1 Northern Rights (2014) Issue 2

26 March 2014

The Prohibition of Begging under the European Convention on Human Rights: Comment on Recent Legislative Developments in Finland Stefan Kirchner1 Reaching across the aisle in many directions, more than 100 members of the Finnish parliament from six different parties have come together propose a bill which would make begging practically illegal unless a prior permit had been obtained.2 However, the proposed legislation raises a number of issues under the European Convention on Human Rights (ECHR)3 to which Finland is a party. ! In 2012, the Austrian Constitutional Court (Verfassungsgerichtshof) had to deal with a similar question after the Austrian state (Land) of Salzburg prohibited public begging in § 29 of the State Security Law (Landessicherheitsgesetz). In its decision of 30 June 2012,4 Austria’s highest court held that completely prohibiting begging in public areas is incompatible with Article 10 ECHR, which protects the freedom of communication as the person who engages in begging communicates about his or her social situation.5 The right to respect for private life under Article 8 ECHR, however, was not found to be affected by a ban on begging.6 ! In principle, Article 10 of the European Convention on Human Rights permits public authorities to impose limits on the right to free speech. Such limitations have to be “necessary in a democratic society”.7 While prohibiting begging can have a positive effect on public order, completely banning all forms of begging will usually not be necessary in a democratic society.8 In particular silent begging was not found to amount to a disturbance which was so grave that prohibiting it would be necessary in a civil society.9 While it might not be permitted to prohibit simply holding up a sign with a plea for help, the Court left the door open for public authorities to ban more active forms of begging.10

1

Visiting Professor for Fundamental and Human Rights, with special focus on Indigenous Rights, University of Lapland, Faculty of Law, Rovaniemi, Finland; admitted to the bar in Germany. This Text only reflects the author’s private opinion. Email: stefan.kirchner@ulapland.fi.
2

YLE, “MPs back anti-begging motion”, available online at <http://yle.fi/uutiset/mps_back_antibegging_motion/7155475> last accessed 26 March 2014.
3 4 5 6 7 8 9

European Treaty Series No. 5. Reprinted in: 39 Europäische Grundrechte-Zeitschrift (2012), pp. 762 et seq. Ibid., p. 762. Ibid. Article 10 (2) ECHR. Austrian Constitutional Court, supra note 4, p. 765. Ibid. Ibid. 2

10

1 Northern Rights (2014) Issue 2

26 March 2014

! If Finland were to require a permit also for silent forms of begging, the standard imposed by paragraph 2 of Article 10 of the European Convention on Human Rights could easily stand in the way of the planned legislation. ! It appears questionable how effective this can be. While there appears to be a similar model in place in Norway,11 there are no guarantees that the same approach will also work in Finland. After all, merely having a permit to beg does not mean that the person who is begging will not be more of a threat to public order than somebody who is politely asking for help without having a permit to do so. Personally, I doubt that there is one solution which fits all situations in which people who live in one of the world’s richest countries with an excellent social system feel forced to beg in order to make a living. ! Although it would mean more work for local police forces and higher costs, the by far better solution would be to deal with possible disturbances on a case by case basis. This, however, means putting more police officers on the street - which would increase the general sense of security. Far from calling for a police state, this approach would enable public authorities to deal with real threats rather than merely managing potential nuisances.

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Reviewers needed Northern Rights is currently in the process of setting up an editorial team, including undergraduate editorial assistants, on a pro bono basis. For further information contact editor@northernrights.org.

11

YLE, supra note 2. 3

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