FIFTH SECTION
CASE OF BOUTON v. FRANCE
(Application no. 22636/19)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Suspended prison sentence for sexual exposure in respect of topless, militant Femen performance in a church to protest against Catholic Church’s position on abortion • Narrow margin of appreciation • Weighing-up of competing interests inadequate and not in accordance with criteria established by Court • Disproportionate sanction
 
STRASBOURG
13 October 2022
 
FINAL
 
13/01/2023
 
 
 
This judgment has become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bouton v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Stéphanie Mourou-Vikström,
 Lado Chanturia,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Mattias Guyomar,
 Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 22636/19) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Ms Eloise Bouton (“the applicant”), on 31 May 2019;
the decision to give notice to the French Government (“the Government”) of the complaints concerning Articles 7 and 10 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 13 September 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerned, mainly under Article 10 of the Convention, the criminal conviction of the applicant, a feminist activist and member of Femen, for acts of sexual exposure (exhibition sexuelle) committed in a church. THE FACTS
2. The applicant was born in 1983 and lives in Bagnolet. She was represented by Mr T. Bouzenoune, a lawyer. 3. The Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. THE APPLICANT’S protest AND ITS coverage in the media
5. At the relevant time, the applicant was – and had been since 2012 – a member of the Femen movement, an international women’s rights organisation founded in Ukraine in 2008 and known for its members’ provocative, topless protest actions to combat the image of women as sexual objects. On 20 December 2013 she staged a protest in the church of La Madeleine in Paris, but not during any religious service, by standing topless in front of the high altar, with slogans daubed across her body, pretending to perform an abortion using raw beef liver as a prop. She was acting as part of an international protest action, organised by her movement, to condemn the Catholic Church’s position on abortion. Her performance was brief and she left the church in silence when so requested by the choirmaster. As the applicant had contacted journalists in advance, about ten of whom were present, the protest received media coverage. The national press published articles on their websites containing photographs of the applicant in front of the altar wearing a veil, bare-breasted, with her arms outstretched in the form of a cross, or with her hands clasped together as if in prayer. In an interview with the magazine Le Nouvel Observateur on 23 December 2013, published on the internet in the form of a letter addressed to the parish priest, the applicant explained the meaning of her act: she had held “two pieces of beef liver in her hands, symbolising the aborted baby Jesus” and painted on her torso and back were “the slogans ‘344th slut’ ... in reference to the Manifesto of the 343 launched by pro-abortion feminists in 1971, and ‘Christmas is canceled [sic]’”. COURT PROCEEDINGS
6. The parish priest lodged a criminal complaint, together with an application to join the proceedings as a civil party. On 7 January 2014 the applicant was taken into custody. She explained that she had been appointed by collective decision of the Femen movement to stage her protest in France as described above, with similar protests planned, at the same time, in other countries, by other Femen activists. She clarified that the church of La Madeleine had been chosen in France for its “international symbolism”. The investigators entered into evidence a publication from the Femen France website containing the same photographs with the captions: “Christmas is cancelled from the Vatican to Paris; on the altar of the church of La Madeleine, Holy Mother Eloise has aborted Jesus”. On the issue of her nudity, the applicant told the investigators that, for her, the point had been to raise awareness and not to commit the offence of sexual exposure. She added that this was standard practice for Femen, who went topless at all their public protests in order to subvert the image of women as sexual objects by reclaiming it and turning it into a political message. 7. The applicant was summoned before the criminal court by the public prosecutor for the offence of sexual exposure. She left the Femen movement in February 2014. 8. After a hearing on 15 October 2014, the Paris Criminal Court refused, as a preliminary point, to submit to the Court of Cassation a priority question of constitutionality (question prioritaire de constitutionnalité – QPC) raised by the applicant, finding that her complaint concerning the lack of precision of the concept of sexual exposure under Article 222-32 of the Criminal Code, with regard to the principle that only the law could define a crime and prescribe a penalty, had no serious merit, as the Court of Cassation had previously held in a judgment of 9 April 2014 (see paragraph 18 below). Ruling subsequently on the merits on 17 December 2014, the Criminal Court dismissed the applicant’s pleas alleging a failure to establish the offence of sexual exposure and a violation of Article 10 of the Convention, respectively. In particular, it rejected the applicant’s argument to the effect that her act had been exclusively political and fell within the scope of her freedom of expression, finding as follows:
“Eloise Bouton alleges, in the alternative, citing Article 10 of the European Convention on Human Rights, that her action was exclusively political and that [her] acts fell within the bounds of her freedom of expression, which includes her freedom of opinion and the freedom to receive or impart information or ideas without interference by public authority, which is to say, in the present case, by the public prosecutor’s office. It should be pointed out that the same provisions also provide that those rights may be restricted so long as they are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In the present case, the defendant’s rights were curtailed by the pressing social need to protect others from the sight of an action performed half naked in a place of worship, which some might consider shocking. The criminal proceedings brought by the public prosecutor’s office were therefore proportionate to the legitimate aim pursued. This argument will accordingly be dismissed as without merit in the present case.”
