A challenge to the legality of a Swiss policy banning begging in public places has succeeded on human rights grounds in the European Court of Human Rights ("ECtHR").

Violeta-Sibianca Lăcătuş, a member of the Roma community in Switzerland, challenged a provision of the Geneva Criminal Law Act (the "Act") which imposed a blanket ban on begging in public places. Ms Lăcătuş was found guilty of begging in Geneva and had been issued fines from 2011 – 2013. Non-payment of those fines could result in imprisonment; Ms. Lăcătuş' circumstances meant that she was unable to pay the increasing fines, and she was taken into custody and imprisoned for five days.

The challenge

Ms Lăcătuş challenged the legality of the Act under Article 8 of the European Convention on Human Rights ("ECHR"), which provides for the right to respect for private and family life. Article 8 rights are qualified, in that a state can interfere with an individual's rights for certain purposes and within a certain margin of appreciation. Ms Lăcătuş contended that the Act interfered with her private life in an unacceptable manner, because it deprived her of her means of subsistence.

The court considered the aims of the provision, which were to combat organised crime and protect the rights of people such as residents and business owners, though determined that the need for the provision did not meet the high threshold required to justify such an approach given the 'blanket' nature of the ban. That 'blanket' approach prevented a balancing of the different interests at stake by a domestic court. Lastly, the penalty imposed on Ms Lăcătuş (500 Swiss francs) was disproportionate to either of the stated aims.

The court concluded that Ms Lăcătuş' Article 8 rights had been breached by the ban. Ms Lăcătuş was illiterate, unemployed, came from an extremely poor background and did not receive any social benefits. Begging was a means of survival to Ms Lăcătuş, and she was in a highly vulnerable situation. The court set out that the right to be able to convey her plight and attempt to meet her basic needs by begging was inherent in Ms Lăcătuş' human dignity.

Considerations for the UK

Local authorities should note the case when considering their approach to engaging with issues of homelessness. It is an ongoing challenge for local government in the UK to draft and implement homelessness policies, given they seek to prevent homelessness while at the same time consider how best to address homelessness where it does arise.

English local authorities will be familiar with their ability under the Anti-social Behaviour, Crime and Policing Act 2014 to introduce public spaces protection orders (PSPOs) which can prohibit begging in certain circumstances. Non-compliance with a PSPO can result in the imposition of fines. Local authorities can also apply for injunctions which would prevent named individuals from undertaking activities such as begging. While PSPOs may reflect the 'blanket' approach that was taken into account by the ECtHR in this case, injunctions do not approach the issue from the same perspective.

Scottish local authorities have previously considered whether to implement local bans on begging in public spaces, and proposals to do so have been controversial. Local authorities will also be aware of the existing legislative provisions which could prohibit begging in public, such as under section 53 of the Civic Government (Scotland) Act 1982. Local authorities will be conscious of the difficulty in addressing homelessness during COVID-19, which was demonstrated by a recent Court of Session decision that a Scottish local authority had breached its statutory duties under the Housing (Scotland) Act 1987. In that case, the local authority had sought eviction of a party from temporary accommodation after their offers for permanent accommodation were refused.

Both English and Scottish local authorities will note from the Lăcătuş case that the approach of the ECtHR is not just relevant to policy content, but also its implementation and enforcement. This case will remain relevant for local authorities across the UK in considering how best to implement homelessness policies in a manner that is consistent with human rights.

If you have any questions about the issues raised in this article, please contact Johanna Boyd, Robin Mackintosh or your usual Brodies contact.


Niall McLean

Partner & Solicitor Advocate