EHRM, 06-11-2017, nr. 43494/09

The Inner City Problems (Special Measures) Act applies to a number of named municipalities including Rotterdam. It empowers those 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.

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

Section 6

Section 7

Section 8

Section 17

Before the entry into force of the Inner City Problems (Special Measures) Act, the 2003 Housing By-law of the municipality of Rotterdam set rules for, among other things, the distribution of low-rent housing to low-income households by empowering the Burgomaster and Aldermen to issue housing permits. In designated areas it was forbidden to take up residence without a housing permit if the rent was lower than a specified amount. The By-law set out criteria for the Burgomaster and Aldermen to apply in granting such housing permits; these criteria included a correlation between rent and income levels and another between the number of rooms in particular dwellings and the number of persons comprising a household.

On 1 October 2004 the municipality of Rotterdam introduced, on an experimental basis, a by-law under which only households with an income between 120 per cent of the statutory minimum wage and the upper limit for compulsory public health insurance (ziekenfondsgrens; approximately double the statutory minimum wage at the time) were entitled to a housing permit allowing them to take up residence in moderate-cost rented housing.

In January 2006 the 2003 Housing By-law of the municipality of Rotterdam was amended to introduce 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 By-law).

The 2003 Housing By-law was replaced, with effect from 1 January 2008, by a new Housing By-law (Designated Areas (Rotterdam)) (Huisvestingsverordening aangewezen gebieden Rotterdam). This by-law, which remains in force, includes provisions corresponding to those outlined in the preceding paragraph.

An evaluation report, commissioned by Rotterdam's own City Construction and Housing Service (Dienst Stedebouw en Volkshuisvesting) after the first year following the introduction of the housing permit in Rotterdam, 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’).

The report noted 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 were not prevented from moving there.

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.

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.

Of the persons refused a housing permit, 73 (40% of all those who met with a refusal) were known to have found housing elsewhere relatively quickly.

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.

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’), during which the events complained of took place.

During this period, the social housing bodies had let 1,712 dwellings in the areas concerned. Since the social housing bodies could only accept tenants who qualified for a housing permit, no applications for such a permit had been rejected in this group.

Out of 6,469 applications for a housing permit relating to privately-let housing, 4,980 had been accepted (77%); 342 had been refused (5%); and 296 had been pending at the beginning of July 2009. Examination of a further 851 had been discontinued without a decision being taken (13%), generally because these applications had been withdrawn or abandoned; the assumption was that many of these applications would in any case have been rejected. It followed, therefore, that if the pending cases were not taken into account, approximately one-fifth of this category of applications had been either refused or not pursued to a conclusion.

The reason to reject an application for a housing permit had been related to the income requirement in 63% of cases, sometimes in combination with another ground for rejection; failure to meet the income requirement had been the sole such reason in 56% of cases.

Of 342 persons refused a housing permit, some two-thirds were known to have managed to find housing elsewhere, either in Rotterdam (47%) or elsewhere in the Netherlands (21%).

The hardship clause had been applied 185 times — expressed as a percentage of applications relating to privately-let housing, 3% of the total. These had been cases of preventing squatters from taking over housing left empty (antikraak), illegal immigrants whose situation had been regularised by a general measure (generaal pardon), assisted living arrangements for vulnerable individuals (begeleid wonen), cooperative living arrangements (woongroepen), start-up enterprises, the re-housing (herhuisvesting) of households forced to clear substandard housing for renovation, and foreign students. In addition, in one-third of cases the hardship clause had been applied because a decision had not been given within the prescribed time-limit.

The effects of the measure were considered 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 accumulation of housing problems:

Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork. They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords, provided that it be actively enforced and administrative procedures be simplified. Others with a professional involvement in the Rotterdam housing market mentioned the dissuasive effect of the measure on would-be new residents of the affected areas.

The report suggested that the housing permit requirement might no longer be needed for one of the existing ‘hotspots’ (not Tarwewijk). Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four.

A third evaluation report, this time commissioned by Rotterdam's City Development Service (Housing Department), was published by the Centre for Research and Statistics in August 2012 (second revised edition). It covered the period from July 2009 until July 2011 (‘the 2011 evaluation report’).

The social housing bodies had let 1,264 dwellings in the areas concerned; as during the previous period, no applications for housing permits had been rejected in this group because the social housing bodies could only accept qualifying tenants.

There had been 3,723 applications for a housing permit relating to privately-let housing. Of these, 3,058 had been accepted (82%); 97 had been refused (3%); and 282 had been pending on 1 July 2011. Examination of 286 had been discontinued without a decision being taken (8%), generally because they had been withdrawn or abandoned. This meant that, if the pending cases were not taken into account, approximately one-tenth of applications were either rejected or not pursued to a conclusion because the household concerned had reconsidered its decision to move.

The reasons to reject an application for a housing permit had included failure to meet the income requirement in 81% of cases, sometimes combined with other reasons. In the remaining cases the decision to reject had been based on the excessive number of persons wishing to take up residence in a particular dwelling; the unlawful sub-letting of rooms; the absence of valid residence rights; or the fact that the person making the application was underage.

The individual hardship clause had been applied in 93 cases; as a proportion of successful applications for a housing permit, this amounted to just under 3%. In addition, in 55 cases objections had been lodged against refusals; of these, 5 had been successful and had resulted in the grant of a housing permit. The grounds on which the hardship clause was applied were the same as those stated in the 2009 evaluation report (see paragraph 61 above).

In terms of social index, Tarwewijk continued to score lowest of all the Rotterdam districts. Social cohesion was very weak, which was explained by the number of house moves but also by a general lack of participation in social life. In terms of residential environment (leefomgeving), the district was vulnerable, the problem being a lack of suitable housing.

Based on the same indicators and methodology as the previous report, the 2011 evaluation report concluded that the housing permit system should be continued in Tarwewijk and two other areas (including one in which it had been introduced in the meantime, in 2010); discontinued in two others; and introduced in one area where it was not yet in force.

On 18 July 2012 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a separate evaluation report assessing the effectiveness of the Inner City Problems (Special Measures) Act since its inception and its effects in practice to the Lower House of Parliament, as required by section 17 of that Act (Parliamentary Documents, Lower House of Parliament, no. 33 340, no. 1). The Minister's covering letter 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 they, inter alia, confirmed the desirability of extending the indication of particular areas for applying the housing permit requirement beyond the first two four-year periods: 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 Kwaliteitssprong Rotterdam Zuid, see below)) had been started in the southern parts of Rotterdam in 2011.

Both the applicant and the Government have submitted a report entitled ‘Evaluation of the effects of the Inner City Problems (Special Measures) Act’, by the Amsterdam Institute for Social Science Research (University of Amsterdam; the report is referred to hereafter as the ‘Amsterdam University report’). This report was commissioned by the Minister of the Interior and Kingdom Relations, who published it in November 2015, to be put before Parliament.

The report comprises 16 pages of introduction, 116 pages of analysis and 40 more pages of references and appendices (tables, methodology, list of interviewees). Its conclusion reads, inter alia, as follows:

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.

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.

On 19 November 2013 the Government introduced a Bill proposing to amend the Inner City Problems (Special Measures) Act (Parliamentary Documents, Lower House of Parliament 2013/2014, 33 797, no. 2). The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector, give municipalities broader powers of enforcement and make further temporal extension of the Act possible.

The Inner City Problems (Special Measures) (Extension) 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 Inner City Problems (Special Measures) Act, as amended).

With effect from 1 January 2017 the Inner City Problems (Special Measures) Act was amended further to enable the selective allotment of housing in order to limit nuisance and criminal behaviour.

The Chamber held as follows (see paragraph 105 of its judgment):

Neither the applicant nor the respondent Government has challenged this finding. The Court sees no reason to reconsider it of its own motion and accordingly endorses it.

The Chamber held as follows (see paragraph 106 of its judgment):

The applicant argued that the third paragraph of Article 2 of Protocol No. 4 was applicable. In her submission, the drafting history of the Article and the Court's case-law — in particular Olivieira v. the Netherlands, no. 33129/96, ECHR 2002-IV and Landvreugd v. the Netherlands, no. 37331/97, 4 June 2002 — suggested that the fourth paragraph could only apply in ‘exceptional situations’, an expression which she understood to mean ‘an acute (and temporary) emergency situation’.

The Government took the view that the fourth paragraph should be applied. They pointed out that the fourth paragraph referred only to the first paragraph of the Article, unlike the third paragraph which referred also to the second paragraph. They also submitted that the fourth paragraph was more appropriate to the facts of the case by dint of the ordinary meaning of the words used; moreover, it had been added with a view to enabling policies that tackled overcrowding and fostered adequate distribution of certain groups for socioeconomic reasons.

The Court finds nothing in the drafting history of the Article to suggest that the fourth paragraph was intended only to be used in case of an acute and temporary emergency. Rather, it is reflected in the drafting history that the fourth paragraph was added to provide for restrictions of the right to liberty of movement and freedom to choose one's residence for reasons of ‘economic welfare’, whereas economic reasons could never justify restrictions on the right to leave one's country (see the report of the Committee of Experts to the Committee of Ministers, Report H (65) 16, 18 October 1965, §§ 15 and 18, paragraph 85 above). Nor is the applicant's position supported by the Court’s Olivieira and Landvreugd judgments, neither of which limits the applicability of the fourth paragraph to ‘emergency situations’ or describes the problems caused by drug abuse in central and south-eastern Amsterdam as ‘acute and temporary’.

In light of the facts before it, the Court finds it more appropriate to consider the present case under the fourth paragraph of Article 2 of Protocol No. 4. The third and fourth paragraph of that Article being of equal rank in that both provide for free-standing restrictions on the exercise of the rights set out in the first paragraph and both being different in scope (paragraph 3 providing for restrictions for specified purposes but without limiting their geographical scope and paragraph 4 providing broadly for restrictions ‘justified by the public interest’ but limited in their geographical scope), there is no need also to consider it under the third paragraph.

The Chamber held as follows (paragraph 108 of its judgment):

The applicant's representative, speaking at the hearing of the Grand Chamber, argued that the restriction in issue had not been foreseeable for the applicant already at the time when she moved to Tarwewijk in 2005. He submitted that the legislative bill that was later to become the Inner City Problems (Special Measures) Act had not yet been presented in Parliament at the time when she moved to the Tarwewijk district of Rotterdam in May 2005; this had happened only later. Furthermore, the applicant could not have foreseen that Tarwewijk would be designated under that Act; that no transitional regime would be provided for persons already resident in a designated district at the time of its designation; or that the hardship clause would be applied as restrictively as it was.

The Government submitted that the restriction was based on an Act of Parliament, the Inner City Problems (Special Measures) Act, and the 2003 Rotterdam Housing By-law, the latter supplemented with provisions on processing housing permit applications. All had been made public. The Minister's designation of Tarwewijk had been published as a parliamentary document and was likewise accessible to the public. The requirements of accessibility and foreseeability had therefore been complied with.

The Court notes that the applicant does not dispute that the Inner City Problems (Special Measures) Act and the delegated legislation based thereon were accessible to her while they were in force. It therefore accepts that the applicant was in a position to regulate her conduct and foresee with complete clarity, if need be with appropriate advice, the consequences which her actions might entail. The ‘foreseeability’ requirement that the Court has recognised as an element of the more general requirement that an interference with a Convention right, if permitted at all, must be ‘in accordance with law’ (an expression synonymous with ‘in accordance with the law’ and ‘prescribed by law’, in French: prévue(s) par la loi; see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, §§ 49–50, Series A no. 30) cannot be interpreted as requiring the modalities of application of a law to be predictable even before its application in a given case becomes relevant.

The Chamber held as follows (paragraph 110 of its judgment):

Neither the applicant nor the respondent Government has challenged this finding. The Court sees no reason to reconsider it of its own motion and accordingly agrees with the Chamber that the restriction in issue served the ‘public interest’.

For all the above reasons, there has been no violation of Article 2 of Protocol No. 4.

As has been rightly noted by the Chamber and Grand Chamber judgments in the present case, there is no doubt that the measure at issue was in accordance with law, because the Inner City Problems (Special Measures) Act and the 2003 Housing By-law of the municipality of Rotterdam expressly introduced this mechanism6.. However, to answer the question whether this same measure pursued a legitimate aim proves more difficult. It is certainly clear that the law in question was officially aimed at the ‘deghettoisation’ and regeneration of the most deprived areas. To attain these objectives it introduced measures intended to encourage a social mix in the neighbourhoods concerned. Accordingly, the stated aim pursued by the measure underlying the interference with the applicant's rights could certainly be considered legitimate. However, a more careful examination of the authorities' policy soon reveals an underlying aim that is less commendable, seeking as it does to remove the more underprivileged inhabitants from the areas concerned.

