Information Note on the Court’s case-law 212
November 2017
Garib v. the Netherlands [GC] - 43494/09
Judgment 6.11.2017 [GC]
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
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.
In a judgment of 23 February 2016 (see Information Note 193), a Chamber of the Court found, by five votes to two, that there had been no breach of Article 2 of Protocol No. 4. In particular, the Chamber held that, in principle, the State had been entitled to adopt the impugned legislation and policy and in the circumstances the domestic authorities had been under no obligation to accommodate the applicant’s preferences.
On 12 September 2016 the case was referred to the Grand Chamber at the applicant’s request.
Law – Article 2 of Protocol No. 4: In an area as complex and difficult as that of the development of large cities, the State enjoyed a wide margin of appreciation in order to implement their town-planning policy. The margin extended, in principle, to both the decision to intervene in the subject area and, having intervened, to the detailed rules laid down in order to achieve a balance between the competing interests of the State and those directly affected by the legislative choices.
(a) Legislative and policy framework – The domestic authorities had found themselves called upon to address increasing social problems in inner-city areas of Rotterdam resulting from impoverishment caused by unemployment and a tendency for gainful economic activity to be transferred elsewhere. They sought to reverse those trends by favouring new residents whose income was related to gainful economic activity of their own. The intention was to foster diversity and counter the stigmatisation of particular inner-city areas as fit only for the most deprived social groups. The Inner City Problems (Special Measures) Act did not deprive a person of housing or force any person to leave their dwelling. The measures only affected relatively new settlers: residents of the Rotterdam Metropolitan Region of at least six years’ standing were eligible for a housing permit whatever their source of income. In the circumstances, that waiting time did not appear to be excessive.
The legislative history of the Act showed that the legislative proposals had been scrutinised by the Council of State, whose concerns had been addressed by the Government, and that Parliament itself had been concerned to limit any detrimental effects. The entitlement of individuals unable to find suitable housing had been recognised. The restriction in issue remained subject to temporal as well as geographical limitation. The competent Minister was required by the Act to report to Parliament every five years on the effectiveness of the Act and its effects in practice. The individual hardship clause allowed derogation from the length-of-residence requirement in cases where strict application of it would be excessively harsh. Procedural safeguards comprised of the availability of administrative objection proceedings and of judicial review before two levels of jurisdiction, both before tribunals invested with full competence to review the facts and the law and which met the requirements of Article 6 of the Convention.
(b) The applicant’s individual case – It was undisputed that the applicant was of good behaviour and constituted no threat to public order. Nonetheless, her personal conduct could not be decisive on its own when weighed in the balance against the public interest which was served by the consistent application of legitimate public policy. The system of the Inner City Problems (Special Measures) Act was not called into question by the mere fact that it did not make an exception in respect of persons already residing in a designated area, such as the applicant. The applicant had been resident in a dwelling in Vlaardingen let to her by a Government-funded social housing body since 27 September 2010. She had not explained her reasons for choosing to move to Vlaardingen instead of remaining in the dwelling in Tarwewijk for the final eight months needed to complete six years’ residence in the Rotterdam Metropolitan Region. Nor had she suggested that her dwelling in Vlaardingen was inadequate for her needs or in any way less congenial or convenient than the one she had hoped to occupy in Tarwewijk. In addition, it had not been stated that the applicant had expressed the wish to move back to Tarwewijk. The information submitted did not allow the Court to find that the consequences for the applicant of the refusal of a housing permit amounted to such disproportionate hardship that her interest should outweigh the general interest served by the consistent application of the measure in issue. An unspecified personal preference for which no justification was offered could not override public decision-making.
Conclusion: no violation (twelve votes to five).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy