CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 janvier 2021

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font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic }   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.     RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE Relevant law 15 .     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. Relevant case-law of the Federal Supreme Court 18 .     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, t he 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.” COMPARATIVE LAW AND PRACTICE The status of begging in the legislation of the member States of the Council of Europe 19.     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). 20.     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). 21.     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. 22 .     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. 23 .     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. 24.     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). 25.     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). 26.     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. Legal challenges to begging laws in member States’ courts 27.     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