On 12 November, the Grand Chamber issued its judgment in the case of Söderman v. Sweden (formerly known as E.S. v. Sweden), finding that Sweden had failed to comply with its positive obligation to protect the applicant’s right to respect for private life (Article 8 ECHR). According to the Grand Chamber, neither a criminal remedy nor a civil remedy existed under Swedish law that could have enabled the applicant to obtain effective protection against the violation of her personal integrity.
The case concerns a fourteen year old girl who discovered that her stepfather had attempted to secretly film her naked – he had hidden a video camera in the laundry basket in the bathroom, directed towards the spot where she normally undressed. The stepfather was not convicted because under Swedish law this act did not qualify as sexual molestation or attempted child pornography, nor was there a general prohibition in Swedish law against filming an individual without his or her consent.
In last year’s Chamber judgment, the Fifth Section held that “only significant flaws in legislation and practice, and their application, would amount to a breach of the State’s positive obligations under Article 8.” The Fifth Section did not find a violation of Article 8 because it considered that the Swedish legal framework did not demonstrate such a ‘significant flaw’.
In the Grand Chamber proceedings, our Human Rights Centre issued a third party intervention arguing that this ‘significant flaws’ test amounted to a lowering of standards in the Court’s positive obligations case law. We argued that this deferential test was at odds with the Court’s established practice of applying a standard of ‘effective protection’, rather than one of ‘non-significantly flawed’ protection.
The Grand Chamber substantively agrees with our argumentation, rejecting the approach taken in the Chamber judgment:
“The Grand Chamber considers that such a significant flaw test, while understandable in the context of investigations, has no meaningful role in an assessment as to whether the respondent State had in place an adequate legal framework in compliance with its positive obligations under Article 8 of the Convention since the issue before the Court concerns the question of whether the law afforded an acceptable level of protection to the applicant in the circumstances.”
While the notion of ‘significant flaws’ was applied in the Chamber judgment as the standard to determine the compliance of domestic legislation and practice with the state’s positive obligations, the Grand Chamber rejects the relevance of this notion outside the context of investigations. This is a return to the position of the Court in the case of M.C. v. Bulgaria, in which the Court did not apply the notion of ‘significant flaws’ as an independent test, but rather as another way of saying that “[t]he Court is not concerned with allegations of errors or isolated omissions in the investigation.” With respect to the legal framework, on the other hand, the Court acknowledges such an approach to be inappropriate. Whereas the Court has conflated the issues of an adequate legal framework and the need for an effective investigation in the Chamber judgment – as in many previous cases – the conceptual distinction between both aspects by the Grand Chamber signifies the addition of another layer of sophistication in the Court’s positive obligations jurisprudence.
Getting the question right
The Grand Chamber proceeded to examine whether any of the remedies available under domestic law provided ‘an acceptable level of protection’ to the applicant. In doing so, the Grand Chamber illustrated the weaknesses of the Fifth Section’s approach. In the Chamber judgment the Court examined whether either the fact that the stepfather’s act could not be considered as sexual molestation, the fact that it could not be considered as attempted child pornography or the lack of an explicit provision prohibiting the filming of a person without his or her consent, in themselves amounted to a ‘significant flaw’ in the legal framework. Thereby the Fifth Section discounted the possibility that the loophole in the legal framework and the resulting lack of protection exactly stemmed from the combination of these factors: while in accordance with its margin of appreciation the state could have pursued any of these avenues, in reality it pursued none. Instead of determining whether any of these shortcomings in the legal framework in themselves amounted to a ‘significant flaw’, the Grand Chamber correctly asked the question whether any of the available remedies did provide an acceptable level of protection.
No effective remedies
The Grand Chamber first considered that the “the possibility that the offence of child pornography might have afforded the applicant protection in respect of the specific act at issue seems rather theoretical.” Indeed, since the offence of child pornography was not defined in such a way that every exposure of naked children was criminalized, but only when it could be considered as being “pornographic according to common parlance and general values”, the Grand Chamber was not convinced that the stepfather’s act was covered by the said offence. Neither could the stepfather’s act legally constitute the offence of sexual molestation according to the domestic courts, since the stepfather did not intend the applicant to find out about the filming nor was he indifferent to the risk that she would find out about it. While the Grand Chamber stressed that it was not its task but the task of the domestic courts to resolve problems of interpretation of domestic legislation, it merely observed that the offence of sexual molestation did not protect the applicant against the lack of respect for her private life. Nor could the applicant invoke provisions criminalizing ‘intrusive photography’, since they only entered into force in July 2013.
The Grand Chamber however stressed that recourse to criminal law was not necessarily the only way to provide the applicant with protection. While criminal law protection is required in cases where ‘fundamental values and essential aspects of private life’ are at stake (see X and Y v. the Netherlands), such as in the case of rape and sexual abuse of children, civil law remedies may suffice to provide protection in cases of ‘less serious’ violations of an individual’s personal integrity. While the Court did not explicitly hold that civil law protection would have been sufficient in the case at hand, in any event such protection – either in the form of traditional civil law remedies or in the form of compensation directly based on the Convention – was non-existent. Due to the lack of both criminal and civil law remedies, the Court found a violation of Article 8.
Conclusion: the rise and fall of the ‘significant flaws’ test
By abandoning the ‘significant flaws’ test, the Grand Chamber has rectified the deferential turn in the Court’s positive obligations case law taken in the Chamber judgment. The Grand Chamber judgment clearly illustrates the importance the Court attaches in its positive obligations case law to the development of a legal framework to adequately protect human rights (see more into detail my upcoming contribution in this volume). While the Court’s positive obligations case law has sometimes been criticized for being too intrusive, too unpredictable and too much developed on a case-by-case basis, the Grand Chamber’s approach has the advantage of being an incentive for legislators to anticipate on human rights violations in interpersonal relations, thereby decreasing the need to empower courts to fill loopholes of human rights protection. The Court will accept the state’s margin of appreciation, but only insofar ‘an acceptable level of protection’ is provided under domestic law. While the ‘significant flaws’ test in the Chamber judgment was more state-centred – in the sense that it was more concerned about state interests than about individual interests – the Grand Chamber judgment rightly places individuals interests back at the centre of the analysis: the state’s margin of appreciation is delineated by the effective protection of human rights in interpersonal relations and not the other way around. For these reasons, the Grand Chamber judgment should be welcomed as a significant step in the development of a mature positive obligations case law.