Communicated on 7 October 2014
THIRD SECTION
Application no. 43494/09
Rohiniedevie GARIB against the Netherlands
lodged on 28 July 2009
STATEMENT OF FACTS
1. The applicant, Ms Rohiniedevie Garib, is a Netherlands national, who was born in 1971 and lives in Rotterdam. She is represented before the Court by Mr R.S. Wijling, a lawyer practising in Rotterdam.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 25 May 2005 the applicant moved to the city of Rotterdam, where she took up residence in rented property at the address A. Street 6b. She had previously been resident in a different municipality.
4. The owner of the property asked the applicant, who by this time had two young children, to vacate the property as he wished to renovate it for his own use. He offered to let the applicant a different property at the address B. Street 72A in Rotterdam. This address is located in the Tarwewijk district in South Rotterdam, one of Rotterdam’s designated “hotspot” areas (see below). The applicant states that, since it comprised three rooms and a garden, the property was far more suitable for her and her children than her A. street dwelling which comprised a single room.
5. On 8 March 2007 the applicant lodged a request for a housing permit (huisvestingsvergunning) with the Burgomaster and Aldermen (burgemeester en wethouders) of Rotterdam in order to be permitted to move to B. Street 72A.
6. On 19 March 2007 the Burgomaster and Aldermen gave a decision refusing such a permit. They found it established that the applicant had not been resident in the Rotterdam urban region (stadsregio) for six years immediately preceding the introduction of her request. Moreover, since she was dependent on social-security benefits under the Work and Social Assistance Act (Wet Werk en Bijstand), she did not meet the income requirement that would have qualified her for an exemption from the residence requirement.
7. The applicant lodged an objection (bezwaarschrift) with the Burgomaster and Aldermen.
8. On 15 June 2007 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection. Adopting as their own an advisory opinion by the Objections Advisory Committee (Algemene bezwaarschriftencommissie), they referred to housing permits as an instrument to ensure the balanced and equitable distribution of housing and the possibility for the applicant to move to a dwelling not situated in a “hotspot” area.
9. The applicant lodged an appeal (beroep) with the Regional Court (rechtbank) of Rotterdam. As relevant to the case, she argued that the hardship clause ought to have been applied. She relied on Article 2 of Protocol No. 4 of the Convention and Article 12 of the 1966 International Covenant on Civil and Political Rights.
10. The Regional Court gave a decision dismissing the applicant’s appeal on 4 April 2008. As relevant to the case before the Court, its reasoning was as follows:
“Section 8(1) of the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek) provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [sc. the Minister of Housing, Spatial Planning and the Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer)]. The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life, particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view. The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve quality of life for the inhabitants of those districts (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2004/2005, 30 091, no. 3, pages 11-13). In view of the aims of the law, as set out, these temporary restrictions on the freedom to choose one’s residence cannot be found not to be justified by the general interest in a democratic society. Nor can it be found that, given the considerable extent of the problems noted in certain districts in Rotterdam, the said restrictions are not necessary for the maintenance of ordre public. The Regional Court takes the view that the legislature has sufficiently shown that in those districts the ‘limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime.”
11. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) contesting the above ruling.
12. On 4 February 2009 the Administrative Jurisdiction Division gave a decision dismissing the applicant’s further appeal. As relevant to the case before the Court, its reasoning included the following:
“The Administrative Jurisdiction Division finds that, considering that the area in issue is one designated under section 5 of the Inner City Problems (Special Measures) Act, the Burgomaster and Aldermen were entitled to take the view that the restriction [on freedom to choose one’s residence] is justified in the general interest in a democratic society within the meaning of Article 12 § 3 of the 1966 International Covenant on Civil and Political Rights. The area in issue is a so-called ‘hotspot’, where, as has not been disputed, quality of life is under threat. The restriction resulting from section 2.6 (2) of the 2003 Housing Bye-law (Huisvestingsverordening 2003) is of a temporary nature, namely for up to six years. It is not established that the supply of housing outside the areas designated by the Minister in the Rotterdam urban region is insufficient. What [the applicant] has stated about waiting times does not lead the Administrative Jurisdiction Division to reach a different finding. The Administrative Jurisdiction Division further takes into account that pursuant to section 7 (1), introductory sentence and under b of the Inner City Problems (Special Measures) Act the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated. In view of these facts and circumstances the Administrative Jurisdiction Division finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality. The Administrative Jurisdiction Division therefore finds, as the Regional Court did, that section 2.6 (2) of the 2003 Housing Bye-law does not violate Article 2 of Protocol No. 4 of the Convention or Article 12 of the 1966 International Covenant on Civil and Political Rights.”
B. Relevant domestic law
1. The Housing Act
13. As relevant to the case before the Court, the Housing Act (Huisvestingswet) provides as follows:
Section 2
“1. If the local council finds it necessary to lay down rules concerning the taking into use, or permitting the use, of housing ..., or concerning changes to the housing supply ..., it shall adopt a housing bye-law (huisvestingsverordening).
2. For the purpose of applying the first paragraph, the local council shall investigate, in any case, the extent to which the effect can be achieved that in permitting the use of relatively low-cost housing priority is given to house-seekers who, in view of their income, are especially dependent on such housing. ...”
2. The Inner City Problems (Special Measures) Act
(a) Relevant provisions
14. The Inner City Problems (Special Measures) Act applies to a number of named municipalities including Rotterdam. It empowers municipalities to take measures in certain designated areas including the granting of partial tax exemptions to small business owners and the selecting of new residents based on their sources of income. It entered into force on 1 January 2006.
15. As in force at the relevant time, provisions of the Inner City Problems (Special Measures) Act relevant to the case were the following:
Section 5
“1. The Minister [of Housing, Spatial Planning and the Environment] can, if so requested by the local council (gemeenteraad), indicate areas in which persons seeking housing may be made subject to requirements under sections 8 and 9 of this Act.
2. The indication referred to in the first paragraph shall be for a term of up to four years. At the request of the local council, this term can be extended once only for up to four more years. [Section 7] shall apply by analogy.”
Section 7
“1. The Minister shall rescind the designation referred to in section 5 if it is apparent to him that:
...
b. persons seeking housing to whom a housing permit allowing them to take into use housing within the designated areas cannot be granted as a result of the designation referred to in section 5 have insufficient possibility to find housing suitable for them within the region in which the municipality is situated. ...”
Section 8
“1. The local council can, if it considers [such a measure] necessary and appropriate for combating inner-city problems (grootstedelijke problematiek) within the municipality and it meets the requirements of subsidiarity and proportionality, determine in the housing bye-law that persons seeking housing who have been resident without interruption of the region within which the municipality is situated for less than six years can only be eligible for a housing permit allowing them to take into use housing belonging to categories designated in that bye-law if they dispose of:
(a) an income from work under a contract of employment;
(b) an income from an independent profession or business;
(c) an income from an early retirement pension;
(d) an old age pension within the meaning of the General Old Age Pensions Act (Algemene Ouderdomswet);
(e) an old age pension or survivor’s pension within the meaning of the Wages (Tax Deduction) Act 1964 (Wet op de loonbelasting 1964);
(f) a student grant within the meaning of the Student Grants Act 2000 (Wet op de studiefinanciering 2000).
2. The local council shall determine in the housing bye-law that the Burgomaster and Aldermen can grant a person seeking housing who does not meet the requirements set out in the first paragraph a housing permit allowing them to take into use housing as referred to in that paragraph if denying them that housing permit would lead to iniquity of an overriding nature (een onbillijkheid van overwegende aard). ...”
Section 17
“The Minister shall send a report to Parliament on the effectiveness and effects of this Act in practice to Parliament every five years after the entry into force of this Act.”
(b) Drafting history
16. It is reflected in the drafting history of this Act (Explanatory Memorandum (Memorie van Toelichting), Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2004/2005, 30 091, no. 3) that it was enacted in response to a specific wish expressed by the authorities of the municipality of Rotterdam. The emergence of concentrations of “socioeconomically underprivileged” in distressed inner-city areas had been observed, with serious effects on quality of life owing to unemployment, poverty and social exclusion. Many who could afford to move elsewhere did so, which led to the further impoverishment of the areas so affected. The need therefore existed to give impetus to economic improvement locally.
17. In the longer term, measures including the demolition of substandard housing and its replacement by higher-quality, more expensive residential property were envisaged. As a short-term temporary measure, it was proposed on the one hand to encourage settlement by persons with an income from employment (or past employment), professional or business activity or student grants, and on the other to stem the influx of socioeconomically deprived house-seekers.
18. At the same time it was recognised that those denied settlement in the areas in issue should be provided with suitable housing elsewhere in the city or region concerned. If that was not secured, the areas affected would not be designated under the legislation proposed or an existing designation would have to be withdrawn as the case might be.
3. The 2003 Housing Bye-law of the municipality of Rotterdam
19. By the time of the events complained of, the 2003 Housing Bye-law of the municipality of Rotterdam had been amended to give detailed rules implementing the Inner City Problems (Special Measures) Act locally. As relevant to the present case, these rules echoed section 8 (1) and (2) of the Inner City Problems (Special Measures) Act (section 2.6 of the 2003 Housing Bye-law).
20. The 2003 Housing Bye-law was replaced, with effect from 1 January 2008, by a new Housing Bye-law Designated Areas Rotterdam (Huisvestingsverordening aangewezen gebieden Rotterdam). This bye-law, which remains in force, includes provisions corresponding to those outlined in the preceding paragraph.
4. The designation decisions
21. On 13 June 2006 the Minister of Housing, Spatial Planning and the Environment designated under section 5 of the said Act four Rotterdam districts, including Tarwewijk, and several streets for an initial period of four years. These designated areas are generally referred to using the English-language expression “hotspots”.
22. In 2010 the designations were extended for a second four-year term and a first designation was made for a fifth district.
C. Subsequent developments
1. The 2007 evaluation report
23. An evaluation report after the first year following the introduction of the housing permit in Rotterdam, commissioned by Rotterdam’s own City Construction and Housing Service (Dienst Stedebouw en Volkshuisvesting), was published on 6 December 2007 by the Centre for Research and Statistics (Centrum voor Onderzoek en Statistiek), a research and advice bureau collecting statistical data and carrying out research relevant to developments in Rotterdam in areas including demographics, the economy and employment (hereafter “the 2007 evaluation report”).
24. The report notes a reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act in “hotspot” areas, though not, of course, a complete stop because Rotterdam residents of six years’ standing are not prevented from moving there.
25. From July 2006 until the end of July 2007 there had been 2,835 requests for a housing permit. Of these, 2,240 had been granted; 184 had been refused; 16 had been rejected as incomplete; and 395 were still pending. The hardship clause (section 8 (2) of the Inner City Problems (Special Measures) Act) had been applied in 38 cases.
26. Three-quarters of the housing permits granted concerned housing let by private landlords; the remainder – 519 – had been granted through the intermediary of social housing bodies (woningcorporaties). The latter selected their tenants with due regard to the official requirements, so that refusals of housing permits with regard to social housing were unheard of.
27. Of the persons refused a housing permit, 73 (40 % of all those who met with a refusal) had managed to find housing elsewhere in short order.
28. The 2007 evaluation report was presented to the local council on 15 January 2008. On 24 April 2008 the local council voted to maintain the housing permit system as was and have a new evaluation report commissioned for the end of 2009.
2. The 2009 evaluation report
29. A second evaluation report, also commissioned by Rotterdam’s City Construction and Housing Service, was published by the Centre for Research and Statistics on 27 November 2009. It covered the period from July 2006 until July 2009 (“the 2009 evaluation report”).
30. This report noted that the reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act had been more rapid in “hotspot” areas than in other parts of Rotterdam, although the proportion of residents in this category was still greater than elsewhere.
31. Of 342 persons refused a housing permit, some two-thirds had managed to find housing elsewhere in Rotterdam (47%) or elsewhere in the Netherlands (21%).
