Dearth of Anti-Peeping Laws Will Cost Sweden
(CN) - European countries violate privacy rights if they lack laws on the books that prohibit secret videotaping or picture taking, the European Court of Human Rights ruled.
The ruling stems from a case in Sweden where a man secretly videotaped his stepdaughter while she took a shower. Although a court originally convicted the man of sexual molestation and ordered him to pay restitution, a Swedish appeals court reversed the conviction after finding that - since the man never touched the girl - the surreptitious videotaping without the girl's consent in and of itself was not a crime.
The appellate court admitted, however, that the outcome would have been substantially different for the man had prosecutors charged him with child pornography.
Years later, the girl took her case to the European Court of Human Rights. She said that despite years of wrangling over laws that would have protected her legally, Swedish lawmakers had done nothing and the government violated her right to privacy by failing to provide her with adequate remedies against the stepfather.
Despite the Swedish government's argument that the human rights court could not step in the middle of what was essentially a dispute between two people, the Strasbourg-based court agreed with the girl last week.
"Regarding the protection of the physical and psychological integrity of an individual from other persons, the court has previously held that the authorities' positive obligations may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals," the court wrote.
"In respect of children, who are particularly vulnerable, the measures applied by the state to protect them against acts of violence should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity," the justices added. "Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child."
Sexual crimes against children require an even mightier response from the Swedish government, if it hopes to protect their basic human rights, the court found.
"Concerning such serious acts, the State's positive obligation to safeguard the individual's physical integrity may also extend to questions relating to the effectiveness of the criminal investigation and to the possibility to obtain reparation and redress, although there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable," the ruling states.
In the girl's case, the court noted that the Swedish appeals court found that the stepfather's actions violated her personal integrity and privacy, despite eventually reversing his criminal conviction. Given the victim's lack of options for redress under Swedish law - and its lack of protections for her when the crime took place in 2002 - the court said it had no choice but to award her compensation itself.
"Having regard to the all the above-mentioned considerations, the court is not satisfied that the relevant Swedish law, as it stood in September 2002 when the specific act of the applicant's stepfather in attempting to covertly film the applicant naked in their bathroom for a sexual purpose occurred, ensured protection of her right to respect for private life in a manner that, notwithstanding the respondent state's margin of appreciation, complied with its positive obligations under Article 8 of the convention," the court wrote. "The act in question violated the applicant's integrity and was aggravated by the fact that she was a minor, that the incident took place in her home, where she was supposed to feel safe, and that the offender was her stepfather, a person whom she was entitled and expected to trust. However, as the court has found above, neither a criminal remedy nor a civil remedy existed under Swedish law that could enable the applicant to obtain effective protection against the said violation of her personal integrity in the concrete circumstances of her case.
"Accordingly, there has been a violation of Article 8 of the Convention," the court concluded.
Although the girl sought $27,000 in damages - far above the $4,065 the Swedish government thought fair - the court awarded her just over $13,500, plus $40,000 in costs and interest.