The Case of Al Jazeera Journalists
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A case that has been brought before the European Court of Human Rights challenges the conviction of a Roma woman for begging as being a violation of her right to respect for private life, right to freedom of expression and the prohibition on discrimination. The woman brought a case before the domestic courts disputing a number of her fines and convictions for begging. The Federal Supreme Court of Switzerland ruled that her right to freedom of expression under Article 10 of the European Convention on Human Rights had not been interfered with because her begging had no communicative value and was private in nature. The European Roma Rights Centre (ERRC) filed a third-party intervention that argued that the criminalization of begging forms part of and perpetuates a pattern of exclusion that prevents Roma from achieving full equality. The ERRC also drew on comparative and international law to demonstrate that begging was a form of expression that should be protected under the right to freedom of expression. The case is still pending before the European Court of Human Rights.
The case concerns Violeta-Sibianca Lacatus, who was a Romanian national living in Geneva, Switzerland since 2011. Since moving to Geneva, she had been unable to find a job and started begging. She was first fined for begging on July 22, 2011 pursuant to Article 11A of the Swiss Criminal Law, which prohibits begging on public roads. She was fined 16.75 CHF (Swiss francs) by the police after they had found this amount of money on her person. The police did not impose the fine on the basis of a confiscation order. Between this date and February 2013, she had received eight further fines for begging using a cup. Furthermore, on two occasions in February and March 2012, she was arrested for a total of six hours and then released.
Ms. Lacatus challenged the fines and orders before the Geneva Cantonal Police Court, which subsequently found her guilty of begging and ordered her to pay 500 CHF (with a five-day custodial sanction if the fine was not paid). The Geneva Cantonal Police Court also upheld the police decision to seize 16.75 CHF.
She appealed this judgment before the Geneva Court of Justice arguing that, among other things, the decision had violated her right to freedom of expression (Article 16 of the Swiss Constitution and Article 10 of the European Convention on Human Rights), her right to freedom from indirect discrimination (Article 8(2) of the Swiss Constitution and Article 14 of the European Convention on Human Rights), and her right to liberty (Articles 7, 10, and 36(3) of the Swiss Constitution and Article 8 of the European Convention on Human Rights). On April 4, 2014, the Court of Justice rejected the appeal, holding that there had been no violation of Ms. Lacatus’ right to freedom of expression since she was not prevented from expressing her social situation to the public in ways other than begging. Furthermore, it found no indirect discrimination since nothing in the law showed that the prohibition on begging was directed only at the Roma population. Ms. Lacatus appealed this decision.
The Federal Supreme Court of Switzerland upheld the findings of the Court of Justice. It stated that Ms. Lacatus’ activities did not benefit from the protections guaranteed by Article 10 of the European Convention on Human Rights (right to freedom of expression) because they had no communicative value and were strictly private in nature (i.e. they were a succession of interactions with people on the street expressing her personal deprivation and need for help, and there was no political dimension to her begging or provision of general information on the situation of Roma). The communicative element to her begging was deemed to be a secondary element of the activity. The Federal Supreme Court also upheld the confiscation of the 16.75 CHF, reasoning that the police were justified in assuming it had been collected as a result of begging.
Ms. Lacatus brought her case before the European Court of Human Rights, claiming that the Swiss authorities had violated her right to respect for private life, right to freedom of expression and the prohibition on discrimination under Articles 8, 10 and 14 of the European Convention on Human Rights.
Intervention of the European Roma Rights Centre
The European Roma Rights Centre (ERRC) filed a third-party intervention to the European Court of Human Rights (Court). In the intervention, they highlighted how the criminal prosecution of Roma for begging could be considered as part of a pattern of historical and social exclusion that has been classified as “antigypsyism.” The ERRC asked the Court to use this term to describe the significance of acts and omissions of State bodies that can form part of and perpetuate a pattern of exclusion that prevents Roma from achieving full equality. It also urged the Court to identify “antigypsyism” as the discriminatory motivation underlying the adoption and increasing enforcement of laws criminalizing the act of begging in Europe.
The intervention highlights the need to give Roma special protection, particularly when they have been reduced to begging and are then subjected to criminal prosecution for carrying out this activity. It draws the Court’s attention to the concept of institutional racism and encourages the Court to approach this case with due consideration for institutional “antigypsyism.” It highlights the fact that if Roma are reduced to begging, there are unsurprising reasons for it: “their prospects for joining the economy are limited. Their poverty is a consequence of abiding discrimination and exclusion. The consequences of that poverty – including begging – are turned against them, feeding the racist complex that surrounds Roma in Europe today.”
The intervention goes on to survey a number of European countries that have criminalized begging (France, Germany, Luxembourg, Norway, United Kingdom and Switzerland), and links this legislative response to an increase in “antigypsyism” and a stereotypical view of Roma as criminals. For example, it cites the Council of Europe Commissioner for Human Rights, Nils Muižnieks, who has described recent bans on begging as an effort “to criminalise the presence of Roma in public spaces”. The ERRC then looked at comparative decisions from national courts and bodies in Europe and North America that recognized begging was protected under the right to freedom of expression.
Finally, the intervention urges the Court not to place the burden on the Romani applicants to demonstrate that they are a victim of direct or indirect discrimination. The ERRC argues that placing the burden on applicants “would ignore the discriminatory context in which such laws are adopted and mischaracterise individual arrests as isolated occurrences, rather than as part of the pattern of racial harassment that Roma have experiences and have turned to the Court to expose in full.”
The case is pending before the European Court of Human Rights.
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