THIRD SECTION
DECISION
Application no. 4965/10
Jamha HADDAOUCHI
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 16 January 2018 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 18 January 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Jamha Haddaouchi, is a Netherlands national, who was born in 1975 and, as far as the Court is aware, lives in Rotterdam. She was represented before the Court by Mr R.S. Wijling, a lawyer practising in Rotterdam.
The Netherlands Government (“the Government”) were represented by their Agent, most recently Ms B. Koopman, of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was a resident of Rotterdam from 1980 until August 2006.
4. In August 2006 the applicant moved with her three children to Antwerp. In late January 2008 she and her children moved back to Rotterdam. She took up residence in an apartment on P. Street 20C.
5. P. Street is located in an area designated under the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek) as an area in which it was not permitted to take up new residence without a housing permit (huisvestingsvergunning). Accordingly, on 11 February 2008 the applicant lodged a request for a housing permit with the Burgomaster and Aldermen (burgemeester en wethouders) of Rotterdam in order to be permitted to continue residence in P. Street 20C.
6. On 17 March 2008 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 Metropolitan Region 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 9 June 2008 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection.
9. The applicant lodged an appeal (beroep) with the Rotterdam Regional Court (rechtbank).
10. The Regional Court gave a decision dismissing the applicant’s appeal on 12 March 2009. The Regional Court’s decision referred to the leading decision of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) given in the Garib case (see Garib v. the Netherlands, no. 43494/09, § 15, 23 February 2016).
11. The applicant lodged a further appeal (hoger beroep) of her own with the Administrative Jurisdiction Division of the Council of State.
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:
“2.4. The Regional Court has rightly dismissed the argument that section 2.6 of the [2003 Housing Bye-law (Huisvestingsverordening 2003) of the municipality of Rotterdam] lacks binding force because it is contrary to provisions of domestic and international law and was fully entitled to refer to this Division’s decision of 4 February 2009. The sole fact that that decision is the object of an application to the European Court of Human Rights does not prevent either the Burgomaster and Aldermen or the Regional Court from relying on that decision.
Moreover, the Burgomaster and Aldermen pursue a policy of only applying the hardship clause in intolerable situations (onhoudbare situaties). The Administrative Jurisdiction Division takes the view that the Regional Court rightly held, on the grounds stated, that the Burgomaster and Aldermen were entitled to take the position that such circumstances do not obtain. It is noted in this connection that also on further appeal no grounds have been adduced that would lead the Administrative Jurisdiction Division to find that the Burgomaster and Aldermen were wrong not to apply the hardship clause. The argument fails.”
B. Relevant factual and policy background, domestic law and practice
13. The relevant factual and policy background, domestic law and practice are set out in Garib v. the Netherlands, no. 43494/09, 23 February 2016.
COMPLAINT
14. The applicant complained under Article 2 of Protocol No. 4 to the Convention about the restrictions to which she had been subjected under the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek) and the 2003 Housing Bye-law of the municipality of Rotterdam.
THE LAW
15. The applicant complained that the Inner City Problems (Special Measures) Act and the 2003 Housing By-law of the municipality of Rotterdam, and in particular section 2.6 of the latter (as in force at the time), violated her rights under Article 2 of Protocol No. 4, which provides as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
16. She pointed to the low refusal rate compared to the number of requests for a housing permit actually granted, which in her submission implied that the problems which the Inner City Problems (Special Measures) Act was intended to counter were not, in reality, caused by any increase in the number of socioeconomically disadvantaged in the districts affected. She also referred to a residual shortage of accessible rental housing in the Rotterdam Metropolitan Region which in her submission made it unlikely that persons whose request for a housing permit had been rejected by the Burgomaster and Aldermen of Rotterdam would be able to find an alternative home in one of the other municipalities.
17. The Court refers to Garib v. the Netherlands [GC], no. 43494/09, §§ 136-157, 6 November 2017.
18. The Court is unable to distinguish the present case from that of Garib. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2018.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy