Government): However, the Supreme Court also noted that no other grounds for damages except criminal liability had been invoked in support of the claim for damages.
GR1 (Government): This demonstrates that under Swedish court law, damages may under certain circumstances be awarded in cases such as the present, even if the defendant is acquitted.
GR1 (Government): This is also confirmed by the applicant's submission on 15 February to the Grand Chamber, paragraph 51.
GR1 (Government): Under Swedish procedural law, there is a possibility for an agreed person to take action against a suspect of an offence in the form of a private claim.
GR1 (Government): It may be noted in this regard that the level of proof required in order to award damages based on such a claim is generally lower than the level of proof required for a conviction for a criminal offence.
GR1 (Government): Moreover, in order for a claim of damages to be granted, it is sufficient to demonstrate that the agreed party has suffered an injury due to a negligent act of the perpetrator.
GR1 (Government): A private claim may be brought in connection with the prosecution of the offence or in a separate civil proceeding.
GR1 (Government): In the present case, the applicant's private claim for damages before the domestic court was joined with the prosecution.
GR1 (Government): However, the claim was based merely on the same circumstances as in the prosecution and nothing more.
GR1 (Government): This meant that the Court of Appeals' finding with regard to the issue of criminal liability was decisive for its assessment of the private claim.
GR1 (Government): The government holds that the applicant could also have invoked that her stepfather had caused her a psychological injury by acting negligently in respect of her and that he should therefore be liable to pay compensation even though no criminal liability had been established.
GR1 (Government): As opposed to what the applicant has asserted, the Court of Appeals could not ex officio examine if damages could be awarded on the basis of negligence.
GR1 (Government): Thus, since negligence was never invoked, it was not possible for the domestic court to award her damages on this ground.
GR1 (Government): These principles are inherent in Swedish procedural law and are explained more comprehensively in the memorial paragraphs 27 to 38.
GR1 (Government): Against this background, it cannot be considered that the lack of an award of damages entailed a violation of Article 8.
GR1 (Government): Mr. President, the Grand Chamber has also raised the issue
GR1 (Government): of whether the absence of a specific provision in Swedish law concerning completed or attempted acts of covert and illicit filming entails a breach of Article 8 of the Convention.
GR1 (Government): In this regard, the government notes that it does not follow from the court's case law that states are required to criminalize such acts.
GR1 (Government): Moreover, according to the court's case law, states enjoy a wide margin of appreciation in this area.
GR1 (Government): In addition, one must have regard to the court's jurisprudence stating that in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose a disproportionate burden on the authorities or the legislator.
GR1 (Government): In sum, Mr. President, I do not find support
GR1 (Government): in the court's case law for the proposition that the absence of a specific provision regarding covert and illicit filming entails a breach of the Convention.
GR1 (Government): Further, when assessing the present case, it is also relevant to consider whether the responsible authorities took appropriate action with regard to the incident that gave rise to it.
GR1 (Government): In this connection, it should be noted that the stepfather was prosecuted for his actions and that he was convicted for sexual molestation by the district court.
GR1 (Government): The government would also like to draw attention to the applicant's position on this issue, which is that the prosecutor did not fail to conduct an effective prosecution, paragraph 16 to 17, of the applicant's written observation to the Grand Chamber.
GR1 (Government): When it comes to the rule of the courts, it may initially be concluded that they were prevented from assessing whether the action of the stepfather constituted an attempted child pornography offense.
GR1 (Government): This is so since Swedish procedural law stipulates that courts must not deliver a judgment relating to a criminal act other than the act for which the prosecution has been instituted and the indictment did not cover this offense.
GR1 (Government): As regards to the issue of whether the stepfather had committed the offense of sexual molestation, the rule of the courts was to apply the legislation in force at the time of the act for which the stepfather was prosecuted.
GR1 (Government): In interpreting the penal provision of sexual molestation, the Court of Appeal was obliged to take also into account other rights under the Convention, including the defendant's rights under Article 7, not to be found guilty of any act that did not constitute a criminal offense in clear and explicit law at the time when it was committed.
GR1 (Government): I note that the Chamber also found such considerations to be of relevance to the assessment of the case.
GR1 (Government): Against this background, the Court of Appeal's handling of the case cannot be considered to be incompatible with Article 8 of the Convention.
GR1 (Government): Mr. President, the government looks seriously
GR1 (Government): upon breaches of integrity carried out in the sphere of the relations between individuals themselves.
GR1 (Government): Moreover, the government recognizes the importance of measures aimed to prevent such breaches from occurring and to have a system in place which makes it possible to impose sanctions on perpetrators and enables victims to be afforded appropriate redress.
GR1 (Government): As described in the memorial, there are ongoing legislative efforts in Sweden that will further strengthen the protection of these interests under Swedish law.
GR1 (Government): A bill has been presented to Parliament that criminalizes intrusive photography, i.e. certain acts of filming persons in private situations
GR1 (Government): without their permission.
GR1 (Government): In my view, when considering the present application, one must have regard to the fact that Sweden has taken these active steps to further enhance protection in Swedish law against the kind of breaches of integrity that the applicant was subjected to.
GR1 (Government): It may be noted that the majority of the chamber conceded this to be of relevance to the assessment of the case.
GR1 (Government): And I here refer to paragraph 71 of the chamber's judgment.
GR1 (Government): In conclusion, Mr. President,
GR1 (Government): in light of the arguments presented in writing and before the Grand Chamber today, the government contends that the present case does not reveal any violation of the convention.
Josep Casadevall (JudgeP): Thank you, Mr. Rönquist.
Josep Casadevall (JudgeP): That is the end of the first round.
Josep Casadevall (JudgeP): Have my colleagues questions?
Josep Casadevall (JudgeP): Judge Ziemele.
Ineta Ziemele (Judge): I have two questions.
Ineta Ziemele (Judge): And the first question could go to both parties.
Ineta Ziemele (Judge): It stems from some of the statements in your both written and oral submissions.
Ineta Ziemele (Judge): I would be very happy if you could clarify whether, in your view, a psychological violence was committed by the very fact that the girl, at the time, discovered that her intimate privacy, human dignity, if you will, might have been breached by the stepfather and the actual fact that the camera was found.
Ineta Ziemele (Judge): So it's really, I would like your views on whether you consider that was, at that moment, an act of psychological violence.
Ineta Ziemele (Judge): And my second question goes more to the government, but if the applicant have something to add, I think that would be appreciated.
Ineta Ziemele (Judge): In view of the particular vulnerability of children against all types of violence, and I think we are in the presence not simply of the two private person relationship, but we are in the presence of a child, and the basic principle of human rights law that all decisions and actions of the authorities should have the best interests of the child in mind, could the government point out in what manner were the steps that you have just described, as taken following the complaints from the applicant, effective for the protection of a child, in a sense of both preventing that such acts occur in the future, and in a sense of giving some element of rehabilitation?
Linos-Alexandre Sicilianos (Judge): I have also two questions.
Linos-Alexandre Sicilianos (Judge): The first goes to the government.
Linos-Alexandre Sicilianos (Judge): Mr. Rönquist, if I got you right,
Linos-Alexandre Sicilianos (Judge): you said that the gravity of the act by the stepfather was not such as to create a positive obligation of the state to criminalize it.
Linos-Alexandre Sicilianos (Judge): And then you elaborated on the notion of significant flaws.
Linos-Alexandre Sicilianos (Judge): May we take it that there was, in fact, a flaw in criminal law at the time of the acts, but that such flaw was not significant according to the government?
Linos-Alexandre Sicilianos (Judge): Is this assumption a correct one or not?
Linos-Alexandre Sicilianos (Judge): And the second question goes to the applicant, especially to Mr. Lewis.
Linos-Alexandre Sicilianos (Judge): Since the time of the acts, there have been legislative changes and proposals for new criminal legislation.
Linos-Alexandre Sicilianos (Judge): Do you think that the flaw you have referred to has been covered by legislation actually in force?
Linos-Alexandre Sicilianos (Judge): Thank you very much, Mr. Chairman.
Josep Casadevall (JudgeP): Thank you. Judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): I have two questions to both parties.
Paulo Pinto de Albuquerque (Judge): The government argue that the child pornography offense was applicable, at least in theory, to the facts.
Paulo Pinto de Albuquerque (Judge): Assuming that this position is correct, why didn't the Court of Appeal use the provision of Chapter 30, Section 3 of the Code of Judicial Procedure and change the legal characterization of the criminal offense into this one?
Paulo Pinto de Albuquerque (Judge): First question.
Paulo Pinto de Albuquerque (Judge): Second question.
Paulo Pinto de Albuquerque (Judge): According to Chapter 22, Section 7 of the Code of Judicial Procedure, the court can award compensation to non-pecuniary damages, even in the case of acquittal of the defendant.
Paulo Pinto de Albuquerque (Judge): My question is, why the Court of Appeal did not use these Chapter 22, Section 7 of the Swedish Code of Judicial Procedure?
Paulo Pinto de Albuquerque (Judge): And adding to that, if the government accept the view of the Supreme Court that there is no civil liability based directly on the convention, directly on provisions of the convention, when there are no other violations of domestic law?
Paulo Pinto de Albuquerque (Judge): And I quote, from the decision of the Supreme Court of October 2007, an individual could not be obliged to compensate another individual directly on the basis of the convention.
Paulo Pinto de Albuquerque (Judge): Does the government support this view?
Paulo Pinto de Albuquerque (Judge): And as this view, this legal interpretation of national law object to the fulfillment of the positive obligations of the respondent state in this particular case.
Josep Casadevall (JudgeP): Thank you. Judge Zupančič.
Boštjan M. Zupančič (Judge): Thank you Mr. President.
Boštjan M. Zupančič (Judge): I have also two questions.
Boštjan M. Zupančič (Judge): The first one is sort of in the framework of comparative law because many countries in Central Europe at least and in France as well have something which is called personality rights.
Boštjan M. Zupančič (Judge): "Persönlichkeit Richten" in German, "le droit de personalité" in French.