CASE OF LACATUS v. SWITZERLAND

THIRD SECTION

CASE OF LACATUS v. SWITZERLAND

(Application no. 14065/15)

JUDGMENT

Art. 8 • Private life • Fine imposed on a poor and vulnerable Roma woman for unintrusive begging, and subsequent imprisonment for five days for non-payment • Art. 8 applicable to right to call on other people for assistance • Blanket ban provided for by criminal law, exception among member States of the Council of Europe • Serious, automatic and virtually inevitable sanction diminishing human dignity of highly vulnerable person reduced to begging to survive • Absence of sound reasons in the public interest • Courts failed to conduct in-depth examination of applicant’s specific situation • Disproportionate measure for combating organised crime and protecting the rights of passers-by, residents and shopkeepers • Possibility of less restrictive measures • Narrow margin of appreciation overstepped

STRASBOURG

19 January 2021

FINAL

19/04/2021

This judgment has become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lacatus v. Switzerland,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Paul Lemmens, President,
Georgios A. Serghides,
Helen Keller,
Dmitry Dedov,
Georges Ravarani,
María Elósegui,
Peeter Roosma, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 14065/15) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Violeta-Sibianca Lacatus (“the applicant”), on 17 March 2015;

the decision to give notice of the application to the Swiss Government (“the Government”) on 11 February 2016;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the decision of the Romanian Government not to intervene as a third party (Article 36 §1 of the Convention);

the comments submitted by the European Centre for Roma Rights, which was granted leave to intervene by the President of the Section,

Having deliberated in private on 24 November and 1 December 2020;

Delivers the following judgment, which was adopted on the latter date:

INTRODUCTION

1. The applicant, who belongs to the Roma community, was ordered under the Geneva Criminal Law Act (loi pénale génévoise) to pay a fine of 500 Swiss francs (CHF) for begging on public streets in Geneva. She was then imprisoned for five days for failure to pay the fine. She alleged that Articles 8, 10 and 14 of the Convention had been violated.

FACTS

2. The applicant was born in 1992 and lives in Bistrita-Nassaud (Romania). She was represented by Mr D. Bazarbachi, a lawyer practising in Geneva.

3. The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice.

4. From 2011 onwards the applicant lived for some of the time in Geneva where, unable to find work, she resorted to begging.

5. On 22 July 2011 she was ordered to pay an initial fine of CHF 100 under section 11A of the Geneva Criminal Law Act (see paragraph 16 below), which makes it an offence to beg on the public highway. A sum of CHF 16.75 was confiscated from her on that occasion after a body search by the police. No seizure order was issued in respect of that confiscation. On 17, 18, 21 and 29 February 2012, twice on 4 March 2012, on 21 August 2012 and on 18 January 2013 the applicant was issued with summary penalty notices requiring her to pay eight further fines of CHF 100 each for having engaged in begging on the public highway using a cup. On 21 February and 4 March 2012 the applicant was also taken into police custody, for three hours each time. Each of the fines could be replaced by one day of imprisonment in the event of non-payment.

6. The applicant, represented by her lawyer, lodged an objection to the penalty notices mentioned above.

7. In a judgment of 14 January 2014 the Police Court of the Canton of Geneva found the applicant guilty of the offence of begging. The court ordered her to pay a fine of CHF 500, to be replaced by five days’ imprisonment in the event of non-payment. In the same judgment, it upheld the confiscation of the sum of CHF 16.75.

8. The applicant lodged an appeal against the decision of the Police Court of the Canton of Geneva with the Criminal Appeals and Revision Division of the Court of Justice of the Canton of Geneva. She alleged in particular that there had been an infringement of her freedom of communication, which in her view was protected by Article 16 of the Swiss Constitution and by Article 10 of the Convention. She further complained of a violation of the prohibition of indirect discrimination within the meaning of Article 14 of the Convention and Article 8 § 2 of the Swiss Constitution, taken together with section 11A of the Geneva Criminal Law Act. In addition, she complained of an infringement of her personal liberty (Articles 7, 10 and 36 § 3 of the Constitution (see paragraph 15 below), and Article 8 of the Convention), and of an arbitrary interpretation of section 11A of the Geneva Criminal Law Act for want of a legal definition of begging. Lastly, she requested that the confiscated CHF 16.75 be returned to her, with interest accrued at a rate of 5 % from the date of confiscation.

9. In its judgment of 4 April 2014 the Criminal Appeals Division dismissed all the applicant’s complaints on the grounds, first, that the prohibition of begging had not infringed her freedom of expression as it had in no way prevented her from expressing or making her social situation known to the public by any other means and, second, that there had been no indirect discrimination as there was nothing in the law to suggest that the prohibition of begging targeted only the Roma population or that the appellant’s poverty constituted a ground of discrimination. It referred to various judgments in which the Federal Supreme Court had ruled that the ban on begging did not interfere with private life and had found that the conduct criminalised by section 11A of the Geneva Criminal Law Act was sufficiently clear. Lastly, it upheld the confiscation of the money found on the applicant’s person.

10. The applicant lodged an appeal with the Federal Supreme Court against the decision of the Criminal Appeals Division, reiterating in substance the complaints previously submitted to the cantonal courts.

11. In its judgement of 10 September 2014 the Federal Supreme Court held that the ban on begging was in breach neither of Article 8 nor of Article 14 of the Convention and referred to other judgments in which it had previously dismissed complaints related to that issue (see paragraph 18 below).

12. As to the complaint concerning freedom of expression, the relevant parts of the judgment in question read as follows:

“1.1. In several judgments, concerning applications similar to the appellant’s and lodged by the same lawyer, this court has examined these complaints, which it has dismissed to the extent that they were admissible (see, inter alia: Judgment 6B_368/2012 of 17 August 2012, points 1 to 7; Judgment 6B_88/2012 of 17 August 2012, points 1 to 7). In so far as the appellant’s personal situation, as described in the factual findings of the judgment appealed against, is comparable to the cases previously heard, it will suffice to refer to the findings of law made in the above-mentioned judgments, while making additional remarks as warranted by the particularities of the appellant’s pleadings.

...

2.5. While very broad, the scope of freedom of expression must nevertheless have limits. That is why, without it being necessary for the information or opinion to have a political aspect, it cannot justifiably be protected by Article 10 paragraph 1 [of the European Convention on Human Rights – ECHR] if its transmission is not public in any way but is confined to the strictly private sphere (Dieter Kugelmann, Der Schutz Individualkommunikation nach der EMRK, EuGRZ 2003, p. 20). An act cannot be protected by freedom of expression if it cannot be found to have any communicative value (Christian Walter, in: Europäischer Grundrechteschutz, Enyklopädie Europarecht, 2014, no. 8, p. 480) or even if does not tend primarily towards the non-verbal expression of an idea or fact (Jörg Paul Müller and Markus Schefer, Grundrechte in der Schweiz, 4th edition, 2008, p. 360); the behaviour’s symbolic content is decisive (Grabenwarter/Pabel, Europäische Menschen-rechtskonvention, 5th edition, 2012, § 23, no. 5 p. 309).

...

2.7. In the present case, the judgment appealed against finds, in a manner that is binding on this court (section 105(1), of the Federal Supreme Court Act), that the appellant solicited money from passers-by by holding out a cup to them on the public highway. The appellant nowhere reports a spoken message or dialogue of any kind. We are therefore dealing with a case of non-verbal conduct. Nor does the appellant submit, even as a subsidiary argument, that she intended for her begging to have a political dimension, for example, or even that she was seeking to impart general information concerning the condition of Roma in her country or that of the poor in Switzerland. Any symbolic content must therefore, for the most part, be excluded from her conduct, and the premise is that the message she conveyed to passers-by was confined solely to expressing her personal impoverishment, or at most that of her family, and her need for help. That message therefore remains within the confines of an exclusively private set of concerns. It must further be admitted that the act of communication was not addressed essentially to the Genevese population as a whole (as the appellant appears to allege) but consisted rather of a series of inter-personal encounters in which the communication of information relating to her impoverishment was designed exclusively to elicit in each successive addressee a feeling of pity and a response imbued with generosity. The act of conveying her destitution thus immediately appears as a merely secondary – albeit necessary – feature of her begging.

It follows from the above that, in the circumstances of the present case, the communicative aspect of the appellant’s activities was substantially reduced. Notwithstanding the very broad extension of the domain of freedom of expression as guaranteed by Article 10 ECHR, none of the characteristics that make free expression one of the foundations of democratic societies or one of the conditions for individual fulfilment can be discerned in the appellant’s conduct. Lastly, the appellant does not attempt to demonstrate that Article 16 of the Constitution would afford her broader protection than the Convention standard. There is no need to examine the case in that light (section 106(2) of the Federal Supreme Court Act). Accordingly, there is no reason to protect the appellant’s conduct beyond the limits afforded by personal liberty ... The complaint must be dismissed.”

13. The Federal Supreme Court further held that since the sum of CHF 16.75 had been confiscated from the applicant when she had been begging and since she had not given the cantonal courts any plausible explanation as to its provenance, it had not been arbitrary for that sum to be viewed as the product of begging.

14. From 24 to 28 March 2015 the applicant was detained in the Champ-Dollon short-term prison for failure to pay the fine.

15. RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE

    1. Relevant law

16. The relevant provisions of the Federal Constitution read as follows:

Article 7 – Human dignity

“Human dignity must be respected and protected.”

Article 8 – Equality before the law

“1 Every person is equal before the law.

2 No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability.

...”

Article 9 – Protection against arbitrary conduct and principle of good faith

“Every person has the right to be treated by State authorities in good faith and in a non-arbitrary manner.”

Article 10 – Right to life and to personal freedom

“...

2. Every person has the right to personal liberty and in particular to physical and mental integrity and to freedom of movement.

...”

Article 12 – Right to assistance when in need

“Persons in need and unable to provide for themselves have the right to assistance and care, and to the financial means required for a decent standard of living.”

Article 13 – Right to privacy

“1. Every person has the right to privacy in their private and family life and in their home, and in relation to their mail and telecommunications.

2 Every person has the right to be protected against the misuse of their personal data.”

Article 16 – Freedom of expression and of information

“1 Freedom of expression and of information is guaranteed.

2 Every person has the right freely to form, express, and impart their opinions.

...”

Article 36 – Restrictions on fundamental rights

“1 Restrictions on fundamental rights must have a legal basis. Significant restrictions must have their basis in a federal act. The foregoing does not apply in cases of serious and immediate danger where no other course of action is possible.

2 Restrictions on fundamental rights must be justified in the public interest or for the protection of the fundamental rights of others.

3 Any restrictions on fundamental rights must be proportionate.

...”

16. The relevant provisions of the Geneva Criminal Law Act read as follows:

Section 11A – Begging

“1. Any person who has engaged in begging shall be punished by a fine.

2. If the offender arranges for others to beg or if he or she is accompanied by one or more minors or dependants, the minimum fine shall be CHF 2,000.”

The legal framework of the fine is governed by federal criminal law. Under Article 106 § 1 of the Swiss Criminal Code, “unless the law provides otherwise, the maximum amount of a fine is 10,000 francs”. The Criminal Code does not, however, provide for a minimum fine. Moreover, under Article 106 § 2 of the Criminal Code, if the court imposes a fine, it is to be accompanied, in the judgment, by an alternative custodial sentence to be served only in the event that the convicted person negligently fails to pay the fine. That alternative custodial sentence is to be of at least one day and a maximum of three months.

17. Begging has been prohibited in Geneva for more than sixty years. The prohibition was first set forth in the Conseil d’État’s regulation of 1 November 1946 on vagrancy and begging, the legal basis for which was section 37, number 33, of the former Geneva Criminal Law Act of 20 September 1941. On 1 January 2006 that provision was repealed with the enactment of the new Geneva Criminal Law Act of 17 November 2006 (Geneva Criminal Law Act, Recueil systématique genevois, E 4 05). According to the authorities, the Conseil d’État’s regulation therefore no longer had a sufficient legal basis and consequently no longer applied. This is the reason for which the new section 11A of the Geneva Criminal Law Act was enacted in November 2007.

18. Relevant case-law of the Federal Supreme Court

19. The Federal Supreme Court has ruled on section 11A of the Geneva Criminal Law Act on various occasions. The following are among the relevant judgments:

Judgment of the Federal Supreme Court of 9 May 2008 [6C_1/2008 (ATF 134 I 214)]

“...

5.3. The act of begging consists in seeking alms, calling on the generosity of others to obtain their assistance, very generally in the form of a sum of money. The causes and aims of begging may be varied. Nevertheless, it most often originates in the beggar’s destitution, sometimes also in that of his or her family, and seeks to remedy a situation of impoverishment. So defined, begging, as a form of the right to call on another person in order to obtain his or her assistance, must evidently be regarded as a basic freedom, forming part of the personal liberty secured by Article 10 § 2 of the Constitution.

5.4. Like any other fundamental right, personal liberty is not an absolute value. A restriction of that guarantee is acceptable if it rests on a legal basis, which, in the event of a serious breach, must be provided for by a law in the formal sense (ATF [Judgments of the Federal Supreme Court] 132 I 229, point 10.1, p. 242), provided it is justified on public interest grounds or in order to protect the fundamental rights of others and provided it respects the principle of proportionality (Article 36 §§ 1-3 of the Constitution; ATF 133 I 27, point 3.1, p. 28/29; 130 I 65, point 3.1, p. 67 and the judgments cited therein).

5.5. It is rightly undisputed that the prohibition of begging arising from the impugned provision, which is set forth in a law, has a sufficient legal basis.

5.6. The respondent authority submits that the prohibition of begging was decided in order to maintain public order and ensure public safety and tranquillity, but also for the purpose of prevention. In substance, they explained that the recent easing of restrictions on begging in the Canton of Geneva – an act that is prohibited in many other cantons – had resulted in its proliferation in troubling proportions and that the impugned provision sought to avoid the negative consequences of that situation, in particular the systematic solicitation and harassment of the population.

It cannot be denied that begging can lead to excesses, which give rise to complaints, in particular from inconvenienced individuals and shopkeepers who are worried about the deterrent effect on their customers, and who impel the authorities, who are legitimately concerned to maintain public order, to react. Indeed, it is not uncommon for those who beg to become insistent, or even to harass passers-by. It is moreover frequently the case that those who take to begging position themselves in the vicinity of ATMs, in particular bank machines or PostFinance cash dispensers, or other transit points that are virtually unavoidable for a great many people, such as supermarket entrances, train stations or other public buildings. Such conduct, when it becomes habitual, which is not out of the ordinary, can trigger more or less violent reactions, ranging from rejection or irritation to overt disapproval, or even aggressiveness. Many people experience it as a form of constraint or at least of pressure, which prompts them to adopt an evasive attitude, if not to displays of intolerance. When the intensity of the phenomenon increases – and in this connection there is no reason to doubt the significant upsurge mentioned by the respondent authority, which enacted the impugned provision for that very reason – its negative consequences increase accordingly and there is then a risk of increasingly violent reactions, which are prone to escalate. One must also be mindful of the socio-economic impact of an increase in the phenomenon.

From the public interest perspective, it should also be noted that, in reality, it is unfortunately not uncommon for those who beg to be exploited as parts of networks which use them solely for their own gain and, in particular, that there is a real risk of minors, especially children, being exploited in this way, which the authority has a duty to prevent and forestall.

Accordingly, it is clearly in the public interest to regulate begging with a view to containing the risk it represents for public order, safety and tranquillity – which the State has a duty to ensure – and for the purpose of protection, especially of children, and combatting human exploitation.

5.7. In order for the restriction of a fundamental right to comply with the principle of proportionality, it must be apt to achieve the desired aim, that aim must not be achievable by way of a less intrusive measure and there must be a reasonable relationship between the measure’s impact on the affected person’s situation and the desired result from the perspective of the public interest (ATF 132 I 229, point 11.3, p. 246; 129 I 12, point 9.1, p. 24; 128 I 92, point 2b, p. 95 and the judgments cited therein).

5.7.1. A restriction of the right to beg is unquestionably apt to achieve the desired public-interest aim.

5.7.2. There further arises the question whether a blanket ban on begging is necessary to achieve that aim, or whether a less intrusive measure might not suffice.

The appeal first mentions the possibility of a restriction of begging in terms of place and/or time, whereby it could be prohibited in certain places, or even, additionally, on certain occasions, such as during the Geneva Festival (fêtes de Genève). It is however more than likely that such a solution would merely displace the problem. In so far as begging itself would not be banned, the number of those resorting to it would not, or not greatly, diminish. The result would be to concentrate begging in those areas where it was tolerated, with the effect of heightening its negative impact in such areas and on the people living there. Matters would be no different if the practice of begging were simply to be banned in specific places, for instance in front of banks or bank machines, post offices or PostFinance cash dispensers, other public buildings or supermarkets. In that case, one would see a concentration of begging in the vicinity of such places, on the borders of the zone where it was prohibited. The problem would thus be shifted a few dozen metres away or redirected towards another part of the population. There would moreover be a risk that those who beg might position themselves at the entrance to blocks of flats, where their regular, indeed constant presence might soon prove intolerable to the residents of those buildings. As to restricting begging merely at certain times, such as its prohibition during the Geneva Festival, this would obviously not suffice to achieve the intended public-interest aim.

The appeal further mentions the possibility of making begging subject to authorisation. It is evident, however, that most, if not the vast majority, of those who take to begging – such as aliens who are passing through or in the country illegally – would not be eligible for such authorisation; that many others would not be in a position to cover the costs of a licence; and that others still would prefer not to request one. Begging would thus be, in actual fact, prohibited to an extent not terribly different from an outright ban. The solution proposed might in addition create inequalities among those wishing to engage in begging.

A solution could be considered that consists in prohibiting, rather than begging as such, certain forms of begging, such as harassment or insistent behaviour. Such a solution would nevertheless appear to be largely futile. It is hard to see how those responsible for ensuring compliance with such a ban could do so short of near constant surveillance of those who engage in begging in order to ensure that they refrained from such conduct. The inefficiency of such surveillance would risk rendering such a ban devoid of substance. In any event, the appeal does not suggest such a restriction on begging.

By way of a subsidiary consideration, it should be noted that the local authorities, in this case the Genevese authorities, are in a better position to assess the situation on the ground, in particular the scale of begging in their jurisdiction, its impact and the effectiveness of the measures taken to achieve the intended public-interest aim. To a certain extent, the issue also has a political dimension, as evidenced in particular by the heightened tone of the debates at the time the impugned act was passed by the Parliament (Grand Conseil) of the Canton of Geneva and by the controversy which preceded its enactment. Although it has full powers of judicial review, the Federal Supreme Court exercises a certain reserve in such cases and only intervenes with restraint. After the criminalisation of begging had been abandoned, the Cantonal Parliament found, by a majority, that the resulting situation and the requirements of public order justified its being sanctioned anew, and therefore its prohibition.

In the light of the foregoing, it can be seen that a less restrictive measure than the one enacted would not enable the intended public-interest aim to be achieved effectively as the alternative solutions would appear to be insufficient.

5.7.3. Article 12 of the Constitution, of which aliens and Swiss nationals alike may avail themselves, gives anyone who is in distress and unable to provide for his or her needs the right to aid and assistance and to receive the necessary means to lead a life compatible with human dignity. In the Canton of Geneva, that principle took tangible form in the Individual Social Support Act of 22 March 2007 (loi sur l’assistance sociale individuelle – RSG J 4 04), which came into force on 19 June 2007 and guarantees social assistance for any adult who so requests (section 5(1) of the Individual Social Support Act) and financial support for any person unable to provide for his or her needs or for those of his or her dependent family members (section 8 of the Individual Social Support Act), to which aliens lacking a temporary residence permit are also entitled, albeit subject to more restrictive conditions (section 11(3) of the Individual Social Support Act). In practice, these provisions, one of the purposes of which is to avoid the need to resort to begging, have resulted in the establishment of a social safety net. It can justifiably be inferred that the prohibition of begging would not deprive the vast majority of those who resort to it of the basic minimum, but rather of supplementary income, although there may always be exceptions. That being so, it cannot be argued that the effects of a begging ban on the situation of those affected would be such that they were no longer reasonably related to the expected result from the public interest perspective.

5.8. It follows from the above that the prohibition of begging resulting from the impugned provision has a sufficient basis in law, that it is justified by a public interest and that it is consistent with the principle of proportionality. It therefore constitutes a permissible restriction of the guarantee of personal liberty. The complaint must accordingly be dismissed.

6. The appeal must therefore be dismissed to the extent that it is admissible. ...”

Judgment of 17 August 2012 [6B_88/2012]

“...

3.3. In matters of discrimination, even where the standard of proof is lower, it falls to the person alleging discrimination to give his or her allegation at the very least the appearance of plausibility (cf. section 6 Federal Gender Equality Act (Loi fédérale sur l’égalité entre femmes et hommes); RS 151.1). The European Court of Human Rights considers, in particular, that once the applicant has shown a difference in treatment it is for the Government to prove that it was justified (ECtHR judgment of 13 November 2007, D.H. and Others v. the Czech Republic, application no. 57325/00, § 177 with further references).

3.4. In the present case, the cantonal rule on which the applicant’s conviction is based does not contain any express reference to discrimination. Only indirect discrimination is taken into consideration. The appellant merely asserts that it is well known and readily verifiable that the impugned rule of cantonal law is only enforced against Roma, who have allegedly been booked for petty begging offences (contraventions) in the tens of thousands, while beggars of other communities are purportedly spared any sanctions. While it is understood that the application of fines to numerous members of the Roma community in Geneva, as alleged by the appellant, implies that those individuals engaged in that activity there, the large number of such fines alone would still not speak to the plausibility of indirect discrimination. Absent any tangible evidence, the appellant’s mere allegation that impunity is afforded to other, non-Roma, beggars does not make such immunity plausible, let alone the claim that it stems from discrimination against her. Accordingly, the Cantonal Court cannot be criticised for failing to investigate the matter further. The complaint is unfounded.

4. Referring to Articles 7, 10 and 36 § 3 of the Constitution and Article 8 of the ECHR, the appellant next alleges an unjustified restriction of her personal liberty and an offence against her personal dignity. In particular, she criticises the Cantonal Court for having failed to review the constitutionality of section 11A of the Geneva Criminal Law Act in the light of the particular circumstances of the case.

...

4.2. In ATF 134 I 214, the Federal Supreme Court examined the Genevese regulation’s abstract compliance with the above-mentioned guarantees in detail. In so far as the appellant relies on her extreme poverty, which allegedly requires her to seek charity, her situation is no different from that which most often justifies recourse to begging. In the judgment cited above, moreover, the Federal Supreme Court referred to Article 12 of the Constitution and to the provisions of the Geneva Individual Social Support Act of 22 March 2007 (since 1 January 2021: Integration and Individual Social Support Act (Loi sur l’insertion et l’aide sociale individuelle) – RS/GE J 4 04) when considering the proportionality of the prohibition of begging prescribed by the Genevese cantonal rule. It found that one of the purposes of those rules was to avoid the need to resort to begging, that they had resulted in the establishment of a social safety net, and that it could justifiably be inferred that the prohibition of begging would not deprive the vast majority of those who resort to it of the basic minimum, but rather of supplementary income, although there might always be exceptions (point 5.7.3). On that point, the appellant merely alleges that she would not be entitled to such support since she does not live in the Canton of Geneva. That statement is not substantiated. In particular, the appellant fails to demonstrate that she submitted a request for individual social support, let alone that she was refused such support. She fails to demonstrate in concrete terms how her situation would justify disregarding the considerations put forward by the Federal Supreme Court in its abstract examination of the constitutionality of the cantonal rule. It will therefore suffice to refer to the points of the aforementioned judgment. As articulated, the complaint fails to demonstrate the existence of an infringement of her personal liberty or of her human dignity.”

2. COMPARATIVE LAW AND PRACTICE

   1. The status of begging in the legislation of the member States of the Council of Europe

3. The Court has carried out a comparative-law analysis of the legislation on begging enacted by the member States of the Council of Europe. This study surveyed thirty-eight member States (Albania, Andorra, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom).

4. It shows that in nine of the thirty-eight member States, begging is not prohibited as such (Albania, Andorra, Finland, Georgia, Greece, Moldova, Portugal, Slovakia and Ukraine).

5. In the other twenty-nine member States surveyed, begging is prohibited or restricted in highly varied forms and manners, whether at the national or merely local level.

6. In eighteen of the member States surveyed, begging is prohibited at the national level (Azerbaijan, Cyprus, Croatia, Estonia, France, Hungary, Ireland, Italy, Liechtenstein, Luxembourg, Montenegro, Poland, Romania, San Marino, Serbia, Slovenia, Turkey and the United Kingdom [England and Wales]). Among those member States, six only prohibit intrusive or aggressive forms of begging (Estonia, France, Ireland, Italy, Serbia and Slovenia)[1]. In seven member States, the prohibition may take very different forms: it sometimes applies to specific forms of begging or subjects begging to geographical restrictions, criteria related to the affected person or official authorisation. In the five other member States that prohibit begging at the national level (Cyprus, Hungary, Montenegro, Turkey and the United Kingdom [England and Wales]) less nuanced prohibitions, which apply more generally to begging, appear to be in place.

7. In eleven of the member States surveyed, begging is prohibited only at the local level (Austria, Belgium, Bosnia-Herzegovina, Czech Republic, Germany, Latvia, Lithuania, the Netherlands, Russian Federation, Spain and Sweden). There are also substantial differences in the legislation of those States as to the nature and scope of the prohibition.

8. As to the penalties incurred in the member States of the Council of Europe in the event of a breach of the prohibition of begging at the national or local levels, their nature and severity vary considerably. As regards the nature of the sanctions, in most of the States surveyed begging is most often characterised as a breach of the peace and constitutes a minor criminal offence (for example in Bosnia and Herzegovina, in Croatia, in Poland or in Turkey). In certain member States the prohibition is provided for in the Criminal Code (for example, Article 312-12-1 of the French Criminal Code, Article 188 of the Criminal Code of Cyprus or Article 119-bis of the Italian Criminal Code). In the States where the prohibition is provided for at the local level, it is typically enacted by a municipal by-law or by decree and its infringement therefore entails an administrative penalty (for example, in the Russian Federation, in the Czech Republic or in Sweden).

9. As to the severity of the sanctions applied in the member States, they vary depending on various factors and are sometimes combined. They may result in nothing more than a warning and/or fines of varying amounts (for example in Belgium, in the Czech Republic, in Poland, in Latvia, in Lithuania, in Serbia, in the Russian Federation, in France, in Bosnia and Herzegovina, in Ireland, in Montenegro, in Romania, in Sweden, in Spain, in Slovenia or in the United Kingdom [England and Wales]). In other States, various forms of deprivation of liberty are possible (for example, in Hungary, in Cyprus, in San Marino, in Poland or in Croatia). Lastly, alternative forms of punishment may be provided for. For instance, the penalty may consist in community work (for example in Hungary), confiscation of the alms received (for example in Turkey) or a restriction of liberty (for example in Poland).

10. As to the statistics concerning the frequency with which begging offences are prosecuted, practices vary considerably among the member States of the Council of Europe.

11. Legal challenges to begging laws in member States’ courts

12. In a judgment delivered on 30 June 2012 (G 155/10-9), the Austrian Constitutional Court was called upon to rule on a Salzburg Territorial Security Act that prohibited begging in public places. It noted as follows:

“33. Section 29(1) of the Salzburg Territorial Security Act further prohibits, among other things, the solicitation of pecuniary donations from strangers on the public highway. That provision thus prohibits anyone on the public highway, without exception, from calling attention to his or her state of distress (for example, when a beggar stands or sits in the street and makes appeals to the generosity of passers-by using a sign) or to seek aid verbally in a non-aggressive and discreet manner. Such a call for the solidarity and financial generosity of others is ... also protected under Article 10 § 1 of the ECHR. A statutory provision that prohibits it infringes the right to freedom of communication, as protected by Article 10 § 1 of the ECHR, of anyone wishing, in a public place, to solicit aid from others in the manner mentioned above ....

34. According to the well-established case-law of the Constitutional Court and the European Court of Human Rights, any interference with freedom of expression must be prescribed by law, pursue one or more of the legitimate aims listed under Article 8 § 2 of the ECHR and be necessary ‘in a democratic society’ to achieve such an aim or aims ...

35. The Salzburg government justify the legitimacy of section 29(1) of the Salzburg Territorial Security Act with reference to the need to prevent disorder and to protect the rights of others. ... Those reasons are not sufficient to justify the prohibition of passive forms of begging, namely the mere solicitation of aid as described above. A blanket ban on such conduct on the public highway is not necessary in a democratic society (which is however the case as regards aggravated forms of begging, even if they are associated with communicative conduct ...). Section 29(1) of the Salzburg Territorial Security Act is therefore incompatible with Article 10 of the ECHR.”

Concerning the complaint under Article 8 of the Convention, however, the Constitutional Court took the view that begging could not be regarded as the expression of an individual way of life and therefore that that provision was not applicable.

In a different case (judgment of 30 June 2012, G132/11), in which it examined the prohibition of certain forms of begging, the Austrian Constitutional Court held that begging could not be considered a protected professional activity under Article 6 of the Basic Law (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger). It further endorsed the findings of the judgment of 30 June 2012 with regard to Article 8 of the Convention (see above) and found that there had been no breach of the principle of equal treatment in that case.

28. In Belgium, the Conseil d’État stressed the importance of the principle of proportionality in several of its judgments concerning administrative regulations on begging. In a case concerning a permanent, blanket ban (applied city-wide) on begging, it considered that the ban in question was disproportionate in the light of the aims pursued (Conseil d’État, 8 October 1997, asbl Ligue des droits de l’homme, no. 68.735).

In a 2015 case, the Belgian Conseil d’État examined the prohibition of begging in Namur in the light of the right to human dignity (Conseil d’État, 6 January 2015, Pietquin and Others, no. 229.729). It observed that the right to lead one’s life in a manner compatible with human dignity entailed access to means of subsistence. It nevertheless emphasised that this did not mean that there was an absolute right to beg. In addition, it specified that begging could not in itself be considered a breach of public order but could be prohibited at certain times, in certain places and in accordance with certain procedures. In that case, it examined in greater detail the arguments in which the appellants relied on the rights and freedoms protected by the Convention and dismissed the complaints under Articles 8 and 10 on the following grounds:

“The ground of appeal is inadmissible to the extent that it relies on disregard for the right to respect for private life, since the appellants fail to explain how the impugned regulation might have infringed that right. As to the remainder of the application, even if one were to accept that begging might constitute a means of exercising freedom of opinion, the examination of the second ground of appeal shows that the act complained of constituted, within the limits indicated therein, a valid interference with that freedom. The ground of appeal is invalid ...”

29. In its Decision no. 1087/B/1994 AB, delivered on 11 May 2004, the Constitutional Court of Hungary reviewed the law on “aggressive” begging and found that the provision prohibiting begging as a regulatory offence was not unconstitutional. It considered that such a law did not diminish human dignity or infringe the right to life.

In its Decision no. 19/2019 (VI. 18.) AB, delivered on 6 November 2011, that same Constitutional Court considered that the criminalisation of begging did not infringe any fundamental right.

30. In 2007 the Irish High Court reviewed a constitutional complaint concerning an Irish provision that had criminalised “wandering abroad and begging” in a public place since 1847 (Dillon v. Director of Public Prosecutions [2008] 1IR 383). It held that such a provision infringed the claimant’s constitutional right to freedom of expression, as protected under Article 40.6.1 of the Irish Constitution. In addition, it found that the wording used to define the offence, in particular the term “wandering abroad”, was so arbitrary, ambiguous and vague that it was in breach of the relevant articles of the Constitution, which required that offences be clearly and precisely defined by law. As a result, the relevant section of the Vagrancy Act 1847 (Ireland) was repealed.

31. In Italy, the Constitutional Court has examined the prohibition of begging on several occasions. In particular, in a case from 1975 (no. 102), it reviewed the prohibition of begging under former Article 54 of the Criminal Code, which prescribed a sentence of up to three months’ imprisonment, in the light of Articles 2 and 38 of the Constitution. Although it upheld the constitutionality of the measure, it considered that beggars who were able to work should be distinguished from those who were not owing to their age and poor health. It held that those belonging to the second category could not be punished under Article 54 of the Criminal Code.

In a subsequent 1995 judgment (no. 519), the Italian Constitutional Court established a distinction between criminal laws that targeted passive begging and those that targeted invasive forms of begging. The latter provisions were found to be constitutional, while the former were declared unconstitutional on the basis of Articles 2 and 3 of the Constitution. In that connection, the Constitutional Court found that the criminal-law provisions were not necessary to protect public order and tranquillity, which were not threatened by non-invasive forms of begging consisting in mere requests for assistance.

3. INTERNATIONAL LAW AND PRACTICE

   1. Council of Europe
      1. The Council of Europe Convention on Action against Trafficking in Human Beings and the recent practice of the GRETA concerning Switzerland

4. The Council of Europe Convention on Action against Trafficking in Human Beings was adopted on 16 May 2005 and entered into force on 1 February 2008. Switzerland ratified that convention on 17 December 2012.

5. Its purposes are set forth in Article 1:

Article 1 – Purposes of the Convention

“1. The purposes of this Convention are:

a. to prevent and combat trafficking in human beings, while guaranteeing gender equality;

b. to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution;

c. to promote international cooperation on action against trafficking in human beings.

2. In order to ensure effective implementation of its provisions by the Parties, this Convention sets up a specific monitoring mechanism.”

3. Article 26 reads as follows:

Article 26 – Non-punishment provision

“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”

35. The Group of Experts on Action against Trafficking in Human Beings (GRETA) was created under Article 36 of the Convention on Action against Trafficking in Human Beings. It was tasked with ensuring that the parties implemented the convention and with drawing up reports to assess the measures taken by each party.

36. GRETA was composed of 15 impartial, independent experts of various profiles, who were chosen for their professional experience in the areas covered by the Convention [on Action against Trafficking in Human Beings]. The term of office of members of GRETA is four years, renewable once.

37. The report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Switzerland in the context of the 2nd evaluation round was adopted on 11 July 2019 (published on 9 October 2019). GRETA found therein that, since the adoption of its first report on Switzerland in July 2015, progress had been made in several areas (see paragraph 285 of that report).

38. It also observed, however, that the Swiss authorities had been responsible for certain shortcomings in the implementation of the Convention [on Action against Trafficking in Human Beings], which it described in particular as follows:

Questions requiring immediate action

“...

• GRETA urges the Swiss authorities to take measures to ensure that all victims of trafficking are correctly identified and are entitled to the assistance and protection measures provided for under the Convention [on Action against Trafficking in Human Beings] ...

• GRETA urges the Swiss authorities to improve the identification of children who are victims of trafficking and increase support for such children ...

• GRETA urges the Swiss authorities to ensure compliance with Article 26 of the Convention [on Action against Trafficking in Human Beings] through the adoption of a provision on the non-punishment of victims of trafficking for their involvement in unlawful activities to the extent that they were compelled, and/or through the development of guidelines to that effect. Prosecutors should receive appropriate training on trafficking; they should be encouraged to take the initiative to determine whether a person facing charges is a potential victim of trafficking, keeping in mind that trafficking is a serious human rights violation. While the identification process is ongoing, potential victims of trafficking should not be punished for offences under immigration laws ...” [emphasis added]

39. As to the criminalisation of certain types of behaviour, GRETA found as follows:

“235. According to NGO reports, there are cases where victims of trafficking are being fined or prosecuted for [breaches of immigration laws], labour laws or regulations on prostitution. This situation creates a deterrent effect on victims of trafficking, who are less likely to report their cases to the authorities for fear of being prosecuted or expelled from the Swiss territory. One organisation reported five cases in which victims were not treated as such but rather, once they contacted the authorities, were considered to have violated labour or immigration laws, and received fines or were expelled from the country. During the visit, interlocutors underlined the fact that these measures target particularly persons from the Roma community and often result in both the victims and the perpetrators being returned to their countries of origin. GRETA is concerned that victims of forced criminal activity are often not identified as such and end up in custody. In this context, the criminalisation of begging places the victims of forced begging in a situation of heightened vulnerability.” [emphasis added]

2. Miscellaneous

3. In its Recommendation 2003 (2012) on Roma migrants in Europe, the Parliamentary Assembly of the Council of Europe emphasised that the Roma were among the most disadvantaged, discriminated against, persecuted and victimised groups in Europe. It found that prejudices, combined with the widespread tendency to make a generalised link between Roma and criminality, had contributed greatly to the plight of Roma in Europe. Concerning the criminalisation of begging, it recommended that the Committee of Ministers instruct the relevant Council of Europe committees and bodies to:

“analyse legislation and practices in member States aimed at criminalising begging and evaluate the impact of this on Roma and the implications under the European Convention on Human Rights, the revised European Social Charter and other Council of Europe standards” (§ 6.1).

41. In an article published on 16 July 2015 on the Council of Europe’s website site, entitled “Time to debunk myths and prejudices about Roma migrants in Europe”[2], Nils Muižnieks, the Council of Europe’s then Commissioner for Human Rights, noted that the authorities in several countries were increasingly taking or discussing measures to criminalise the presence of Roma in public places, by enacting bans on begging or “sleeping rough”. He had previously criticised that approach in his reports on France and Norway.

42. In his 2015 report on France, Nils Muižnieks had considered the ban on begging in Marseilles to be an example of “anti-Gypsyism” (Report following a visit to France from 22 to 26 September 2014 (2015), § 171). Concerning Norway, he had found that the blanket ban on non-aggressive begging had a discriminatory impact on Roma immigrants and interfered with their freedom of expression, concluding that such laws should be repealed (Report following a visit to Norway from 19 to 23 January 2015 (2015), in particular §§ 59-67).

B. United Nations

43. In its Resolution 21/11 adopted at its 21st session in September 2012, the United Nations Human Rights Council established “The Guiding Principles on Extreme Poverty and Human Rights”. Concerning the right to liberty and security of the person, those principles set out States’ duties as follows:

“...

66. States should:

...

c) Repeal or reform any laws that criminalize life-sustaining activities in public places, such as sleeping, begging, eating or performing personal hygiene activities;

... .”

44. In a 2005 thematic report for the former United Nations Commission on Human Rights (E/CN.4/2005/48, 3 March 2005), Miloon Kothari, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, expressed concerns over laws that criminalise the homeless, in particular the act of begging:

“32. The Special Rapporteur notes with concern the impact of laws that directly or indirectly criminalize homelessness and serve to further marginalize the homeless. In India, for example, the 1959 Bombay Prevention of Begging Act (adopted in Delhi in 1961) has been used by Delhi police to target the homeless as the Act permits intervention against anyone ‘having no visible means of subsistence and, wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms’.”

45. In a report submitted to the United Nations General Assembly (A/66/265, 4 August 2011), Magdalena Sepúlveda Carmona, the Special Rapporteur on extreme poverty and human rights, analysed the laws, regulations and practices that punished, segregated, controlled and undermined the autonomy of persons living in poverty. She found that penalisation measures targeted individuals because their income, appearance, speech, address or needs identified them as poor and thus clearly constituted discrimination on the basis of economic and social status (see paragraph 18 of the report).

46. More specifically with regard to laws, regulations and practices that punish, inter alia, begging, the Special Rapporteur noted as follows (references omitted):

“30. Criminal or regulatory measures (e.g. ordinances) that make vagrancy and begging unlawful are becoming increasingly common across developed and developing countries. These laws take a number of forms, from legislation that prohibits the solicitation of money in any public space to that which prohibits begging at night or in an ‘aggressive manner’. Some of these laws have a broad application, extending to the performance of any activity which might elicit money, such as performing or dancing, or exposing a wound or a deformity. In some States, it is even illegal for a person just to be in a public place and have no visible means of subsistence, such that it is likely that they stay alive by begging.

31. It is obvious that these laws and regulations have a disproportionate impact on persons who live in poverty. When they are unable to access sufficient support and assistance from the State, persons living in poverty may have no other option than to beg in order to stay alive. To punish them for their actions in circumstances where they have no other means of survival is clearly a disproportionately punitive measure.

32. Bans on begging and vagrancy represent serious violations of the principles of equality and non-discrimination. Such measures give law enforcement officials wide discretion in their application and increase the vulnerability of persons living in poverty to harassment and violence. They serve only to contribute to the perpetuation of discriminatory societal attitudes towards the poorest and most vulnerable.

...

35. Often the underlying motivation of these measures is to reduce the visibility of poverty in the city and attract investments, development and (non-poor) citizens to the city centres. These aims are not legitimate under human rights law and they do not justify the severe sanctions that are often imposed through these regulations.”

36. She concluded her report with the following recommendations with a view to eliminating discriminatory laws:

“82 ...

(a) States shall take all necessary measures to eliminate all direct and indirect discrimination against persons living in poverty. States must refrain from adopting any law, regulation or practice denying or limiting the access of persons living in poverty to the enjoyment of all their rights, including economic, social and cultural rights. States must review national legislation in order to assess the existence of any discriminatory impact on those living in poverty and shall repeal or amend legislation that has the purpose or effect of impairing the equal enjoyment of rights by those living in poverty;

...”

C. The Inter-American Commission on Human Rights and the African Commission on Human and Peoples’ Rights

48. In a 2017 report entitled “Poverty and Human Rights”, the Inter-American Commission on Human Rights emphasised that rules and practices restricting undesirable conduct and activities considered “undesirable” or contrary to public order, such as begging, sleeping or loitering in the streets, aggravated the situation of exclusion, disadvantage and discrimination faced by persons living in poverty (OEA/Ser.L/V/II.164 Doc. 147, 7 September 2017, § 177). Accordingly, the Commission considered it important to stress that the prohibition on begging and related activities could amount to a violation of the principles of equality and non-discrimination (ibid., § 178).

49. In 2017 the African Commission on Human and Peoples’ Rights adopted “Principles on the Decriminalisation of Petty Offences in Africa”[3]. In adopting these principles, it declared that laws which created petty offences, including begging, were inconsistent with the principles of equality before the law and non-discrimination on the basis that they targeted, or had a disproportionate impact on, the poor and other vulnerable persons (see paragraph 6). It added the following:

“7. The enforcement of petty offences has the effect of punishing, segregating, controlling and undermining the dignity of persons on the basis of their status. They also infringe upon the autonomy of persons by restricting their performance of life-sustaining activities in public spaces, particularly for those living in poverty. The enforcement of these laws perpetuates the stigmatisation of poverty by mandating a criminal-justice response to what are socio-economic and sustainable development issues. In this regard, petty offences reinforce discriminatory attitudes against marginalised persons.”

THE LAW

1. alleged violation of article 8 of the convention

2. The applicant submitted that the prohibition of begging on the public highway constituted an unacceptable interference with her private life as it had deprived her of her means of subsistence, given that she had no other sources of income and would be hard pressed to find any, that she was illiterate, extremely poor and a victim of discrimination in her country on account of being a member of the Roma community. The applicant relied on Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

3. The Government contested that argument.

4. Admissibility

5. Whether the complaint falls within the scope of Article 8

6. The Court observes that the Government did not dispute that the applicant’s complaint fell within the scope of Article 8 of the Convention. It nevertheless reiterates that any question affecting the Court’s jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case. It follows that the Court must examine the question of its jurisdiction ratione materiae at every stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III, and Tănase v. Moldova [GC], no. 7/08, § 131, ECHR 2010).

7. The Court has never had occasion to rule on the question whether a person on whom a sanction has been imposed for begging may avail himself or herself of Article 8 of the Convention. In its landmark judgment of 9 May 2008 (see point 5.3 cited in paragraph 18 above), the Federal Supreme Court held that begging was encompassed by the individual liberty guaranteed by Article 10 § 2 of the Constitution. The Court observes that, although the scope of that provision is not identical to that of Article 8 of the Convention, it is similar nonetheless.

8. As to the “private life” aspect of Article 8, the Court has previously had occasion to observe that this is a broad term not susceptible to exhaustive definition. It can sometimes embrace aspects of an individual’s physical and social identity (see Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Otgon v. the Republic of Moldova, no. 22743/07, 25 October 2016).

9. The term “private life” also covers the right to personal development and the right to establish and develop relationships with other human beings and the outside world (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑I, and A.‑M.V. v. Finland, no. 53251/13, § 76, 23 March 2017). There is therefore a zone of interaction of a person with others, even in a public context, which can fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001‑IX, with further references).

10. The Court takes the view that the concept of human dignity is inherent in the spirit of the Convention. While often mentioned in connection with Article 3, this concept has also been referred to several times by the Court in connection with Article 8 (see, in particular, Kučera v. Slovakia, no. 48666/99, § 122, 17 July 2007; Rachwalski and Ferenc v. Poland, no. 47709/99, § 73, 28 July 2009; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 248, ECHR 2012; Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, § 116, 10 January 2019; Beizaras and Levickas v. Lithuania, no. 41288/15, § 117, 14 January 2020; Vinks and Ribicka v. Latvia, no. 28926/10, § 114, 30 January 2020; and Hudorovič and Others v. Slovenia, nos. 24816/14 and 25140/14, § 116, 10 March 2020). The Court takes the view that a person’s dignity is severely compromised if he or she does not have sufficient means of subsistence (see, in that regard, the judgment delivered by the Belgian Conseil d’État on 6 January 2015 in the Pietquin and Others case, cited in paragraph 28 above). 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.

11. The Court further reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, inter alia, Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 86, ECHR 2009, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In other words, the specific circumstances of each case must be taken into consideration, in particular the person’s economic and social situation.

12. In the present case, the applicant alleged that she was extremely poor, illiterate and unemployed, which the Government, moreover, did not dispute. The Court therefore has no reason to doubt the truthfulness of that allegation. The applicant further submitted that she was not in receipt of social benefits, nor does she appear to be supported by any third party. The Court is prepared to accept that begging allowed the applicant to secure income and alleviate her poverty. By imposing a blanket ban on begging and by giving the applicant a fine, to be replaced by a prison sentence in the event of non-payment, the Swiss authorities prevented her from approaching others in order to obtain a form of help which, in her situation, was one of the possible means of providing for her basic needs.

13. Moreover, the Court would point out that the Federal Supreme Court itself had found, in its judgment of 9 May 2008 (point 5.3, cited in paragraph 18 above), that “begging, as a form of the right to call on another person in order to obtain his or her assistance, must evidently be regarded as a basic freedom, forming part of the personal liberty secured by Article 10 § 2 of the Constitution”. The Court shares that view and finds that the right to call on others for assistance goes to the very essence of the rights protected by Article 8 of the Convention.

14. That is sufficient for the Court to conclude that Article 8 of the Convention is applicable to the applicant’s complaint.

15. Conclusion

16. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

17. Merits

18. The parties’ submissions

(a) The applicant

62. As to the existence of a legal basis on which the interference with her rights under Article 8 was purportedly based, the applicant explained that in order for begging to be distinguished from the activities of associations or other organisations which appealed to the generosity of private citizens, it had to have originated in the beggar’s own destitution and aim to remedy a state of extreme poverty. Moreover, the applicant did not dispute the Federal Supreme Court’s definition of begging but submitted rather that, in its essence, the law targeted the poor and thus contributed, without objective justification, to the stigmatisation of a particular group of particularly vulnerable people, to which she belonged.

63. As to the legitimate aim pursued by the impugned provision, the applicant was of the opinion that those who claimed to be inconvenienced were most often prompted to do so by a feeling of insecurity rather than by an actual breach of public order and, if one could speak of a breach at all, it was more a breach of propriety. Concerning the alleged need to protect shopkeepers’ customers, the applicant submitted that this essentially boiled down to the risk of commercial damage, which it was not the State’s role to protect against.

64. The applicant argued that begging did not in itself generate disturbances of public order and that a fundamental freedom could not be restricted except to prevent severe breaches of public order. She argued that the Government had by no means demonstrated that the behaviour of those who begged severely breached public order. Concerning the encampments set up by those who took to begging, she submitted that they did not disturb public order in any way and that, if the authorities wished to eradicate that phenomenon, they would have to provide access to civil protection shelters all year round rather than merely occasionally, in the winter, as was the case in Geneva.

65. As regarded the phenomenon of begging, which the Government had claimed could diminish the city’s appeal as a tourist destination and have noticeable economic consequences, the applicant argued that Switzerland was losing sight of the fact that, so long as poverty was not eradicated across the globe, people would always be drawn to cities by the strong power of attraction that opulence and wealth exerted. Lastly, she submitted that the Government’s argument to the effect that it was not uncommon for those who begged to be exploited by organised criminal gangs was not only inaccurate but contradictory as well, observing that if such networks truly existed, it was difficult to understand why their victims should be punished as criminals rather than protected, in particular by regulatory measures.

66. As to whether the interference was necessary in a democratic society, the applicant opined that it was unsurprising that most Eastern European countries had implemented blanket bans on begging since discrimination against Roma in those countries was well established. She added that it was regrettable to see a country aspiring to exemplarity in the area of human rights make reference to those countries to justify a ban on begging. She observed that the Government had omitted to point out that an Irish court had held that a blanket ban on begging clearly offended against freedom to communicate and was disproportionate (see Dillon v. Director of Public Prosecutions [2008] 1IR 383, cited in paragraph 30 above).

67. The applicant further alleged that it was completely inaccurate to assert that, over a period of barely three or four months in 2007, when begging was tolerated, beggars had been recorded in great numbers in Geneva. She argued that the Government had no concrete evidence to substantiate their claims. She added that since 2004 – the year when the visa requirement for Romanian nationals had been abolished – the police, for example, had consistently counted roughly 100 to 250 people begging in Geneva.

68. As to the Government’s argument based on the financial support allocated to persons passing through Geneva, which totalled CHF 500 at most, the applicant submitted that such support required many lengthy administrative formalities, which illiterate individuals like her could not handle unassisted. She pointed out, for example, that applicants were required to register with the Cantonal Population and Migration Office, obtain a residence permit for the time required to review their application, which could last several months, and prove that they were destitute (bank accounts, certificate, etc.). She submitted that, in so far as that procedure could take several months, it was hard to see how applicants for such aid could provide for their basic needs throughout the review period. She specified that by registering with the Cantonal Population and Migration Office, applicants for financial aid took the risk of being refused entry to Switzerland based on the Aliens Act (“loi sur les étrangers”), under which all aliens had to possess the financial resources necessary for their stay. She alleged in that regard that Switzerland had delivered a very large number of decisions to refuse entry to the country against Roma passing through Geneva for the sole reason that they lacked financial resources.

69. As to the appropriateness of the prohibition of begging and the absence of less restrictive measures likely to achieve the same result, the applicant was of the opinion that one should fight poverty, not the poor. She thus called for anti-discrimination measures in the home countries of those forced to come to Geneva to beg, as well as financing and following up on projects aimed at improving their living conditions. She argued that criminalising poverty would only intensify feelings of mistrust with regard to vulnerable people who were reduced to seeking charity for want of employment.

70. The applicant also argued that general and absolute bans had to be regarded as unlawful, as they inevitably led to excesses. She added that bans should not only be limited as to place and time, but also justified on the basis of a real, concrete threat to public order, rather than mere suppositions.

71. As regarded her personal circumstances, the applicant observed that the Government had not taken account of the fact that she was illiterate and had to fight to survive. She submitted that she had sought in vain for opportunities to do housework for numerous people she had met in Geneva and that her failure to request the derisory financial support provided for under Article 12 of the Constitution (see paragraph 15 above) could be explained by the reasons mentioned above. She took the argument to the effect that she ought to have gone to other places in Switzerland or in Europe where begging was legal to be absurd and contradictory, explaining that it was inconceivable that a State should wish to export breaches of public order: either begging was considered a breach of public order – in which case it made no sense to wish it upon neighbouring States – or it was not.

72. In addition, the applicant claimed to have found her bearings in Geneva and to have made connections with numerous people in that city. She further submitted that she had no choice but to beg as it was a matter of survival for her. She also took due note of the Swiss Government’s statements to the effect that she, on her own, did not constitute a threat to public order. In her view, the present case had to be assessed in the light of the particular circumstances and not in a general manner.

73. Lastly, she pointed out that she had been deprived of her liberty for five days for having held out her hand, despite the fact that, by the Swiss Government’s own admission, she had not posed a threat to public order.

(b) The Government

74. The Government did not dispute that the penalties imposed on the applicant for begging had constituted an infringement of her right to respect for her private life.

75. Additionally, they pointed out that those convictions had been based on section 11A of the Geneva Criminal Law Act (see paragraph 16 above) and had consequently alleged that the impugned measures had been in accordance with the law for the purposes of Article 8 § 2 of the Convention.

76. The Government submitted that the prohibition of begging pursued several of the aims listed under Article 8 § 2 of the Convention, namely the protection of public order and safety, the country’s economic well-being and the protection of the rights and freedoms of others. They further pointed out that respect for the minimum requirements of life in society – or of “living together” (“vivre ensemble”) – could be linked to the legitimate aim of the “protection of the rights and freedoms of others” (with reference to S.A.S. v. France [GC], no. 43835/11, § 121, ECHR 2014).

77. The Government further argued that begging could lead to excesses, which gave rise to complaints, in particular from inconvenienced individuals or shopkeepers who were worried about the deterrent effect on their customers. They observed that passers-by were regularly accosted, that beggars approached restaurant customers on patios, which deterred the latter from going to certain restaurants, and that they stole food in shops. They added that those who took to begging frequently positioned themselves next to ATMs or other transit points that were virtually unavoidable for many people, such as supermarket entrances, train stations or other public buildings. They pointed out that in Geneva, people had even been harassed in residential buildings and offices.

78. The Government submitted that when such behaviour became habitual, it provoked more or less violent reactions, ranging from rejection or irritation to overt disapproval, or even aggressiveness. They argued that many people experienced it as a form of constraint or at least of pressure, which prompted them to adopt an evasive attitude, if not to displays of intolerance.

79. The Government further argued that a significant increase in the phenomenon of begging could diminish the city’s appeal as a tourist destination – since Geneva was prised in particular for being calm and safe – and thus have noticeable economic consequences. Lastly, they argued that it was not uncommon for beggars to be in reality exploited as parts of networks that used them for their own gain and in particular that there was a risk that minors, especially children, would be exploited in that manner. In their view, the prohibition of begging constituted one of several instruments for avoiding such situations.

80. As to whether the provision was necessary in a democratic society, the Government explained that the member States had diverse begging regulations. They specified that several States, in particular the United Kingdom, Denmark, Greece, Hungary, Romania, the Czech Republic and Slovenia, had opted for blanket bans on begging, while in other States, such as Spain, Norway, the Netherlands, France and Lithuania, bans on begging were implemented in certain municipalities. They pointed out that a blanket ban on begging at national level had been discussed in Norway, in Sweden and in Finland, and that certain States, such as France, also prohibited makeshift encampments. In the light of those facts and all the information available, they submitted that the prohibition of begging undeniably constituted a hotly debated policy matter in many member States of the Council of Europe and that, consequently, States had to be afforded a wide margin of appreciation in that sphere.

81. The Government further alleged that, in Geneva, the ban on begging had been enacted following a significant rise in that phenomenon in the canton, notably on account of the fact that people had increasingly been travelling regularly to that city to beg, in particular from Romania. They cited a census conducted in the autumn of 2007, according to which the city had approximately 300 beggars at that time, of which 65 to 70% were residents of Romania. They specified that, as these people were homeless in Geneva, they had set up encampments in various places, in particular in public parks and under bridges.

82. They added that, for want of accommodation in Geneva, some of the individuals in question had been housed in facilities provided and paid for by the relevant municipalities, while others had set up makeshift camps in a certain number of places throughout the city and the canton. They explained that those camps lacked the appropriate infrastructure and that sanitary conditions there were thus grossly inadequate. They specified that, on certain occasions, in particular during the winter, those living there had been relocated by the authorities to emergency shelters.

83. The Government further emphasised that accommodation in a reception facility constituted the concrete realisation of the guarantee provided for in Article 12 of the Constitution (see paragraph 15 above), as did the right to extraordinary financial aid, for which aliens lacking residence permits were eligible in Switzerland, as well as those who were passing through. They submitted however that foreign nationals who came to Geneva to beg failed to register with the relevant authorities in order to obtain financial aid.

84. The Government argued that the applicant did not allege that a less restrictive measure would have achieved the same result and emphasised that, in its first judgment concerning the prohibition of begging in Geneva, the Federal Supreme Court had examined various less restrictive measures, namely confining the ban to a given place and time, issuing permits, or prohibiting certain forms of begging, such as harassment or insistent behaviour.

85. The Government argued that a ban on begging in certain places or on certain occasions, in particular during festivities, would merely displace the problem. They stated that the number of people resorting to begging would not, or not greatly, diminish and that, consequently, the result would be to concentrate begging in the areas where it was tolerated. They argued that there was also a risk that beggars might position themselves at the entrance to blocks of flats where their regular, indeed constant, presence might quickly cease to be tolerated by the residents of those buildings. As to a merely temporal restriction, for example during certain festivities, they submitted that it would not suffice to achieve the intended public-interest aim, and that the same would be true in the case of a permit system. They alleged that it was evident that the vast majority of those who took to begging, who were foreign nationals passing through or in the country illegally, would not be eligible for such permits or would prefer not to request one, which could generate inequalities among those wishing to engage in begging. Lastly, they were convinced that banning certain forms of begging, such as harassment or insistent behaviour, would be largely futile. They submitted that such a ban could hardly be implemented short of near constant surveillance of those who engaged in begging to ensure that they refrained from such conduct. They concluded from this that the intended public-interest aim could not be effectively achieved by any measure less restrictive than a ban on begging.

86. The Government pointed out that the applicant was a Romanian national of Roma descent, residing in Romania and from a very poor family, who had come to Switzerland from time to time where, unable to find work, she had resorted to begging. They observed that she had failed to demonstrate that she had taken steps to find employment in Switzerland, that she had contemplated taking up permanent residence in that country or that she had contacted the authorities for assistance, financial or otherwise. They alleged, moreover, that the applicant had no ties to Switzerland or to the city of Geneva aside from the fact that she had gone there several times to beg.

87. The Government conceded that the presence of a young woman begging in the street by holding out a cup could not, in and of itself, be described as a significant threat to public order. They argued, however, that the impugned ban was not intended for her alone, but for all those begging in Geneva, who – as had in their view been shown – constituted a threat to public order and safety. They argued that it had to be possible to regulate certain behaviour in a general way in the public interest, even if a single occurrence of the conduct in question did not, in itself, warrant such regulation.

88. The Government took the view, moreover, that the fine imposed (CHF 500) seemed proportionate to the offence committed given that the applicant had committed nine identical offences over the course of three years. They further argued that the applicant had been free to go elsewhere in Switzerland or abroad. As to the alternative sentence, namely five days’ imprisonment, they considered that it was not excessive either, given that the relevant laws provided for a minimum term of one day and for three months at the most.

89. Lastly, as to the applicant’s mentioning that she had been detained for five days from 24 March 2015, the Government submitted that this detention period did not fall within the scope of the present application since it had occurred after the application was lodged on 17 March 2015.

90. For all the reasons set forth above, the Government were convinced that the impugned interference had been necessary in a democratic society.

91. The Court’s assessment

(a) Whether there has been an interference with the rights protected by Article 8 of the Convention

91. The Court would point out that the applicant was found guilty of begging within the meaning of section 11A of the Geneva Criminal Law Act and ordered to pay a fine of CHF 500, to be replaced by a five-day custodial sentence in the event of non-payment. The applicant, who was unable to pay that amount, did indeed serve that sentence in the Champ-Dollon short-term prison starting on 24 March 2015.

92. Accordingly, the Court finds that there has been an interference with the applicant’s rights under Article 8 of the Convention.

(b) Whether the interference was justified

93. Interference with the right to respect for private and family life is justified only if the conditions of the second paragraph of Article 8 are satisfied. It thus remains to be determined whether the interference was “in accordance with the law”, pursued one or more legitimate aims under that paragraph and was “necessary in a democratic society” to achieve the relevant aim or aims. The Court must therefore determine whether those conditions were satisfied in the instant case.

(i) Legal basis

94. In the present case, there was no dispute as to whether the interference had a basis in law, namely section 11A of the Geneva Criminal Law Act.

(ii) Legitimate aim

95. Concerning the legitimate aims within the meaning of Article 8 § 2 of the Convention, the Government submitted that the prohibition of begging pursued several of the aims listed in that paragraph, namely the protection of public order and safety, the economic well-being of the country and the protection of the rights and freedoms of others (see paragraphs 76-79 above). The applicant was not of that opinion and argued, in particular, that begging did not, in itself, cause breaches of public order.

96. The Court takes the view that the domestic authorities’ assessment should constitute the starting point for its examination. According to the Federal Supreme Court’s leading judgment of 9 May 2008 (see paragraph 18 above), the interference appeared to pursue two aims. On the one hand, it had been a matter of protecting public order and ensuring public safety and peace. The Federal Supreme Court had thus noted that beggars were often insistent, or even harassed passers-by, and that they often positioned themselves next to ATMs, in particular cash dispensers, supermarket entrances, train stations or other public buildings. It had further observed that such conduct triggered more or less violent reactions that were prone to escalate. At the same time, according to the Federal Supreme Court’s pilot judgment, it was a matter of combatting begging networks, which often exploited people, in particular minors (see point 5.6 of the judgment, cited in paragraph 18 above).

97. In the light of the foregoing, the Court does not rule out the possibility that certain forms of begging, especially aggressive ones, might disturb passers-by, local residents and shopkeepers. It also recognises the validity of the argument concerning efforts to combat the exploitation of individuals, particularly children. The interference thus pursued prima facie legitimate aims within the meaning of paragraph 2 of Article 8 of the Convention, namely the prevention of disorder and the protection of the rights of others.

98. Accordingly, the Court finds that it may leave open the question whether the measure pursued any other legitimate aims. It now remains to be seen whether the measure complained of was, in the particular circumstances of the applicant’s case, necessary in a democratic society.

(iii) Necessity in a democratic society

(α) Domestic power of judicial review

99. As to whether the measure was necessary in a democratic society, the Court has previously found that an interference must correspond to a pressing social need and be proportionate to the legitimate aim pursued (see, in particular, Pretty v. the United Kingdom, no. 2346/02, § 70, ECHR 2002‑III). It reiterates that national authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 is necessary and proportionate to the legitimate aim pursued. Its task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other (Boultif v. Switzerland, no. 54273/00, § 47, ECHR 2001-IX, and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X). The Court would nevertheless point out that the margin of appreciation afforded to the domestic courts remains subject to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, among other authorities, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 141, ECHR 2010).

100. The Court further reiterates that provided the authorities’ conclusions appear neither arbitrary nor manifestly unreasonable, it is not for it to substitute its own assessment of the merits for theirs, including as to the proportionality of the impugned provision (see, to similar effect, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 105, ECHR 2012; Hamesevic v. Denmark (dec.), no. 25748/15, § 43, 16 May 2017; Alam v. Denmark (dec.), no. 33809/15, § 35, 6 June 2017; Ndidi v. the United Kingdom, no. 41215/14, § 76, 14 September 2017; and Levakovic v. Denmark, no. 7841/14, § 45, 23 October 2018). This implies, however, that the domestic courts must provide sufficiently detailed reasons for their decisions (see, mutatis mutandis, X v. Latvia [GC], no. 27853/09, § 107, ECHR 2013, and El Ghatet v. Switzerland, no. 56971/10, § 47, 8 November 2016). Where the reasoning of domestic decisions is insufficient, without any real weighing-up of the interests in issue, this would be contrary to the requirements of Article 8 of the Convention. Such is the case where the domestic authorities are unable to demonstrate convincingly that interference with a right protected by the Convention is proportionate to the aims thereby pursued or that it therefore meets a “pressing social need”, as defined by the Court’s case-law (see El Ghatet, cited above, § 47, and I.M. v. Switzerland, no. 23887/16, §§ 72 and 77, 9 April 2019).

101. The Court observes that pursuant to section 11A(1) of the Geneva Criminal Law Act, “[a]ny person who has engaged in begging shall be punished by a fine”. In other words, that provision indiscriminately sanctions all those who resort to begging. The Court takes the view that a blanket ban on a given behaviour, like that in the present case, is a radical measure that requires a strong justification and particularly strict scrutiny by the courts authorised to weigh up the relevant interests as stake (see, for example, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 82, ECHR 2005-IX, and Schlumpf v. Switzerland, no. 29002/06, § 115, 8 January 2009).

102. In the present case, the applicable legislation precluded a genuine weighing-up of the interests at stake and penalised begging in a blanket fashion, regardless of the perpetrator of the impugned activity and his or her potential vulnerability, the nature of the begging and whether it was aggressive or passive, where it took place and whether or not the offender was part of a criminal network. The Court considers that it can leave open the question whether, despite the rigid nature of the applicable legislation, a fair balance could nevertheless have been struck in the present case between the public interests of the State, on the one hand, and the applicant’s interests on the other. It finds, in any event, that the respondent State overstepped the margin of appreciation it enjoyed in the present case, for the reasons that follow.

(β) Switzerland’s margin of appreciation

103. The Government argued that they enjoyed a considerable margin of appreciation in the present case, especially since begging was prohibited or restricted in other member States of the Council of Europe. In principle, the Court shares the view that Switzerland was entitled to avail itself of a certain margin of appreciation, the scope of which must nevertheless be defined. It reiterates that such a margin is not unlimited and, most importantly, that it remains subject to a European supervision, especially as the present case concerns a very severe interference that had significant repercussions for the applicant’s exercise of her Convention rights. In that regard, the Court would point out that it has previously held that where a particularly important facet of an individual’s existence (or identity) is at stake, the margin allowed to the State will usually be restricted (see Parrillo v. Italy [GC], no. 46470/11, § 169, ECHR 2015, with further references).

104. As to the various solutions adopted by the member States of the Council of Europe, the Court observes that some of them (nine) have not deemed it necessary to prohibit begging at either national or local level. Of the eighteen member States that have regulated begging at national level, six have banned only its aggressive or intrusive forms and seven have restricted or circumscribed the scope of the ban in other ways. In the remainder of the States examined (five), the laws provide for a less nuanced prohibition of begging (see paragraph 22 above). Moreover, in the eleven member States where begging is only regulated at local level, as in Switzerland, the ban is also restricted, in particular to aggressive or intrusive forms (see paragraph 23 above). Furthermore, several of the member States’ highest courts have found that a blanket ban on begging is disproportionate, regard being had in particular to human dignity and freedom of expression (see paragraphs 27-31 above). Lastly, certain UN or regional experts and bodies have criticised measures targeting begging, in particular where blanket bans are concerned (paragraphs 40-49 above).

105. In the light of the great variety of solutions adopted by the member States, the Court finds that there is no consensus within the Council of Europe with regard to bans or restrictions on begging. It nevertheless observes a certain trend towards limiting its prohibition, and a willingness on the part of States to simply focus on effectively protecting public order through administrative measures. A blanket ban under criminal law, such as the one at issue in the present case, appears to be the exception. The Court considers that this fact constitutes a second indication – in addition to the fundamental importance of the matter for the applicant’s subsistence – of the narrow margin of appreciation afforded to the respondent State in the present case.

106. Accordingly, the Court must examine whether the State overstepped that margin in the present case.

(γ) Weighing-up of the interests at stake

107. First, as regards the applicant’s (private) interest in engaging in the activity at issue, namely begging, there is no dispute as to the fact that she was from an extremely poor family, was illiterate, was unemployed and was not in receipt of social benefits. The evidence before the Court does not show that anyone else was providing for her. Consequently, the Court has no reason to doubt that begging constituted one of the possible means of providing for her basic needs. It considers that, being in a clearly vulnerable situation, the applicant had the right, inherent in human dignity, to be able to convey her plight and attempt to meet her basic needs through begging.

108. Regarding the nature and severity of the penalty, the Court observes that the applicant was ordered to pay a fine of CHF 500, to be replaced by a five-day custodial sentence in the event of non-payment. As she was incapable of paying this sum, the applicant did in fact serve a custodial sentence in the Champ-Dollon short-term prison as of 24 March 2015. Contrary to what the Government alleged, the Court considers that this custodial sentence can be taken into consideration in the instant case, despite its having been served after the present application was lodged, in that it was the direct result of the applicant’s inability to pay the fine imposed on her, namely the very measure of which she complained before the Court. Moreover, the Government had ample opportunity to comment on the proportionality of that measure during the adversarial proceedings before the Court.

109. The Court observes that this was a severe sanction. In the circumstances of the present case, in view of the applicant’s precarious and vulnerable situation, the imposition of a custodial sentence, which was liable to further increase an individual’s distress and vulnerability, was almost automatic and inevitable in her case.

110. The Court considers that such a measure must be justified on solid public interest grounds, which did not obtain in the present case, as it will now demonstrate.

111. Concerning the respondent State’s argument to the effect that one of the aims of section 11A of the LGP was to combat human trafficking and, in particular, the exploitation of children, in an effective manner, the Court acknowledges the importance of combatting such activities and the obligation of the States Parties to the Convention to protect victims (see, in particular, Rantsev v. Cyprus and Russia, no. 25965/04, ECHR 2010; M. and Others v. Italy and Bulgaria, no. 40020/03, 31 July 2012; L.E. v. Greece, no. 71545/12, 21 January 2016; J. and Others v. Austria, no. 58216/12, 17 January 2017; Chowdury and Others v. Greece, no. 21884/15, 30 March 2017; T.I. and Others v. Greece, 40311/10, 18 July 2019; and S.M. v. Croatia [GC], no. 60561/14, 25 June 2020).

112. That being said, the Court doubts that penalising the victims of these networks is an effective measure for combatting that phenomenon. In its report concerning Switzerland published in 2019, the Group of Experts on Action against Trafficking in Human Beings (GRETA) found that the criminalisation of begging placed the victims of forced begging in a situation of heightened vulnerability (see paragraph 235 in fine of that report; paragraph 39 above). It furthermore “urge[d] the Swiss authorities to ensure compliance with Article 26 of the Convention [on Action against Trafficking in Human Beings] through the adoption of a provision on the non-punishment of victims of trafficking for their involvement in unlawful activities to the extent that they were compelled ...” (see paragraph 38 above). Furthermore, the Government did not allege that the applicant was part of a criminal network or that she was otherwise the victim of a third party’s criminal activities, and there is nothing in the file to suggest that this was the case.

113. As to the public interest of the authorities in imposing the measure in order to protect the rights of passers-by, residents and shopkeepers, the authorities do not appear to have accused the applicant of engaging in aggressive or intrusive forms of begging, nor were any complaints apparently made to the police by third parties. In any event, the Court finds it salient to note that, in the view of the United Nations Special Rapporteur on extreme poverty and human rights (see paragraph 46 above), a desire to reduce the visibility of poverty in a city and attract investments is not a legitimate aim from a human rights standpoint, contrary to what the Government appeared to allege (see paragraph 79 above).

114. Lastly, the Court must examine whether less stringent measures could have achieved the same or a comparable result. It notes that in its judgment of 9 May 2008 the Federal Supreme Court found that less restrictive legislation would have proved ineffective, referring to the findings of law made in its previous judgments (see point 5.7.2 cited in paragraph 18 above). A comparative-law survey of legislation on begging shows that the majority of Council of Europe member States impose more nuanced restrictions than the blanket ban under section 11A of the Geneva Criminal Law Act. Moreover, while the State had some margin of appreciation in the matter, compliance with Article 8 required the domestic courts to thoroughly examine the particular situation in each case. Accordingly, the Court cannot endorse the Federal Supreme Court’s argument that less restrictive measures would not have achieved the same or a comparable result.

(δ) Conclusions

115. In view of the foregoing, the Court finds that the penalty imposed on the applicant was proportionate neither to the aim of combating organised crime nor to that of protecting the rights of passers-by, residents and shopkeepers. In the present case, it considers that the measure pursuant to which the applicant, an extremely vulnerable person, was punished for her actions in a situation in which, to all appearances, she had lacked any other means of subsistence and had thus had no choice but to beg in order to survive, diminished her human dignity and impaired the very essence of the rights protected by Article 8 of the Convention. The respondent State therefore overstepped its margin of appreciation in the present case.

116. Accordingly, the Court finds that the interference with the applicant’s rights under Article 8 was not “necessary in a democratic society” within the meaning of Article 8 § 2.

117. Consequently, there has been a violation of Article 8 of the Convention.

118. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

119. The applicant submitted that the ban on begging constituted an unacceptable infringement of her freedom of expression in that it had prevented her from conveying her distress by seeking charity. She relied on Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

3. The Government contested that argument.

4. Having found a violation of Article 8 of the Convention, the Court considers that the complaint under Article 10 does not raise any separate and essential issue. Accordingly, there is no need to give a separate ruling on that complaint (see, to that effect, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

5. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

6. Lastly, the applicant complained that she had been the victim of discrimination on the ground of her social status and financial situation, and also on that of her origins. In that connection, she relied on Article 14 of the Convention in conjunction with Article 8. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

122. The Government contested that argument.

123. Having found a violation of Article 8 of the Convention, the Court considers that there is no need to give a separate ruling on the complaint under Article 14 in conjunction with Article 8 of the Convention (see, to that effect, Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 156).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

124. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1. Damage

2. The applicant claimed 1,000 Swiss francs (approximately 922 euros (EUR)) in respect of non-pecuniary damage that she alleged she had suffered as a result of her detention.

3. The Government submitted that the Court could not take the applicant’s detention into account in the context of the present application and that that claim should therefore be dismissed.

4. The Court considers that the facts underlying the finding of a violation of Article 8 must have caused the applicant a certain degree of distress. It is therefore appropriate to award her the amount claimed (EUR 922) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

5. Default interest

6. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

for these reasons, the court

1. Declares, unanimously, the complaint concerning Article 8 of the Convention admissible;
2. Holds, unanimously, that there has been a violation of Article 8 of the Convention;
3. Holds, by five votes to two, that there is no need to examine separately the complaints under Article 10 and under Article 14 in conjunction with Article 8 of the Convention;
4. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 922 (nine hundred and twenty‑two euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in French, and notified in writing on 19 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Paul Lemmens
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

– concurring opinion of Judge Keller;

– partly concurring and partly dissenting opinion of Judge Lemmens;

– partly concurring and partly dissenting opinion of Judge Ravarani.

P.L.
M.B.

CONCURRING OPINION OF JUDGE KELLER

(Translation)

Introduction

1. I fully concur with the finding of a violation of Article 8 of the Convention, which, moreover, was arrived at unanimously (see paragraph 117 of the judgment). However, I can only partially concur with the majority’s argument to the effect that there is no need in the present case to give a separate ruling on Article 10 of the Convention (see paragraph 120 of the judgment).

2. In my opinion, the majority ought to have taken a two-step approach. They should first have declared the complaint concerning freedom of expression admissible on the grounds that it raised a separate and essential issue (see paragraphs 3 et seq. below), and only then should they have found, on the merits, that it was not necessary to rule separately on the complaint in question (see paragraphs 14 et seq. below).

The admissibility of the complaint under Article 10 of the Convention

3. First, I think it is essential to note that the applicant, on account of her extremely precarious circumstances – which were in no way contested – was in a specifically vulnerable situation (see, mutatis mutandis, Oršuš and Others v. Croatia [GC], no. 15766/03, § 147, ECHR 2010). It follows that she should be granted special protection.

4. Next, I would like to emphasise that the Court has never had to rule on whether begging falls within the scope of freedom of expression for the purposes of Article 10 of the Convention.

5. That provision has an eminent role in a democratic society as it guarantees freedom of expression to “everyone”: no distinction is made according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom (see Çetin and Others v. Turkey, nos. 40153/98 and 40160/98, § 57, ECHR 2003-III).

6. All forms of expression, whether written, oral, in signs, pictures or otherwise are therefore protected. It should be recalled that the Court has clarified on numerous occasions that freedom of expression also encompasses certain forms of conduct (see, in particular, Ibrahimov and Mammadov v. Azerbaijan, nos. 63571/16 and 5 others, §§ 166-167, 13 February 2020; Murat Vural v. Turkey, no. 9540/07, 21 October 2014; and Semir Güzel v. Turkey, no. 29483/09, 13 September 2016).

7. Moreover, subject to paragraph 2, Article 10 of the Convention is applicable not only to “information” and “ideas” that are favourably received or regarded as inoffensive, but also to those that disturb, offend, or shock the State or any sector of the population (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).

8. In the present case, I have no doubt that, when she engaged in begging, the applicant’s conduct was protected by Article 10 of the Convention.

9. Firstly, the act of holding out one’s hand or a cup constitutes a genuine cry of distress and an appeal to the generosity of others. Begging is the ultimate means of conveying one’s destitution in words or gestures.

10. Beyond purely legal considerations, the act of holding out one’s hand is a gesture that is universally recognised and understood as a cry for help, irrespective of the language one speaks or the part of the world one is in. The same is true, for example, of soldiers who put down their weapons and raise their hands in the air or of an army waving a white flag. These are cases of conduct that is understood by all to signify a clear intention to surrender, to the point that they even constitute a customary rule of international humanitarian law (Rule 47 of customary international humanitarian law, which is based on common Article 3 of the Geneva Conventions and Additional Protocol I). The applicant’s conduct thus undeniably fell within the scope of, and was protected by, freedom of expression.

11. This is all the more evident as the message of distress is addressed to others and constitutes a clear invitation to interact. The addressees of that invitation are free to ignore it or respond to it. In the latter case, it marks the starting point of an exchange of messages and of one of the most elementary forms of social interaction.

12. Finally, I would like to point out that several national constitutional courts have already held that begging constitutes a form of conduct protected by freedom of expression (see in particular the Austrian Constitutional Court’s judgment of 30 June 2012 (G 155/10-9) and that delivered by the Irish High Court in the case of Dillon v. Director of Public Prosecutions [2008], 11R 383).

13. In the light of the foregoing, I consider the complaint under Article 10 of the Convention to have raised a separate and essential issue in the present case. Begging is undeniably protected conduct under that provision. The Genevese law that purely and simply banned it therefore clearly interfered with the applicant’s right to freedom of expression. That complaint should accordingly have been declared admissible.

The merits of the complaint under Article 10 of the Convention

14. Having declared the complaint under Article 10 admissible, the Court would – in principle – have had to rule on its merits, namely on the question whether such an interference satisfied the conditions of Article 10 § 2 of the Convention.

15. Now, the Court having – unanimously – found that there has been a violation of Article 8 of the Convention (see paragraph 117 of the judgment), the judgment already includes a detailed examination of the three conditions required by the second paragraph of that provision.

16. The first condition, which requires that the measure be “in accordance with the law” or “prescribed by law”, does not differ from Article 8 to Article 10 of the Convention. As regards the second condition, namely the requirement as to the legitimacy of the aim pursued, the aims of preventing disorder and protecting the rights of others acknowledged by the Court under Article 8 are also accepted with regard to freedom of expression (see, to that effect, Saint-Paul Luxembourg S.A. v. Luxembourg, no. 26419/10, § 56, 18 April 2013). As to the third condition, the examination of proportionality required by Article 10 is similar to (or even stricter than) that required by Article 8 (see, to that effect, Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, §§ 89 and 102, 22 November 2012).

17. Proceeding with an analysis of the conditions under Article 10 § 2 would therefore not have raised any separate and essential issues given that the Court had already carried out a detailed examination in the light of the criteria laid down by Article 8 of the Convention and had found a violation of that provision. Furthermore, such an exercise would have run counter to the principle of “procedural economy” laid down by the Court.

Conclusion

18. I am thus in agreement with the majority concerning the fact that the complaint under Article 10 of the Convention does not raise a separate and essential issue. That being said, I consider that to be true only with regard to the merits and not to the admissibility of the complaint. The present case offered the Court an opportunity to accept that begging constitutes conduct protected by Article 10 of the Convention and it failed to seize that opportunity, to my great regret.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE LEMMENS

(Translation)

1. I am in full agreement with the finding of a violation of Article 8 of the Convention in the present case.

The present judgment sends a very powerful signal, namely that the Convention is aimed at protecting the human dignity of all persons, even those who – sometimes compelled by circumstances to do so – take up a way of life that is shunned by the “majority”.

The complaint submitted to the Court was mainly based on Article 8 of the Convention. I wonder to what extent Article 3 may not also have been relevant.

2. I voted against point 3 of the operative part of the judgment because in my view the complaints alleging violations of Articles 10 and 14 raise serious issues.

Under Article 10, the main issue is whether that provision is applicable. Can the applicant be considered, despite having displayed rather passive conduct, without speaking, to have nevertheless conveyed a message to those whose attention she wished to draw?

Under Article 14, it is first and foremost a matter of evidence: is there a difference in treatment between Roma and others, and if so, are there objective considerations, unrelated to the person’s origins, that can explain that difference?

These are two questions which, in my view, would have warranted a separate examination of the complaints in question.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE RAVARANI

(Translation)

1. Although I agree with the finding of a violation of Article 8 of the Convention in the present case, I find it difficult to follow the argument resulting in that finding (I). Moreover, I could not join the majority in taking the view that the complaint under Article 10 of the Convention did not raise a separate and essential issue and that, since the Court had found a violation of Article 8, it did not need to give a separate ruling on the complaint under Article 14 in conjunction with Article 8 of the Convention (II).

2. The complaint under article 8 of the convention

3. The Court’s difficult role in establishing the facts. Generally speaking, the Court’s dual role – to render justice individually on the basis of the facts established in each case and to define major principles that are valid beyond the case at hand – almost comes down to an attempt to square the circle. As soon as the parties to the dispute fail to agree on the facts, the Court, which only has very limited – if not negligeable – means available to it to establish the facts of the case on its own, since it is typically located thousands (in the present case, hundreds) of kilometres away from the place where those facts took place and passes judgment years later, must rely on presumptions and make conjectures.

4. Yet it is essential to have a solid factual basis if one wishes to administer justice in an individual case – let alone establish principles with reference to it – and very often, where there is no certainty as to the facts, justice is ill served. The majority themselves emphasise the importance of this aspect of the Court’s role by reiterating “that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ... In other words, the specific circumstances of each case must be taken into consideration, in particular the reality of the person’s economic and social situation.”[4]

5. The importance given to the facts of the case by the majority. The facts of the present case are very important because the judgment’s reasoning is for the most part based on the factual finding that “[the applicant] was from an extremely poor family, was illiterate, was unemployed and was not in receipt of social benefits. The evidence before the Court does not show that anyone else was providing for her. Consequently, the Court has no reason to doubt that begging constituted one of the possible means of providing for her basic needs.”[5] And there can be no doubt as to the conclusion: it is because she was in such a state of extreme poverty that she needed to beg to provide for her basic needs[6], and it was for that reason that, according to the majority, her human dignity was at stake: “being in a clearly vulnerable situation, the applicant had the right, inherent in human dignity, to be able to convey her plight and attempt to meet her basic needs through begging”[7]. The assertion of a causal relationship between poverty and the need to beg in order to survive is particularly pronounced in the conclusion the judgment reaches concerning the proportionality of the impugned measure: “... [the Court] considers that the measure pursuant to which the applicant, an extremely vulnerable person, was punished for her actions in a situation in which, to all appearances, she had lacked any other means of subsistence and had thus had no choice but to beg in order to survive ...”[8] According to the judgment, this state of affairs was not only given weight when the respective interests were weighed in the balance, but had also been the reason why Article 8 of the Convention was applicable in the first place[9].

6. A factual narrative with multiple grey areas. The problem is that the majority take for granted the truth of what were mere submissions on the part of the applicant. It is not my intention here to contest that she, personally, was very poor. But beyond that agreed-upon fact, the majority can only speculate. Was that poverty inevitable?

7. The majority do not reply to the Government’s argument when the latter explain that the Swiss Constitution provides that no one must live in poverty and that Genevese law ensures social support for any person in the canton, even if that person is a non-resident[10].

8. They simply brush aside the hypothesis that the applicant could have been a member or the victim of a network. They fail to examine that possibility in connection with the argument as to the applicability of Article 8 or on the merits of the case and merely assert that criminalising the victims of such networks is no solution[11]. Now, assuming such a fact had been established, that would completely alter the stakes of the debate as, in that case, the applicant’s poverty could have had other causes and, most importantly, begging would by no means have helped the victim provide for her basic needs. Human dignity, in such a case, would require that she be kept at all costs from having to beg for the benefit of those manipulating her.

9. Consequence: the emphasis on – unestablished – extreme poverty renders the conclusion weak and reductive. The insistence with which the majority refer to the applicant’s poverty – which was necessarily involuntary and even inevitable in this context – as justifying the applicability of Article 8 of the Convention considerably weakens this conclusion when faced with the doubts one may reasonably entertain precisely as to the inevitability of the applicant’s poverty.

10. In addition, such an approach is highly reductive in the sense that it is unclear how one should view begging when it is engaged in by those who are not in a situation of extreme poverty. Is poverty a condition sine qua non for the applicability of Article 8, and is it therefore necessary to prove that one lives in extreme poverty? Would a degree of destitution suffice? What criterion would one have to satisfy to fall within the category of those who are in a state of destitution such that begging would form part of their human dignity? Could one reasonably require those concerned to work – and if so, what kind of work should be required of them? We have here a raft of questions to which it would be very difficult, if not impossible, to reply. Are there then “good” and “bad” beggars? Might I remind the majority that certain well-known historical figures chose to live in poverty and to beg.

11. A criterion with fewer pitfalls: personal autonomy. One need neither look very far nor innovate in order to find a criterion that is at once broader and more solid: the decision to beg is part of the right to self-determination[12] and to personal autonomy, which is an important principle underlying the interpretation of the guarantees of Article 8[13]. Persons who beg adopt a particular way of life. The majority refer to that aspect of Article 8 but make it conditional in a certain sense on the financial situation of the person who adopts that way of life, since they add that the person concerned begs “... with the aim of rising above an inhumane and precarious situation”[14].

12. The Federal Supreme Court built its reasoning – paradoxically more generously than the majority – on the adjacent concept of “personal liberty”. It thus considered that “begging, as a form of the right to call on another person in order to obtain his or her assistance, must evidently be regarded as a basic freedom, forming part of the personal liberty secured by Article 10 § 2 of the Constitution”[15]. It is hard to add anything to a judgment of the Federal Supreme Court of 9 May 2008, cited in the present judgment, which reads[16]:

“The act of begging consists in seeking alms, calling on the generosity of others to obtain their assistance, very generally in the form of a sum of money. The causes and aims of begging may be varied. Nevertheless, it most often originates in the beggar’s destitution, sometimes also in that of his or her family, and seeks to remedy a situation of impoverishment. So defined, begging, as a form of the right to call on another person in order to obtain his or her assistance, must evidently be regarded as a basic freedom ...”

12. The limits of the “freedom” to beg. Of course, such a freedom, like all freedoms, is not unlimited and it would be laborious to list here all the limits – in terms of place, time, special circumstances – to which that freedom may be subject.

13. In quite traditional fashion, the common denominator of the legitimacy of those limits must be sought in the freedom of others. Accordingly, from the moment it becomes active, aggressive or insistent, begging may be regulated, restricted or prohibited. But the mere fact that it is considered improper by some does not make it unlawful. Such is the price of living in society. Thus, even if there are those who are inconvenienced by demonstrations in the public square and others who feel fear – sometimes irrationally so – when faced with pet animals being walked in public spaces, an outright ban on such activities would seem unthinkable, although regulating them of course remains possible, and even necessary. Likewise, a blanket ban on begging would not be legitimate. On this point I agree with the judgment which, setting aside other potentially legitimate aims of the impugned legislation, “does not rule out the possibility that certain forms of begging, especially aggressive ones, might disturb passers-by, local residents and shopkeepers [and] also recognises the validity of the argument concerning efforts to combat the exploitation of individuals, particularly children”[17].

14. Imprisonment for begging: a disproportionate penalty. While agreeing with the majority when they find that the respondent State overstepped its margin of appreciation by punishing the applicant’s activities with five days’ imprisonment, I wish to distance myself from the underlying reasoning. When weighing up the respective interests[18], the majority emphasise the applicant’s extreme poverty and her vulnerability. In my view, that was not really necessary or, at the very least, not decisive. What mattered, however, was the applicant’s conduct, which was neither aggressive nor insistent, since she had done no more than to hold out a cup. Such a passive attitude – even if it might have inconvenienced some – did not warrant a prison sentence. In the present case, such an observation would have been sufficient to reach a finding of a violation of Article 8.

15. the complaints under articles 10 and 14 of the Convention

16. Important and separate issues. Like my colleague Paul Lemmens, I felt obligated to vote against the refusal to examine separately the complaint under Article 10 of the Convention, on the grounds that it did not raise a separate and essential issue, together with that under Article 14 in conjunction with Article 8, on the grounds that, having found a violation of Article 8, the Court had no need to give a separate ruling on that complaint.

17. This technique is well known and widely used. It is a means by which the Court seeks to hear as many cases as possible, to focus on essential legal issues, to avoid overloading a given judgment and to bring greater clarity by avoiding peripheral or secondary complaints[19]. However, where the complaints are neither peripheral nor secondary, passing over an essential and even a separate aspect of a complaint could rightly be seen as a partial “denial of justice”[20].

18. In the present case, the two neglected complaints raised important and completely separate issues from those examined under Article 8. Moreover, the complaint under Article 10 was the main complaint raised by the applicant[21] and the Swiss Federal Supreme Court had dwelt on it at length. Likewise, the question of indirect discrimination against the Roma population under the Genevese legislation prohibiting begging was different from that of the applicant’s individual ability to beg. That the majority chose not to tackle these issues is regrettable. That being said, and without wishing to undertake an analysis of those two complaints myself, the factual allegations in the present case are so meagrely substantiated that it would very likely have proven exceedingly difficult to construct solid legal reasoning under those heads.

[1] In certain member States, there are bans at both national and local level, for example in Serbia or in France. Thus, in France, “aggressive” begging is prohibited at the national level under the Criminal Code (Article 312-12-1); begging may, additionally, be prohibited at the local level by anti-begging orders issued by mayors, local municipal elected representatives. In theory, such orders could also be issued by the prefect (the State).

[2] https://www.coe.int/fr/web/commissioner/-/time-to-debunk-myths-and-prejudices-about-roma-migrants-in-europe

[3] https://www.achpr.org/public/Document/file/Any/principles_on_the_decriminalisation_of_petty_offences_efpa.pdf

[4] See paragraph 57 of the judgment.

[5] See paragraph 107 of the judgment.

[6] See paragraph 58 of the judgment.

[7] See paragraph 107 of the judgment.

[8] See paragraph 115 of the judgment.

[9] See paragraphs 58 to 60 of the judgment.

[10] Swiss Federal Supreme Court, 9 May 2008 [6C_1/2008 (ATF 134 I 214)], § 5.7.3, cited in paragraph 18 of the judgment.

[11] See paragraph 112 of the judgment.

[12] Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017.

[13] See, for example, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III, and Di Trizio v. Switzerland, no. 7186/09, § 63, 2 February 2016.

[14] See paragraph 56 of the judgment.

[15] See paragraph 18 of the judgment.

[16] Swiss Federal Supreme Court, 9 May 2008, cited above, § 5.3.

[17] See paragraphs 97 and 98 of the judgment.

[18] See paragraphs 107 to 114 of the judgment.

[19] See, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014 or, previously, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007.

[20] See, for example, the separate opinion of Judge Sicilianos annexed to the judgment in Myasnik Malkhasyan v. Armenia, no. 49020/08, 15 October 2020.

[21] See paragraph 8 of the judgment.