Lacatus v Switzerland (third-party intervention, pending)

22 August 2016

Facts

The case was brought by a Romani woman of Romanian nationality who has been convicted and fined under Geneva’s criminal code for begging.  

The ERRC’s Third-Party Intervention

The ERRC urged the Court to identify antigypsyism as the discriminatory motivation underlying the adoption and increasing enforcement of laws criminalising begging in Europe. According to the ERRC, the Court had to use that word to describe the significance, under the Convention, of legislative acts that may appear to be a response to legitimate public order concerns, but, in reality, are based on and/or reflect negative stereotypes of Roma. Legislation criminalising begging forms part of and perpetuates a pattern of exclusion that prevents the targets of antigypsyism from achieving full equality. The ERRC stressed that antigypsyism encompasses racist discourse as well as reliance on or perpetuation of racial stereotypes in legislation. The ERRC discussed the poverty in which many Roma live, providing extensive data about the situation of Roma in Bulgaria and Romania and describing Romani poverty as a consequence of antigypsyism. The ERRC surveyed the evidence – including racist discourse – that antigypsyism has contaminated the adoption and enforcement of anti-begging laws in Europe, including in Geneva. The ERRC surveyed judgments of national courts in Europe and North America and conclusions of Council of Europe bodies, UN bodies, and others finding that criminalising begging violates fundamental rights. The ERRC urged the Court to integrate the notion of antigypsyism into its analysis of whether enforcement of such legislation against Roma amounts to a violation of Article 14 read with other provisions of the Convention. According to the ERRC, it was insufficient for the Court to require an applicant to produce evidence that the authorities were motivated by racism in her individual case or were disproportionately targeting Roma under the law generally. Such an approach would ignore the discriminatory context in which the law was adopted and mischaracterise individual arrests as isolated occurrences, rather than as part of the pattern of discrimination that Roma have experienced and have turned to the Court to expose in full. The ERRC encouraged the Court to apply the notion of “harassment” as a form of discrimination in such cases. Under the ERRC’s proposed harassment-based approach, where there is evidence that the legislation being enforced is related to ethnic and racial origin (including stereotypes about Roma), the burden shifts to the Respondent Government to explain precisely why the legislation was adopted, to show that it successfully promoted a legitimate aim, and to produce evidence that it was not being used to target Roma.

The Court’s statement of facts can be found (in French) here.

The ERRC’s third-party intervention can be found here.