9. The Criminal Court convicted the applicant of sexual exposure and sentenced her to a suspended term of one month’s imprisonment and, on the civil interests, ordered her 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. 10. In the Paris Court of Appeal, the applicant did not reiterate her request for submission of a priority question of constitutionality. On 15 February 2017 that court upheld the judgment in its entirety, including the sentence. It found that the constituent elements of the offence of sexual exposure were made out, including “the material fact of exposure of a sexual body part or parts”, and examined the facts in the light of those elements, reasoning as follows:
“As to the material element, the defendant herself does not dispute that, after entering the church of La Madeleine, located in the 8th arrondissement of Paris, shortly before 10 a.m. on 20 December 2013, accompanied by journalists who had been invited the day before to attend the protest, and approaching the altar, she removed her clothing, exposing her bare breasts, with the words ‘344th slut’ written on her chest and ‘Christmas is canceled [sic]’ on her back, and in a state of undress pretended to ‘abort the unborn Jesus’, laying on the altar a bleeding piece of veal liver purportedly representing a foetus. ... The acts were committed during a rehearsal of the La Madeleine choir, leading the choirmaster, Mr [M.], to intervene by firmly requesting that Eloise Bouton and the journalists accompanying her leave. She justified her action on the grounds that she had wished to condemn the ‘the anti-abortion campaigns’ led by the Catholic Church throughout the world, particularly in Spain and certain Eastern European countries, as she clarified during the hearing before the court. The defendant cannot seriously dispute the fact that by exposing her breasts for others to see she thereby exposed sexual body parts, even if she denies the characterisation of her breasts as sexual body parts, when she nevertheless submitted at the hearing that the act of touching her breasts without her consent would still constitute sexual assault. ... Although Eloise Bouton exposed her breasts without obscene accompanying gestures, she committed that act in a religious edifice, a place of prayer and contemplation, at the entrance to which those going in – believers, atheists and agnostics alike – are reminded that they are required to be decently clothed. ... As an additional consideration, it will be noted that Eloise Bouton acted without any authorisation whatsoever from the parish priest appointed to that church. Lastly, the act committed and the poses struck in a religious edifice by Eloise Bouton, who claims to have used her breasts as a weapon, cannot be justified by appeals to changes in mores, conceptions of art or notions of decency. Moreover, the spectacle of the exposure [of her breasts] was imposed on others, in a place open to others’ gazes, since the church of La Madeine was open to the public at the time and the act ... was committed during a rehearsal of the La Madeleine choir, near the altar and in the presence of the choirmaster, Mr [M.], who intervened firmly to put an immediate end to it. Thus, the sight of Eloise Bouton’s exposure of her sexual body parts was also imposed on a non-consenting person. As to the mental element of the offence ... Eloise Bouton was aware of the presence of others and had even wished to be accompanied by some ten journalists in order to spread word of her actions effectively and efficiently. As she herself acknowledges, and as pointed out both in the pleadings and written submissions of the civil party’s counsel and in the public prosecutor’s submissions, she displayed her bare breasts as a weapon, with the intent, moreover, of offending others’ sense of propriety, in particular that of Catholics, who are opposed to abortion and conduct anti-abortion campaigns in certain countries”. 11. As to the question whether the applicant’s freedom of expression had been interfered with during a feminist protest organised by the Femen movement to allow her to defend her political opinions, the Court of Appeal reasoned as follows:
“While the first paragraph of Article 10 of [the Convention] provides that ‘everyone has the right to freedom of expression’, it is observed that this right includes the freedom to hold opinions and to receive or impart information and ideas without interference by public authority and regardless of frontiers. Paragraph 2 of the aforementioned provision provides, in particular, that ‘the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions ... as ... are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’. ... In applying and ensuring respect for Article 10 of [the Convention], the courts are required to reconcile freedom of expression with other freedoms of equal value, such as freedom of religion. In the present case, the action in the church of La Madeleine, which had been specially chosen for the occasion, was carried out by Eloise Bouton with the stated aim of ‘shocking’ public opinion and Catholic church-goers by exposing her breasts and protesting violently and bluntly against the Catholic Church’s anti-abortion positions, Ms Bouton having dared to defy individuals of the Catholic confession in a central area of one of their churches, namely, the altar, which encloses a stone containing the fragment of a Saint’s relics. ... The criminal proceedings brought by the public prosecutor’s office against Eloise Bouton were therefore not in any way aimed at depriving her of her freedom of expression or her right to impart her political opinions, but rather to punish an act of sexual exposure that was unacceptable in a place of worship and to protect the religious sentiments of the faithful who were the direct targets of that act. What she took to be within the bounds of her freedom of expression resulted in a serious interference with others’ freedom of thought and with freedom of religion more generally. Consequently, this court cannot accept the justification put forward on the basis of Article 10 of [the Convention] and of an alleged infringement of Ms Bouton’s freedom of expression. Consequently, as the lower court pointed out, ‘the defendant’s rights were curtailed by the pressing social need to protect others from the sight of an action performed naked in a place of worship, which some might consider shocking. The criminal proceedings brought by the public prosecutor’s office were therefore proportionate to the legitimate aim pursued’. ... The Criminal Court, drawing the necessary legal conclusions, therefore correctly found Eloise Bouton to be guilty of the offence of sexual exposure.”
12. As to the suspended sentence of one month’s imprisonment, the Court of Appeal held that the applicant, a freelance journalist who was well-integrated socially and professionally, with a clean criminal record, had received a sanction that represented “a correct application of criminal law, taking into account both the circumstances surrounding the commission of the offence and the offender’s character”. 13. The applicant appealed against that judgment on points of law. On 9 January 2019 the Court of Cassation dismissed the appeal on the following grounds:
“By ruling ... with reasoning in which the offence of sexual exposure was made out in all of its constituent elements, both material and mental, as committed by Ms Bouton – who had wilfully exposed her breasts in a church she knew to be accessible to public view – irrespective of the reasons she gave for her act, the Court of Appeal, which was not required to respond to the plea of a mistake of law allegedly caused by a ministerial response which lacked any normative force and did not excessively interfere with the appellant’s freedom of expression, which must be reconciled with the right of others not to be disturbed in the practice of their religion, as recognised in Article 9 of [the Convention], duly justified its decision.”
RELEVANT DOMESTIC LEGAL FRAMEWORK
THE CRIMINAL CODE
14. Article 222-32 of the Criminal Code is contained in the part of that Code which deals with “sexual assault”. As worded at the relevant time – prior to the enactment of Law no. 21-478 of 21 April 2021, which extended the offence of sexual exposure to cases where a sexual act is explicitly committed in full view of others even without exposure of a bared body part – it provided as follows:
“Sexual exposure in full view of others, in a place in plain sight of the public, shall be punishable by one year’s imprisonment and a fine of 15,000 euros.”
