CEDH · CASELAW;CLIN;ENG — 25 juillet 2024

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France - 63664/19, 64450/19, 24387/20 et al. Judgment 25.7.2024 [Section V] Article 8 Article 8-1 Respect for private life General and absolute criminal-law prohibition of the purchase of sexual services as part of a wide-ranging legislative approach to combatting prostitution and human trafficking: no violation Facts – The creation of the offence of purchasing sexual relations, including between consenting adults in a private location, was introduced by the Law of 13 April 2016 “to strengthen the fight against the prostitution system and provide support to prostituted individuals” and codified in Articles 611-1 and 225-12-1 of the Criminal Code. In June 2018 several NGOs and five individuals, including four of the 261 applicants in the present case who habitually engaged in prostitution, which was a lawful and tolerated activity in France, applied to the Prime Minister seeking the repeal of a decree relating to the Law of 13 April 2016. In the context of a request to the Conseil d’État to have the Prime Minister’s implied rejection set aside for abuse of power , the Constitutional Council, to which a request for a preliminary ruling on constitutionality (QPC) had been referred, examined the impugned provisions of the Criminal Code in the light of the right to respect for private life and the right to personal autonomy and particularly to sexual freedom, and on 1   February 2019 declared that they were compatible with the Constitution. On 7 June 2019, referring to the Constitutional Council’s decision, the Conseil d’État rejected the argument of unconstitutionality and, under Article 8 of the Convention, concluded that there had not been excessive interference with the right to respect for private life. Before the Court, the applicants submitted that the law in question, worded in general and absolute terms, created a situation which was driving them to work in a clandestine and isolated manner, exposing them to violence and to increased health risks, impacting their ability to define how they lived their private life and thus infringing on their personal autonomy and sexual freedom. Law – Article   8: 1. Existence of an interference and its lawfulness – The Court had already ruled that the impugned measure created a situation which directly affected the applicants ( M.A. and Others v. France (dec.)). It therefore considered that the criminalisation of the purchase of sexual acts amounted to an interference with the applicants’ right to respect for their private life, and with the right to personal autonomy and sexual freedom. This interference had a legal basis. 2. Legitimacy of the pursued aims – In choosing to penalise persons who purchased sexual acts, the French legislature had sought to deprive those living on the earnings of prostitution of their sources of profit, and to combat this latter activity and human trafficking for the purposes of sexual exploitation, which were criminal activities based on coercion and human enslavement, and thereby to ensure that human dignity was protected against these forms of enslavement and safeguard the constitutional objective of ensuring public order and preventing crime. The Court had already pointed out that it considered prostitution to be incompatible with the rights and dignity of the human person where this activity was forced. It had also repeatedly emphasised the importance of combatting human-trafficking and prostitution networks, and the obligation on States Parties to the Convention to protect victims. It accepted that the objectives of the criminalisation of the purchase of sexual acts, namely, to ensure public order and safety, prevent crime and protect the health, rights and freedom of others, constituted legitimate aims. 3. Whether the interference was necessary in a democratic society (a) The State’s margin of appreciation – Like certain other member States, France had opted for the “abolitionist” approach towards prostitution, in which prostitution was considered to be incompatible with the dignity of the human person, without however being prohibited or regulated – in contrast to procuring, which was subject to criminal penalties. In other member States, the legal framework governing prostitution was closer to “prohibitionism” (prostitution was forbidden and prostituted individuals, and their potential clients, were punished) – or the “regulamentarist” model (prostitution, including exploitation of the prostitution of adults, was tolerated and regulated). There was still no consensus, either among the member States of the Council of Europe, or even within the various international organisations examining the issue, on how best to approach prostitution. Admittedly, from a strictly normative standpoint, France was very much in a minority position in Europe: except for Sweden, Norway, Ireland, Iceland and, in part, the United Kingdom (Northern Ireland), no other member State of the Council of Europe had, to date, opted for the “Nordic model”, based on the criminalisation of the purchase of sexual acts. However, these were relatively recent reforms, and this issue was under discussion in other member States, some of which were still at the stage of criminalising the prostituted individuals themselves. Recourse to the general and absolute criminalisation of the purchase of sexual acts as a means of combatting human trafficking was currently the subject of heated debate, giving rise to wide differences of opinion at both European and international level, without a clear position emerging. It followed that the respondent State had to be afforded a wide, if not unlimited, margin of appreciation in this area. (b) The proportionality of the interference – The Court was fully aware of the – undeniable – difficulties and risks to which prostituted people were exposed in the course of their activity. Nonetheless, although the application of the law was subject to continuous review by the actors involved on the ground, there was no consensus as to whether the negative effects described by the applicants, which had already existed and had been observed prior to enactment of the law in question, were the direct result of this law’s application, or whether they resulted from other causes. Further, the Court did not overlook the fact that the principle of personal autonomy included the right to choose freely how to exercise one’s sexuality and touched on a fundamental aspect of individual identity. However, it was not persuaded by the applicants’ argument that the possibility to engage in prostitution, freely and between consulting adults, affected elements that went to the very heart of private life and warranted an additional level of protection, such as to reduce the State’s margin of appreciation. In fact, the applicants essentially complained of the impossibility, on account of the impugned measure, of engaging in prostitution as a profession and, in this connection, referred to examples of countries which regulated it in the same way as any other economic activity. The criminalisation of the purchase of sexual relations was part of a comprehensive approach to combat prostitution, provided for by the law in question. This had been enacted at the end of a long and complex legislative process, which had been initiated following previous parliamentary proceedings on the subject and which formed part of more general discussions on the different methods to be used to combat violence against women. Reports submitted following extensive research suggested that the phenomenon of prostitution was diverse, complex and evolving, and that none of the public policies adopted to date in the other States had been immune to controversy. Conscious of the difficulties and differing opinions, the French legislature had therefore made a choice which resulted from careful parliamentary review of all the cultural, social, political and legal aspects of the measures put in place to regulate an eminently complex phenomenon, which raised highly sensitive moral and ethical questions. The Court reiterated that in matters of general policy, where there could reasonably be wide differences of opinion in a democratic State, the role of the national decision-maker ought to be given special weight, all the more so when, as in the present case, a social issue was at stake. The Court’s task was not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating prostitution. The criminalisation of the purchase of sexual acts clearly formed part of a comprehensive approach hinging on four main axes: the repeal of any legal provision which might encourage prostitution, without actually prohibiting it; the introduction of measures to protect prostituted people, particularly by criminalising the sexual exploitation of others; steps to prevent individuals from becoming prostitutes; and supporting the rehabilitation of prostituted people who wished to cease this activity. The parties and third-party interveners before the Court were unanimous in acknowledging the positive effect of repealing the offence of soliciting and the resulting decriminalisation of prostituted people. The intention had been to counter the social stigma attached to prostitution, and to strengthen access to rights and to all available protective measures for prostituted people. Coupled with the criminalisation of the purchase of sexual acts, the measure also contributed to reversing the power balance between prostitutes and their clients, by positioning the former as victims and enabling them to report clients in the event of violence, since henceforth it was the client who would face prosecution. The same law had added persons engaging in prostitution, including on an occasional basis, to the list of vulnerable people, which entailed heavier penalties for rape, violence or sexual aggression against them. Generally speaking, combatting the stigma and stereotypes faced by prostituted people, including from the police, had been an important consideration in drafting the law, and was regarded as essential in order to ensure they enjoyed better access to protection, in particular if they were subjected to violence. As well as measures to support persons moving away from prostitution, the same law strengthened public policies to reduce health risks, for the benefit of all prostituted people, through the introduction of special measures to improve access to rights and to general healthcare for persons who continued to engage in this activity, and by ensuring that they were not left to fend for themselves. The general and absolute criminalisation of the purchase of sexual acts had also been conceived as a means of combatting the prostitution of minors, since the law in question was not limited to combatting human trafficking by tackling the demand for sexual services, but also provided for parallel measures, such as awareness-raising campaigns, especially in schools, in order to prevent additional persons from entering prostitution. Lastly, the abolitionist approach adopted by France sought to eradicate prostitution gradually, by proposing alternatives to prostituted people without, however, prohibiting this activity, which remained legal and tolerated. The Court was therefore not persuaded by the applicants’ argument that maintaining the status of “self-employed person” for individuals continuing to engage in prostitution would undermine the coherence of the overall approach introduced by the law. The insufficient resources allocated to the various administrative authorities tasked with applying the measures, and the lack of consistency in implementing these measures throughout the national territory, as referred to by the applicants – the significance and weight of which were certainly not minimised in the Court’s review of the proportionality of the measure – were nevertheless not sufficient, having regard to the legitimate aims pursued, to call into question the legislature’s choice at the close of a democratic process, particularly when that choice was intended to bring about far-reaching societal changes, the effects of which would become fully apparent only over time. The authorities were aware of these shortcomings, which, if allowed to continue, could compromise the chosen approach as a whole. Having regard to all these considerations, the Court considered that, given the current state of developments in the domestic law’s understanding of the issues raised by prostitution, the French authorities had struck a fair balance between the competing interests involved, and that the respondent State had not overstepped its margin of appreciation. Nonetheless, the national authorities had a duty to keep under constant review the approach that they had adopted, especially given that it was based on a general and absolute prohibition of the purchase of sexual acts, so as to be able to amend it in line with developments in European societies and international standards in this field, and to adapt to the specific effects, in a given situation, of the application of this legislation. Conclusion : no violation (unanimously). (See also K.A. and A.D. v.   Belgium , 42758/98 and 45558/99, 17   February 2005, Legal Summary ; V.T. v.   France , 37194/02, 11   September 2007, Legal Summary ; Rantsev v.   Cyprus and Russia , 25965/04, 7   January 2010, Legal Summary ; S.M. v.   Croatia [GC], 60561/14, 25   June 2020, Legal Summary ; M.A. and Others v.   France (dec.), 63664/19 et al. , 27   June 2023; Baret and Caballero v.   France , 22296/20 and 37138/20, 14   September 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .