The Dangerous Implications of the “Naked Rambler” Case: On FEMEN Activists and Throwing Paint on Atatürk Statues

By Stijn Smet

On 28 October 2014, the European Court of Human Rights ruled that the numerous convictions of Mr. Stephen Peter Gough – better known as “the naked rambler” – for insisting on appearing naked in public at all times, did not violate Mr. Gough’s freedom of expression.

Quite a bit of ink has already been dedicated to Mr. Gough’s case and to explaining why the ECtHR judgment warrants criticism. Particularly worth highlighting are the insightful contributions by Hugh Tomlinson over at Inforrm’s Blog and Marko Milanovic on EJIL: Talk!. Here, I will not regurgitate their poignant critiques. Instead, I set out to question a few specifically troubling passages in the Court’s judgment by indicating the dangerous implications they could have for other, analogous situations.

But first, as tradition dictates, I will briefly summarise the facts of the case and highlight the relevant passages of the Court’s judgment.

Facts and Judgment

Mr. Gough believes firmly in the inoffensive nature of the human body. He believes in social nudity. He expresses his beliefs by being naked in public. At all times and in all circumstances. In the streets, in airplanes, in court and in prison.

On two separate occasions, Mr. Gough decided to walk naked from Land’s End in England to John O’Groats in Scotland, earning him the nickname “the naked rambler”. Completing his trek proved to be extremely difficult, since he was repeatedly arrested for “breach of the peace” and “public indecency”. Initially, these arrests were not followed up by any concrete (court) actions, but after his seventh arrest, Mr. Gough was – for the first time of many – convicted. That first time, he got off with a ‘mere’ admonishment. However, all consecutive times – and there were plenty – he was convicted to prison sentences. These ranged from two weeks to twelve months.

Eventually, Mr. Gough found himself in a vicious circle of being arrested, convicted, imprisoned and then arrested again immediately upon his release, because he insisted on remaining naked. As a result, he at some point spent almost six and a half consecutive years in prison with less than a dozen days at liberty.

In Strasbourg, Mr. Gough claimed that his consecutive convictions had violated his freedom of expression. The ECtHR disagreed.

The Court’s judgment contains many interesting passages that are well worth discussing and critiquing, but I will only focus on a few in this post. I reproduce them at length immediately below, before discussing their dangerous implications.

“In exercising his right to freedom of expression, [the applicant] was in principle under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them.” [para. 175]

“Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to the applicant.” [para. 175]

“The applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business.” [para. 176]


Instead of directly criticising the above passages from the Court’s judgment, as they were applied to Mr. Gough’s case, I will explore how they could be abused to justify infringements on freedom of expression in other, analogous situations (see also Marko Milanovic’s hypothetical example on EJIL: Talk!). The idea behind this exercise is to question the inclusion of these passages in the Court’s judgment.

First, I will examine the implications of the Gough judgment for what appears to be a highly analogous situation, insightfully brought up by Eva Brems during our discussion of the judgment. The analogous situation is that of FEMEN activists being arrested and convicted for protesting naked in public.

According to their website, the feminist organisation FEMEN propagates “female nudity, free of patriarchal system, [as] a grave-digger of the system, militant manifesto and sacral symbol of women’s liberation.”[1] The organisation’s objectives include “to ideologically undermine the fundamental institutes of patriarchy – dictatorship sex-industry, and church – by putting these institutes through subversive trolling to force them to strategic surrender; and to promote new revolutionary female sexuality as opposed to the patriarchal erotic and pornography.”[2] FEMEN members pursue these objectives, which are clearly of a public interest nature, by protesting (half)naked in public, usually with slogans painted on their naked breasts. FEMEN members have been arrested on several occasions for having done so. Last month, for instance, a FEMEN member was convicted to a fine of EUR 1,500 by a French court for “sexual exhibitionism”, after she had appeared partly naked in public and, with “Kill Putin” written on her naked breasts, had attacked a wax statue of Vladimir Putin at the Musée Grévin in Paris.[3] In another instance, dating back to 2013, a Tunisian court convicted three European FEMEN activists – who had staged a topless courthouse protest – for public indecency, offending public morals and threatening public order, sentencing them to four months and a day in prison.[4]

Interestingly, these are instances in which the persons concerned were, very much like Mr. Gough, “under a general duty to respect the country’s laws and to pursue [their] desire to bring about legislative or societal change in accordance with them” and in which their “imprisonment [was] the consequence of [their] violation of the criminal law in full knowledge of the consequences, through conduct which [they] knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business.”

Strikingly, the language the Court uses in Gough barely needs any changes for it to be applied to the FEMEN cases. Does this mean that the FEMEN cases also involved justified infringements on the freedom of expression of the activists? If I were the agent of the French State, I would certainly consider keeping some of the above passages from the Gough judgment handy, just in case the French FEMEN case were to ever reach Strasbourg.

It is also quite useful to compare the Gough judgment to another ECtHR case, ruled upon one week earlier: Murat Vural v. Turkey. This case concerned a man who – in protest against “those running the country in accordance with the Kemalist ideology, and to [criticise] the Kemalist ideology itself” [para. 40] – had poured paint on several statues of Kemal Atatürk. He was charged with having contravened the Law on Offences Committed Against Atatürk. He was found guilty and sentenced to twenty-two years and six months imprisonment. In its judgment, the ECtHR – completely according to expectations – found a violation of the applicant’s freedom of expression, particularly referring to the gross disproportionality of the penalty imposed on Mr. Vural. But the Court’s judgment also contains one particularly interesting passage for our current concerns:

“In principle, the Court considers that peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence.” [para. 66]

So what about Mr. Gough? Did this principle not – or no longer – apply to him?

And, conversely, what about Mr. Vural? Had he not acted, like Mr. Gough, in contravention of his “general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them”? And were not “many other avenues for the expression of his opinion … or for initiating a public debate on the subject … open to [him]”?

I raise these questions – both in relation to Murat Vural v. Turkey and the FEMEN cases – not necessarily to argue that Gough was wrongly decided by the ECtHR, but primarily to question the inclusion of the cited passages in the Court’s Gough judgment.

As I have noted in a few previous posts (see here and here), the Court should refrain from unreflectively imposing certain duties – duties of resorting to less restrictive alternatives in expressing one’s opinion or general duties to obey the law – on right holders. It should refrain from doing so, because the Court’s reference to such duties directly undermines the generally robust protection offered by, in this case, Art. 10 ECHR. Ironically, with passages such as the ones cited above, the Court ends up handing those governments who would drastically curtail free speech all the tools they need. And the Court would find it difficult to admonish those governments by saying: “look at our case law; it is not there; you are reading it wrongly.” Regrettably, they would not be reading it wrongly; it is there.






3 thoughts on “The Dangerous Implications of the “Naked Rambler” Case: On FEMEN Activists and Throwing Paint on Atatürk Statues

  1. I think it’s interesting that you’re not allowed to express yourself by not wearing enough clothes, but equally you’re not allowed to express yourself by wearing too many clothes (SAS v France).

    I wonder if it would be possible to collate cases dealing with claimants who were doing something fairly low-level when they claim that their rights were infringed? By “low-level”, I mean activities that cause minimal or no damage to other persons or property, and do not actively involve others. Gough and SAS were not so much about the claimants’ right to wear a certain amount or type of clothing, but more about other people’s right not to see them doing it; unlike, for example, a claimant insisting on distributing leaflets to the unwilling, thus actively involving them.

    Once collated, I think it would be interesting to see if there is a difference in treatment between those cases dealing with activities with a moral/religious element (nakedness/Islam) and those without (throwing paint). Alternatively, is there a difference in treatment between cases with claimants who were acting in a Western-European-normal way (throwing paint), and those who are not (wearing a niqab)?

    Although I don’t for a moment think that the judges of the ECtHR deliberately allow their personal prejudices (and everyone has some) to get in the way of their logic, it is possible that it could be happening unconsciously. These differences in case outcomes make me think that:
    a) an audit would be a good idea, to confirm or disprove the hypothesis and
    b) either do some work to help avoid bias in the future, if bias exists, or alternatively to clarify why there is no bias, if it doesn’t exist.

    • Dear Jen,

      thank you very much for your comment. Excellent thoughts! I would certainly like to see the results of such a study!

      Also interesting to include in such a study might be the kind of “low-level” free speech cases in which the Court found no violation of the Convention, while an easy argument could be made to the effect that people who would be offended by the speech in question were in no way compelled to hear/watch it (cf. Otto-Preminger-Institut v. Austria).

      I also find it quite interesting to note how in S.A.S. the Court deals with the case under Art. 9 ECHR, read together with Art. 8 ECHR (the latter in more or less subsidiary order, but it’s there), while refusing to consider the case separately under Art. 10 ECHR. In Gough, the exact opposite happens: the Court deals with the case under Art. 10 ECHR, while dismissing the Art. 8 ECHR claim rather summarily.

      In S.A.S., the applicant claimed of a combined violation of Arts. 8, 9 and 10 ECHR, but in considering her arguments under those three Articles of the Convention, the Court gets rid of the Art. 10 ECHR aspect. Instead, it rules later in its judgment that “no issue arises under Article 10 of the Convention … that is separate from those that it has examined under Articles 8 and 9 of the Convention” (par. 163).

      In Gough, conversely, the Court deems the applicant’s Art. 8 claim unfounded, ruling inter alia that “Article 8 cannot be taken to protect every conceivable personal choice in that domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question … Whether the requisite level of seriousness has been reached in relation to the applicant’s choice to appear fully naked on all occasions in all public places without distinction may be doubted, having regard to the absence of support for such a choice in any known democratic society in the world.” (par. 184). This is prima facie in stark contrast to the Court’s ruling in S.A.S. to the effect that “personal choices as to an individual’s desired appearance, whether in public or in private places, relate to the expression of his or her personality and thus fall within the notion of private life. It has found to this effect previously as regards a haircut … It considers … that this is also true for a choice of clothing.” (par. 107).

      Now, one could of course argue that the facts and issues in Gough and S.A.S. are sufficiently different to justify this difference in rulings (with Gough, in particular, narrowing the scope of the principle in par. 107 of S.A.S.).

      But still, these are quite interesting disparaties to note, given that both cases were concerned with how individuals (do not) dress in public.

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