PROCEDURE

The case originated in an application (no. 5786/08) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swedish national, Ms Eliza Söderman (“the applicant”), on 21 January 2008.

The applicant was represented by Mr J. Södergren, Mr K. Lewis and Mr C. Crafoord, lawyers practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agents, Mr A. Rönquist, Ms G. Isaksson and Mr O. Widgren, of the Ministry of Foreign Affairs.

The applicant alleged that the Swedish State had failed to comply with its obligation under Article 8 of the Convention to provide her with remedies against her stepfather’s violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old. She also relied on Article 13 of the Convention.

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Its President acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3), and the case was called E.S. v. Sweden. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1) and the application was assigned to the newly composed Fifth Section. On 21 June 2012 a Chamber composed of Dean Spielmann, President, Elisabet Fura, Karel Jungwiert, Mark Villiger, Ann Power-Forde, Ganna Yudkivska, André Potocki, judges, and Claudia Westerdiek, Section Registrar, delivered its judgment. It decided to examine the complaint under Article 8 alone and unanimously declared it admissible, holding, by four votes to three, that there had been no violation of that provision. The joint dissenting opinion of Judges Spielmann, Villiger and Power-Forde was annexed to the judgment.

On 19 September 2012 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and a panel of the Grand Chamber accepted the request on 19 November 2012.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

The applicant and the Government each filed further observations on the merits (Rule 59 § 1).

In addition, third-party comments were received from the Human Rights Centre of Ghent University, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

On 22 March 2013, the President of the Grand Chamber acceded to the applicant’s request of 12 March 2013 to lift the anonymity granted to her.

A hearing took place in public in the Human Rights Building, Strasbourg, on 3 April 2013 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr A. Rönquist, Agent, Ambassador and Director General for Legal Affairs, Ministry of Foreign Affairs, Counsel, Ms G. Isaksson, Co-Agent, Deputy Director, Ministry of Foreign Affairs, Mr O. Widgren, Co-Agent, Special Adviser, Ministry of Foreign Affairs, Mr M. Säfsten, Senior Legal Adviser, Ministry of Justice, Ms V. Lång, Deputy Director, Ministry of Justice, Mr C. Rosenmüller, Legal Adviser, Ministry of Justice, Advisers; (b) for the applicant Mr J. Södergren, Mr K. Lewis, Mr C. Crafoord, Counsel. The applicant was also present. The Court heard addresses by Mr Crafoord, Mr Lewis, Mr Södergren and Mr Rönquist, as well as their replies to questions put by Judges Ziemele, Sicilianos, Pinto de Albuquerque and Zupančič.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1987 and lives in Ludvika.

In September 2002, when she was 14 years old, she discovered that her stepfather had hidden a video-camera in the laundry basket in the bathroom, which was in recording mode and directed towards the spot where she had undressed before taking a shower. Immediately after the incident, the film was burned without anyone seeing it.

In September 2004, two years later, the applicant’s mother reported the incident to the police. An officially appointed counsel (målsägandebiträde) was assigned to the applicant on 5 October 2004.

On 21 October 2005 the public prosecutor indicted the applicant’s stepfather for sexual molestation (sexuellt ofredande) under Chapter 6, Article 7 § 3, of the Penal Code. He was also charged on two counts of sexual molestation of the applicant’s cousin, committed during the spring and summer of 2003 when the cousin was 16 years old, for having caressed her thigh and for having expressed his desire to have sex with her. He was charged on a fourth count of sexual molestation for having allegedly looked through the window of the applicant’s room when she was undressing in the late summer of 2003.

On 20 January 2006 the applicant, represented by counsel, submitted a claim for damages of 25,000 Swedish kronor (SEK): SEK 15,000 in compensation for violation of her personal integrity and SEK 10,000 for pain and suffering, to be joined to the criminal proceedings. The applicant based her private claim on “the criminal act for which her stepfather was being prosecuted”, without invoking any specific sections of the Tort Liability Act.

The applicant, her stepfather, her mother and her cousin gave evidence before the District Court of Falun (Falu Tingsrätt). The applicant explained that on the relevant day in September 2002, as she was about to take a shower, her stepfather had been doing something in the bathroom. When she discovered the camera, it was in recording mode, making a buzzing sound and flashing. She did not touch any of the buttons. She went to her mother in tears, taking the video-camera wrapped in a towel. H stepfather took the camera from her mother. Subsequently, the applicant saw her mother and stepfather burning a film, but she was not sure whether it was a recording of her.

The applicant’s mother confirmed the applicant’s statement and added that she did not know whether anything had been recorded since the film had been burned without her seeing it. She had not reported the incident to the police until 2004, when she had heard that the applicant’s cousin had also experienced incidents with the accused.

The applicant’s stepfather explained that he had lived with her mother from 1997 until the autumn of 2003. They had separated on account of the incident in question, among other things. He had wanted to try to film with a hidden camera, but it had been an impulsive act. He was not sure whether the camera had been in recording mode or whether a film had been recorded. The applicant’s mother had burned the film without any of them seeing it.

By a judgment of 14 February 2006, the District Court convicted the applicant’s stepfather on all four counts of sexual molestation under Chapter 6, Article 7 § 3, of the Penal Code. As regards the first count of sexual molestation, it found it established that he had had a sexual intention in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress. It added that the buzzing sound from the camera heard by the applicant strongly suggested that the camera was switched on and was actually recording. Otherwise, there would have been no point in hiding the camera among the clothes in the laundry basket. The hole in the laundry basket indicated that the strategy was quite refined. Regardless of the fact that, afterwards, no one had verified the contents of the film, it could under the circumstances be considered established that the applicant’s stepfather had actually filmed her while she was naked.

The applicant’s stepfather was given a suspended sentence combined with seventy-five hours’ compulsory community service. Moreover, he was ordered to pay the applicant damages in the amount of SEK 20,000.

On appeal, by a judgment of 16 October 2007, the Svea Court of Appeal (Svea hovrätt) convicted him on the two counts of sexual molestation committed against the cousin, for which he was given a suspended sentence and ordered to pay sixty day-fines of SEK 50, amounting to a total of SEK 3,000.

The Court of Appeal acquitted him on the counts of sexual molestation allegedly committed against the applicant.

As to the incident in September 2002, the Court of Appeal found it established that the applicant’s stepfather had put a camera in the bathroom and that he had started the recording before she was about to take a shower. Whether a recording had actually been made, however, was unclear. It was apparent, the court continued, that his motive had been to film the applicant covertly for a sexual purpose. Given that motive, it was also regarded as certain that he had not intended the applicant to find out about the filming. Nor, according to the court, had he been indifferent to the risk that she would find out about it. In assessing whether the act legally constituted sexual molestation within the meaning of Chapter 6, Article 7 § 3, of the Penal Code, the Court of Appeal referred to a Supreme Court judgment (published in Nyatt jurisdiskt arkiv (NJA) 1996, p. 418) concerning a man who had covertly filmed his sleeping girlfriend while he masturbated. The man was acquitted of sexual molestation because he had not intended his girlfriend to find out about the filming. Moreover, in the said judgment the Supreme Court held that the isolated act of filming was not a crime in itself, as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and despite finding that the situation the applicant’s stepfather intended to film was obviously of a sensitive nature as regards her personal integrity and that the violation was particularly serious on account of the applicant’s age and relationship to her stepfather, the Court of Appeal found that he could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. The court noted that the applicant had become aware of her stepfather’s attempt to film her, but that this had not been covered by his intent.

The Court of Appeal went on to point out that the act might, at least theoretically, have constituted the crime of attempted child pornography (försök till barnpornografibrott) considering the applicant’s age. However, since no charge of that kind had been brought against the applicant’s stepfather, the Court of Appeal could not examine whether he could be held responsible for such a crime. In conclusion, despite finding his behaviour extremely reprehensible, he was acquitted and the applicant’s claim for damages dismissed.

As regards the incident in the late summer of 2003, the Court of Appeal found it established that the applicant’s stepfather had wanted to look at her secretly. Thus, although the court found such behaviour reprehensible, he had lacked the intent that the applicant should see him.

On 12 December 2007 the Supreme Court (Högsta domstolen) refused leave to appeal.