Violation of Article 10 of the Convention due to the suspended prison sentence imposed on a feminist

In the case of Bouton v. France (application no. 22636/19, 13.10.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. 

The case concerned the criminal conviction of the applicant, a feminist activist who at the time was a member of Femen, for acts of “sexual exposure” (exhibition sexuelle) committed in a church (La Madeleine) in Paris during a “performance” by way of protest against the Catholic Church’s position on abortion. She received a suspended prison sentence. 

The Court began by reiterating that the imposition of a prison sentence for an offence in the area of political speech would be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence. The sole aim of the applicant, who had not been accused of any insulting or hateful conduct, had been to contribute to the public debate on women’s rights. 

The Court found that the criminal sanction imposed on her for the offence of sexual exposure had not sought to punish an attack on freedom of conscience or religion but rather the fact that she had bared her breasts in a public place. While the circumstances related to the place and the symbols she used had to be taken into account, as contextual elements, in order to assess the diverging interests at stake, the Court concluded that the domestic courts had not been required, having regard to the charge, to weigh in the balance the applicant’s right to freedom of expression against the right to freedom of conscience and religion under Article 9 of the Convention. 

Lastly, while the domestic courts had not ignored the applicant’s statements during the criminal investigation, they had confined themselves to examining the fact that she had bared her breasts in a place of worship, without considering the underlying message of her performance or the explanations given by Femen activists about the meaning of their topless protests. In those circumstances the Court found that the grounds given by the domestic courts had not been sufficient for it to consider that the sentence imposed on the applicant, in view of its nature and the severity of its effects, was proportionate to the legitimate aims pursued. 

The Court concluded that the domestic courts had not struck a balance, in an appropriate manner, between the interests at stake and that the interference with the applicant’s freedom of expression, in the form of a suspended prison sentence, had not been “necessary in a democratic society”. There had thus been a violation of Article 10 of the Convention.

Reference from the official website of the European Court of Human Rights