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Femen activist receives suspended prison sentence: France violated freedom of expression

In a ruling handed down on 13 October 2022, the European Court of Human Rights found that France had violated the right to freedom of expression of Eloïse Bouton, at the time an activist of the Femen movement. This is an important victory for freedoms, against disproportionate State repression.

The activist’s action “for which no insulting or hateful behaviour has been reproached (…) had the sole objective of contributing, through a deliberately provocative performance, to the public debate on women’s rights, more specifically on the right to abortion”.

On 20 December 2013, Eloïse Bouton, a member of the Femen movement, performed in a Paris church to protest against the Catholic Church’s position on women’s rights, in particular the right to abortion. She stood at the altar, bare-chested and covered in slogans, to mime an abortion, using a piece of beef liver. There was no mass, and she was out of sight of the choir rehearsing at the same time. She had left as soon as she was asked to do so.

She was sentenced to a one-month suspended prison sentence for “sexual exhibition”, and ordered to pay a fine of 3,500 euros and legal costs. The European Court of Human Rights said it was “struck by the severity of the penalty (…) imposed on [her]”, which was clearly disproportionate.

For the Court, a prison sentence can only be imposed in the context of a political or public interest debate in exceptional circumstances, “in particular where other fundamental rights have been seriously infringed, as in the case, for example, of the dissemination of hate speech or incitement to violence”.

Furthermore, the offence of “sexual exhibition” was unduly misused to repress the peaceful expression of an opinion on a matter of public interest. Indeed, the French courts had convicted the activist on the basis of reconciling two freedoms, “namely freedom of expression, on the one hand, and freedom of conscience and religion protected by Article 9, on the other, described in this case as the right “not to be disturbed in the practice of one’s religion”.

However, this is not at all the purpose of the offence of sexual exhibition. The criminal sanction imposed on Ms. Bouton for the offence of sexual exhibition, for having bared her chest in a public place, was not intended to punish an infringement of freedom of conscience and religion. Moreover, no one was disturbed in the practice of their religion, since the event had taken place in the absence of a religious service, and in a manner that was not even visible to those present.

It was therefore simply the repression of the expression of an opinion expressed in a provocative manner. By diverting the offence of sexual exhibition to pursue a political demonstration, the French courts wanted to punish blasphemy, or even the “sacrilege” of carrying out this action in a church. This is unacceptable in a secular Republic.

We welcome this judgment of the European Court of Human Rights which recalls the primacy of the rights guaranteed by the Convention and the importance of freedom of expression.

Secularism is the basis for the impartiality of the state and the guarantor of rights and freedoms.