February 10, 2021
By Corina Heri, postdoctoral researcher at University of Zürich
Begging can be framed in different ways. For city tourism officials, it’s a problem of branding. For local legislatures, it’s an opportunity to show a ‘tough on crime’ stance. For the people who beg themselves, begging can mean survival. But, until recently anyway, the European Court of Human Rights had not considered begging as a human rights issue. That is, until 19 January 2021, when it recognised that there is in fact a human right to beg.
In the judgment concerned, Lăcătuş v. Switzerland (available here, in French only), the Third Section found that the city of Geneva had violated a young Roma woman’s Article 8 ECHR rights (respect for private and family life) by fining and ultimately imprisoning her for begging. This post will summarise and discuss the judgment, and look at how it fits into the grander scheme of the Court’s poverty-related jurisprudence and its views on distributional justice. It will also discuss the rights claims that the judges did and did not entertain, and will touch on the issue of the applicant’s vulnerability.
The facts of the case
The applicant in this case was of Romanian origin, a member of the Roma community, and quite young (about nineteen years old at the time the facts began in 2011). She was also illiterate, unemployed, and not in receipt of any social security benefits or family financial support. In other words, she was destitute, and she began to beg for money in the streets of Geneva in order to survive. Over the course of three years, she received nine individual 100 CHF fines under the Geneva penal code, which prohibits begging in public spaces. The police also confiscated an amount totalling 16,75 CHF (about 15,50€) from her possession.
The applicant unsuccessfully contested the fines and was ultimately ordered to pay 500 CHF or face five days of imprisonment. On appeal, she argued that the prohibition of begging prevented her from drawing attention to her situation and thereby interfered with her freedom of expression, as well as constituting a discriminatory measure. Both arguments were rejected domestically. On the latter point, the appeal court found no indication that the domestic law targeted the Roma community, and held that poverty is not a prohibited ground for discrimination. The last domestic instance also rejected the applicant’s freedom of expression claim, finding that the communication of messages about her plight was a secondary consequence of begging passers-by for money, and therefore did not reach a level meriting the protection of that right. Having failed to pay the fine imposed on her, the applicant was sentenced to a five-day period of imprisonment, which she served in 2015.
The Court started off its judgment by noting the novelty of the claim made and by situating it under Article 8 of the Convention. It reiterated that ‘private life’ under Article 8 is a broad concept without an exhaustive definition and invoked the concept of human dignity, noting that dignity is compromised when individuals are deprived of the necessary means of subsistence. And because the Swiss Government did not dispute the interference with Article 8, the Court moved right along to whether that interference was justified.
On the legitimate aim requirement, the Swiss Government took a ‘more is more’ approach: it invoked public order and safety, the economic well-being of the country, and the protection of the rights and freedoms of others. It also relied on S.A.S. v. France, making a ‘living together’ argument. It furthermore argued that people who beg harass passers-by, bother restaurant patrons, and dissuade shoppers, and potentially incite violent reactions from those they inconvenience. Additionally, the Government submitted that those who beg are commonly exploited by criminal enterprises, especially where minors are concerned. It also invoked the potential harm to the tourist attractiveness of the city of Geneva. As it often does, the Court did not engage with this mélange of arguments with any stringency – although it did revisit them later, when weighing the interests at stake – and accepted that the measure had a legitimate aim.
The Court went on to determine whether Switzerland had exceeded its margin of appreciation, noting that the Geneva law does not allow a real balancing of the interests at stake and penalises begging in general, regardless of the circumstances, i.e. whether the person concerned is vulnerable, and whether the begging is aggressive. The Chamber cited Parrillo v. Italy, arguing that the State margin of appreciation is restricted when a particularly important aspect of an individual’s existence or identity is at stake. It also conducted a comparative analysis, finding that there was no European consensus on the issue.
In weighing the interests at stake, the Court found that the applicant was in ‘a situation of manifest vulnerability’ as a person who was poor, illiterate, and entirely without income. As a result, she ‘had the right, inherent in human dignity, to be able to express her distress and to try to satisfy her needs by begging’. The (penal) sanction imposed on the applicant was a serious one, and because she was in a precarious and vulnerable position, the transformation of her fine into a deprivation of liberty – which would likely aggravate her distress and vulnerability – was basically automatic. And while combatting human trafficking and the exploitation of children were important, the Court doubted ‘whether the penalization of the victims of these networks is an effective measure against this phenomenon’, noting that the criminalisation of begging can make victims of forced begging even more vulnerable.
The Court emphasised that the applicant had neither been exploited into begging, nor behaved aggressively. Looking now at the argument made by the State about protecting the rights of passers-by and business owners, the Court held that ‘the motivation to make poverty less visible in a city and attracting investment’ is not a legitimate motivation for measures that restrict human rights. It had also not been convincingly demonstrated that less restrictive means were not available. As a result, the Court found that the respondent State had exceeded its margin of appreciation and violated Article 8 ECHR.
Having made this (unanimous) finding under Article 8, the Court held (by five to two) that it was not necessary to rule separately on the claims made under Article 10 (freedom of expression) and Article 14 (non-discrimination).
Three judges appended separate opinions to the judgment. Their arguments, succinctly summarised, were as follows.
Judge Keller emphasised the vulnerability of the applicant and argued that the applicant’s begging fell under her freedom of expression. So, she argued, the complaint under Article 10 should have been considered, declared admissible, and only then could the examination of the conditions for justified limitation have been set aside for reasons of procedural economy.
Judge Lemmens, for his part, speculated that there could have been an Article 3 issue here, and argued that Articles 10 and 14 should have been examined separately.
Judge Ravarani disagreed with the reasoning under Article 8, and like Judge Lemmens he found it necessary to examine Articles 10 and 14. On the Article 8 issue, he questioned the inevitability of the applicant’s poverty and asked if poverty must be extreme in order to fall under the human right to beg. He wondered whether the need to beg may have violated the applicant’s human dignity and warned of denials of justice caused by procedural economy.
A few points stick out right away when reading this (importance level 1) case. First, the Court seems to have been aware of the novel nature of its findings and their importance beyond the scope of the individual case. As a result, its judgment reads a bit like a guide for future policymaking and engages in depth with the various competing interests at stake, such as combatting organised crime and the exploitation of children. Secondly, it’s worth noting that the Chamber deliberated not its usual once but twice, which invites speculation that this was not an easy case to reach an agreement on. Those preliminary observations aside, the following will discuss three main issues: the rights (not) considered here, the treatment of poverty under the ECHR, and the issue of vulnerability.
This case was heard exclusively under Article 8. Nonetheless, arguments can be made for the consideration of several other provisions. Judges Lemmens and Ravarani rightly criticise the ease with which the Court wrote off the Article 10 and 14 complaints, as does Judge Keller for Article 10. The decision not to examine these issues is indeed problematic, because it excludes several distinct questions from the Court’s review. A potential saving grace here is the Ilias and Ahmed standard for review by a Grand Chamber. Thus, a Chamber’s inadmissibility decisions are final, while issues that have been declared ‘unnecessary to examine’ by a Chamber – like Articles 10 and 14 here – can be re-examined by a Grand Chamber.
While Judge Keller has already made the case for why Article 10 needed to be examined here, the Article 14 issue fell resoundingly by the wayside. This is especially noteworthy because of the third party intervention of the European Roma Rights Center or ERRC (which in fact won the 2018 Columbia Global Freedom of Expression Prize, in part for this intervention). The ERRC provided evidence that the Geneva anti-begging legislation was aimed specifically at the Roma, which raises a discrimination issue, especially given the vulnerability and marginalization of this group. In addition to the matter of discrimination based on ethnicity, a future Grand Chamber could also, finally, provide a clear indictment of discrimination based on poverty and/or class, which has been missing from the Court’s case-law.
Furthermore, at the intersection of human dignity and vulnerability argumentation, a case for Article 3 ECHR (torture and inhuman and degrading treatment) could have also been made here. Indeed, while Article 8 can encompass a variety of situations that do not reach the threshold of Article 3, cases like M.S.S. have shown that extreme deprivation combined with vulnerability can violate Article 3.
The Swiss Government did not dispute that there had been an interference with Article 8 in this case, which may have provided the Court with a path of least resistance to finding a violation here. And the finding of a violation is certainly to be welcomed. It makes this case a welcome respite from the Court’s past case-law on poverty. That jurisprudence includes cases like Hudorovic & Ors. v. Slovenia, discussed here, which concerned the provision of drinking water to illegal Roma settlements. There, the Court found no violation of Article 8, noting that the applicants could have used their social benefits to improve their own situation. It also noted that the State had a wide margin of appreciation in housing matters and held that the applicants had not demonstrated that they had suffered adverse consequences for their health and human dignity due to the lack of safe and available drinking water.
And, importantly, this case is a far cry from the Grand Chamber’s ruling in Garib v. the Netherlands, where the Court essentially found that a measure intended to gentrify the inner city of Rotterdam by prohibiting low-income residents from living in ‘hotspot’ areas did not violate the ECHR. Valeska David and Sarah Ganty wrote a post for this blog on the Court’s failure to consider the applicant’s vulnerability in that case, along with its refusal to take a stand against poverty-related discrimination. By comparison, the finding in Lăcătuş that making ‘poverty less visible in a city and attracting investment is not legitimate in terms of human rights’ is an important one. Here the Court has essentially tried, to some modest extent, to fix the mistake it made in Garib by allowing economic interests to trump the rights of the poor, and the one made in Hudorovic by requiring proof of dignitary harms caused by deprivation.
In other words, the Court here seemed to follow the applicant’s point that ‘it is necessary to fight against poverty and not against the poor’. But at the same time, the approach taken is one of individual freedom, and not of redistributive justice or of a full social rights analysis. This is of course in line with the Court’s approach to the rights in the ECHR. The uneasiness generated by this approach popped up in the separate opinion of Judge Ravarani when he argued that the need to beg violates human dignity. He made this argument seemingly to contradict the majority’s reasoning. The underlying problem facing the judges here is that both can be true: being prevented from begging while destitute can violate human rights at the same time as being forced to beg due to deprivation can.
The fact that extreme poverty violates a wide range of human rights is, by now, well-documented. This means that criminalising begging and homelessness is a particularly ill-suited and disproportionate response that seeks to erase visible deprivation from the public sphere without resolving it, and stigmatises those affected as ‘the enemy’. Efforts to ‘crack down’ on behaviours seen as undesirable, including begging, sleeping in public, prostitution and panhandling, are today commonplace, not least in the form of ‘hostile architecture’. In Hungary, the criminalisation of homelessness has been linked to increased violence against the homeless. And even Art. 5(1)(e) ECHR permits for the detention of ‘vagrants’, who are described as ‘socially maladjusted’ instead of vulnerable.
Against this background, Lăcătuş is a brave and important judgment. And, with unusual speed, this case has already had an effect on the domestic level. The Geneva attorney general has announced a suspension of the begging ban, effective immediately. But this judgment has certainly not resolved all of the issues facing people living in (extreme) poverty. Here, the Court found that the applicant’s ‘manifest vulnerability’ gave her the right, ‘inherent to human dignity, to express her distress and to try to fulfil her needs through begging’. And, as the Court noted, human dignity is compromised when individuals are deprived of the necessary means of subsistence. As a result, Lăcătuş represents an invitation to think about what else the applicant’s needs might have entitled her to, the ways in which poverty gives rise to discrimination, and how perceptions of people who live in poverty and those who beg (as well as the marginalisation that accompanies being Roma) shape and limit the understanding of these individuals’ rights.