Anna Kompatscher
Policy Assistant, FEANTSA
Introduction: Why is the penalisation of begging a relevant policy issue?
Sleeping rough, homelessness and poverty are situations that deprive those affected of their dignity and basic human rights. Instead of providing adequate housing solutions and social support for the most vulnerable, several Member States in the EU penalise and criminalise them. Such policies and laws effectively criminalise the poor and the most marginalised members of society such as the homeless. New offences for breaching COVID-19 regulations have also affected these groups over the past year. These punitive measures restrict human rights even further. Whether they come in the form of local government regulations, laws, or national policies, they are adding to the social exclusion of these marginalised groups.
The very recent Lăcătuş v. Switzerland judgement[1] has brought the criminalisation of begging into newspaper headlines as the European Court on Human Rights, (ECtHR) has for the very first time declared that a ban on begging was violating the right to respect for private and family life. Nevertheless, as we will see, the judgement is not stating that begging should generally be decriminalised.
The criminalisation of begging indirectly penalises homelessness and poverty and hence it punishes people who have few or no other options to earn money. Begging bans are often only the tip of an iceberg: many other measures are used to punish or fine poor people and those considered ‘undesirable’ by policymakers and business owners for disrupting the public order by simply using public space.
This article aims to give an overview of some of the various measures criminalising begging in EU Member States. In the EU, criminal and administrative law and social policies have historically been a competence of Member States but recent policy developments give more leeway to the EU. Hence, we will conclude with some policy recommendations addressed to the European Commission.
Criminalisation or penalisation
Penalisation or criminalisation measures refer in general to policies, laws and administrative regulations used to punish, segregate and control people living in poverty. Criminalising begging makes it illegal, whereas penalisation leads to sanctioning of begging not only through criminal laws but also regulations and administrative measures.
In several European countries, different forms of begging are prohibited through criminal law but often also in administrative law, established both in national laws and in local ordinances. These provisions consider various forms of begging: silent begging, intrusive or “aggressive” begging, begging with children or with dogs, or organised begging where it is seen as an economic activity.
Lăcătuş v. Switzerland
In its judgment on Lăcătuş v. Switzerland, the ECtHR considers begging a human rights issue for the very first time. The judgment is however less revolutionary than many hoped, as the Court does not establish a human right to beg but declares that the general ban on begging that the city of Geneva had it in place violates the right to family and private life enshrined in article 8 of the European Convention of Human Rights (ECHR). The Court bases its argumentation on the particular vulnerability of the applicant, a young Roma woman. After this landmark case, the question arises whether this decision can have consequences for the penalisation of begging all over Europe.
Nevertheless, it is important to stress that the Court has established that the ban on begging as it was operated by Geneva does not allow a balancing of the interests at stake. In reverse, it seems that some forms of penalisation of begging are not necessarily violating the European Charter of Human Rights.
The penalisation of begging in EU Member States
In most EU countries, local governments can and do ban begging. As begging is often banned at the local level, it is very difficult to have the full picture in Europe.
As for the sanctions incurred in EU Member states, at the national or local level, for violating the prohibition of begging, the nature and severity of begging, their nature and severity vary considerably. In most cases, begging is considered behaviour contrary to public order and tranquillity. Bans are often adopted by administrative regulations or decrees of the municipalities but in some Member States, begging constitutes even a criminal offence.[2]
As the ECtHR did in its Lăcătuş ruling, many countries adopt a distinction between silent forms of begging and “aggressive” begging.
In Italy, for instance, already in 1995, the Constitutional Court made this distinction when dealing with a provision in the Italian Criminal code (art. 670) that criminalised begging in public in all forms.[3] The Court declared the provision unconstitutional arguing that criminalising non-invasive begging is constitutionally illegitimate because not reasonable, since using criminal law cannot be considered necessary in the case of “silent begging”. In its judgment, the Italian Constitutional Court ruled that the protection of public tranquillity cannot be said to be “seriously endangered by mere begging that is resolved in a simple request for help.”
Similarly, in Austria where the Constitutional Court examined in 2012[4] the constitutionality of the respective laws on the prohibition of begging in the regions Oberösterreich, Salzburg and Kärnten, the Court made the same distinction between different types of begging. According to the Court, prohibiting “silent” begging is incompatible with the Constitution whereas a criminalisation of aggressive and commercial/professional begging was not and Bundesländer are free to prohibit these types of begging. Hence, the Austrian Court made the same distinction the ECtHR did in the Lăcătuş ruling nine years later. Unlike in the Lăcătuş case, the Austrian court ruled that begging does not fall under Article 8 of the ECHR, because begging cannot be regarded as an expression of the individual’s lifestyle.[5] However, according to the Austrian Constitutional Court, “silent” begging is guaranteed by Article 10 ECHR as a form of expression. The ECtHR, however, did not admit an examination of the Lăcătuş case based on Art. 10.
We will now examine the legal measures penalising begging in some countries more closely:
Italy
Following the ruling of the Constitutional Court, the Italian legislator has decriminalised begging also in its silent form.[6] Nevertheless, the so-called Security Law from 2018, has re-introduced a ban on begging in the Criminal Code (Article 669 bis: entitled "Harassive begging"). The provision sets up that “anyone who engages in begging in a harassing manner or by simulating illness or through the use of fraudulent means to arouse the pity of others shall be punished by imprisonment from three to six months and a fine from €3,000 to €6,000.”
In practice, more than using this criminal law provision, beggars are penalised through Municipal decrees and the so-called “Daspo urbano”, an administrative measure that originally was intended to combat the phenomenon of violence in sports venues by giving the police the possibility to order the removal of the offender and the imposition of a fine . Since 2017 this measure is also used for places where there is a “considerable influx of tourists,” especially in Northern Italy (for example in Verona, Turin) where the Daspo has been used to remove beggars from the train station or the city centre.
Poland
In Poland begging is banned on a national and local level when it is forced begging and «aggressive begging ». Begging with children is not banned but it is when it includes forcing a minor as well as "a person who is helpless or dependent on the perpetrator or placed in their care". Also banned is begging while "having the means of subsistence or being able to work". On a local level banning begging, in general, is quite common in regulations regarding usage of certain public spaces (e.g. railway stations). These bans have been a subject of Ombudsman's interventions to the Ministry of Justice in 2017 and 2021 without any reaction.[7]
Ireland
In Ireland, forced and aggressive begging are banned on the national level. The law on public order offences is mainly set down in the Criminal Justice (Public Order) Acts from 1994 and 2011. Begging in an aggressive, intimidating or threatening manner is a public order offence. A person found guilty of this offence is liable on summary conviction to a fine or up to one month in prison, or both. The police can direct people begging in certain areas to leave that area, for example, people begging at an ATM, a night safe, a vending machine or a shop entrance. If the person does not follow the request to move, they can be charged with an offence and get a fine on summary conviction. It is also an offence to organise or direct someone else to beg, or to live off the proceeds of another person begging.
Sweden
Since the Swedish transposition of the free movement directive in 2006, there is an important public debate about the free movement of destitute EU citizens and the prohibition of begging in public spaces.[8] The public debate in Sweden has especially evolved around Roma people coming from Romania and Bulgaria to beg in Sweden, reiterating the discrimination and marginalisation of beggars.[9]
In December 2018, a decision of the Supreme Administrative Court in Sweden considered that municipalities were best placed to decide on the need for local rules on begging or 'disorderly behaviour' in public spaces. The Supreme Court had been asked to decide if a ban on begging introduced by the town Vellinge was lawful. The consequence of this decision is that all Swedish municipalities can create local laws concerning begging in the public space. Several municipalities have banned begging in certain areas.
Some cities in Sweden adopted begging permits which means that beggars are requested to pay for a licence before they can ask for money in the streets.[10]
In 2019, the Swedish Party ‘Moderaterna’ (Moderates), the leading opposition party, has proposed a motion to the Parliament to introduce a ban on begging in the Swedish criminal code.[11] The motion has been rejected by the Parliament but shows clearly how important this issue is currently in Sweden.
Hungary
The situation in Hungary deserves particular attention. In 2011, the Hungarian government adopted a statutory law criminalising people experiencing homelessness. As the Hungarian Constitutional Court declared this law unconstitutional in 2012, the Government has amended the Fundamental law, giving municipalities the competence to regulate and criminalise homelessness. After five years of legal disputes on the implementation, the Government amended the Fundamental Law in 2018, inserting a general ban on rough sleeping. According to a lawyer at Utcajogász[12], the Street Lawyers Association in Budapest, the so-called refugee crisis led to rising hostility against homeless people and beggars. With the pandemic, the criminalisation arrived at a new level with curfew breaches being heavily fined.
In its decision of 11 May 2004,[13] the Hungarian Constitutional Court examined the law on "aggressive" begging and ruled that the provision prohibiting begging as a form of regulatory offence was not unconstitutional. In this regard, it considered that such an act did not violate human dignity or the right to life. Similarly, in its decision of 6 November 2011[14], the same Constitutional Court held that the criminalisation of begging did not violate any fundamental right.
Currently in Hungary begging is criminalised both at the national and at the local level: forced begging, begging with children and "aggressive" begging but also 'door to door begging’. At the local level, 'silent begging' could be prohibited as well.
