Poverty as a Crime

In June 2024, the U.S. Supreme Court in the Opinion City of Grants Pass v. Johnson held that the Constitution does not guarantee individual protection against the criminalisation of homelessness. Similarly, in May 2024, the European Court of Human Rights found the case concerning the criminalisation of begging, Dian v. Denmark, inadmissible. Both of these judicial decisions are disputed since the criminalisation of poverty cannot solve the problem of homelessness or begging. Rather, it violates the fundamental dignity of the individual, as the ECtHR noted in an earlier judgment in the Lacatus case. Yet, the ECtHR has departed from the said case law without a convincing reasoning.

U.S. Supreme Court: criminalisation as the measure to combat homelessness

The Opinion, delivered on June 28, 2024, concerned regulations issued by the municipality Grants Pass in Oregon, which criminalise camping on public property or overnight parking in the city’s parks. According to the said law, incidental violations of these regulations are punishable by a fine. Further violations can lead to a 30-day jail term and a severe fine.

In the pivotal case of Martin v. Boise, the Ninth Circuit Court issued the Opinion that the Eighth Amendment’s Cruel and Unusual Punishments Clause bars cities from enforcing public camping ordinances against homeless individuals whenever the number of homeless individuals in a jurisdiction exceeds the number of “practically available” shelter beds.

After this reasoning has been challenged, the Supreme Court held that the Eighth Amendment can only apply when criminalisation occurs because of a particular status – referring to an earlier Supreme Court Opinion Robinson v. California. Accordingly, the Supreme Court concluded that it cannot deprive local authorities of the right to criminalise as one of the measures to combat homelessness.

Like the entire series of recent Supreme Court rulings, the Opinion was handed down by a 6:3 vote. Justice Sotomayor authored the dissenting opinion, joined by Justice Kagan and Jackson. She challenged a key element of the majority’s reasoning, stating that criminalisation occurs precisely because of a homeless person’s status. As she correctly points out, this criminalisation punished the people with no access to shelter, hence, being homeless. The dissenting opinion further refers to the ineffectiveness of criminalisation to reduce homelessness. Finally, Justice Sotomayor notes that the actual purpose of introducing these laws was not to prevent homelessness but to get rid of the homeless people from the city. She concludes her dissenting opinion by saying:

“Homelessness in America is a complex and heartbreaking crisis. People experiencing homelessness face immense challenges, as do local and state governments. Especially in the face of these challenges, this Court has an obligation to apply the Constitution faithfully and evenhandedly. The Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go.”

ECtHR: from “the right to beg” to the inadmissibility of the case

The ECtHR’s Decision of 13 June 2024, delivered in the case of Dian v. Denmark, application no. 44002/22, concerns another aspect of the broad issue of the criminalisation of poverty. The case concerned an applicant convicted for begging in a pedestrian street in Copenhagen and sentenced to twenty days of imprisonment. The applicant challenged this conviction at the ECtHR, claiming violations of Articles 8 and 10 of the ECHR. The ECtHR found the application incompatible ratione materiae with the Convention.

Crucial to the ECtHR’s Decision (but also for domestic courts that adjudicated in this case) was the earlier ECtHR’s landmark judgment in the case of Lacatus v. Switzerland. In this case, the ECtHR held that:

“a person’s dignity is severely compromised if he or she does not have sufficient means of subsistence (…). By the act of begging, the person concerned is adopting a particular way of life with the aim of rising above an inhumane and precarious situation.” (par. 56).

In that case, the ECtHR concluded that the applicant, being in a clearly vulnerable situation, had the right, inherent in human dignity, to be able to convey her plight and attempt to meet her basic needs through begging.

In Dian’s case, however, the Court declared the application inadmissible for two reasons that distinguish this case from Lacatus’s case. First, because the applicant had other income sources than begging, namely, he was selling the newspaper and collecting the bottles (see par. 53 and 54). Secondly, due to the fact that Denmark, against which the case was lodged, does not impose a blanket ban on begging (par. 55). The Court found that Denmark, despite the wording of the Penal Code, which de iure provides a blanket ban on begging, in practice permits begging to a certain extent. A person could be convicted of begging only if it took place in a personal manner, causing a nuisance to the public, and the person had been warned beforehand. Henceforth, the Court stated that the ECHR does not provide the right to beg under Article 8. (par. 44).

