Bouton v France  ECHR 820 [in French] is about the conviction of a feminist activist for a topless protest in a church.
Ms Éloïse Bouton was a member of Femen, an international organisation for the defence of women’s rights created in Ukraine in 2008. On 20 December 2013, she mounted a demonstration in the Madeleine church in Paris against the Roman Catholic Church’s position on abortion: it should be noted that there was no service taking place at the time when she made her protest: the choir was rehearsing.
Pictures subsequently appeared on national media websites showing her before the altar, bare-breasted and wearing a veil, some with her arms outstretched and some with her hands clasped in prayer . She was convicted of “sexual exposure” [exhibition sexuelle] and given a one-month suspended prison sentence, with damages .
Ms Bouton argued that, in the absence of the required clarity and foreseeability, the Government’s interference with her freedom of expression was not “in accordance with the law”. Even if it could be considered to pursue a “legitimate aim” – namely to combat a possible breach of public order – it could not be considered “necessary in a democratic society” and proportionate to that aim. The national authorities had failed to take account of the political dimension that was at the heart of her action . Far from being gratuitously offensive or seeking to disturb those present in the church during worship, her action had been part of a public debate on the place of women in society . [There is an interview with Ms Bouton (in English) here.]
The Government contended that the action had been in accordance with the law and had pursued the legitimate aim of protecting morals, public order and the rights of others [25 & 26]. As regards its necessity in a democratic society, the Government asserted that the exercise of freedom of expression also entailed duties and responsibilities, including the obligation to avoid giving gratuitous offence to religious believers and to respect the criminal law. The Government also argued that states parties enjoyed a sufficient margin of appreciation in this area to punish certain forms of behaviour deemed incompatible with respect for the freedom of conscience and religion of others – and that Ms Bouton’s actions had fallen into that category [25-27].
The Court began by reiterating that the imposition of a prison sentence for an offence of political speech would only be compatible with freedom of expression as guaranteed by Article 10 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.
Her conviction 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 . Her actions had to be regarded as constituting a “performance” falling within the scope of Article 10; they were intended to convey, in a symbolic place of worship, a message about a public and societal debate on the positioning of the Catholic Church on a sensitive and controversial issue: the right of women to control their bodies, including the right to abortion . The place in which she had done it and the symbols that she had used had to be taken into account as contextual elements in order to assess the diverging interests at stake; however, the domestic courts had not taken into consideration that she had acted outside a time of worship, that her action was brief and that she had left the church as soon as she was asked to do so .
The domestic courts had been required to balance her right to freedom of expression against the right to freedom of conscience and religion of others under Article 9. While they had not ignored her 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 the circumstances, the domestic courts had not carried out a proper balancing exercise between the competing interests at stake and, given the nature and the severity of the sentence imposed by the domestic courts, it was not proportionate to the legitimate aims pursued [65 & 66]. The interference with Ms Bouton’s freedom of expression had not, therefore, been “necessary in a democratic society” . There had therefore been a violation of Article 10 of the Convention .