CEDH · CASELAW;CLIN;ENG — 19 janvier 2021

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Switzerland - 14065/15 Judgment 19.1.2021 [Section III] Article 8 Article 8-1 Respect for private life Fine imposed on a poor and vulnerable Roma woman for unintrusive begging, and subsequent imprisonment for five days for non-payment: violation Facts – The applicant, who belongs to the Roma community, was found guilty of begging and ordered to pay a fine of 500 Swiss francs, to be replaced by a five-day custodial sentence in the event of non-payment. As she was unable to pay the fine she served a prison sentence. Law – Article 8:   (a) Applicability – The Court had never previously ruled on the issue whether a person penalised for begging could claim the protection of Article 8. Human dignity, a notion that was central to the spirit of the Convention, was severely compromised if the person concerned did not have sufficient means of subsistence. Persons who begged adopted a particular way of life in a bid to deal with a humiliating and precarious situation. Hence, the particular circumstances of each case had to be taken into consideration, and especially the reality of the person’s economic and social situation. The applicant was extremely poor, illiterate and had no work. She was not in receipt of social benefits and was not supported by any other person. Begging was a means for her to secure an income and alleviate her poverty. By imposing a blanket prohibition on begging and imposing a fine on the applicant, to be replaced by a prison sentence in the event of non-payment, the Swiss authorities had prevented her from approaching other people in order to obtain a form of help which, in her situation, was one of the possible means of meeting her basic needs. The right to call on other people for assistance went to the very essence of the rights protected by Article 8. Conclusion : Article 8 applicable. (b) Merits – There had been interference with the exercise by the applicant of her right to respect for her private life. The interference had been in accordance with the law. Referring to the Federal Court’s judgment, the Court did not rule out the possibility that some forms of begging, especially where it was aggressive, might disturb passers-by, local residents and shopkeepers. It also recognised the validity of the argument concerning efforts to combat the exploitation of individuals, particularly children. Thus, on the face of it, the interference had pursued the legitimate aims of preventing disorder and protecting the rights of others. The applicable legislation precluded a genuine balancing of the interests at stake and penalised begging in blanket fashion, irrespective of who was begging and whether he or she was vulnerable, the nature of the begging and whether or not it was aggressive, the location where it was carried out and whether or not the person concerned was part of a criminal network. The Court considered that it could leave open the question whether, despite the rigid nature of the applicable legislation, a fair balance could nevertheless have been struck in the instant case between the public interests of the State, on the one hand, and the applicant’s interests on the other. In any event it found, for the following reasons, that the respondent State had overstepped its margin of appreciation in the present case. There was no consensus within the Council of Europe with regard to the prohibition or restriction of begging. Nevertheless, there was 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 criminal-law ban, such as the one at issue in this case, appeared to be the exception. This was a second indication, in addition to the fundamental importance of the issue for the applicant, of the narrow margin of appreciation available to the respondent State in the present case. As to the applicant’s private interest in engaging in the activity in question, begging had constituted one of her means of survival. Being in a clearly vulnerable situation, she had had the right, inherent in human dignity, to be able to convey her plight and attempt to meet her basic needs by begging. As to the nature and severity of the penalty, a custodial sentence was a severe sanction. 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, had been almost automatic and inevitable in her case. A measure of this kind had to be justified by sound reasons in the public interest, which had not been present in this case. While acknowledging the importance of combating human trafficking and the exploitation of children, and the obligation of the States Parties to the Convention to protect victims, the Court doubted that penalising the victims of these networks was an effective measure. In its report concerning Switzerland published in 2019, the Group of Experts on Action against   Trafficking   in   Human   Beings (GRETA) had found that the criminalisation of begging placed the victims of forced begging in a situation of heightened vulnerability. It had also “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 to do so …”. Furthermore, the Government had not alleged that the applicant had been part of a criminal network or that she was otherwise the victim of other persons’ criminal activities, and there was nothing in the file to suggest that this had been the case. 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 did not appear to have accused the applicant of engaging in aggressive or intrusive forms of begging, nor had any complaints apparently been made to the police by third parties. In any event, in the view of the United Nations Special Rapporteur on extreme poverty and human rights, wishing to make poverty less visible in a city and to attract investment was not a legitimate reason from a human-rights perspective, contrary to what the Government appeared to be alleging. Lastly, the Court could not subscribe to the Federal Court’s argument that less restrictive measures would not have achieved a comparable result. The majority of Council of Europe member States imposed more nuanced restrictions than a blanket ban. 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. In view of the foregoing, the penalty imposed on the applicant had not been proportionate either to the aim of combating organised crime or to the aim of protecting the rights of passers-by, residents and shopkeepers. The punishment of the applicant, an extremely vulnerable person, in a situation in which she had in all likelihood lacked any other means of subsistence and had thus had no choice other than to beg in order to survive, had infringed her human dignity and impaired the very essence of the rights protected by Article 8. Accordingly, the respondent State had overstepped its margin of appreciation in the present case. Consequently, the interference had not been “necessary in a democratic society”. Conclusion : violation (unanimously). Article 41: EUR 922 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes