Information Note on the Court’s case-law 193
February 2016
Garib v. the Netherlands - 43494/09
Judgment 23.2.2016 [Section III]
Article 2 of Protocol No. 4
Article 2 para. 1 of Protocol No. 4
Freedom to choose residence
Policy imposing length-of-residence and type of income conditions on persons wishing to settle in inner-city area of Rotterdam: no violation
[This case was referred to the Grand Chamber on 12 September 2016]
Facts – The Inner City Problems (Special Measures) Act, which entered into force on 1 January 2006, empowered a number of named municipalities, including Rotterdam, 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.
In 2005 the applicant moved to the city of Rotterdam and took up residence in a rented property in the Tarwewijk district. Following the entry into force of the Inner City Problems (Special Measures) Act Tarwewijk became a designated area under a Rotterdam by-law. After being asked by her landlord to move to another property he was letting in the same district, the applicant applied for a housing permit as required by the new legislation. However, her application was rejected on the grounds that she had not been resident in the Rotterdam Metropolitan Region for the requisite period and did not meet the income requirement. Her subsequent appeals were unsuccessful. In 2010 the applicant moved to the municipality of Vlaardingen, which was also part of the Rotterdam Metropolitan Region.
Law – Article 2 of Protocol No. 4: The case fell to be considered under the fourth paragraph of Article 2 of Protocol No. 4. The housing-permit requirement was “in accordance with law”, as it was based on the Inner City Problems (Special Measures) Act and the 2003 Housing By-law of the municipality of Rotterdam (2006 version). As to whether it was “justified by the public interest in a democratic society”, the pursued aim – reversing the decline of impoverished inner-city areas and improving quality of life generally – was undoubtedly legitimate.
In determining whether it was also proportionate, the Court was required to weigh the individual’s right to choose his or her residence against the implementation of a public policy that purposely overrode it. The principles relevant here are derived from the Court’s case-law under Article 8 of the Convention and Article 1 of Protocol No. 1. They can be summarised as follows: (a) States enjoy a wide margin of appreciation in implementing social and economic policies and the Court will respect the legislature’s judgment as to what is in the “public” or “general” interest unless that judgment is manifestly without reasonable foundation; (b) where rights of central importance to the individual are at stake, the scope of the margin will depend on context, with particular significance attaching to the extent of the intrusion into the applicant’s personal sphere; (c) procedural safeguards are especially material in determining whether the respondent State has remained within its margin of appreciation; and (d) the possibilities of alternative housing are also relevant to proportionality.
As to the legislative and policy background of the case, the domestic authorities had found themselves called upon to address increasing social problems in particular inner-city areas of Rotterdam resulting from impoverishment caused by unemployment and a tendency for gainful economic activity to be transferred elsewhere. They had sought to reverse these trends by favouring new residents whose income was related to gainful economic activity of their own. Following a five-year review, the measures were considered successful and were subsequently extended. Nevertheless the restriction on taking up residence remained subject to temporal as well as geographical limitation, the designation of particular areas being valid for no more than four years at a time, and safeguard clauses in the Act required the local council to make sufficient housing available locally for those who did not qualify for a housing permit and to grant a permit in cases of individual hardship. Although the legislative measures had been criticised during the legislative process, the objections raised had been addressed, notably by the introduction of the safeguard clauses. Thus, the policy decisions taken by the domestic authorities did not appear to have been manifestly without reasonable foundation.
The availability of alternative solutions did not in itself render the measure in issue unjustified as, provided it could be regarded as reasonable and suited to achieving the legitimate aim pursued (which the Court was satisfied it was), it was not for the Court to say whether it represented the best solution or whether the State’s discretion should have been exercised in another way. The respondent State had thus, in principle, been entitled to adopt the impugned legislation and policy.
As to the applicant’s specific circumstances, she was refused a housing permit on the grounds that she did not fulfil the statutory requirements since she had not completed six years’ residence in the Metropolitan Region and her income consisted exclusively of social welfare benefits. Since her personal situation was not such as to trigger the application of the hardship clause, the refusal was consonant with the applicable law and policy. In any event, the applicant had not been prevented from taking up residence in areas of Rotterdam not covered by the legislation. She had given no reasons for not wanting to reside in other areas of the city and it was significant that she had remained in Vlaardingen, the municipality to which she had moved in 2010, despite being eligible for a housing permit since May 2011. Although the Court had no reason to doubt that the applicant was of good behaviour and constituted no threat to public order, this could not by itself suffice to outweigh the public interest pursued by the consistent application of legitimate public policy.
In these circumstances, the Court could not find that the domestic authorities had been under an obligation to accommodate the applicant’s preferences.
Conclusion: no violation (five votes to two).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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