CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 12 novembre 2013

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SWEDEN   (Application no. 5786/08)                     JUDGMENT     STRASBOURG   12 November 2013         In the case of Söderman v. Sweden, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Josep Casadevall, President ,   Guido Raimondi,   Ineta Ziemele,   Isabelle Berro-Lefèvre,   Corneliu Bîrsan,   Boštjan M. Zupančič,   Mirjana Lazarova Trajkovska,   Ledi Bianku,   Zdravka Kalaydjieva,   Kristina Pardalos,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse,   Helen Keller,   Helena Jäderblom,   Johannes Silvis, judges , and Erik Fribergh, Registrar , Having deliberated in private on 3 April 2013 and on 25 September 2013, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     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. 2.     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. 3.     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. 4.     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. 5.     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. 6.     The composition of the Grand Chamber was determined according to the provisions of Article   26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicant and the Government each filed further observations on the merits (Rule 59 § 1). 8.     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). 9.     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. 10.     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 11.     The applicant was born in 1987 and lives in Ludvika. 12.     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. 13.     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. 14.     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. 15.     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. 16.     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. 17.     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. 18.     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. 19.     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. 20.     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. 21.     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. 22.     The Court of Appeal acquitted him on the counts of sexual molestation allegedly committed against the applicant. 23.     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. 24.     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. 25.     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. 26.     On 12 December 2007 the Supreme Court ( Högsta domstolen ) refused leave to appeal. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Sexual molestation 27.     The offence of sexual molestation (and child pornography, see below) falls within the domain of public prosecution, in which the principle of objectivity is applied whereby no prosecution should be brought if the prosecutor deems that the conditions for a conviction are lacking. The provision on sexual molestation can be found in the Penal Code ( Brottsbalken , 1962:700) which, before 1 April 2005, provided: Chapter 6 on sexual crimes, Article   7 “1.     If a person sexually touches a child under 15 years of age otherwise than as previously provided for in this Chapter, or induces the child to undertake or participate in an act with sexual implications, a fine or imprisonment of a maximum period of two years shall be imposed for sexual molestation. 2.     A sentence for sexual molestation shall also be imposed on a person who by coercion, seduction or other improper influence induces a person who has attained the age of 15 but not 18 to undertake or participate in an act with sexual implications if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture. 3.     This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards a person in a way that flagrantly violates a sense of propriety.” 28.     On 1 April 2005 that provision was incorporated into Article   10 of Chapter   6 and reads as follows: “1.     A person who, otherwise than as previously provided in this Chapter, sexually touches a child under 15 years of age or induces the child to undertake or participate in an act with sexual implications shall be sentenced for sexual molestation to a fine or to imprisonment of a maximum period of two years. 2.     This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person’s sexual integrity.” 29.     It should be noted that a person cannot be held responsible for an uncompleted act of sexual molestation, such as attempting or preparing to commit such a crime (see, by converse implication, Chapter 23, Article   1, of the Penal Code). 30.     Subsequently, based on the statements in the preparatory works to the provision, the 2008 Sexual Offences Commission stated the following. “In our view, it is ... quite clear that the second paragraph of the provision on sexual molestation should also include actions directed at persons who are unconscious or asleep. The provision therefore belongs to the category of sexual offences, not offences against integrity. Using this as the starting point for how the offence of sexual molestation should be handled, it may also be possible to assess situations in which a person has covertly filmed or photographed another person in a sexually intrusive way as sexual molestation.” B.     Attempted child pornography 31.     The relevant provisions of the Penal Code read: Article   10a of Chapter 16 on crimes against public order “A person who 1.     portrays a child in a pornographic picture; 2.     disseminates, transfers, grants use of, exhibits, or in any other way makes such a picture of a child available to some other person; 3.     acquires or offers such a picture of a child; 4.     brings about contact between a buyer and a seller of such pictures of children or takes any other similar step to facilitate dealing in such pictures; or 5.     