Language: French
Date of the decision: 19 January 2021
Country: Switzerland
Jurisdiction: European Court of Human Rights (Chamber judgment)
Legal basis: Article 8 of the European Convention on Human Rights (Right to respect for private and family life)
Subject: Begging in public
The Third Section of the Court has found that the city of Geneva had violated the applicants right to respect for private and family life stemming from Article 8 from the ECHR. The city had ordered the applicant to pay a fine of 500 Swiss francs (approximately 464 euros (EUR) for begging in public in Geneva under the penal code of Geneva that prohibits begging in public. She was ultimately imprisoned as she was not able to pay the fine.
The applicant had also pleaded that the prohibition of begging in public had violated her freedom of expression (protected under article 10). Furthermore, she stated, that she had been the victim of discrimination because of her social and ethnic background and hence Article 14 (prohibition of discrimination) read in conjunction with Article 8 had been violated.
With this judgement, the Court has stated for the very first time a “human right to beg”.[1] The applicant was illiterate and came from an extremely poor family. She had no work and did not receive any social benefits. The Court recognised, that the applicant, being in a clearly vulnerable situation, had had the right, inherent in human dignity, to be able to convey her plight and attempt to meet her basic needs by begging.
Article 8§2 requires that each interference to the right to respect for private and family life by the state needs a legal basis and that this restriction is “necessary in a democratic society” in the interest of higher goods enumerated by the article.
The legal basis is given by the Swiss law that put a general ban on begging in public. The Court focused in her judgement on the question of the necessity of such a prohibition in a democratic society.
The Court considered that such a measure must be justified on the grounds of public interest reasons. The Swiss Government had argued that the penalty imposed for begging had the aim of combating organised crime and protecting public order and safety. Contrarily to that argumentation, the Court doubted that penalising the victims of these networks is an effective measure against this phenomenon. The Court concluded that the penalty imposed on the applicant had not been proportionate to these goals.
Furthermore, the Court did not subscribe to the Federal Court’s argument that less restrictive measures would not have achieved a comparable result. Hereby, the Court makes a comparative law review of the measures on begging in 38 of the Member States of the Council of Europe.
The Court concluded, that “the penalty imposed on the applicant did not constitute a proportionate measure either for the purpose of combating organised crime or for the protection of the rights of passers-by, residents and business owners.”
Furthermore, “the extent to which the applicant, who is an extremely vulnerable person, was punished for her actions in a situation in which she most likely had no other means of subsistence and, therefore, no other choice but to beg for survival, violated her human dignity and the very essence of the rights protected by Article 8.”
Accordingly, the Court found that the interference with the exercise by the applicant of his rights protected by Article 8 was not "necessary in a democratic society" within the meaning of Article 8§2. Consequently, Switzerland has exceeded the margin of appreciation it enjoyed in the present case.
By broadening the interpretation of ‘private life’ under Article 8 the Court stated that the concept of human dignity is protected by this article. The Court notes that human dignity is compromised when individuals are deprived of the necessary means of subsistence.
The Court ruled unanimously on the violation under Article 8. The Court decided further, by five to two, that it was unnecessary to rule separately on the applicants’ claims made under Article 10 (freedom of expression) and Article 14 (non-discrimination).
The January 19 ruling was a Chamber judgment. Both sides now have three months within which they can ask for the case to be referred to the Grand Chamber of the ECHR for a final ruling.
Material damage :
The Court considered that the facts causing the established violation of Article 8 may have created some suffering to the applicant. Therefore Suisse must pay the sum of €922 for non-pecuniary damage, plus the amount that may be payable on that amount as tax to the applicant.
To read the full case, click here.
Further reading:
[1] HERI Corina, ‘Beg your Pardon!: Criminalisation of Poverty and the Human Right to Beg in Lăcătuş v. Switzerland’, 10.02.2021, https://strasbourgobservers.com/2021/02/10/beg-your-pardon-criminalisati...
