Swiss Review 3/2021

Swiss Review / June 2021 / No.3 14 Society STÉPHANE HERZOG Can a person be fined and impris- oned simply because they were hold- ing their hand out to a passerby? On 19 January, the European Court of Human Rights (ECHR) ruled unani- mously that this practice was in vio- lation of Article 8 of its charter, which concerns the right to respect for private and family life. “Being in a clearly vulnerable situation, the ap- plicant - a Roma woman - had the right, inherent in human dignity, to be able to convey her plight and at- tempt to meet her basic needs by begging,” ruled the court. Unable to pay several fines for begging, adding up to a total of 500 Swiss francs, the woman received a sentence of five days in prison in Geneva. This was in 2015. The ECHR has now condemned this sanction for its severity. “In view of the applicant’s precarious and vulnerable situation, the imposition of a custodial sentence (…) was liable to further increase [her] distress and vulnerability,” it wrote. The court ruled that Geneva should pay the ap- plicant 922 euros in respect of non-pecuniary damage. It is surprising to learn that in 2008, the Federal Supreme Court had largely anticipated the conclu- sions of the ECHR, stating that the right to beg should “clearly be con- sidered as (…) forming part of the personal freedom guaranteed by the Constitution.” Yet Swiss judges at the time concluded that Geneva had a le- gal basis for its prohibition. In Ge- neva, the ban on begging was in- tended to safeguard public order, safety and peace. No breach of public order The ECHR did not stop at annulling the decisions taken successively by the Geneva justice system and the Federal Supreme Court regarding the outcome for the plaintiff. In its com- ments, the ECHR also attacked the ar- ticle of the Geneva Criminal Code, voted for in 2007, which punishes all begging by way of a fine. The judges considered that begging did not rep- resent a breach of public order; at most, it caused moral discomfort. Fi- nally, the argument that pursuit of beggars is intended to fight against mafia networks – a fact that Switzer- land was unable to prove – was prob- lematic. For the ECHR, the Roma ap- peared more as victims. A lawyer for Roma, congratulated and threatened On 19 January, Dina Bazarbachi, a lawyer who has defended Roma in Geneva for 14 years, was emotional at the news. “Two weeks before the an- nouncement, I feared I would lose be- fore the court, whichwould have had harmful consequences on the way Roma are treated in Europe.” The ECHR’s ruling, the jurisprudence of which applies to the 47 Member States of the Council of Europe, rep- resents the end of a judicial battle on- going since 2008. Dina Bazarbachi has received several messages from Fines for begging? A European judgement overrules Swiss justice A ruling by the European Court of Human Rights has put an end to the issuance of fines for begging in Geneva. This decision, based on the imprisonment of a Roma woman, has international reach. A Roma beggar in Ge- neva holding her tak- ings. The Genevan police went as far as confiscating such takings – until the ECHR ruling. Photo: Eric Roset, Geneva