possesses such a picture of a child shall be sentenced for the crime of child pornography to imprisonment for a maximum period of two years, or, if it is a petty offence, to a fine or imprisonment for a maximum period of six months. A child is held to be a person whose pubertal development is not complete or who is under 18 years of age. If a person’s pubertal development is complete, liability shall be imposed for deeds committed under points 2 to 5 above only if it is apparent from the picture or its circumstances that the depicted person is under 18 years of age. ...” 32.     Before 1 January 2011, the second paragraph of the above Article read: “A child is held to be a person whose pubertal development is not complete or who, where this is apparent from the picture and its circumstances, is less than 18 years of age ...” 33.     The term “pornographic picture” is not defined in the text of the law. In the preparatory works it was stated that the provision about pornographic crimes applied only to pictures, but to pictures of all kinds, such as, inter alia , pictures in publications, photographic pictures, including films and pictures distributed by TV-technique or video recordings (Governmental Bill 1978/79:179, p. 9). Moreover it was stated that: “A certain prudence was called for, so that the criminalised area would not become too wide or difficult to assess. It was not the intention to criminalise every exposure of naked children or all pictures in which a child’s genitals may be perceived, even if such pictures may stimulate some people’s sexual instincts. In order for the handling of a picture to be illegal, it is a condition that it be pornographic according to common parlance and general values.” 34.     In a review of the legislation (Law no. 2010:1357), which led to the amendment of the second paragraph of Chapter 16, Article   10a, as from 1   January 2011, as set out above, the following was stated, among other things, as regards the definition (Swedish Government Official Reports, SOU 2007:54, p. 77): “A picture may be regarded as pornographic when, without any real scientific or artistic merits, and in a blatant and alluring manner, it displays a sexual motive (Gov. Bill 1970:125, pp. 79 et seq.). Not only do pictures in which children are involved in acts which obviously have a sexual connotation fall within the provision regarding child-pornography crimes, but also pictures in which children appear together with one or several adults who are performing such actions. Pictures in which a child appears in a manner which is designed to appeal to sexual instincts without the child being considered to have participated in sexual behaviour during the picturing may fall within the criminalised area ... A picture may be presented in different ways, inter alia , by a real child being pictured, filmed or drawn. By using different techniques, more or less realistic artificial pictures may also be created. For criminal liability to be incurred it is not necessary that the picture depicts a real child; pictures of fictive children are also included.” 35.     With regard specifically to attempt, the Penal Code reads: Chapter 16, Article   17 “A person preparing or conspiring to commit mutiny ... shall be sentenced in accordance with the provisions of Chapter 23. The same shall also apply ... to the crime of attempting to commit the crime of child pornography described in Article   10a, first paragraph ...” Chapter 23, Article   1 “A person who has begun to commit a crime without bringing it to completion shall, in cases where specific provisions exist for the purpose, be sentenced for attempting to commit a crime if there was a danger that the act would lead to the completion of the crime or such danger was precluded only because of fortuitous circumstances. Punishment for attempt shall not exceed the sentence applicable to a completed crime and shall not be less than imprisonment if the least stringent punishment for the completed crime is imprisonment of two years or more.” C.     Other relevant legal provisions 36.     The Code of Judicial Procedure ( Rättegångsbalken 1942:740) provides in so far as relevant: Chapter 17, Article   3 “A judgment shall not be given for anything other or more than that properly requested by a party. In cases amenable to out-of-court settlement, the judgment shall not be based on circumstances other than those pleaded by a party as the foundation of his or her action.” Chapter 22, Article   7 “If an action for private claims in consequence of an offence is brought in conjunction with the prosecution and it is found that the offence charged is not punishable, the action may nonetheless be adjudicated in the case.” Chapter 29, Article   6 “...Where a private claim is joined to the prosecution, the court’s finding of criminal liability shall be binding for the adjudication of the private claim.” Chapter 30, Article   3 “The judgment may relate only to an act for which a prosecution was properly instituted or to a matter referred by statute to the court’s criminal jurisdiction. The court is not bound by the legal characterisation of the offence or applicable provisions of law stated in the claim.” 37.     The Tort Liability Act ( Skadeståndslag 1972:207) provides in so far as relevant: Chapter 2, section 1 “Anyone who deliberately or negligently causes personal injury or damage to property shall compensate the injury or damage caused.” Chapter 2, section 3 “Anyone who seriously violates another person through a crime involving an attack against the person or the freedom, serenity or honour of that person shall compensate the damage caused by the violation.” D.     Domestic practice concerning covert filming 38.     In a Supreme Court judgment of 16 October 1992 (NJA 1992, p.   594) concerning a person who had secretly filmed sexual intercourse between himself and his girlfriend and who had subsequently shown the film to several persons, the Supreme Court noted that it was not prohibited under Swedish law to film another person without his or her consent. This was so, the court continued, even in situations where the deed in question seriously violated the personal integrity of the person concerned. Apart from certain exceptional situations, the only protection available was under the criminal provisions on defamation in conjunction with Chapter 1, section 3, of the Tort Liability Act (now Chapter 2, section 3, of that Act). The Supreme Court found that the accused person had committed defamation by showing the film to others. 39.     A further Supreme Court judgment dated 27 June 1996 (NJA 1996, p. 418) concerned a man who had covertly filmed his sleeping girlfriend while he masturbated. The District Court found his acts to constitute, inter alia , sexual molestation, but the Court of Appeal and the Supreme Court acquitted him of this offence. 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. 40.     Yet another Supreme Court judgment, dated 23 October 2008 (NJA 2008, p. 946), concerned, inter alia , a person who had covertly filmed his ex-girlfriend with another man in an intimate situation and who had subsequently e ‑ mailed the film, together with certain descriptive messages, to others. The Court of Appeal found the filming to constitute molestation and the sending of some of the e-mails to amount to defamation, and awarded the ex-girlfriend damages for violation of personal integrity. The Supreme Court granted leave to appeal in respect of the alleged molestation. The Supreme Court acquitted the person of molestation and reiterated at the same time that Swedish law contained no general prohibition against covert filming. The court also noted that in cases where the covert filming did not constitute a crime, no damages could be awarded. Although the need for a strengthened legal framework in this regard had already been acknowledged in Swedish legislative work in the 1960s, the court noted further that it had so far not led to any concrete results. The court found it highly questionable whether the fact that acts of filming an individual in situations where such filming seriously violated the personal integrity of the person concerned were left wholly unpunished under Swedish law was compatible with the requirements of Article   8 of the Convention. Given that finding, the court continued, it was legitimate to examine whether punishment could be imposed by interpreting otherwise non-applicable domestic provisions in a Convention-compliant manner. In that regard, the court referred to domestic case-law concerning compensation for violations of the Convention. However, the court noted, another requirement under the Convention was that no one should be punished for an act which, at the time when it was committed, did not clearly constitute a criminal offence under the law. After finding that the filming in issue did not fall under any applicable criminal provision, it was left unpunished and no damages were awarded. E.     Recent legislative work concerning covert filming 41.     In 2004 the Government instructed the Committee on the Protection of Integrity ( Integritetsskyddskommittén ) to investigate the need for general legal provisions for the protection of personal integrity (apart from the legislation on data protection, crimes against individuals, secrecy, and so on). In the meantime, the Penal Code was reviewed and in April 2005 an amendment to the provision on sexual molestation, which was designed to encompass covert filming for sexual purposes, was introduced (see paragraphs 28-30 above). 42.     In 2008 the Committee on the Protection of Integrity proposed a general provision in the Penal Code on illicit photography and in January 2011 the Ministry of Justice issued a report on illicit photography (Ds   2011:1) which proposed the criminalisation of photography and filming in certain situations. On 1 March 2012 the Government approved the referral of a proposal entitled “Intrusive Photography” to the Law Council ( Lagrådet ) for consideration. The latter criticised the proposal, inter alia , on account of the potential effects that it could have on the principles laid down in order to protect those who procure information for publication under the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, which are part of the Swedish Constitution. 43.     Consequently, on 20   December 2012 the Government adopted a new proposal modifying the scope of the criminalisation of intrusive photography. The Law Council did not have any comments on the substance of the proposal and on 7   February 2013 the Government presented the bill to the Swedish Parliament proposing to criminalise intrusive photography in accordance with the proposal referred to the Law Council on 20   December 2012. The Law (SFS 2013:366) was enacted by Parliament on 29 May 2013 and came into force on 1 July 2013. Henceforth, Article   6a of Chapter   4 of the Penal Code, regarding crimes against liberty and peace, reads as follows: “A person who, with the aid of technical means, illicitly and covertly records a picture of someone who is inside a home or in a bathroom, in a changing room or other similar space, shall be sentenced for intrusive photography to a fine or imprisonment of a maximum of two years. No criminal responsibility shall be imposed if the act is justifiable considering its purpose and other circumstances. The first paragraph does not apply to a person who depicts someone with the aid of technical means in the course of duty on behalf of a public authority.” In concrete terms, covertly filming a person without his or her permission in a shower or bathroom would be punishable as intrusive photography. Placing, or “rigging”, a camera with the aim of committing an intrusive-photography offence would also be punishable as preparation to commit such an offence. F.     Domestic practice concerning the crime of child pornography 44.     In a judgment of 25 February 2005 (NJA 2005, p. 80), which concerned the photographing and filming of certain young individuals aged over 15 but under 18, the Supreme Court held that the pubertal development of the individuals was clearly complete and that it was impossible, from the pictures alone or their presentation, to determine whether they had attained the age of 18 or not. Their age could not be determined from any text accompanying the pictures or any other circumstances. In such a situation, and regardless of whether the person responsible for the pictures was aware of the individuals’ age or not, the act could not be held to constitute the crime of child pornography. G.     Domestic practice and ongoing legislative work concerning compensation for violations of the Convention 45.     In a judgment of 9 June 2005 (NJA 2005, p. 462) concerning a claim for damages brought by an individual against the Swedish State, inter alia , on the basis of an alleged violation of Article   6 of the Convention on account of the excessive length of criminal proceedings, the Supreme Court held that the claimant’s right under this Article had been violated. Based on this finding, and with reference, inter alia , to Articles 6 and 13 and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000 ‑ XI), the Supreme Court concluded that the claimant was entitled to compensation from the State directly under Swedish legislation on tort liability for pecuniary damage and under Article   13 of the Convention for non-pecuniary damage to the extent that no other remedy was available. 46.     Similar decisions followed on 4 May 2007 (NJA 2007, p. 295), concerning length of detention and Article   5 of the Convention, and on 21   September 2007 (NJA 2007, p. 584) regarding Article   8 of the Convention. 47.     A Supreme Court decision of 29 October 2007 (NJA 2007, p.   747) concerned a claim for damages brought by an individual against a private insurance company. The claim concerned an alleged violation of Article   8 of the Convention related to secret surveillance undertaken in respect of the claimant. The Supreme Court noted that the Convention did not impose duties on individuals. Even if the State might have positive obligations under the Convention, the court continued, in view of the rule-of-law value enshrined in the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention. 48.     The right to obtain compensation on the basis of an alleged violation of the Convention was subsequently acknowledged by the Supreme Court in its judgments of December 2009 (NJA 2009, N 70), June 2010 (NJA 2010, p. 363) and April 2012 (NJA 2012, p. 211). 49.     Furthermore, the Chancellor of Justice has delivered various decisions concerning compensation to individuals for violations of the Convention. 50.     Finally, in May 2009 the Government decided to set up a committee ( en särskild utredare ) on tort liability and the Convention to examine the current legal situation. In December 2010 the committee submitted its report ( Skadestånd och Europakonventionen , SOU 2010:87) to the Government. It proposed the inclusion of an explicit provision in the Tort Liability Act allowing natural and legal persons to obtain pecuniary and non-pecuniary damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by an ordinary court which would first need to establish that a right under the Convention had been violated. The aim of the proposal is to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article   13 of the Convention. III.     INTERNATIONAL CONVENTIONS A.     The United Nations Convention on the Rights of the Child 1989 51.     The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. It was ratified by Sweden on 29 June 1990 and its relevant Articles read: Article   19 “1.     States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2.     Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article   34 “States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a)     The inducement or coercion of a child to engage in any unlawful sexual activity; (b)     The exploitative use of children in prostitution or other unlawful sexual practices; (c)     The exploitative use of children in pornographic performances and materials.” B.     The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 52.     This Convention obliges its Parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct, including offences concerning child pornography. It was signed by Sweden on 25   October 2007 and came into force on 1 July 2010. Sweden ratified it on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law” read: Article   18 – Sexual abuse “1.     Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: a.     engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; b.     engaging in sexual activities with a child where: – use is made of coercion, force or threats; or – abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or – abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence. 2.     For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child. 3.     The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.” Article   20 – Offences concerning child pornography “1.     Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct, when committed without right, is criminalised: a.     producing child pornography; b.     offering or making available child pornography; c.     distributing or transmitting child pornography; d.     procuring child pornography for oneself or for another person; e.     possessing child pornography; f.     knowingly obtaining access, through information and communication technologies, to child pornography. 2.     For the purpose of the present article, the term ‘child pornography’ shall mean any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for primarily sexual purposes. 3.     Each Party may reserve the right not to apply, in whole or in part, paragraph 1.a and e to the production and possession of pornographic material: –     consisting exclusively of simulated representations or realistic images of a non-existent child; –     involving children who have reached the age set in application of Article   18, paragraph 2, where these images are produced and possessed by them with their consent and solely for their own private use. 4.     Each Party may reserve the right not to apply, in whole or in part, paragraph 1.f.” Article   21 – Offences concerning the participation of a child in pornographic performances “1.     Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: a.     recruiting a child into participating in pornographic performances or causing a child to participate in such performances; b.     coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes; c.     knowingly attending pornographic performances involving the participation of children. 2.     Each Party may reserve the right to limit the application of paragraph 1.c to cases where children have been recruited or coerced in conformity with paragraph 1.a or b. ...” IV.     COMPARATIVE LAW 53.     From the information available to the Court, including a survey of thirty-nine Council of Europe member States, it would appear that child pornography is criminalised in all of those States. 54.     The isolated act of covert/non-consensual filming, photographing or portrayal of a child for sexual purposes is criminalised either as child pornography or as a specific offence in thirty-three of the member States studied (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Republic of Moldova, Montenegro, the Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Spain, Switzerland, Turkey, Ukraine and the United Kingdom), while a conviction in the remaining six member States (Azerbaijan, Denmark, France, Monaco, Lithuania and the former Yugoslav Republic of Macedonia) can only be obtained where an intent to distribute the pornographic material can be proven. In most of the latter countries the conduct in question might still be illegal under other provisions of the Criminal Code relating to sexual offences. 55.     The isolated act of covert or non-consensual filming/photographing of an individual (a child or an adult) for non-sexual purposes is considered a criminal offence in twenty-five of the member States studied (Albania, Bosnia and Herzegovina, Croatia, Denmark, Finland, France, Georgia, Germany, Greece, Iceland, Italy, Lithuania, Luxembourg, Monaco, Montenegro, the Netherlands, Poland, Russia, Slovakia, Slovenia, Spain, Switzerland, the former Yugoslav Republic of Macedonia, Turkey and Ukraine), namely as a violation of the right to privacy. Eleven of the remaining fourteen member States which do not include privacy crimes in their criminal codes provide for civil remedies against infringements of a person’s privacy. Three of the member States examined also do not have a civil-law procedure for claims against covert/non-consensual capturing of one’s image. THE LAW I.     ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION 56.     The applicant complained that the Swedish State had failed to comply with its obligation under Article   8 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. 57.     The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for instance, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the applicant’s complaint concerns exclusively the remedies available to her against her stepfather, not those available against the State to enforce the substance of a Convention right or freedom at the national level. The complaint is therefore to be examined under Article   8 of the Convention alone, which provides as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     The Chamber judgment 58.     In its judgment of 21   June 2012 (see E.S. v. Sweden , no. 5786/08, 21   June 2012), the Chamber also considered that the complaint was to be examined under Article   8 of the Convention alone. It was satisfied that, although Swedish law contained no provision relating to covert filming, laws were in place which could, at least in theory, cover acts such as the one in this case. It pointed out that the public prosecutor, when indicting the applicant’s stepfather, and the District Court, when convicting him on 14 February 2006, considered that the impugned act could be covered by the provision on sexual molestation. Accordingly, although at the relevant time a similar outcome had been seen in Swedish case-law (see NJA 1996, p.   418), it was not until delivery of the Court of Appeal’s judgment that it became clear that the act could not legally constitute sexual molestation given the applicant’s stepfather’s lack of the requisite intent that she find out about the filming. The Chamber also reiterated that the Court of Appeal, in its judgment acquitting him of sexual molestation, had pointed out that his acts might, at least theoretically, have constituted the crime of attempted child pornography under the Penal Code. However, since no charge of that kind had been brought by the prosecution against the applicant’s stepfather, the Court of Appeal could not examine whether he could be held responsible for that crime. Lastly, the Chamber noted that civil-law remedies were available to the applicant and that she had chosen, represented by counsel, to join her claim for damages to the criminal proceedings. In those circumstances the Chamber concluded that there were no such significant flaws in Swedish legislation and practice as to amount to a breach of Sweden’s positive obligations under Article   8. B.     The parties’ submissions 1.     The applicant 59.     The applicant maintained that the Swedish legal system did not provide any remedy to protect her against the concrete actions of her stepfather. 60.     Firstly, with regard to the provision on sexual molestation, it was a requirement for a conviction that her stepfather should intend the applicant to know of the filming, the reason being that a person could not be molested unless he or she was aware of it. Accordingly, in the applicant’s view, her stepfather had been acquitted of sexual molestation on account of the construction of that provision. It could and should have been construed in such a way that it criminalised the filming, whether or not the applicant became aware of it at the time it was carried out. Accordingly, the applicant found that the construction of the provision on sexual molestation was open to criticism, notably since the act in issue was not covered by other criminal provisions. 61.     Secondly, referring, inter alia , to the preparatory works to the provision on child pornography and to a legal opinion by Professor Madeleine Leijonhufvud, the applicant contended that her stepfather could not have been convicted of attempted child pornography either, because the basic requirement for that provision was lacking, namely that the picture in question be pornographic.     In the present case images of a 14-year-old girl undressing before taking a