The European Court of Human Rights, in its judgment of 13 October 2022 (ECHR Case No. 22636, Bouton v. France) ruled on the appeal concerning the prison sentence of a feminist activist -a member of Femen- for acts of sexual exhibition inside a Catholic church.

On 20 December 2013, the applicant demonstrated in a Catholic church in Paris by showing herself in front of the altar with her chest bare and her body covered with slogans to denounce the Catholic Church's position on abortion.

The appellant was sentenced to a one-month suspended prison term in addition to compensation for non-pecuniary damage with a sentence upheld on appeal and in Cassation. The Court of Cassation held that the decision did not violate the appellant's freedom of expression, as this freedom had to be balanced with the right, recognized by Article 9 of the European Convention on Human Rights, to religious freedom and not to be disturbed in the exercise of one's religious beliefs.

 

For the European Court of Human Rights, in the context of a protest 'performance', the conviction represented, on the other hand, an interference with the applicant's right to freedom of expression. The Court held, that the staging of a 'performance', as a combination of conduct and verbal expression, is a form of artistic and political expression that falls within the scope of freedom of expression, of which nudity can (sometimes) be considered a form.

Although the condemnation of such conduct was prescribed by law and pursued a legitimate aim, the Strasbourg judges held that the restriction on freedom of expression was not necessary in a democratic society.

The performance was intended to convey, in a symbolic place of worship, a message concerning a public and social debate on the Catholic Church's position on a sensitive and controversial issue, namely, the right of women to freely dispose of their bodies, including the right to abortion. For the Strasbourg judges, a custodial sentence imposed in the context of a political or public interest debate is compatible with the freedom of expression guaranteed by Article 10 of the Convention only in exceptional circumstances, when other fundamental rights have been seriously violated, such as the dissemination of hate speech or incitement to violence.

In the present case, although the circumstances of the place and the symbols used necessarily had to be considered as contextual elements for the assessment of the different interests at stake, the way the protest had taken place couldn’t be considered offensive to religious beliefs or inciting hatred towards the Catholic Church. Indeed, the protest had not been staged during the collective worship, it had been of short duration, the slogans displayed on the body had not been shouted, and the protester had left the church as soon as she had been asked to do so.

Moreover, since the offense charged was that of sexual exhibition, intended to punish the nudity of her breasts in a public place (and not the attack on freedom of religion), the national courts had limited themselves to examining the issue of the nudity of her breasts in a place of worship, isolating it from her performance as a whole, without taking into account, in weighing the opposing interests, the significance she saw in her action. Indeed, neither the significance of the slogans on the applicant's torso and back nor the significance that the activists of Femen, a movement to which the applicant belonged, attached to their displays of nudity and the use of their naked breasts as a 'political flag' had been considered.

 

The Court, therefore, considered that the reasons given by the national Courts were not sufficient to justify the sentence imposed on the applicant regarding the seriousness of its effects, its proportionality and, finally, the aim pursued by it.

 

 (Comment by Alessandro Cupri)