The ECHR decision of January 19, 2021 in the case "Lacatus (Lacatus) v. Switzerland" (aplication No. 14065/15).
In 2015, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Switzerland.
In the case, an aplication was successfully considered against the application of a fine to the applicant, who is in a vulnerable situation, a Gypsy, for non-aggressive begging, as well as her subsequent detention for non-payment of the fine. The case involved a violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant, a Gypsy by origin, was found guilty of begging, and she was ordered to pay a fine of 500 Swiss francs, to be replaced by five days of detention in case of non-payment of the fine. Since the applicant was unable to pay the fine, she served her sentence in the form of imprisonment.
Regarding compliance with article 8 of the Convention. (a) Applicability of article 8 of the Convention. The European Court has not previously ruled on the issue of whether a person punished for begging can claim a violation of Article 8 of the Convention against him.
Human dignity , the concept underlying the spirit of the Convention, is considered to have been seriously adversely affected if the person concerned does not have sufficient means of subsistence. Those engaged in begging lead a special way of life, trying to cope with a humiliating and dangerous situation. Thus, it is necessary to take into account the specific circumstances of each case, especially the realities of the financial and social situation of the person concerned.
The applicant was a low-income, illiterate and unemployed woman. She was not registered with social services, and no one supported her. Begging was the only way for her to secure an income and improve her plight a little. By imposing an absolute ban on begging and collecting a fine from the applicant, which was subject to imprisonment in case of non-payment, the Swiss authorities prevented the applicant from approaching other people in order to receive some form of assistance, which in the applicant's situation was one of the possible ways to meet the applicant's minimum needs. The right to seek help from others is at the very heart of the rights guaranteed by article 8 of the Convention.
The complaint of a violation of article 8 of the Convention is admissible on the merits.
(b) The substance of the complaint. There was an interference with the applicant's right to respect for her private life. The interference was provided for by law.
Referring to the decision of the Swiss Federal Court, the European Court did not exclude the possibility that some forms of begging, especially aggressive begging, could disturb passers-by, local residents and shopkeepers. The European Court also recognized the validity of the argument concerning efforts aimed at combating the exploitation of people, especially children. Thus, at first glance, the intervention pursued a legitimate goal of preventing riots and protecting the rights of others.
The Swiss legislation did not allow achieving a real balance of the interests affected in the present case and prohibited begging in any of its forms, regardless of who was engaged in begging and whether this person was in a vulnerable position, of the nature of begging and whether it was aggressive, of the territory where the begging took place, and whether the begging person belonged to a criminal organization. The Court considered that it could leave open the question whether in the present case, despite the strict nature of the applicable Swiss law, a fair balance could still be achieved between the public interests of the State, on the one hand, and the interests of the applicant, on the other. In any event, the Court found, for the reasons given below, that in the present case the Swiss authorities had exceeded the margin of appreciation granted to them. There is no consensus in the Council of Europe regarding the prohibition or restriction of begging. At the same time, there is a certain tendency towards limiting the prohibition of this activity and the willingness of States to focus on the effective protection of public order through administrative measures. A complete ban under the threat of criminal liability, as in the present case, seems to be an exception. This was a second indication, in addition to the particular importance of the issue under consideration for the applicant, of the insignificant discretion that the Swiss authorities had in this matter.
As for the applicant's personal interests, begging was one of the ways for her to survive. Being in a clearly vulnerable position, the applicant had the right, based on human dignity, to tell about her difficult situation and try to satisfy her minimal needs by begging.
As for the nature and severity of the punishment, deprivation of liberty was a serious sanction. In view of the applicant's precarious and vulnerable situation, the imposition of a custodial sentence on her, which increased the applicant's suffering and vulnerability, was almost automatic and inevitable in the applicant's case.
The application of a penalty of this kind must be justified for good reasons and carried out in the public interest, which was not the case in the present case.
Recognizing the importance of combating trafficking in persons and the exploitation of children, as well as the obligation of States parties to the Convention to protect victims of violations of the Convention, the European Court expressed doubt that the application of penalties to victims of these criminal schemes is an effective measure. In its 2019 report on Switzerland, the Group of Experts on Combating Human Trafficking (GRETA) found that as a result of the criminalization of begging, victims of being forced to engage in begging found themselves in a situation of increased vulnerability. The Expert Group also " called on the Swiss authorities to ensure compliance with article 26 of the [Council of Europe Convention on Combating Trafficking in Persons] by adopting rules on the absence of penalties for victims of trafficking in persons due to their participation in illegal activities to the extent that these persons were forced to do so...". In addition, the Swiss authorities did not claim that the applicant was a member of a criminal organization or that she was otherwise a victim of criminal activities of third parties, and nothing in the case file indicated these circumstances.
As for the public interest of the Swiss authorities in applying the measures in question to protect the rights of passers - by, local residents and shopkeepers, the authorities of the respondent State did not accuse the applicant of aggressive or intrusive begging, and apparently there were no relevant complaints to the police from third parties. In any case, according to the United Nations Special Rapporteur on extreme poverty and human rights, the desire to make poverty less visible in the city and attract investment was not a legitimate reason from the point of view of human rights, contrary to what the Swiss authorities seem to have claimed.
In conclusion, the European Court could not agree with the argument of the Swiss Federal Court that a less restrictive measure would not have provided a comparable result. Most of the member states of the Council of Europe used more detailed restrictions than an absolute ban. Moreover, although the State has some discretion in this matter, compliance with the requirements of article 8 of the Convention requires domestic courts to carefully consider the circumstances of each particular case.
In view of the above, the punishment applied to the applicant was not proportionate either for the purpose of combating organized crime or for protecting the rights of passers-by, local residents and shopkeepers. The punishment of the applicant, who was in an extremely vulnerable situation, in a situation where she probably had no other means of obtaining income and thus had no choice but to engage in begging in order to survive, violated the applicant's human dignity and the very essence of the right guaranteed by article 8 of the Convention. Consequently, the Swiss authorities in the present case went beyond the scope of the discretion granted to them.
Accordingly, the intervention was not "necessary in a democratic society".
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 922 euros as compensation for non-pecuniary damage.