Is begging speech? Assessing Judge Keller’s concurring opinion in Lăcătuş v. Switzerland

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.

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Beg your Pardon!: Criminalisation of Poverty and the Human Right to Beg in Lăcătuş v. Switzerland

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.

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On sledgehammers and nutcrackers: recent developments in the Court’s less restrictive means doctrine

By Laurens Lavrysen, postdoctoral researcher at the Human Rights Centre of Ghent University (Belgium)

A number of years ago, Eva Brems and I wrote an article “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”. Using a sledgehammer to crack a nut is a quintessential example of a disproportionate action given the fact that an obvious less restrictive means (LRM) to do so is available in the form of a nutcracker. Similarly, the European Court of Human Rights has occasionally resorted to some kind of LRM analysis to determine the proportionality of a human rights restriction.

In our article, we mapped the Court’s LRM case law up to 2013. At that time, something was moving in this area. In 2012, in the judgments of Mouvement Raëlien Suisse v. Switzerland and Nada v. Switzerland, the Grand Chamber had endorsed in general terms some version of the LRM test. Continue reading