September 12, 2025
By Dr. Alice Dejean de la Bâtie
The events that led to the case of Ludes and Others v. France began in early 2019, when climate activists, mostly affiliated with the French environmental campaign Action Non-Violente COP21, launched a coordinated protest under the banner #DécrochonsMacron (“Take Down Macron”). Their objective was both symbolic and strategic: to draw attention to what they perceived as a lack of political action on climate change in France, and to force a national conversation on the issue. Yet, they probably did not anticipate sparking a legal debate that would reach the European Court of Human Rights (ECtHR). In Ludes and Others v. France, which was decided on 3 July 2025, the Court was faced with the question of whether peaceful civil disobedience, especially that aimed at raising public awareness of the climate crisis, could be subject to criminal sanctions under the guise of protecting property. And if so, what impact does this have on freedom of expression and the right to protest in Europe today?
Several activists removed the official portrait of President Emmanuel Macron from municipal town halls across the country – over 150 times in total. These portraits are usually displayed in public buildings to symbolise the French Republic and its executive authority. By taking them down, the activists intended to create a visual representation of the absence of leadership in the fight against climate change. They documented their actions with photos and videos and made public statements, which were widely disseminated through traditional media and social platforms. The removed portraits were kept as leverage and were to be returned only when the government adopted meaningful climate action.
The activists were charged with ‘vol en réunion’, theft committed by multiple individuals (an aggravating circumstance under French law). In many cases, trial courts acquitted the activists, acknowledging the expressive and peaceful nature of their actions. However, courts of appeal overturned these decisions and imposed €200 to €600 fines with suspended enforcement. They reasoned that the activists had not merely symbolically protested but had retained public property against the wishes of its legal owner. This, the courts said, exceeded the bounds of symbolic expression and constituted fraudulent appropriation, which is a key element of theft under French law. The Cour de Cassation, France’s highest criminal court, upheld these convictions (Crim. 18 May 2022, 21-86.685, 20-87.272, 21-86.647). It confirmed that the protection of public property was a legitimate legal aim and that the sanctions imposed were proportionate, particularly given the minor severity of the punishment and the non-violent nature of the offence.
The activists turned to the ECtHR, arguing that their conviction violated Article 10 of the European Convention on Human Rights (ECHR), which guarantees freedom of expression. Their claim was based on three key arguments: 1) political expression: The protest was not private or commercial; it was a political performance highlighting governmental inaction on the urgent matter of the climate crisis; 2) disproportionate interference: While the fines were small, they argued that the overall repression, including police raids, DNA collection and preventive custody, amounted to an excessive burden on their right to engage in peaceful protest; 3) chilling effect: Criminalising such a symbolic, non-violent act could discourage other citizens from participating in protest movements, particularly those relating to politically sensitive topics.
In its judgment, the ECtHR dismissed the claims. While it accepted that the protest fell within the scope of Article 10 as a form of political expression and recognised that some level of interference had occurred, it ruled that this interference was justified as it pursued the legitimate aim of protecting public property, and that the national courts had adequately weighed the competing interests involved. This approach, however, was not unanimous. In a powerful dissenting opinion, Judges Andreas Zünd (Switzerland) and Kateřina Šimáčková (Czech Republic) warned that the criminalisation of such expressive acts, even when the procedure is light, has a disproportionate and discouraging effect on democratic engagement. They argued that the Court had failed to apply the rigorous necessity and proportionality analysis it had previously championed in freedom of expression cases, especially those concerning political speech and public interest issues.
This note focuses on the line of arguments developed in the dissenting opinion because it provides for an alternative take on the case, one that gives hope that the ECHR, if in the right hands, may still be a powerful tool to protect freedom of expression and democracy. First, and this may be the point that I find most difficult to concede, the dissenting judges question the very characterisation of the crime of theft, pointing out that the activists saw their action more as a “temporary requisition” (§ 113) than actual theft, because they did not intend to keep the portraits and pledged to hand them back once the Government would have taken adequate action to address climate change. However, the French Code pénal defines theft as the “fraudulent appropriation of someone else’s property” (art. 311-1 Code pénal), and the portraits were indeed removed and retained without the consent of the municipalities that owned them. The fact that the activists did not intend to keep the portraits forever is irrelevant; well-established case law has determined that temporary appropriation also constitutes theft (Crim. 19 Febr. 1959, 92-27.758). More generally, French criminal law considers that the motive behind an unlawful act – however noble – does not usually[1] affect the characterisation of a crime.
Nonetheless, it is an interesting thought that the activists did not intend to behave – even temporarily – as the owners of the portraits; it questions the articulation of the traditional understanding of mens rea with the perpetration of crimes for the sole purpose of expressing dissent. A similar point had been made by judge Šimáčková in an earlier case (Bouton v. France) involving a Femen activist convicted for sexual exhibition after she had showed her bare breast in a church as part of a protest against the Catholic Church’s position regarding abortion. In her concurring opinion, the Czech judge questioned the ECtHR’s choice to accept France’s position that the crime of sexual exhibitionism was characterised (to then consider the sentencing disproportionate with regard to Article 10). She argued that the ‘sexually connotated’ intent required for this crime was not present in such a political context. Both the theft case and the sexual exhibitionism case therefore highlight the same difficulty: whether mens rea should be understood differently when the act is committed solely as a form of political expression. In other words, they question whether protest-driven actions can truly be equated with the criminal intent underlying ordinary offences. That said, the ECtHR has made it clear that it is not its role to examine whether the elements of the offence have been met under domestic law (§102).
Nonetheless, even if the motive may prove difficult to take into account at the preliminary stage of the characterisation of the crime of theft – at least as long as we keep a more traditional understanding of mens rea – there is room for it further down the legal reasoning, when assessing proportionality. In that regard, French case law has undergone a quiet transformation over the past decade, first under the influence of the ECtHR and then beyond it. Courts have increasingly acknowledged that acts of civil disobedience, even when technically constituting criminal offences, may deserve protection under Article 10 ECHR. This has led to the development of a two-step test by the French Cour de cassation to assess proportionality: 1) Is the unlawful act directly linked to political expression on a matter of public interest? 2) If so, is the resulting criminal sanction a proportionate interference with that expression, considering the specific context? This framework has prompted courts to analyse an increasing number of criminal offences beyond theft in light of Article 10. These include fraud, property damage, trespass, obstructing the movement of a train or aircraft, unlawful assembly, harassment, defamation, discrimination, slanderous denunciation, and sexual exhibitionism when used to convey a political message. While the approach remains cautious, it signals a shift towards acknowledging that freedom of expression can serve as a general justification for expressive crimes.
Furthermore, the Cour de cassation started providing more detailed guidance on the specific criteria to be applied depending on the offence in question. This initiative aims to reduce the arbitrariness inherent in discretionary proportionality assessments and introduce more predictability, thereby preserving the principle of legality. In the case of the portrait removals, the courts readily acknowledged the direct connection between the activists’ conduct and the public debate on climate change. The key question therefore became whether the criminal conviction would constitute an excessive restriction of freedom of expression. Applying the emerging specific proportionality framework for theft-related offences, the courts considered factors such as the stolen object’s material and symbolic value, and the reversibility of the harm caused to the victim.
In the 2018 decisions that formed the basis of the Ludes v. France case, following the newly established test described above, French courts found that the conviction was not disproportionate. They cited the symbolic importance of the presidential portrait, the activists’ refusal to return it and the fact that the act had been committed collectively. However, this reasoning received a critical reception in legal scholarship. As one commentator noted, it is only natural for symbolic protest to target symbols, and it is difficult to justify why collective expression should be treated as less legitimate than individual dissent (for a similar point, see also my note on the Bodson case).
However, between these 2018 rulings and the ECtHR’s decision in Ludes, the French judicial landscape evolved. In 2023, the Cour de cassation explicitly applied the newly devised framework to another case involving presidential portrait removals. In that case, the Court of Appeal had acquitted the activists, a decision that was upheld by the Cour de cassation. The Court emphasised that the activists had acted non-violently and openly; targeted an object of negligible economic value; pursued no personal or financial gain; and caused no harm to human dignity or public order. The Court concluded that criminalising such acts could represent a disproportionate restriction on political expression (Crim. 29 March 2023, 22-83.458).
In contrast, the judgment of the ECtHR in the Ludes case – handed down in July 2025 but examining the earlier 2018 cases – adhered to a narrower conception of proportionality. It accepted the French government’s argument that the protection of public property justified (moderate) criminal sanctions against peaceful protest that is intended to express a political message. While the Court acknowledged the symbolic nature of the act, it dismissed it as exceeding the limits of acceptable expression due to the continued possession of the portraits. However, as critics of the judgment, including the dissenting judges Zünd and Šimáčková, correctly observed, this logic fails to grasp the core dynamic of symbolic civil disobedience. It is precisely the emblematic nature of the act, including the use of state symbols, that gives it significance. In this respect, the Court lagged behind recent French jurisprudence and risked undermining its own Article 10 framework by failing to protect peaceful protest, even when the damage is minimal and the expressive intent is clear.
Beyond proportionality, the case of Ludes v. France raises urgent questions about the necessity of criminal sanctions for peaceful, expressive dissent. While the ECtHR accepted that criminal convictions are permissible if they serve a ‘pressing social need’, its review of necessity in this case was somewhat superficial.
Under the Court’s established framework (see e.g. Handyside v. the UK; Sanchez v. France), the analysis involves three distinct steps: First, determining whether the measure pursues a legitimate aim; second, assessing whether it is necessary to achieve that aim – that is, whether there existed less restrictive means to accomplish the same objective; and third, evaluating proportionality in the strict sense, by balancing the severity of the interference against the importance of the aim pursued. Returning to Ludes, the first step – the protection of property by the criminalisation of theft – has already been addressed above (and was not in serious dispute). However, the Court largely skipped over the second step, concentrating instead on the third.
Indeed, the Court focused on the leniency of the sentences (suspended fines totalling a few hundred euros) and concluded that their impact on the activists’ freedom of expression was minimal – and thus proportionate. However, this narrow focus overlooks the broader coercive apparatus surrounding these prosecutions, including police searches, DNA sampling and preventive custody. Many activists described an experience that looks very much like a campaign of institutional intimidation, not a mild legal inconvenience. By failing to consider this broader context, the ECtHR overlooked the chilling effect that these measures could have on not just the individuals prosecuted, but also on public participation in peaceful protest more broadly. As the dissenting judges rightly emphasised, the risk is not only punishment, but also deterrence. When peaceful activists are treated as criminals for drawing attention to global existential threats such as climate change, the message sent is clear: symbolic protest is unsafe.
Hence, in focusing only on proportionality without giving necessity proper scrutiny, the Court overlooked the crucial question of whether criminal prosecution – with all its symbolic and procedural weight – was at all necessary to respond to a peaceful, symbolic act of protest. This omission is not merely technical; it hollowed out the necessity test, reducing it to a box-checking exercise rather than a substantive safeguard for expressive freedom.
This is particularly alarming in the wider European context of democratic regression. In France, as in several other EU countries, the past few years have seen more aggressive policing of protests, an expansion of public order offences and a general securitisation of dissent. Public authorities have become increasingly willing to pursue criminal charges for peaceful political expression, using ordinary criminal law to suppress extraordinary forms of civic engagement.
Yet rather than placing these developments under rigorous scrutiny, the ECtHR resorted to judicial deference. By accepting the national courts’ assessment, the ECtHR avoided asking the more urgent necessity-driven question: Should criminal law be used at all in such cases? In previous rulings, the Court had held that political speech and matters of public interest warrant the highest level of protection and that Article 10(2) allows for minimal interference only. However, in Ludes, it applied this doctrine with little conviction. The Court did not consider whether the real aim of the prosecution was to achieve symbolic deterrence rather than to protect property. In short, it missed an opportunity to transform necessity from a formal requirement into a substantive shield for democratic activism.
The ECtHR’s ruling in Ludes v. France was an opportunity missed to adapt legal protections to the realities of contemporary activism. At a time of climate emergency and democratic decay, the Court could have reinforced the idea that peaceful civil disobedience, especially when raising awareness of issues of existential public concern, deserves robust protection rather than procedural formalism. However, by endorsing symbolic criminal sanctions for peaceful protest, the Court risks becoming complicit in a subtle yet effective form of repression. The right to protest is not a luxury – it is a necessity. The Court should not merely tolerate it. It should actively protect it.
[1] An exception is made for terrorism: the specific purpose to cause terror is required to characterize terrorist crimes.
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