Legal summary

October 2022

Bouton v. France - 22636/19

Judgment 13.10.2022 [Section V]

Article 10

Article 10-1

Freedom of expression

Suspended prison sentence for offence of sexual exposure imposed on Femen activist for topless performance in church as protest against Catholic church’s position on abortion: violation

Facts – The applicant, a feminist activist who was a member of Femen, was convicted and given a one-month suspended prison sentence for staging a topless protest in a church in December 2013, exposing her breasts and slogans daubed over them, as part of an international action against the Catholic Church’s position on abortion. She was also ordered to pay the parish representative 2,000 euros (EUR) in respect of non-pecuniary damage and to contribute EUR 1,500 to the other party’s costs.

The applicant’s appeals against that decision were unsuccessful.

Law – Article 10 :

(a) Interference – In the Court’s view, the staging of a “performance”, being a mix of conduct and verbal expression, was a form of artistic and political expression falling within the realm of freedom of expression (see Mariya Alekhina and Others v. Russia ). Public nudity could also be regarded as a form of expression (see Gough v. the United Kingdom ). The impugned conviction, in the context of a protest “performance”, had constituted an interference with the applicant’s right to freedom of expression.

(b) Prescribed by law – Article 222-32 of the Criminal Code did not define the concept of “sexual exposure”. According to the domestic case-law as it stood at the time, the nudity of a woman’s breasts characterised the physical element of the offence, which was clearly provided for in the Criminal Code. The consistency of that interpretation, enshrined in case-law which had been reaffirmed after the events in issue, confirmed that the scope of the criminal offence in question and, consequently, the fact that her conduct fell foul of the criminal law, had been reasonably foreseeable to the applicant.

Furthermore, although the applicant had acted alone on the day of the protest, her actions had been organised with the support of the Femen movement, which had encountered many confrontations with national authorities as a result of their deliberately provocative protests. On account of her membership of that movement and the manner in which her action had been prepared, as reported on the French website of Femen, the applicant could, if necessary, have sought the advice of specialised lawyers and must have been aware of the applicable legislation and case-law.

The applicant could thus reasonably have expected that her conduct would have criminal repercussions. Accordingly, the interference had been sufficiently foreseeable and was “prescribed by law”.

(c) Legitimate aim - The interference had pursued the legitimate aims of the protection of morals and the rights of others, and the prevention of disorder or crime.

(d) Necessity in a democratic society - The purpose of the performance had been to convey, in a symbolic place of worship, a message about a public and societal debate on the Catholic Church’s position regarding a sensitive and controversial issue, namely the right of women to freely dispose of their bodies, including the right to have an abortion. Even though her freedom of expression had been exercised in a manner that was likely to offend intimate personal beliefs within the sphere of morals or indeed religion, in view of the place chosen for the protest, as many believers could have been present, that freedom had to be sufficiently protected and the national authorities’ margin of appreciation was correspondingly narrower since the content of her message concerned a matter of public interest.

The Court had previously acknowledged that a protest performance in a church could be regarded as flouting the acceptable rules of conduct in a place of worship and had concluded that certain sanctions could in principle be justified by the protection of the rights of others (see Mariya Alekhina and Others v. Russia). However, as regards the one-month suspended prison sentence imposed on the applicant, the Court was struck by the severity of the sanction chosen by the domestic courts, which had not explained how this sanction had been necessary in order to guarantee the protection of public order, morals and the rights of others. The applicant would be sent to prison in the event of a new conviction and the offence appeared in her criminal record. In addition, she had been ordered to pay a relatively large amount in respect of the civil interests. Her conduct had not been insulting or hateful. She had no previous criminal record. She was well-integrated socially and professionally, earning an income, and the reference to “the offender’s character” to justify the sentence did not refer to any specific or unfavourable factor or support the choice not to impose a non-custodial sentence. A prison sentence, even when suspended, could not be regarded as the most moderate penalty that was called for by the Court’s case-law where the freedom of expression of the sentenced person was at stake, this being an area in which recourse to criminal proceedings had to be used sparingly by the national authorities.

The circumstances of the place and the religious symbols used by the applicant necessarily had to be taken into account as contextual factors in assessing the competing interests.

Moreover, the domestic courts had not examined whether the applicant’s action had been “gratuitously offensive” to religious beliefs, whether it had been insulting or whether it had incited disrespect or hatred towards the Catholic Church. They had not taken into consideration the fact that her protest had not been staged during mass, that her actions had been brief, without shouting out the slogans displayed on her body, and that she had left the church as soon as she was asked to do so.

The domestic courts had not disregarded the applicant’s statements during the criminal investigation, when she described the political and feminist motives behind her action, which was part of a collective and international movement seeking to challenge, in a manner that was deliberately poignant and shocking to believers, the position of the Catholic Church on the subject of women’s rights. However, they had confined themselves to examining the issue of the nudity of her breasts in a place of worship, in isolation from her performance as a whole, without taking into consideration, in weighing up the competing interests, the meaning that she saw in her action. In particular, they had refused to take into account the significance of the slogans on the applicant’s torso and back, which conveyed a feminist message referring to a 1971 pro-abortion “manifesto”. They had focused on the staged “abortion of Jesus”, without putting it into the general perspective of the ideas promoted by the applicant. Nor had they taken into consideration the meaning that the activists of Femen, a movement to which the applicant belonged, attributed to their displays of nudity and their use of their bare breasts as a “political banner”, or the place of her action, namely a place of worship known to the public, which had been chosen in order to enhance the media coverage of the protest.

The reasons given by the domestic courts were not, therefore, such as to enable the Court to consider that in the present case they had struck a fair balance between the competing interests in a sufficient manner and in accordance with the criteria established in its case-law.

In the light of all the foregoing considerations, and in the particular circumstances of the present case, the reasons given by the domestic courts did not suffice for the Court to regard the sentence imposed on the applicant, having regard to its nature and to its severity and repercussions, as proportionate to the legitimate aims pursued.

Conclusion : violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage.

(See also Gough v. the United Kingdom , 49327/11, 28 October 2014, Legal summary ; Mariya Alekhina and Others v. Russia , 38004/12, 17 July 2018, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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