CASE-LAW OF THE ORDINARY COURTSCharacterisation of the offence of sexual exposure

15. The concept of sexual exposure is not defined in Article 222-32 of the Criminal Code. The Court of Cassation’s case-law has endeavoured to establish its constituent elements. With regard to bare breasts, the characterisation of the offence of sexual exposure has been the subject of some debate in the light of changing mores and claims of a right to nudity without sexual connotation in particular contexts (artistic nudes, nudism). Well-established case-law shows that, at the relevant time, the offence of sexual exposure criminalised acts which involved revealing a sexual body part and received a certain amount of publicity. Beyond the objective material element of the offence, the act had to be carried out “in full view of others” (imposé à la vue d’autrui) in a publicly accessible place. That such exposure was imposed on others unexpectedly, whether by surprise or by force, justified the fact that this conduct was regulated by the Criminal Code as a “sexual assault” and entailed that there be a connection between the characterisation of the offence of sexual exposure and the place where it was committed. Lastly, the mental element of the offence consisted solely in the knowledge that the relevant act of exposure was indecent, and did not depend on the offender’s motives. In a judgment of 24 November 2021 (appeal no. 21-81.412), the Criminal Division of the Court of Cassation had thus held as follows in dismissing an appeal on points of law lodged against a judgment sentencing a man to the payment of a fine of EUR 600 for the offence (délit) of sexual exposure:
“6. In finding the defendant guilty of sexual exposure, the judgment appealed against observes that it followed from the findings of the gendarmes, confirmed by photographs, that Mr [K] [B] had sat naked on the riverbank opposite the one where witnesses were present, in a position that allowed his genitals to be seen. 7. The lower court added that the distance between them had not been sufficient to allow the witnesses to avoid the sight of his naked genitals and that, moreover, he had refused to get dressed, in spite of being asked to do so. 8. The lower court stated that the defendant also exposed his nudity in full view of people on watercraft and passers-by. 9. The court concluded that the intent on the part of Mr [B] to have his nudity be seen, in the knowledge that it offended others’ sense of propriety, established the mental element of the offence. 10. In so finding – to the extent that, in order to be made out, the offence of sexual exposure requires neither sexual or obscene conduct nor the deliberate intent to offend others’ sense of propriety – the Court of Appeal justified its decision.”
Femen members’ freedom of expression
16. In a judgment of 23 January 2018 (appeal no. 17-80.524), the Court of Cassation ruled on obscene gestures and shocking statements directed towards the Catholic Church by Femen activists in the context of demonstrations that had been held in France against the draft bill authorising same-sex marriage. In that case, the Criminal Division dismissed the appeal on points of law lodged by the association General Alliance against Racism and for Respect for the French and Christian Identity (Association alliance générale contre le racisme et pour le respect de l’identité française et chrétienne – “AGRIF”) to challenge – in particular on freedom-of-expression grounds – the dismissal of its claims for damages against those activists, whom the criminal court had acquitted of charges of public insults to individuals on account of their religion (section 33 of the Freedom of the Press Act of 29 July 1881). The Court of Cassation reasoned as follows:
“It can been seen from the judgment appealed against, the judgment it upholds and the evidence given in the proceedings that, during the demonstration held by several associations on 18 November 2012 against the draft bill to extend marriage to same-sex couples, young women who were members of the Femen movement barged onto the scene wearing nuns’ headdresses, their backs and torsos bare, where the following slogans were written: ‘in gay we trust’, ‘Holy (narrow-minded) Spirit’ (‘saint esprit étroit’), ‘fuck church’ and ‘mind your own ass’. They chanted the slogan ‘in gay we trust’ and brandished aerosol canisters marked with the words ‘Holy sperm’ and ‘Jesus sperm’. Since no charges had been brought following the complaint lodged by AGRIF, among others, the association lodged a criminal complaint, together with an application to join the proceedings as a civil party, for public insults against individuals on account of belonging to a given religion. That charge was laid against six members of the Femen movement, who were tried and acquitted by the Criminal Court. AGRIF appealed against that decision. In holding that no civil liability was demonstrated on the basis and within the limits of the accusations in respect of which the prosecution was brought, the judgment notes that most of the slogans were parodic and that the harshest of them, ‘fuck church’, targeted an institution, rather than one or more specific individuals, and was provocative but not violent. The lower court added that the Femen activists had thereby expressed their opposition to a demonstration which they considered intolerant of the rights they sought to defend, such that what was at issue were competing claims to freedom of expression in forms that remained tolerable in a democratic society. In the light of these considerations, the Court of Appeal did not disregard the legislation referred to in the ground of appeal given that, although the intrusion of the Femen activists had disturbed others in the exercise of their right to demonstrate, and although their outfits – which parodied a nun’s outfit so as to deride it –, their slogans and their gestures, some of them obscene, explicitly took aim at the teachings of the Catholic Church, such that they had been likely to offend the religious convictions of those in attendance, they had nevertheless not been insulting towards those individuals for belonging to that religion. ...”
17. The Court of Cassation was also called upon to examine whether the offence of sexual exposure had been made out in the case of a Femen activist who, on 5 June 2014, had vandalised the wax statue of Vladimir Putin on display at the Musée Grévin in Paris and who had been prosecuted on charges of vandalising another’s property. In an initial judgment of 10 January 2018 the Criminal Division held that the offence of sexual exposure resulting from bare breasts could be made out irrespective of “any sexual connotation”. Accordingly, it quashed the judgment of the Court of Appeal which, on that ground, had overturned the judgment of the Criminal Court sentencing the defendant to the payment of a fine of EUR 1,500 in respect of both offences. The Court of Cassation reasoned as follows:
“... in partly overturning the judgment referred to [the Court of Appeal] and acquitting Ms Z... of the offence of sexual exposure, the judgment holds that the act of exposing a bare female torso in for others to see, without any sexual intent, does not, having regard to the circumstances in which that act took place on 5 June 2014, constitute sexual exposure, the defendant having used her bare breasts displaying a written message for expressive purposes, outside of any sexual connotation. But in so ruling, despite having noted – independently of the reasons given by the defendant, which had no bearing on the constituent elements of the offence – that the defendant had deliberately exposed her breasts in a museum, namely a place open to the public, the Court of Appeal misconstrued the meaning and scope of the aforementioned provision. ...”
In the same case, which returned to the Court of Cassation – after being referred back to the Court of Appeal, with a differently constituted bench – by way of a second judgment delivered on 26 February 2020 (appeal no. 19-81.827, Bulletin criminel 2020 no. 2), the Criminal Division, in dismissing the appeal on points of law lodged by the public prosecutor’s office against the judgment of the Court of Appeal having acquitted the defendant of the charge of sexual exposure, reasserted that the offence of sexual exposure had been made out, even absent any sexually-connotated intent on the part of the offender, and upheld the defendant’s acquittal of that offence on the grounds that she had been exercising her right to freedom of expression. The relevant reasons given in the judgment read as follows:
“10. In acquitting the defendant of the offence of sexual exposure, the Court of Appeal held that the mere exposure of a woman’s breasts did not fall under the provisions for the offence set out in Article 222-32 of the Criminal Code provided the intention expressed by the offender was devoid of any sexual connotation and was not aimed at offending others’ sense of propriety, but constituted the expression of a political opinion, as protected by Article 10 of [the Convention]. 11. The lower court noted that the defendant had stated that she was a member of the movement known as ‘Femen’, which called for a ‘radical feminism’ and whose members exposed their bare breasts, on which political messages could be read. This form of activism constituted a rejection of the female body’s sexualisation and its reappropriation by the activists through its exposure in the nude. 12. The judgment adds that the way society looks at women’s bodies has changed over time and that the frequent display of female nudity in the press or in advertising, even with strong sexual connotations, does not trigger any response in the name of public morality. 13. The second-instance court emphasised that, while certain actions mounted by members of the ‘Femen’ movement had been sanctioned as unacceptable attacks on freedom of thought and freedom of religion, the defendant’s conduct at the Musée Grévin did not constitute such an action and did not appear to have infringed any right guaranteed by a statutory or regulatory prescription. 14. The Court of Appeal was wrong to state that the mere exposure of a woman’s breasts did not fall under the provisions for the offence set out in Article 222-32 of the Criminal Code, provided the intention expressed by the offender was devoid of any sexual connotation. 15. However, the judgment should not be overturned since it can be seen from the lower court’s findings that the defendant’s conduct was part of a political protest and that her conviction, having regard to the nature of the act in question and the context surrounding it, would disproportionately interfere with her freedom of expression.”
Priority questions of constitutionality
18. In a judgment of 9 April 2014 (appeal no. 14-80.867) the Court of Cassation held that there was no reason to refer the following question to the Constitutional Council, submitted by a man challenging his committal for trial in the Assize Court on charges of rape, aggravated sexual assault and sexual exposure: “Is Article 222-32 of the Criminal Code compatible with the principle that only the law can define a crime and prescribe a penalty, with Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789 and with Article 34 of the Constitution, which entail that sexual exposure is not punishable under criminal law unless the constituent elements of the offence are not adequately defined by law ... ?” The Criminal Division gave the following reasons for its decision:
“The impugned provisions are applicable to the proceedings. They have not previously been declared to be compatible with the Constitution in the reasoning and operative part of a decision by the Constitutional Council. However, the question, which does not pertain to the interpretation of a constitutional provision that the Constitutional Council has not yet had occasion to apply, is not new. Moreover, the question raised clearly lacks serious merit, since Article 222-32 of the Criminal Code is drafted in terms that are sufficiently clear and precise for it to be interpreted without risk of arbitrariness, a task which falls to the criminal courts.”
