DANIEL RIETIKER & MARY LEVINE*
On January 19, 2021, the European Court of Human Rights (ECtHR) held in Lăcătuş v. Switzerland, that an outright ban on begging in public places violated Article 8 of the European Convention on Human Rights (“the Convention”), suggesting that certain means of survival are encompassed under the Article’s protection of “private life.” Furthermore, the court concluded that Switzerland’s interference with that protection was not “necessary in a democratic society.” This Article reviews the novelty of the ECtHR’s approach in this new field and analyzes some of the judgment’s shortcomings. In Part I, we present the facts of the case along with the reasoning and main conclusions of the court; in Part II, we critically assess the judgment and its implications.
I. Lăcătuş v. Switzerland
A. Factual Summary
The applicant, Violeta-Sibianca Lăcătuş, is a Romanian national born in 1992, and living in Romania. After failing to find work in 2011, she resorted to begging for change on the streets of Geneva. Despite Lăcătuş using begging as a means of survival, the Geneva Criminal Law Act (“Geneva Act”), section 11A, made it a criminal offense to beg in public places. The law mandated that,
“1. Anyone who begs will be punished by a fine;
2. If the perpetrator organizes the begging of others or if he is accompanied by one or more minors or dependents, the fine will be at least CHF 2,000.”
Accordingly, on July 22, 2011, while Lăcătuş was begging on the streets of Geneva, the local police confiscated 16.75 Swiss francs (CHF), equivalent to 18.35 U.S. dollars, from her, conducted a full body search, and ordered her to pay a fine of CHF 100 (USD 109.54). Over the next two years, she was placed in police custody twice for over three hours, and she was additionally fined CHF 100 eight times. In an attempt to provide an alternative to the monetary punishments, the authority offered Lăcătuş one-day custodial detention for each fine she was unable to pay.
B. Procedural History
Consequently, Lăcătuş appealed her penal orders. On January 14, 2014, the Police Court of the Canton of Geneva denied her appeal and found her guilty of begging under the Geneva Act, thereby confirming the police’s confiscation and full-body search. The court further ordered her to pay a fine of CHF 500 (USD 547.71) or face a five-day custodial sentence. Lăcătuş then appealed the court’s order to the Criminal Appeals and Review Division of the Court of Justice of the Canton of Geneva. On April 2, 2014, the appeals court dismissed her appeal, and on September 10, 2014, the federal court likewise dismissed her appeal.
Because her federal appeal was dismissed and she remained unemployed, she was thereafter detained from March 24–28, 2015, at the Champ-Dollon Remand Prison for failure to pay her fines.
With no domestic remedy, on March 17, 2015, Lăcătuş — now the applicant — lodged a complaint with the ECtHR, insisting that the Swiss ban on begging violated Article 8 of the Convention (right to respect for private and family life), Article 10 (freedom of expression), and Article 14 (prohibition on discrimination). The applicant argued that the Geneva statute banning begging constituted an interference with her private life, as it deprived her of a means to survive. Moreover, she argued that the prohibition on begging prevented her from asking for charity, and further, that the Act discriminated on the basis of financial status and Roma descent.
C. The Court’s Judgment
On January 19, 2021, the ECtHR issued a chamber judgment, unanimously holding that the Geneva Criminal Law Act violated Article 8 of the Convention. Consequently, the chamber declined to consider Lăcătuş’s Article 10 and 14 claims.
The court noted that the Swiss government did not dispute its interference with the right to respect for private life under Article 8; rather, the government argued that it had a legal basis for this interference under the Geneva Act. The Swiss government asserted that the Geneva Act had a legitimate aim because it provided public order and safety, promoted the economic well-being of the country through tourism, and further protected the rights and freedom of others, such as patrons at restaurants, shoppers, and so on. The court recognized these as legitimate government aims; however, the court ultimately found that because the Geneva Act was a blanket prohibition on begging — in other words, an outright ban on a certain type of conduct — the state required a strong justification, and the court needed to apply rigorous scrutiny considering the interests at stake.
Using this framework, the court first assessed the applicant’s demographics and characteristics as a person of manifest vulnerability. The court noted that the applicant came from an extremely poor family, was illiterate, unemployed, and received no social benefits from the Swiss government. Therefore, since begging was her exclusive means of survival, the court determined that Lăcătuş “had the right, inherent in human dignity, to be able to express her distress and to try and satisfy her needs by begging.”
The court then reviewed the nature and severity of the penalty. First, the court acknowledged that the five-day sentence was a severe sanction, particularly given that the sanction was not justified by a sound public-interest rationale. Moreover, the court reasoned that this deprivation of liberty would likely aggravate the applicant’s distress and vulnerability. The court rejected the Swiss government’s assertion that it lacked less restrictive means, relying upon an assessment of similar international legislation. The court reviewed begging legislation in the Council of Europe’s forty-seven member states and found that the Swiss ban on begging was more restrictive and harsher than many other countries’ criminal begging statutes.
As a result, in balancing the interests of the parties, the court determined that a five-day sentence for Lăcătuş was not proportionate to the aim of combatting organized crime and protecting the rights of passersby. Accordingly, the Geneva Act infringed on Lăcătuş’s human dignity, and thus “impaired the very essence of the rights protected under article 8.” She was therefore awarded just satisfaction of nonpecuniary damages under Article 41 in the amount of 922 euros.
II. ASSESSMENT OF THE JUDGMENT
This Part is divided into three sections: Section II.A discusses the novelty of the ECtHR’s approach toward begging. Section II.B evaluates the judgment’s resulting diminished margin of appreciation, both through its use of international materials and given its heightened proof requirements for legitimate government interests. And section II.C examines the court’s failure to analyze Lăcătuş’s Article 10 and Article 14 claims.
A. Scope and Novelty of the Court’s Approach Toward Begging
The novelty of Lăcătuş stems primarily from the court’s recognition that begging might be a human rights issue. By holding that begging falls within Article 8, the court created a quite expansive definition of “private life.” The court explicitly reasoned in its admissibility assessment that “private life” under Article 8 is a “broad concept, not susceptible of an exhaustive definition.” It can sometimes embrace aspects of the physical and social identity of an individual.” Moreover, the court noted that human dignity is encompassed under the protections of Article 8, further deeming a person’s means of subsistence as a foundational component in her own human dignity.
Some judges critiqued this expansion, suggesting that the facts of Lăcătuş do not clearly establish that the applicant was obliged to beg in order to survive and escape poverty. Judge Ravarani noted that the scope of “human dignity” must be fleshed out even more, indicating that an applicant must do everything possible to avoid the criminalized act in order for human dignity to be invoked.
B. Switzerland’s Diminished Margin of Appreciation
1. Application of International and Comparative Interpretations
While Lăcătuş focused mainly on expanding the scope of Article 8 protections, the court also applied a comparative law analysis of legislation adopted by member states and considered the relevance of international treaties and sources. This was necessary due to the Swiss government’s argument that bans and restrictions of begging existed in other Council of Europe member states and that, as a result, they enjoyed a considerable margin of appreciation in this domain. The margin of appreciation is the leeway given to a state in determining the necessity of an interference into the right at stake in a given situation, including the proportionality of the impugned measure. It is the expression of the principle of subsidiarity that imposes on the court the duty to apply a certain restraint in assessing the domestic tribunals’ decisions and to limit its own control (the so-called “European control”) to the question of whether a fair balance has been struck between the private interests of the applicant, on the one hand, and the public interests of society, on the other. In other words, as long as the conclusions of the domestic tribunals do not appear arbitrary or manifestly unreasonable, it is not up to the court to replace the considerations by the domestic tribunals by its own assessment.
In coming to its conclusions, the court reviewed various member states’ criminal acts related to begging and the judicial interpretations of this legislation, including opinions by the Constitutional Court of Austria, the Belgian Council of State, the Hungarian Constitutional Court, the High Court of Ireland, and the Italian Constitutional Court. After its review of member states’ judicial interpretations, the court thereafter found that the Swiss ban was comparatively too far reaching.
In particular, the court found that nine of the thirty-eight member states the legislation of which the court examined, did not consider it necessary to ban begging at all. In the eighteen member states that provided rules on the national level, six have banned only aggressive or intrusive forms of begging, seven have otherwise restricted the scope of such legislation, and only five have less nuanced laws in place, prohibiting begging more generally. Finally, in the eleven states where begging laws existed only on the local (regional) level, such as in Switzerland, the scope of the legislation was generally limited too, in particular to aggressive or intrusive forms of begging. In other words, whereas no consensus existed among the member states on the question of banning or restricting begging, it nevertheless turned out that most other member states had only limited restrictions on begging, whereas the Swiss ban on begging was comprehensive. This outright ban on begging, paired with Lăcătuş’s dire need to beg, informed the court’s decision to conclude that Switzerland’s margin of appreciation was limited.
Furthermore, the court assessed relevant international treaty provisions. For example, the court invoked Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (“EU Human Trafficking Convention”), suggesting that Swiss authorities inappropriately punished individuals for engaging in unavoidable conduct. In particular, the EU Human Trafficking Convention’s monitoring group has noted that begging is one of the unavoidable behaviors that states should not punish.
2. Rejecting Switzerland’s “Legitimate” Government Interest
Not only did the court inform itself by relying on international materials, but the court also expressly limited the margin of appreciation in its assessment of the Swiss government’s interests. As mentioned previously, one of the most decisive points to the court was the disproportionate balancing of interests between the applicant and the state. The court found that the Swiss ban on begging was too absolute, and that the sanction was too harsh given the circumstances. Instead of providing Switzerland with a (broad) margin of appreciation to criminalize begging in absolute terms, the court indicated that disproportionate interests would implicate a violation under the Convention. In their discussion, the court cited Parrillo v. Italy, which held that a margin of appreciation may be restricted when a particularly important aspect of an individual’s existence or identity is at stake. As such, the court again diminished state sovereignty in the name of protecting minorities historically targeted by the state.
Thus, even though Article 8 is not an absolute right under the Convention, the court’s high standard for Article 8 assessments suggests that state-imposed restrictions will have limitations under the Convention. The court cited the United Nations Special Rapporteur on Extreme Poverty and Human Rights, who argued that the state interest in keeping the town clean and attractive for tourists cannot result in an absolute ban on conduct, particularly conduct that relates to the applicant’s identity and means of survival. This reliance on the Special Rapporteur’s critique of a state regulation limits state sovereignty and reinforces the court’s commitment to ensuring that impoverished people receive appropriate protection.
C. The Court’s Failure to Assess Articles 10 and 14
In Lăcătuş, the European Roma Rights Center (ERRC) filed a third-party intervention outlining historical and modern “antigypsyism” and its resulting statistical increase on poverty for Roma citizens. The ERRC explained that this increased occurrence of poverty has led to a false narrative of Roma as inherent “criminals.” The ERRC report also analyzed various Council of Europe jurisdictions and demonstrated that the criminalization of begging exacts a disproportionate impact on Roma. Particularly, the report showed that in the development of the Geneva Act on begging, the legislators showed clear discriminatory intent, including one legislator saying “there is begging tourism, which is practiced by travellers — all those gypsies who settle in camps just outside our borders, who hold out their hands by day and, by night, brandish the screwdrivers and crowbars they use to rob our homes.”
From our point of view, it is rather surprising that, in spite of these very precise and explicit submissions by a well-recognized NGO, the court did not want to engage in an analysis of the alleged breach of Article 14. This is particularly surprising considering that the court has identified in the past many situations in which Roma suffered serious violations of their human rights, including instances of discrimination. Moreover, the court, within its examination of the applicant’s Article 8 complaint, clearly and rightly acknowledged her particular vulnerability due to her Roma origin.
While the Geneva Act did not specifically target the Roma community, Roma citizens were disproportionately impacted by the criminalization of begging due to their disproportionate degree of vulnerability and poverty. It is worth mentioning that the court shaped its “indirect” discrimination doctrine in a different case involving alleged discrimination against Roma. In D.H. and Others v. The Czech Republic, Roma children were disproportionately allocated to “special schools” delivering inferior education. While a chamber of the court held that the same educational test was applied to all Czech pupils, the grand chamber reversed, finding that the statistical data gave rise to a strong presumption of “indirect” discrimination, which meant that it was up to the government to prove that the differential impact was the result of objective factors not connected to the racial origins of the applicants. In D.H., the government was unable to provide satisfactory evidence, and the grand chamber found a violation of Article 14 taken in conjunction with the right to education within the meaning of Article 2 of Protocol 1 to the Convention. It would be interesting to know if, in Lăcătuş, the court had used the theory of “indirect” discrimination, whether there would have existed enough evidence, including statistical data, for a sufficiently strong presumption of discriminatory treatment of Roma citizens by the Geneva police and, as a result, whether the court would have reached, mutatis mutandis, the same conclusion as the grand chamber in the case against the Czech Republic.
Finally, the court did not address the question of whether the applicant’s situation also falls under freedom of expression within the meaning of Article 10 and whether there was a violation of this guarantee. In its judgment, the court referred to a June 2012 decision of the Austrian Constitutional Court, in which a Salzburg public security law prohibiting begging on public grounds was considered contrary to freedom of expression. It would have been interesting to know whether the court considers begging an “expression” within the meaning of Article 10 and whether this provision was infringed in the case of Lăcătuş. Having however already found a violation of Article 8, the court did not feel compelled to pronounce an additional ruling under Article 10. Judge Keller, in her separate opinion, expressed the view that begging is a form of expression falling under the scope of Article 10 and that the court should have declared this complaint admissible. She shared, however, the opinion of the majority that it was not necessary, after having found a violation of Article 8, to examine the question of whether there had been a violation of that provision in the present case. It is our understanding that, even if such an approach would not have changed the outcome of Lăcătuş, the finding that begging can be considered an “expression” under Article 10 could have been significant for potential future cases.
Lăcătuş v. Switzerland is a leading case for the protection of vulnerable people, and there is no doubt that, judging by the detailed and balanced reasoning, the court wanted to adopt several principles in this new area.
The court wanted to demonstrate that it does not act in a vacuum. To that end, it used many diverse external resources, such as the case law of the Inter-American Court of Human Rights and the African Commission of Human Rights, legal opinions of United Nations experts, and domestic laws and practice. This wide range of external sources indicates that the court considers it important to ground its opinions in international consensus or trends. In Lăcătuş, the comparative analysis allowed the court to show that the canton of Geneva’s solution went further than what was the trend in the majority of member states of the Council of Europe.
We are of the opinion that the judgment expresses considerations of humanity that meet the expectations in a regional human rights court. One of the most remarkable aspects is the use of the notion of human dignity in order to bring into play the right to respect for private life under Article 8, rather than relying upon Article 3 (prohibition of torture and other ill treatment).
A criticism that can be made against the judgment is the court’s choice not to engage in the examination of Articles 10 and 14 once it found a violation of Article 8. Despite the fact that this approach reflects the normal practice of the court and can be justified by the principle of procedural economy, these complaints would have been worth pursuing, in particular the discrimination allegation. In this regard, it must be recalled that the applicant, of Roma origin, belongs to one of the most vulnerable groups in Europe, a group that has suffered and continues to suffer discrimination and ill treatment on a daily basis, as recognized by the Court in its examination of the Article 8 complaint.
In light of what precedes, and in spite of the fact that the judgment does not resolve the fundamental issues underlying the case — namely poverty, marginalization, and discrimination — it nevertheless constitutes a significant step forward in the recognition of human rights.
 Id. ¶ 92.
 Id. ¶ 116.
 Id. ¶ 2.
 Id. ¶ 4.
 Id. ¶ 5.
 Id. ¶ 16 (unofficial translation).
 Id. ¶ 5.
 Id. ¶ 6.
 Id. ¶ 7.
 Id. ¶ 8.
 Id. ¶¶ 9–11.
 Id. ¶ 14.
 Id. ¶¶ 50, 118, 121.
 Id. ¶ 50.
 Id. ¶¶ 118, 121.
 Id. ¶ 116.
 Id. ¶¶ 118–23.
 Id. ¶¶ 76–79, 94–95.
 Id. ¶¶ 76–79.
 Id. ¶¶ 96–97, 101–02.
 Id. ¶ 107.
 Id. ¶ 108.
 Id. ¶¶ 108–10.
 Id. ¶ 109.
 Id. ¶ 114.
 Id. ¶ 115.
 Id. ¶¶ 124–27.
 Id. ¶ 54.
 Id. ¶ 56.
 Id. (Ravarani, J., concurring and dissenting), ¶ 7.
 Id. ¶ 19.
 Id. ¶ 103.
 Id. ¶ 99.
 Id. ¶ 100.
 The Council of Europe has forty-seven member states, but it is rather rare that comparative studies, which are conducted by the research division of the court, cover all the members.
 Id. ¶ 20 (Albania, Andorra, Finland, Georgia, Greece, Moldova, Portugal, Slovakia, and Ukraine).
 Id. ¶ 22 (Estonia, France, Ireland, Italy, Serbia, and Slovenia).
 Id. (Azerbaijan, Croatia, Liechtenstein, Luxembourg, Poland, Romania, and San Marino).
 Id. (Cyprus, Hungary, Montenegro, United Kingdom, and Turkey).
 Id. ¶ 23 (Germany, Austria, Belgium, Bosnia and Herzegovina, Spain, Russia, Latvia, Lithuania, Netherlands, Czech Republic, and Sweden).
 Id. ¶ 105.
 Id. ¶¶ 39, 112.
 Id. ¶ 103.
 Id. ¶ 113.
 Third-Party Intervention, ¶¶ 8–12, Lăcătuş, App. No. 14065/15.
 Id. ¶¶ 13–17.
 Id. ¶¶ 18–24.
 Id. ¶ 25.
 Judge Lemmens’s concurrence in Lăcătuş touches on these issues. See id. (Lemmens, J., concurring and dissenting), ¶ 2.
 See, e.g., Moldovan v. Romania (No. 2), App. Nos. 41138/98 and 64320/01, 2005-VII Eur. Ct. H. R. 167 (extracts) (concerning destruction of houses and possessions); Hirtu v. France, App. No. 24720/13 (May 14, 2020), https://hudoc.echr.coe.int/eng?i=001-202442 (concerning forced evictions); Nachova v. Bulgaria, App. Nos. 43577/98 and 43579/98, 2005-VII Eur. Ct. H. R. 1 (concerning police brutality); V.C. v. Slovakia, App. No 18968/07, 2011-V Eur. Ct. H. R. 381 (extracts) (concerning forced sterilisation); Lakatošová v. Slovakia, App. No. 655/16 (Dec. 11, 2018), https://hudoc.echr.coe.int/eng?i=001-188265 (concerning shooting spree at Roma family’s home); Ctr. for Legal Res. v. Romania, App. No. 47848/08, 2014-V Eur. Ct. H. R. 1 (concerning death in a medico-social institution); R.B. v. Hungary, App. No. 64602/12 (Apr. 12, 2016), https://hudoc.echr.coe.int/eng?i=001-161983 (concerning verbal abuse and threats).
 App. No. 57325/00, 2007-IV Eur. Ct. H. R. 241; see also Oršuš v. Croatia, App. No. 15766/03, 2010-II Eur. Ct. H. R. 247.
 G.A. Serghides, The Prohibition of Discrimination Under the European Convention on Human Rights: Interpretation, Application and Mechanism, 31 Hague Y.B. Int’l L. 117, 133–34 (2018).
 Lăcătuş, App. No. 14065/15, ¶ 27.
 Id. (Keller, J., concurring), ¶¶ 3–13.
 Id. ¶¶ 14–17.
* Daniel Rietiker, PhD, is a Senior Lawyer at the ECtHR (Strasbourg), an international law lecturer at Lausanne University, and a member of the adjunct faculty of Suffolk University Law School (Boston). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this piece are strictly personal. Mary Levine is a Law Student at Suffolk University Law School.