Only the local laws were challenged before the Government Office responsible for the legal supervision of the municipalities. These actions initiated by the Ombudsman or NGOs are successful only to the extent that they invoke the prohibition of parallel legislation as certain forms of begging (begging with children, aggressive or door to door begging) are already punishable under national legislation. Therefore, they were and could be successful based not on a substantive, but merely on a formal argumentation regarding law-making. Statistics from the Ministry of Interior show that in 2020, the poorest have been fined for begging under the national law much more and for much higher amounts than in 2019. Compared to the previous year, the number of cases and even more the number of fines imposed for begging has increased significantly. There are no official statistics on fines imposed by municipalities.
Belgium
In Belgium, in a recent case that did not deal with begging but with food shoplifting, the judge decided that sending the homeless person to prison for this crime was useless because for this type of offence another type of response than prison needs to be given from society.[15] When it comes to begging, the Council of State has already emphasised the importance of the principle of proportionality in several of its judgments concerning administrative regulations on begging. In a case concerning a general and permanent (city-wide) ban on begging, it held that the ban in question was disproportionate to the objectives pursued.[16]
Ways forward: a role for anti-discrimination law?
Criminalisation leads to the stigmatisation of homeless people and can lead to violence and even hate crime against homeless people. A Hungarian study proved that the amendment of the Fundamental Law in Hungary that criminalised homelessness and vagrancy led to violence against homeless people being morally accepted and hence somehow justified by the new law.[17]
The question arises of how to challenge the penalisation and criminalisation of beggars and more broadly of people experiencing homelessness and in poverty. Discrimination is both a cause and a consequence of poverty.[18] Can anti-discrimination law be an efficient tool for this?
Researcher Sarah Ganthy, argues that anti-discrimination law can be used to address socio-economic inequalities.[19] The ECtHR has already acknowledged that “employment and wealth were personal characteristics in the sense of Art. 14”.[20] Also, the European Committee of Social Rights (ECSR) has admitted cases recognising that distinctions based on socioeconomic status are a form of discrimination that must be prohibited in national law.[21]
At the EU level, antidiscrimination law is widely used but not referring to economic and social grounds. The EU anti-discrimination directives refer to discrimination in employment and occupation, discrimination based on gender and race. There are currently limited possibilities to refer to social or economic status.[22]
When it comes to begging, the Lăcătuş v. Switzerland case has provided an interesting point of view on the anti-discrimination approach. The applicant argued that she has been discriminated against on grounds of her social and economic situation and because of her origin. She invoked Art. 14 (“prohibition of discrimination”) combined with Art 8. The Court did not follow this argumentation and considered that there is no need to give a separate ruling on the complaint under Article 14 in conjunction with Article 8 of the Convention. In their partially dissenting opinions, judge Lemmens and judge Ravarani regretted that the Court has refused to examine the complaint under Art. 14 linked with Art. 8 as this would have constituted an important question completely separate from the one under consideration.
Recommendations
Political discourse leading to the penalisation of begging links homeless people and beggars often with aggressive and violent attitudes or unsanitary situations and danger to public tranquillity. In an increasingly privatised public space, the stigmatisation and penalisation of beggars and poor people have heavy consequences for their dignity. Banning begging but also other penalisation strategies can push the people targeted by these measures further into poverty and social exclusion.
A way forward can only be a change of mindset on begging as a criminal economic activity. If begging should be eradicated, then it should not be through penalisation and criminalisation but thanks to a more supportive approach, helping low-income families to receive assistance and resources.
In Lăcătuş v. Switzerland, the applicant underlined that it is “necessary to fight against poverty and not against the poor”.[23]Article 11 of the Homeless Bill of Rights establishes that “Homeless people should have the right to carry out practices necessary to survival within the law. Survival practices such as begging, foraging for discarded food should not be criminalised, banned, or arbitrarily confined to specific areas.”[24]
A systemic approach includes raising awareness about the criminalisation of homelessness. At the EU level, alternatives to criminalisation need to be established by developing Principle 19 of the European Pillar of Social Rights. Access to affordable housing, employment and social security are the most efficient policies to decrease poverty levels and prevent that people need to beg to meet their basic needs.
European cities should endorse and implement the Homeless Bill of Rights to reaffirm their commitment to human rights, especially the above-mentioned Art. 11.
Overall, the European Institutions should condemn the penalisation of begging in the Member States, dedicate funding to awareness-raising, training of national administrations on those issues and collect more data about the discrimination of poor people and the connection between criminalisation policies and stigmatisation and violence against them.
Click here to access our overview of the situation in relation to begging in EU Member States.
Click here to read our summary of the Lăcătuş v. Switzerland decision.