19. In a judgment of 16 February 2022 (appeal no. 21-82.392) the Court of Cassation was once again called upon to rule on the same question following a priority question of constitutionality submitted by three Femen activists who had been prosecuted on charges of sexual exposure for protesting topless in 2018 on the Champs Élysées during the commemoration of the armistice of 11 November 1918, two of whom had been sentenced by the Court of Appeal to suspended terms of one month’s imprisonment and the third – also prosecuted for forgery and making use of forged documents with intent to defraud – to a suspended term of two months’ imprisonment. In that case, the question had been broadened to include the discriminatory nature of the offence depending on whether the nudity involved female or male torsos. The Criminal Division gave the following reasons, which were in part identical to those set out in the above-mentioned judgment of 9 April 2014 (see paragraph 18 above), for refusing to refer the question to the Constitutional Council:
“1. The priority question of constitutionality is worded as follows:
‘Are the provisions of Article 222-32 of the Criminal Code incompatible with the rights and freedoms guaranteed by the Constitution, and more precisely:
- with Articles 5, 8 and 16 of the Declaration of the Rights of Man and of the Citizen of 1789, 34 of the Constitution and with the principle that only the law can define a crime and prescribe a penalty, the principle that the law should be clearly defined, the principle of legal foreseeability and the principle of legal certainty, in that they fail to define the constituent elements of the offence, in particular the concept of ‘sexual exposure’?
- with the principle of the necessity and proportionality of punishment guaranteed by Article 8 of the Declaration of the Rights of Man of 1789, in that they criminalise the mere nudity of female torsos in any place that is accessible for the public to see?
- with the principle of equality that derives from Articles 1, 6 and 13 of the Declaration of the Rights of Man and of the Citizen, from the principle of gender equality enshrined in the third paragraph of the Preamble of the Constitution of 4 October 1946 and from the principle of non-discrimination, in that they criminalise the nudity of female torsos but not that of male torsos?’
2. The impugned legislative provision is applicable to the proceedings and has not yet been declared compatible with the Constitution in the reasoning and operative part of a decision of the Constitutional Council. 3. The question, which does not pertain to the interpretation of a constitutional provision that the Constitutional Council has not yet had occasion to apply, is not new. 4. The question raised does not have serious merit, for the following reasons. 5. Firstly, Article 222-32 of the Criminal Code is worded in terms that are sufficiently clear and precise for it to be interpreted without risk of arbitrariness, a task which falls to the criminal courts, subject to the scrutiny of the Court of Cassation. 6. Secondly, the penalties provided for in the impugned provision, which the courts may adjust depending on the situation put before them, were regarded as necessary by the legislature for the purpose of maintaining public order and do not appear manifestly disproportionate to the aim thus pursued. 7. Thirdly, the principle of equality does not prevent the law from being applied differently in different situations, or from derogating from equality on general-interest grounds, and Article 222-32 of the Criminal Code applies to both men and women, even if their anatomical differences and the representations associated therewith mean that the concept of exposure is given a different content in each case.”
OTHER MATERIAL
20. The National Advisory Commission on Human Rights (Commission nationale consultative des droits de l’Homme) issued an opinion dated 20 November 2018 “on sexual abuse: a social and public health emergency, a fundamental rights issue” (Official Gazette of the French Republic of 25 November 2018) in which, under the heading “Clarifying the criminal statutes governing sexual offences”, it questioned the wording of certain criminal statutes which, in its view, warranted revision so as to be sufficiently clear and legible to meet the requirements of the principle that offences must be defined in law. It specifically cited the case of the offence of sexual exposure set out in Article 222-32 of the Criminal Code and gave the prosecution of a Femen activist as an example (see paragraph 41 of the opinion). THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
21. The applicant complained of her criminal conviction for acts of sexual exposure committed in a church during a protest which she had conducted as a member of Femen. She alleged that this entailed a violation of Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ...”
Admissibility
22. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)    The applicant
23. The applicant submitted, firstly, that, for want of the requisite clarity and foreseeability, the Government’s acknowledged interference with her freedom of expression was not “prescribed by law” within the meaning of paragraph 2 of Article 10. Next, she submitted that, although such interference could be regarded as having pursued a “legitimate aim”, namely, to combat any potential breaches of public order as might result from provocative sexual nudity, it could not be considered to have been “necessary in a democratic society” or proportionate to that aim. In this connection, she pointed out that the national authorities ought to have taken into account the political dimension at the heart of her protest, as they had done in dismissing the charge of sexual exposure in the case of the Femen activist who had exposed her breasts in the Musée Grévin (see paragraph 17 above). 24. The applicant argued that, far from being gratuitously offensive or seeking to disturb those present in the church in the practice of their faith, her action had been part of a public debate over women’s place in society and had sought to convey a message about the Catholic Church’s position on abortion. She pointed out that the protection afforded by Article 10 also extended to ideas that offended or shocked any section of the population. Moreover, she denied that there was any need, in the present case, to reconcile two fundamental freedoms guaranteed by Articles 9 and 10 of the Convention, since there had been no interference whatsoever with freedom of religion. She added that in view of the sentence imposed on her, especially as it had been a suspended prison sentence – a custodial sentence – the interference with her freedom of expression could not be regarded as proportionate. (b)    The Government
25. The Government did not deny that the applicant’s conviction constituted interference with her right to freedom of expression. They submitted, however, that the three conditions for ensuring respect for that right had been met. First of all, as to such interference being “prescribed by law”, they argued that the applicant’s conviction for the offence of sexual exposure had been based on the law and on an accessible and foreseeable interpretation of the relevant case-law. In that connection, they argued that the wording of Article 222-32 of the Criminal Code involved the exposure of a sexual body part, which constituted the objective element of the impugned conduct, and that the offence had also been made out on the basis of the public nature of the act in question and its mental element, which was to be distinguished from the motive for the offence in accordance with a general principle of French criminal law. As to the nudity of a woman’s breasts, the Government noted that the case-law had consistently regarded this as the nudity of an intimate part of the body. They furthermore emphasised that the Court of Cassation had repeatedly ruled that the aforementioned Article 222-32 was sufficiently clear and precise and had refused to refer a priority question of constitutionality to the Constitutional Council concerning the compatibility of that provision with the principle that only the law could define a crime and prescribe a penalty (see paragraph 18 above). The Government concluded from this that the interpretation of that provision could be carried out by the domestic courts with no risk of arbitrariness and that it was indeed within their remit to do so. 26. As to the existence of a “legitimate aim” pursued by the interference with the applicant’s freedom of expression, the Government submitted that such an aim was supplied by the need to protect morals, public order and the rights of others. 27. Lastly, as to the “necessity of the interference in a democratic society”, the Government submitted that the applicant’s conviction had by no means been connected to the nature of the ideas expressed about abortion or to any lack of respect for others’ beliefs: only the form – and not the content – of the message expressed had been punished in the present case. With particular reference to the Aydın Tatlav v. Turkey judgment (no. 50692/99, 2 May 2006), they stressed that the right to freedom of expression also entailed duties and responsibilities, including the obligation, in the case of religious beliefs, to avoid expressions that were gratuitously offensive to others, or profane, and the duty to comply with the criminal statutes of ordinary law. The Government argued that, in this domain, States also enjoyed a margin of appreciation in punishing, in the event of a “pressing social need”, certain types of conduct that were found to be incompatible with respect for the rights of others to freedom of conscience and religion. They argued that, in the present case, the applicant’s conduct had been deliberately designed to offend the religious sensibilities of those present in the church and inferred from this that there had been a margin of appreciation as to the means of punishing such conduct. 28. In addition, the Government observed that the reasons given by the national courts had been relevant and sufficient, since they had found that the applicant’s action had gone beyond merely contributing to the debate over women’s rights and had also sought to offend others, in particular by means of an act of sexual exposure that was punishable under criminal law. They added that the courts had thereby justified the sanction imposed on the applicant, which had been reasonable in the light of the circumstances of the case and of the competing rights, both in terms of the sentence and the civil compensation awarded to the church representative. They concluded that, in the particular circumstances of the case, a fair balance had been struck between the applicant’s right to freedom of expression and the need to protect the rights of others.

Outcome for Article 10: violation