This article was first published on Strasbourg Observers on October 29, 2024, and we are grateful for their permission to share it here, with full attribution. This is the link to the original publication.
By Sarah Ganty
In Dian, the Court flushes the promise of the Lăcătuş judgment that ‘begging, as a form of the right to call on another person to obtain his or her assistance, must evidently be regarded as a basic freedom’ (§59) down the drain. The Court adopts a skewed vision of poverty, finding in substance that the applicant, a Romanian citizen who spent twenty days in prison after infringing the prohibition against begging in Denmark, was not poor enough even to question this prohibition under ECHR rights. As a consequence, it judged the case inadmissible. The Court misapplies the Lăcătuş admissibility test, including by distorting its own words. It reproduces the usually mistaken myth of the ‘true/deserving’ poor versus the ‘fake/undeserving’ poor. As the cherry on the cake, it adopts a paternalistic view of how poor people should earn and spend their money. It also ignores the peculiar context of EU freedom of movement, where mobile citizens who are beggars find themselves in legal limbo. In short, the Court slides down the slippery slope of the criminalization of poverty, validating the ‘imprisonment of differentiation’ phenomenon.
Facts
The applicant, Mr Ion Dian, is a 61-year-old beggar of Romanian origin. He is illiterate and uneducated and has been living as a homeless person in Denmark for several years. He returns to Romania approximately four times a year for a month at a time. He has a wife and twelve adult children. Mr Dian cannot earn a living in Romania; he can sell newspapers (Hus Forbi), collect bottles and beg in Denmark. He sends money to his family in Romania regularly. In 2019 he was convicted of begging and insulting a police officer and sentenced to twenty days’ imprisonment by a Danish District Court (Københavns Byret). The Court also confiscated DKK 190.50 (Danish kroner – the equivalent of EUR 25). In 2021 the High Court upheld Mr Dian’s conviction, finding that although his right to a private life had been interfered with, it was not violated. Mr Dian argued before the ECtHR that the conviction violated Articles 8 and 10 of the Convention. Several organizations intervened, including the ENNHRI, mainly on the merit of the case under the right to beg in light of the Lăcătuş judgment.
Judgment
Upholding the Danish government’s objection on grounds of inadmissibility, the Court found that a sentence of twenty days’ imprisonment for begging does not constitute an interference in the right to a private life: Article 8 does not apply. The reasoning of the Court under Article 8 was sixfold. First, in Lăcătuş, the Court did not recognize a right to beg. Whether a prohibition of begging violates the Convention depends on the circumstances of each case, ‘in particular the person’s economic and social situation’ (§§44, 49). Second, this entails determining whether the applicant is in a precarious and vulnerable situation (§49), i.e. either he did not possess sufficient funds for his subsistence or ‘begging was his only option to ensure his own survival’ (§44, 53), or ‘by the act of begging, he adopted a particular way of life with the aim of rising above an inhumane and precarious situation, and thus of protecting his human dignity’ (§53). Third, it is up to ‘the applicant to substantiate his assertion that he was in a precarious and vulnerable situation, including that he lacked sufficient funds for his own subsistence’ (§49). Fourth, not only did many elements of the applicant’s situation remain unknown (e.g., ‘how he had been able to use cocaine and cannabis for eight years solely by way of donations from passers-by’, among others) (§50), but also, based on the elements that were known, the applicant was not in a precarious and vulnerable situation since begging was ‘a means, or at least an additional means, of income for the applicant’ (§54). The Court noted that he would regularly send money to his family and return to Romania, had been a cocaine and cannabis user, was making money from selling the Hus Forbi newspaper and from collecting bottles, and had the equivalent of EUR 135 on his person on the day of the offense (§51). Fifth, in a financial emergency, Mr Dian ‘could have applied for “return assistance”’, as an EU citizen (§51). Sixth, the Danish law did not constitute a blanket ban, as opposed to Lăcătuş (§55).
In light of this, it also found that the complaint under Article 10 ECHR (freedom of expression) did not show any evidence of a violation and was manifestly ill-founded, without providing any further justification (§§59-60).
Analysis
In the following analysis, I argue that the reasoning of the Court not only departs from the admissibility test in Lăcătuş but is also very poorly justified from a legal perspective as regards the alleged blanket ban and the vulnerability criterion which becomes a condition for unlocking the application of Article 8 ECHR. Moreover, I claim that the Court develops a highly contentious image of the true/deserving and fake/underserving poor, which exists only in the imagination of some privileged people, who do not seem to grasp and understand the reality of poverty. This also led the seven judges of the Chamber to adopt a paternalistic vision of how people in poverty should earn and spend their money. Finally, I briefly explain that the Court ignored the problematic legal limbo in which EU mobile citizens who are beggars and/or homeless find themselves.
Misapplication of Lăcătuş Admissibility Test
It was reasonably foreseeable that the Court in Dian would eventually rule on whether begging is part of the freedom of expression under the ECHR and answer the questions left open in Lăcătuş under Article 8 ECHR, including the implications of a criminal sentence related to the begging ban, indications on when restrictions on begging could be imposed and the exact role of the vulnerability criterion. Instead, the Court takes a step backward in the protection of beggars, considering that criminalizing poverty does not trigger the application and protection of ECHR rights as long as the applicant does not fit the image of the fictional and idealized poor. The Court innovates by bringing into the admissibility test two elements that were central in the reasoning on the merits in Lăcătuş: the nature of the ban and the vulnerability aspect. While applying them within the admissibility test, it also distorts them.
The Court found no blanket ban on begging in Denmark because ‘begging is allowed outside the designated areas, provided that it does not take place in a personal manner causing nuisance to the public’ (§55). This statement is a misreading and misunderstanding of Danish and criminal law generally. The Danish Penal Code provides that ‘any person who […] is found guilty of begging is to be sentenced to imprisonment for a term not exceeding six months’ after having received a first warning from the police (section 197(1) of the Penal Code). The usual sentence for the first conviction is seven days. The exact section mentions that ‘the penalty can be remitted in mitigating circumstances’ and, according to the preparatory notes to the Code, conviction can happen only when begging is done in a manner that does not cause a ‘nuisance to the public’ (whatever that means). Quite astonishingly, seven judges of the highest European human rights court interpreted this precondition to conviction as an authorization to beg. This perspective leaves us quite dumbfounded at a most fundamental legal level: even if beggars are not ultimately sentenced to imprisonment because they did not beg in a manner that ‘caused nuisance to the public’, they are still likely to be prevented by the police from begging, to receive a police caution (which will remain on record for five years) and to end up in front of a Danish judge if caught up again, anywhere in Denmark. Sentenced or not, beggars are prohibited from begging everywhere in Denmark. What kind of ban is it, if not blanket?
But that is not all. The possibility of receiving a caution does not apply when begging is done in populated areas, i.e., pedestrian zones, stations, supermarkets and public transport. There, a convicted beggar would usually be sentenced to 14 days imprisonment, because begging in such areas is considered to cause nuisance per se, which is an aggravating circumstance (section 197(3) of the Penal Code). This provision de facto makes the blanket ban crueler as most of beggars are by definition found in these zones. In short, the criminalization of beggars in Denmark is not only a blanket ban but also a harsher one than in Switzerland in Lăcătuş, and it looks like the Court missed this point based on flawed legal reasoning and, what is more, when considering admissibility.
Unfortunately, there are other alarming elements in this judgment, as the Court also innovated on vulnerability.
At no point in the admissibility stage did the Court in Lăcătuş require the satisfaction of a vulnerability condition to unlock the application of Article 8: it judged that begging de facto means that someone does not have the means to subsistence (§56) and that ‘by the act of begging, the person concerned is adopting a particular way of life with the aim of rising above an inhumane and precarious situation’ (id.). These affirmations correspond to the social reality of begging, which the Court in Dian turned into conditions that needed to be proved by the applicant himself. When considering admissibility in Lăcătuş, the Court examined whether the applicant was a beggar, i.e., whether the applicant was asking for money ‘to secure income and alleviate her poverty’ (§58). Undeniably, Mr Dian was a beggar asking for money to secure an income and alleviate his poverty. His application should have passed the admissibility threshold, opening the possibility to refer the case to the Grand Chamber if necessary (which is impossible with non-admissibility decisions). In Dian the Court abused and distorted its own words, misinterpreting its judgment in violation of the spirit of the Convention: it virtually denied that the act of begging touches upon human dignity (Lăcătuş § 56) and that ‘the right to call on others for assistance goes to the very essence of the rights protected by Article 8 of the Convention’ (Lăcătuş §59). By definition, beggars are people in poverty trying to alleviate their situation in one way or another, whether or not they correspond to the fictional image of the ‘true deserving poor’. While the inclusion of the vulnerability criterion was already dubious in Lăcătuş, the Court went one step further in Dian by making it a condition for unlocking the application of Article 8 (and not only its protection).
The myth of ‘true’ versus ‘fake’ poor people
The Court develops an image of the ‘true poor’ referring to highly vulnerable people in a desperate situation, considering that only this narrowed and imaginary group of people in poverty can have their fundamental rights assessed under the Convention when they are criminalized and imprisoned for begging. The Court ignores the complex reality of poverty and develops a narrow conception of what a precarious situation entails when it comes to ‘being poor’, feeding a myth about poverty. According to this myth, people in poverty should be authentically deprived and therefore sufficiently miserable, but at the same time, they should make appropriate efforts and display their merit in facing their precarious situation. Beggars often have to contend with the definition of the ‘ideal poor’, i.e. they must either be ‘true’ enough (through the evidence of their dirty, emaciated and diseased bodies) or/and ‘good’ enough (by demonstrating their competences, skills, and efforts to conceal the consequences of their state of poverty). Mr Dian did not fit this standardized, idealized and fictional image of a ‘true’ poor person: he was not miserable enough because he had a little money and could travel to Romania and was not deserving enough because he was on drugs, among other things. It is precisely because of this depiction of the fake and non-deserving poor that the Court did not even bother to examine the question on the merits.
The fictional image of true versus fake poor people allows states and courts to justify the phenomenon coined by Claude Faugeron as the ‘imprisonment of differentiation’. This phenomenon means that people are put into jail because they are different, e.g. poor, and not because they represent a danger to society. This amounts to criminalizing poverty. In the words of Loïc Wacquant, the criminalization of poverty is a way of ‘managing social insecurity and containing the social disorders created at the bottom of the class structure by neo-liberal policies of economic deregulation and social-welfare retrenchment’. People in poverty, and beggars in particular, are deemed unwanted, especially when they do not fit the fictional image of the true poor. This is precisely why they are targeted by the criminal justice system, which is a way to hide and punish them despite their posing no danger to the community and with detrimental consequences for the entirety of society.
Paternalistic conception of the use of money
An approach focusing on individualvulnerability (versus group vulnerability) as regards poverty is a slippery slope toward denying an applicant’s agency. It allows the more privileged to develop a paternalistic vision that people in poverty have to use and earn their money in the ‘right way’. Mr Dian was not only not miserable enough but also did not make the efforts expected of someone in his situation: refraining from begging when it comes to earning a living, and not consuming drugs and not traveling to see his family when it comes to spending his resources. There are strong expectations about how people in poverty should earn and spend their money. Matthew Desmond explains that if people in poverty are perceived as misspending their money, it is not because they have money left but precisely because they are left with so little.
A paternalistic vision of people in poverty was also adopted by the Court in Lăcătuş. As argued elsewhere, though beggars are usually in a situation of great poverty which they did not choose, they are not always in a situation of powerlessness. Limiting our analysis to the characteristic of extreme vulnerability tends to trivialize the beggars’ abilities. Indeed, we cannot deny that people in poverty can decide for themselves at an individual level, especially regarding their way of life. That is why the criterion of personal autonomyis more suitable when assessing a begging ban, as underlined by Judge Ravarani in his separate opinion in Lăcătuş (§10). Of course, recognizing poor people’s agency should not be understood as a route to introduce the logic of self-responsibility of the liberal subject: while recognizing autonomy at a personal level, it is essential to recognize that at a structural level people are poor for reasons outside of their control and to resist ‘the moral construction of poverty’ coined by Khiara Bridges, which refers to the discourse according to which people are poor because there is something wrong with them. Discarding paternalist reasoning, which denies the autonomy of people living in poverty in how to spend and earn, does not mean that the Court should ignore the structural and systemically disadvantageous situation that they are victims of.
EU beggars are in a grey zone
The EU free movement constitutes a specific aspect of the case that the Court addressed clumsily. As part of the vulnerability test, it ironically considered that in case of emergency, Mr Dian could have applied for some ‘return assistance’. It is significant that in Denmark, for the contentious period in Dian, more than 90% of the convictions for begging concern non-Danish citizens, mainly people of Romanian nationality (63%) (see ENNHRI TPI, §8). The Dian case finds itself at the intersection of the criminalization of poverty and EU freedom of movement, as illustrated by the adoption of the provision on aggravating circumstances in some populated areas targeting ‘foreign nationals traveling to Denmark for the sole purpose of obtaining money through begging’ (Dian, §15).
The question of mobile beggars and homeless EU citizens is a tricky one as these EU citizens find themselves in a ‘legal limbo’, ‘in an ambiguous and “fluid” legal position in terms of their residence and access to services’. Despite the EU law principle of non-discrimination on grounds of nationality, they are usually not entitled to social assistance and services offered to impoverished people. Combining the absence of support and criminalization aspect, this situation does not seem compatible with the DNA of European integration and freedom of movement, which precisely implies the possibility of improving an individual’s quality of life, as explained by Dion Kramer. Of course, this was not a question for the European Court of Human Rights to address. However, the Court’s acknowledgment of this legal limbo in which mobile EU citizens who are beggars or homeless find themselves was an important consideration in assessing the case and acknowledging that the return assistance was irrelevant.
In a nutshell, in an unexpected reversal, the ECtHR pulled the rug out from under a slow movement towards the decriminalization of life-sustaining activities which started after Lăcătuş, sending an ambiguous message to the Member States, which have been taking decriminalization initiatives since then. This backward step from Lăcătuş is difficult to understand, especially when ‘there is a growing international consensus that criminalizing life-sustaining activities in public spaces is not acceptable’. The criminalization of poverty, including of life-sustaining activities, is a real scourge, which has been proven to be damaging and costly for all of society, prompting UN bodies in general and UN rapporteurs one after another to advocate for repealing these destructive, nonsensical legal practices, including in Denmark (see here and here). If people are begging, it is because society is failing them, and it is morally and legally wrong to fail them once more by criminalizing them for society’s structural and systemic malfunction.