32. Based on four indicators – proportion of residents dependent on social-security benefits under the Work and Social Assistance Act, corrected for the supply of suitable housing; perception of safety; social quality; and potential cumulation of problems – the report suggested that the housing permit system might no longer be required for one of the existing “hotspots”. Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four.
3. Prolongation of the Inner City Problems (Special Measures) Act
33. On 18 July 2012 the Minister for the Interior and Kingdom Relations sent an assessment of the effectiveness of the Inner City Problems (Special Measures) Act and its effects in practice to the Lower House of Parliament, as required by section 17 of that Act. The Minister’s missive stated the intention of the Government to introduce legislation in order to extend the validity of the Inner City Problems (Special Measures) Act. Requests to that effect had been received from a number of affected cities. It was noted that not all of the cities concerned had made use of all of the possibilities offered by the Act; in particular, only Rotterdam used housing permits to select new residents for particular areas. Appended to the Minister’s letter was a copy of the 2009 evaluation report and a letter from the Burgomaster and Aldermen of Rotterdam in which, inter alia, the desirability was stated of extending beyond the first two four-year periods the indication of particular areas for applying the housing permit requirement: the measure was considered a success, and a twenty-year programme involving the large-scale improvement of housing and infrastructure (the “National Programme Quality Leap South Rotterdam” (Nationaal Programma Kwaliteissprong Rotterdam Zuid)) had been started in the southern parts of Rotterdam in 2011.
34. The Inner City Problems (Special Measures) (Prolongation) Act (Wet uitbreiding Wet bijzondere maatregelen grootstedelijke problematiek) entered into force on 14 April 2014, enabling the designation of particular areas under section 8 of the Inner City Problems (Special Measures) Act to be extended the day before it was due to expire. It makes further extensions of the designation possible for successive four-year periods (section 5(2) of the said Act, as amended).
4. The National Programme Quality Leap South Rotterdam
35. On 19 September 2011 the Minister of the Interior and Kingdom Relations (on behalf of the Government), the Burgomaster of Rotterdam (on behalf of the municipality of Rotterdam), and the presidents of a number of South Rotterdam boroughs (deelgemeenten), social housing bodies and educational institutions signed the National Programme Quality Leap South Rotterdam. This document noted the social problems prevalent in South Rotterdam inner-city areas, which it was proposed to address by providing improved opportunities for education and economic activity and improving, or if need be replacing, housing and infrastructure. It was intended to terminate the programme by the year 2030.
36. On 31 October 2012 the Minister of the Interior and Kingdom Relations, Rotterdam’s Alderman for housing, spatial planning, real property and the city economy (wethouder Wonen, ruimtelijke ordening, vastgoed en stedelijke economie) and the presidents of three social housing bodies active in Rotterdam signed an “agreement concerning a financial impulse for the benefit of the Quality Leap South Rotterdam (2012-2015))” (Convenant betreffende een financiële impuls ten behoeve van de Kwaliteitssprong Rotterdam Zuid (2012-2015)). This agreement provided for a review of priorities in Government financing of housing and infrastructure projects in the South Rotterdam area within existing budgets and for a once-only additional investment of 122 million euros (EUR). Of the latter sum, EUR 23 million had been reserved by the municipality of Rotterdam until 2014; another EUR 10 million would be added for the period starting in 2014. These funds would be used to refurbish or replace 2,500 homes in South Rotterdam. A further EUR 30 million would be provided by the Government. The remainder would be spent by the social housing bodies on projects within their respective remit.
COMPLAINT
37. The applicant complains that the restrictions to which she was subjected under the Inner City Problems (Special Measures) Act and the 2003 Housing Bye-law of the municipality of Rotterdam are incompatible with Article 2 of Protocol No. 4 to the Convention.
QUESTIONs TO THE PARTIES
1. Has there been a restriction on the applicant’s freedom to choose her residence, guaranteed by Article 2 § 1 of Protocol No. 4?
2. If so, was that restriction:
(a) in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4?
(b) in accordance with the law and justified by the public interest, within the meaning of Article 2 § 4 of Protocol No. 4?
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