Imprisonment for begging not in violation of human rights

Case no. 91/2020
Judgment delivered on 2 February 2022

The Public Prosecutor
vs.
T

Section 197 of the Danish Criminal Code
According to Section 197(1) of the Danish Criminal Code, any person who, in spite of police warnings, is guilty of begging is liable to imprisonment for up to six months. In mitigating circumstances the punishment may be remitted. According to Section 197(2), the requirement for a prior warning does not apply when the begging took place in a pedestrian street, in or outside supermarkets or in public transport. Section 197(3) provides that begging in such places must be considered by the Court to be an aggravating circumstance in relation to the sentence.

The present case
T, a Lithuanian citizen, had several prior convictions for begging in the places listed in Section 197(2). In 2019, he was given an unsuspended prison sentence for begging and expelled from Denmark. Shortly after that, he reentered Denmark. The District Court convicted him for having entered the country in contravention of the entry ban and for begging by the entrance to the Copenhagen Central Station. He was sentenced to prison for 60 days and expelled from Denmark with a six-year entry ban. The High Court affirmed the District Court’s judgement.

The Lăcătuș judgement
After the High Court’s judgment, the European Court of Human Rights passed its judgment in the case of Lăcătuș v. Switzerland. In this case, the applicant had been ordered to pay a fine and detention for failure to pay the fine for nine counts of begging in public in Geneva. As she could not pay the fine, she was detained in a remand prison for five days. The European Court of Human Rights held that Switzerland under the circumstances had infringed her right to respect for private life under Article 8 of the European Convention on Human Rights.

In its judgment, the European Court of Human Rights stated, among other things, that human dignity that underlies the spirit of the Convention is seriously compromised if the person concerned does not have sufficient means of subsistence, and in begging has adopted a particular way of life in a bid to deal with a humiliating and precarious situation. It was undisputed in the case that the applicant was extremely poor, illiterate and had no work, and that she was neither in receipt of social benefits nor supported by any other person. According to the European Court of Human Rights, in this situation, begging was a means for her to secure an in-come and alleviate her poverty, and by imposing a blanket prohibition on begging and imposing a fine on her, the Swiss authorities had prevented her from approaching other people in order to obtain a form of help which, in her situation, was one of the possible means of meeting her basic needs.

The case before the Supreme Court
T claimed before the Supreme Court that it was in violation of Article 8 of the European Convention on Human Rights on the right to respect for private life to punish him and expel him from Denmark. He also submitted that the punishment and expulsion were in contravention of Article 3 of the Convention on inhuman or degrading treatment or punishment, Article 10 on freedom of speech and Article 14 on prohibition of discrimination on the grounds of national origin.

The Supreme Court stated that the sentence of imprisonment for 60 days had been fixed in accordance with the comments in the travaux préparatoires and general sentencing principles, and that expelling T with an entry ban was not in contravention of the applicable rules governing expulsion of EU citizens.

The question was then whether – particular considering the Lăcătuș judgement – the High Court’s judgement constituted an infringement of the rights afforded to T under Article 3, 8 or 10 or under Article 14 read with those provisions.

The Supreme Court referred to the fact that those in need have access to public relief in Denmark, and that persons staying in this country thus have possible means of meeting their basic needs. Considering such access to public relief in emergency situations, the Supreme Court found it uncertain whether the right to beg is protected under Article 8(1) of the European Convention on Human Rights.

According to Article 8(2), interference with the exercise of the right to private life is only justified if in accordance with the law and necessary in a democratic society, e.g., for the prevention of disorder or the protection of the rights and freedoms of others. The Supreme Court held that the provision in Section 197 of the Danish Criminal Code was based on legitimate grounds, and the question of whether a prison sentence for begging would amount to an infringement of the right to private life would thus have to be based on a proportionality assessment.

The Supreme Court explained that due to the public relief available to persons in need in Denmark, human dignity is only compromised because such person does not have sufficient means to meet his or her basic needs in very exceptional circumstances. Such exceptional circumstances were not present in T’s case, and the sentence imposed on him did thus not amount to a disproportionate restriction of his right to private life, cf. Article 8(2).

The Supreme Court also held that the prison sentence did not amount to a disproportionate restriction of T’s freedom of speech under Article 10. Neither had Article 3 on inhuman or degrading treatment or Article 14 on prohibition of discrimination of the European Convention on Human Rights been violated.

The Supreme Court thus affirmed the judgment of the High Court.