February 12, 2021
By Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights, University of Durham
In its judgment in Lăcătuş v. Switzerland, the European Court of Human Rights (‘the Court’) held that fining and imprisoning the applicant for begging amounted to a violation of Article 8 of the Convention. While the judgment raises many important issues that have been expertly covered on this blog (here), the focus of this post is on Judge Keller’s concurring opinion. In this separate opinion, Judge Keller takes issue with the majority’s refusal to examine whether begging engages Article 10 ECHR. She ultimately concludes that begging constitutes a form of communication that amounts to speech for the purposes of the Convention. The crux of Judge Keller’s argument is that begging can be likened to a distress call through which the purported speaker communicates her destitution to others in order to seek assistance. Therefore, Judge Keller views begging as an invitation to social interaction between the impoverished person and those she approaches for help. In support of this view, Judge Keller also points to developments in ECHR Member States that link begging to Article 10.
This post aims to build on Judge Keller’s position by providing an additional argument that further justifies extending Article 10 protection to those who engage in peaceful, non-exploitative begging. In her analysis, Judge Keller primarily focuses on the interests of the purported speaker, namely their need to use speech as a means to make ‘a cry of distress’ (§9). Previous attempts in legal scholarship to link begging to speech have also relied on the implicit information the listener receives from being exposed to begging. According to this argument that will be developed in more detail below, begging provides the listener with valuable information on the plight of the most vulnerable and the state’s indifference towards them. Thus, blanket bans on begging not only deprive destitute individuals of the opportunity to communicate their need but may also obstruct the public from receiving accurate information on the state of destitution and poverty in their community.
While I argue that it is problematic to rely on the listener’s interests as the sole basis on which to determine that begging constitutes speech, a combined focus on the speaker’s and the listener’s interests generates a more attractive normative justification for including the practice of begging into the protective ambit of Article 10. The added benefit of this approach is that it furthers our understanding of the nature of the speech in question. It is both a distress call and a source of information on matters of public concern. This can assist the Court, if it were to recognise that Article 10 is applicable to begging in a future case, to determine more concretely the significance of the communication in question when assessing the proportionality of any interference with the beggar’s speech.
To illustrate these points, this post engages with the two strands of Judge Keller’s arguments in turn. Firstly, the post assesses Judge Keller’s argument that derives from developments in some ECHR Member States that have recognised begging as speech. Secondly, the post discusses Judge Keller’s normative argument outlined above. Thirdly, a further dimension is added to Judge Keller’s argument and the informational value of begging is examined. Finally, some concluding thoughts regarding these arguments are provided.
1. The argument from the domestic law of Contracting Parties to the ECHR.
The suggestion that begging is speech worthy of legal protection represents a novel understanding of Article 10. When broadening the protective scope of rights, the Court usually takes into account any European or international consensus that may support a novel interpretation of the Convention. Judge Keller carries out such an examination of the Contracting Parties to the ECHR and identifies some instances in Europe where domestic courts have found that the practice of begging engages Article 10 (§12). Admittedly, the very few domestic judgments to which Judge Keller refers suggest that there is scant support in Europe for such an interpretation of the Convention. These judgments fall short of representing the type of agreement amongst a majority of ECHR Member States that the Court usually requires when relying on European consensus to expand the protective scope of rights. These judgments are also arguably too few to indicate an ‘emerging trend’ towards this understanding of Article 10. There also does not seem to be sufficient support in other international instruments on which the Court could rely to reach the same conclusion.
However, this should not prove detrimental to Judge Keller’s claim. While consensus plays an important role in legitimising the Court’s judgments, especially when the Court is engaging in evolutive interpretation, Judge Keller is correct not to rely exclusively on the existence of consensus (European or international) as a means to determine the scope of Article 10 ECHR. I have written elsewhere on why relying solely on a majoritarian tool like consensus to determine the rights of vulnerable groups or minorities is problematic. It is, therefore, commendable that Judge Keller also engages with the underlying principles of Article 10 to determine whether begging can constitute speech for the purposes of the Convention.
2. The normative argument – The speaker’s interests.
Judge Keller bases her argument on the vulnerable status of the applicant (§3) and a conception of begging as a distress call which constitutes ‘the ultimate means of communicating poverty in words or in gestures’ (§9). She emphasises that the action of reaching out for help is universally recognised and is similar to the action of soldiers placing down their weapons and raising their hands or an army waving a white flag in surrender (§10). For Judge Keller, this ‘distress message is addressed to others and constitutes a clear invitation to interact’ (§11).
This argument is premised on the speaker’s need to externalise their suffering to an audience in order to receive assistance. Indeed, it is commonplace for destitute individuals to also explain the circumstances which led them to beg or to hold signs that describe their plight. Therefore, a ban on all forms of begging deprives the poorest members of society of the opportunity to communicate their hardship and seek help.
Another argument that could be used to justify this expansion of Article 10 relying on the speaker’s interest, would be to compare the position of destitute individuals to other categories of persons who stop passers-by to seek assistance. For instance, members of a charity supporting the homeless may approach people to solicit charitable donations, or signatures in support of their cause. The Court has found that the activities of such groups engage Article 10. In Appleby and others v. the United Kingdom for instance, the Court held that Article 10 was applicable to a campaign group seeking signatures from passers-by in a shopping centre, even though it ultimately did not find a violation in this specific case. Gough v. United Kingdom provides an even more extreme example of public conduct that was found to engage Article 10.
Apart from serving the interests of the speaker however, there is an additional social component to this speech that the post examines in the following section.
3. Begging as a means for the listener to receive information.
We do not exclusively protect speech out of concern for the speaker’s interests but also to ensure that the information they communicate reaches its intended audience. Article 10 also explicitly protects this right of listeners to receive information. But what is the informational value of begging?
Apart from revealing her personal circumstances, the beggar’s distress call can serve to enlighten the recipients of this plea on broader societal issues or systemic problems. Exposure to begging can serve as a stark reminder of inequality, economic injustice, and state indifference to the anguish of the most vulnerable. A blanket state prohibition on begging can also be viewed as an attempt to project a false image of prosperity in a community, and it may serve as a convenient way to eradicate any signs of state indifference to human suffering. By banning all forms of begging a state may not only fail to provide socioeconomic support to the poorest, but additionally supress an avenue for them to bring attention to this fact.
This argument finds support in some scholarly analyses linking begging to speech. For instance, Anthony Rose argues that the beggar’s speech informs public discourse on the basis that it “evidences society’s unwillingness to care adequately for its marginal members” (p. 205). Similarly, Schafer contends that “the dialogue [between a beggar and a passer-by] may raise important questions about such interrelated issues as poverty, homelessness, unemployment, mental health and addiction services, social solidarity, and the strength and limits of our obligation to be our brother’s keeper” (p.10). Hershkoff and Cohen maintain that begging alerts “listeners to the conditions and existence of poverty and deprivation” (p. 901) in their community. In this way, the destitute speaker delivers “information [that] contributes to the collective search for truth” (p. 899) and assists our collective decision-making on social matters (p.902).
A counterargument to these views is that by begging, the destitute individual may not be interested in contributing to public discourse on inequality. The purported speaker is merely seeking relief from their anguish, or in more cynical terms, a commercial transaction. Any further information the public receives is entirely incidental to this primary aim of the destitute person, which is to secure financial assistance. Even if we accept that this is the sole motive of the destitute person, the fact that the speaker may not intend to inform public discourse, does not mean that there is no informational value in the speech to which listeners are exposed. While the Court in some instances looks at whether the speaker’s motives were to bring public attention to important information (for instance, the Court examines the speaker’s motives in whistleblowing cases, see Guja v. Moldova at §77), this is done when assessing the proportionality of the interference with Article 10 rather than when determining whether freedom of expression is applicable to the circumstances of the case.
Additionally, this profit motive does not automatically disqualify the conduct in question from engaging Article 10. The right is applicable to other forms of commercial speech that may or may not inform the public interest. For instance, in Casado Coca v Spain, the Court stressed that “no distinction is made in [Article 10] according to whether the type of aim pursued is profit-making or not” (§35) when determining the applicability of the right.
However, this point is not wholly without merit. Ignoring the cry for help of destitute individuals and overly focusing on the public interest in their speech, treats the purported speakers in an instrumental manner and arguably strips them of their agency. Under this conception, the individual’s plight serves merely as a means to inform the more prosperous members of her community about substandard social policies and to awaken in them feelings of solidarity. It is therefore important not to examine the listener’s interest in isolation, but in conjunction with Judge Keller’s analysis of begging as a distress call.
4. The added benefit of examining the listener’s right to receive information.
Views will differ on whether it is important to also consider the benefit for the listener or the broader public in the assessment of whether begging constitutes speech. From a theoretical perspective, the significance one assigns to the broader public / listener benefit derived from speech may depend, inter alia, on whether they view rights as trumps or as common goods. From a more doctrinal perspective however, the informational contribution of the beggar’s speech is a significant factor to consider. The capacity of speech to deliver information that contributes to discourse on matters of public concern is a factor to which the Court assigns great importance. Such communications enjoy enhanced protection under the speech-protective framework of Article 10. For this reason, suggesting from the outset that begging constitutes speech because it also delivers important information about which the public needs to be aware, has important consequences for the test of proportionality.
More specifically, if the Court were to accept that Article 10 is applicable to begging, it would then have to examine whether a restriction on such speech satisfied the test set out in Article 10(2). It would have to assess the legitimate aims for the restriction and ultimately consider how to balance the competing interests for and against restricting begging in the context of the specific case. At that stage of its analysis, the informational value of the speech is crucial. The audience’s interest in receiving the information is an additional factor to weigh in favour of protecting speech, although it is of course not the deciding factor. The nature of the speech also partly determines the margin of appreciation that will apply. The respondent state will only benefit from a narrow margin when restricting certain types of speech. Depending on the circumstances of the case, the Court may of course conclude that protecting the rights of others, public order or any other interests would take precedence over the speaker’s and listener’s interests. But including both in this assessment is the most principled way for the Court to reach its conclusion.
Whether the Court will expand Article 10 in the direction suggested above remains to be seen. Even though there are good reasons for the Court to do so, it seems more likely that it will wait for further consensus to develop in this direction. Therein lies the significance of Judge Keller’s concurring opinion. It provides a convincing and principled account for why begging engages Article 10, and it can serve as inspiration for domestic courts and legislatures in Europe to progress in their understanding of what constitutes free speech. In addition to Judge Keller’s arguments, this post argues that the listener’s perspective should also be considered. Apart from providing a more holistic account of why begging is speech, at a more practical level, this interpretation provides guidance to the Court on the nature of the speech in question.
*Quotes from the concurring opinion are the author’s translation from the original French.