A few critical remarks

Although these judicial decisions differ in many procedural and substantive aspects, they are also somewhat similar. They are similar in that the US Supreme Court and the ECtHR have accepted (the Supreme Court directly and the ECtHR indirectly) that criminal law may be a tool that can be used by a state to counter certain life-sustaining poverty-related activities undertaken by individuals.

Moreover, both judicial decisions assume the sole responsibility of people begging or camping on the streets without considering the broader issues that have brought them in this situation. Both courts seem to sidestep the cost-living crisis that has been going on for several years and forget how complicated the reasons for pushing people to live on the streets can be. While the majority in the US Supreme Court’s Opinion indeed pointed out the various reasons that may lead to homelessness, such as the economic situation, natural disasters, escape from domestic violence or other forms of exploitation, the Court nevertheless did not connect these reasons with the responsibility of the State.

Moreover, the ECtHR even stated the following:

“The onus must therefore be on the applicant to substantiate his assertion that he was in a precarious and vulnerable situation, including that he lacked sufficient funds for his own subsistence” (par. 49).

I argue that one cannot seriously expect this from a person living on the street. At the same time, the ECtHR allowed considerable discretion to the Danish authorities in determining whether begging constitutes an offence. This type of discretion in the case of people in a particularly vulnerable situation, such as poverty or homelessness, does not give sufficient protection against the abuse.

Between the release of the Opinion by the US Supreme Court and the ECtHR’s Decision, the long-awaited Report of the UN Special Rapporteurs – on extreme poverty and human rights and on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context was published. The Report, based on information from nearly 130 entities of various types worldwide, concerns the criminalisation of homelessness and poverty. The Report points to a number of negative consequences of the criminalisation of poverty and homelessness on the ability of individuals to exercise their human rights. As a commentary on the court decisions indicated above, it is worth recalling the Report’s main conclusion:

“Relying on the criminal justice system to address the consequences of poverty and homelessness serves only to penalize individuals for structural inequality, social exclusion and their fundamental denial of rights. Criminalization further entrenches inequality, reinforces social stigma, and undermines the dignity of persons experiencing homelessness or poverty. A punitive or carceral approach that penalizes persons in precarity for begging, sleeping, or working in public spaces also poses a significant economic cost to the State that should be redirected to measures that are effective in preventing and ending homelessness and reducing poverty.”

The ECtHR briefly referred to the UN approach to poverty criminalisation without seriously engaging with it. The Court particularly cited the Guiding Principles on Extreme Poverty and Human Rights (see more here) and the 2019 Report by the Committee on Economic, Social and Cultural Rights that called on Denmark to “repeal the legal provisions criminalising conducts associated with situations of poverty and of deprivation of the right to adequate housing, such as begging and rough sleeping.” (par. 31) However, these considerations did not change the ECtHR’s final Decision.

For many European countries, the ECtHR’s Lacatus case was a reason to start a discussion to abolish criminalisation of poverty and homelessness. A good example of this was the action of the Polish Ombudsman, who thereafter appealed to the Polish Minister of Justice to decriminalise begging. Undoubtedly, this recent judicial decision will not support this trajectory.

On the contrary, the respective judicial decisions empower the voices advocating for the need to criminalise homelessness and poverty. Yet, it is worth mentioning that these voices are not uniform. In Europe, more and more cities are adopting the Homeless Bill of Rights, promoted by the European Federation of National Organisations Working with the Homeless (FEANTSA). This Bill of Rights, inspired by similar documents adopted in the U.S. (see here), which are surprisingly not mentioned in the Supreme Court’s Opinion, is the best response to the criminalisation of homelessness and poverty. Article XI of the Bill declares the right to carry out practices necessary to survival within the law. Moreover, it states:

“Homeless people should have the right to carry out practices necessary to survival within the law. Survival practices such as begging, or foraging for discarded food should not be criminalized, banned, or arbitrarily confined to specific areas.”

The city Copenhagen, where the applicant concerned was punished for begging, also endorsed such a bill in 2023. The adoption of the Bill should result in the start of a process leading to the decriminalization of begging in Copenhagen. I hope that the latest ECtHR’s Decision Dian v. Denmark will not stall this process.

The article expresses my personal views only and cannot be attributed to Amnesty International.