We were in Strasbourg yesterday to attend the Grand Chamber hearing in the case of Söderman v. Sweden. In this case, formerly known as E.S. v. Sweden, the Human Rights Centre of Ghent University has submitted a third party intervention. We expect the Grand Chamber judgment to become the leading case on positive obligations under Article 8 ECHR. At the hearing, we were excited to hear the lawyers of both the applicant and the Swedish state referring to our third party intervention in their oral submissions (for a podcast of the hearing, see here).
What is the case about? The applicant, Elisa Söderman, discovered in 2002, when she was 14 years old, that her stepfather had attempted to secretly film her naked. Her mother reported this to the police about two years later. The stepfather was convicted of sexual molestation by the first instance court, but was finally acquitted on appeal. The appeal court particularly held that the stepfather could not be convicted for sexual molestation, because, in order to qualify as sexual molestation under Swedish law, it was required that he had intended the applicant to find out about his filming her. The appeal court further noted that the stepfather could in theory have been charged with attempted child pornography but was not. Finally, the appeal court also stressed that there was no general prohibition in Swedish law against filming an individual without his or her consent.
The legal issue before the Court is whether the domestic legal framework was compatible with the positive obligation on the State under Article 8 ECHR to protect the applicant’s personal integrity. The applicant also complains that she had no effective remedy at her disposal, in violation of Article 13 ECHR.
On 12 June 2012, the Fifth Section of the European Court, examining the case solely from the viewpoint of Article 8 ECHR, held that there had not been a violation of that provision, because
“(…) in the Court’s view the Swedish legislation and practice and their application to the case before it, did not suffer from such significant flaws that it could amount to a breach of Sweden’s positive obligations under Article 8 of the Convention.”
On 19 November 2012 the case was referred to the Grand Chamber at the applicant’s request.
We submitted our third party intervention on 20 February 2013. You can read it in its entirety here. In our intervention, we kindly request the Grand Chamber to exercise leadership in the field of positive obligations and to abandon the deferential “significant flaws” test developed in the Chamber judgment. We develop three main arguments:
- The “significant flaws” test is incompatible with the priority-to-rights principle, since it upsets the burden of proof by requiring the applicant to provide proof of the existence of a “significant flaw” in order to find a violation of a Convention right, whereas the burden instead should lie on the state to provide proof that it has discharged its positive obligations.
- The “significant flaws” test is incompatible with the principle of effectiveness, which requires that rights under the Convention should be interpreted in a way that renders them “practical and effective” rather than “theoretical or illusory”. In order to discharge a positive obligation, it is insufficient to find that there has been an absence of a “significant flaw”. The question should rather be whether the state has provided “effective protection”, which requires that the state uses a means of legal protection at its disposal that is capable of appropriately protecting the right concerned in practice.
- It is particularly important for the Court to apply firm legal standards in the field of protection of minors against sexual abuse.
We are excited that these issues are now on the Court’s table and we hope that the Grand Chamber takes them into account in its deliberations. It is the third time we submitted a third party intervention in a case before the European Court. Our previous submissions include a third-party intervention in the Grand Chamber case of Konstantin Markin v. Russia and in the pending face veil ban case of S.A.S. v. France. In this way, we wish to enter a fruitful dialogue between academia and the Court and thereby we hope to contribute to the development of the Court’s rich jurisprudence.
 This was disputed by Professor in Criminal Law Madeleine Leijonhufvud in a legal opinion submitted by the applicant to the Grand Chamber. According to Professor Leijonhufvud, the video concerned could not be considered pornographic under Swedish law.