Author: Lawyer Enrico Germano
In Switzerland, it is the cantons that regulate and decide the conditions for begging. In 2014, a Romanian woman of Rom ethnicity, Violeta-Sibianca Lacatus, appealed, assisted by a Geneva lawyer, against a fine of CHF 500.—(Swiss francs five hundred) for begging, armed with a plastic cup, on several occasions in the centre of Geneva, in accordance with Art. 11A of the Criminal Law of the Canton of Geneva (LPG). The same woman was placed in detention for five days for failing to pay this fine.
The European Court of Human Rights, based in Strasbourg, ultimately upheld her appeal on 19 April 2021, finding a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, after the Federal Supreme Court, Switzerland’s highest judicial authority, considered that the ban on begging violated neither Article 8 nor Article 14 of the Convention. Switzerland ratified the Convention on 28 November 1974 and it entered into force on the same day.
In essence, the European Court of Human Rights held that there was a violation of the right to respect for private and family life under Article 8 of the Convention, but did not hold that there was a violation of freedom of expression under Article 10 of the Convention, nor discrimination under Article 14 of the Convention.
Following this decision of the European Court, the Federal Supreme Court recently partially admitted an appeal against the partial ban on begging in the Canton of Basel-Stadt, annulling the ban on begging in public parks, which it considered to be a disproportionate measure and not justified by any overriding public interest.
For the rest, the Federal Supreme Court continues to hold that the first paragraph of Article 9 of the cantonal law on police fines in the canton of Basel-Stadt is in conformity with fundamental rights for people who beg in an organised manner, send other people to beg, or beg using deceptive or unfair methods. For these cases the person begging can be punished. The Federal Supreme Court also considers paragraph 2 of the same section, which provides for a fine for begging on the public street or in places open to the public, thereby endangering security, tranquillity and public order, to be in conformity with fundamental rights. This occurs when the begging is intrusive or aggressive, when it is practised within five metres of specific places (including public transport stops, vending machines or restaurant entrances) or in certain places such as parks, playgrounds or cemeteries. It follows that a fine can only be imposed on persons practising passive begging if the less restrictive measures previously adopted are not effective. But in practice people who beg have no financial means and therefore cannot pay them, so that the fine is often only an intermediate step towards deprivation of liberty. The Federal Court finds this unacceptable in view of the particular destitution and vulnerability of beggars. A fine for passive begging is therefore only in line with fundamental rights if less restrictive measures are taken to enforce the ban on begging.
Canton Vaud is also revising its rules. Canton Vaud may continue to punish beggars, but under certain conditions. The ruling Lacatus v. Switzerland by the European Court of Human Rights certainly considers the ban on begging in general illegal, but it does not prohibit restricting it. The canton of Vaud’s Council of State is therefore proposing a bill to parliament, which will have to debate it, that would restrict the practice of begging.
2 Cour Européenne des droits de l’homme, troisième section, affaire Lacatus c. Suisse, arrêt du 19.04.2021
3 European Conventiion on human rights, undersignesd in Rome 4.11.1950
4 Urteil des Bundesgerichts vom 12. März 2023, 1C_537/2021
5 Press release of the Supreme Federal Court, 6.04.2023
6 Press release of the Supreme Federal Court, 6.04.2023