No Rights Violation in Clearing Voyeur Stepdad

     (CN) – The European Court of Human Rights refused to hold Sweden accountable for the acquittal of a man who secretly videotaped his 14-year-old stepdaughter undressing.



     “In September 2002, when the applicant was 14 years old, she discovered that her stepfather had hidden a video camera in the laundry basket in the bathroom,” according to the court’s summary of the case. “The camera was directed at the spot where the applicant had undressed before taking a shower.”
     The 14-page decision names “applicant” only by her initials, E.S.
     “When she discovered the camera, it was in recording mode, making a buzzing sound and flashing,” the court added. “She did not touch any of the buttons. Crying, she took the video camera, wrapped in a towel, to her mother. The stepfather took the camera from the mother. Subsequently, the applicant saw her mother and stepfather burn a film, but she was not sure whether it was a recording of her.”
     Police learned about the incident in 2004 and indicted the stepfather, also unnamed, the following year.
     After he was convicted at trial, a Swedish district court applied a sentence of 75 hours of community service, and a fine of about $3,000.
     “It found it established that he had had a sexual intent in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress,” the rights court explained. “It added that the buzzing sound from the camera perceived by the applicant strongly suggests that the camera was switched on and actually did record. Otherwise, there would be no point in hiding the camera among the clothes in the laundry basket. The hole in the laundry basket indicated that the approach was quite refined. Regardless of the fact that, afterwards, no one verified the contents of the film, it can under the present circumstances be considered established that the stepfather actually filmed the applicant when she appeared nude.”
     But an appeals court later acquitted him, saying there was no evidence what was on the tape. It relied on a Supreme Court decision that said “the filming of sexual abuse was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent,” according to the rights court.
     Although the Swedish Ministry of Justice recommended criminalizing illicit photographing in January 2011, the country currently has no such law on the books.
     “Following that line of reasoning, and although finding that the act in question constituted a violation of personal integrity, notably in the light of the applicant’s age and relationship to her stepfather, the Court of Appeal found that the stepfather could not be held criminally responsible for the isolated act of filming the applicant without her knowledge,” the rights court said. “Even if she had indeed obtained knowledge of the filming, the court reiterated, this knowledge was not covered by the stepfather’s intent.
     E.S. later brought her case to the European Court of Human Rights, arguing that Sweden failed to protect her Article 8 right to private life.
     The court voted 4-3 against sanctioning Sweden on Thursday. It found that Swedish authorities, theoretically, could have brought attempted child pornography charges.
     “It will be recalled that the Court of Appeal in its judgment of 16 October 2007, acquitting the stepfather of sexual molestation, pointed out that considering the applicant’s age the act might, at least theoretically, have constituted an attempted child pornography crime,” the majority states. “However, since no charge of that kind had been brought against the stepfather, the court could not consider whether he could be held responsible for such a crime. The government maintained that it would have been difficult to establish such an offence because that would have required at least a picture of pornographic nature, which did not exist in the present case since the video tape had been destroyed by the applicant’s mother. The Court finds reason to add in this respect that obviously the authorities could not be held responsible for the lack of evidence in the form of a film, nor for the possibility that other elements may also have been lacking for the offence to have constituted attempted child pornography crime.”
     The dissent notes that even Sweden’s appellate court found the stepfather’s behavior “extremely reprehensible.”
     “As regards the first condition, it is indisputable, in our view, that what was in issue in this case was a very serious offence and, indeed, one where fundamental values and essential aspects of the applicant’s private life were at stake,” the dissent states.
     “On the whole, we find that there was a significant omission in the relevant Swedish legislation which resulted in the applicant being left without protection,” the dissenting judges added. “This leads us to conclude that there has been a failure on the part of the respondent government to discharge its positive obligations under Article 8 of the convention and, that, consequently, there has been a breach of that provision.”
     The decision highlights recent scrutiny of Sweden’s judiciary as WikiLeaks editor-in-chief Julian Assange awaits extradition on sex crimes allegations.
     WikiLeaks supporters have blasted Sweden’s judicial system as dysfunctional and characterize the allegations against Assange as political persecution for revealing state and corporate secrets.
     Assange, who says he believes the U.S. will seek to extradite him if he steps foot in Sweden, hopes to seek political asylum in Ecuador. He is currently in the Ecuadorean embassy in London awaiting Ecuador’s decision.

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