It is regrettable to note at the outset that the very wording of the Dutch legislation, like the vocabulary used by the domestic courts, is particularly illustrative of the aims pursued by the authorities beyond the stated objective of ‘deghettoisation’. It would thus appear that the relevant housing policy actually stems from the perpetuation of confusion between poverty and public order offences and is testament to a real phobia of the poor, giving rise to deep-rooted negative stereotypes. It can be noted in this connection that the cause of incivility and other social disorder in the areas concerned by the legislation has been attributed to individuals who have no work income. While there is no doubt that it is commendable to ensure a social mix, it is nevertheless a somewhat dangerous short-cut to assimilate poverty with insecurity — or even criminality.

The judgment of the Regional Court dismissing the applicant's appeal against the Burgomaster's refusal clearly indicates that the restrictions on freedom to choose one's residence seek ‘to reverse a process of overburdening and decreasing quality of life’ in the districts concerned, but that they are also ‘necessary for the maintenance of ordre public’7.. What is more, the judgment states that in those districts ‘there is a concentration of underprivileged individuals … as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime’8.. Poverty, far from being perceived as a source of vulnerability, is described here as the fount of all social evil that will therefore have to be eradicated, or at least distanced or diluted as far as possible.

The Administrative Jurisdiction Division of the Council of State maintained that position in response to the applicant's appeal, and took the view that the interference was ‘inspired by the interest that society ha[d] in [ensuring] the quality of life in districts of major cities’9. In addition, it unequivocally accepted that the relevant rules, since they necessarily affected underprivileged inhabitants, could lead to an ‘indirect distinction’, or more accurately an indirect discrimination, but nevertheless found it to be ‘necessary and proportionate’, because ‘the measure [was] limited in time’10..

To make matters worse, the amendment of the Inner City Problems (Special Measures) Act, which took effect on 1 January 2017, offers another particularly serious clue as to this ulterior motive11. It provides that the housing permit may also be denied to persons aged 16 or over who are already known to the police or the courts or who are quite simply suspected of being likely to contribute to an increase in disturbance or crime. This body of consistent indications confirms that the measure in question did not seek solely to promote the regeneration of deprived neighbourhoods but was also aimed at ridding them of the poorest inhabitants, who were seen as responsible for the bad living conditions there, and in particular as a cause of public insecurity and crime.

Moreover, it should be pointed out at this juncture that the notion of ordre public — brandished as a banner by the authorities in their crusade against the most vulnerable population groups — is not the ‘catch-all’ notion at the disposal, or at the discretion, of the States parties that this case may suggest. On the contrary, the Court has previously had occasion to describe the Convention as a ‘constitutional instrument of European public order (ordre public)’12.. This means that ordre public cannot be raised against the Convention system as a bulwark to ring-fence the national margin of appreciation. European standards form an integral part of this ordre public and cannot be negated for the sake of national preferences. The notion of ordre public cannot be instrumentalised as if were a tool of variable parameters whose application is subject to national circumstances, especially when the dramatisation of ordre public is fertile ground for the stepping-up of security measures that has been seen in certain European countries. This common talk of a social malaise gives widespread credence to a pattern of suspicion and discrimination, especially vis-à-vis all those who belong to minorities or who have ‘social problems’. The illegitimacy of the general measure as noted above is further confirmed by an examination of its manifestations at an individual level.

Even assuming that the aim pursued by the legislation had been legitimate, it could not have obviated the prism through which this case must be apprehended. The fact of giving precedence, as the Chamber and Grand Chamber judgments have done, to the general aims of a national policy over any impact that it may have at an individual level, inevitably runs counter to the general scheme of the Convention as an international treaty for the protection of human rights.

As I have often had occasion to state13. , the Convention must necessarily be read in a pro persona perspective, placing the individual at the heart of the reasoning. Monica Pinto defines this principle as ‘a hermeneutic criterion impregnating all human rights law, on the basis of which the most far-reaching norm, or its most extensive interpretation, must be taken into account when it comes to acknowledging protected rights’14.. Human rights treaties must be interpreted in the manner which best protects the rights and freedoms secured therein15.. Ultimately it is therefore a matter of selecting the interpretation of rights that is most favourable for the individual. The Court's mission consists precisely in guaranteeing individual rights and not in whitewashing the decisions of national authorities, especially when those decisions entail a restriction of human rights. While the national authorities are in principle the best placed to assess the needs of society16., and while the Court must respect its subsidiary role, it is nevertheless precluded from adopting a pro auctoritate reading of the Convention and the Protocols thereto, but must, on the contrary, uphold the effectiveness and maximising of the rights secured to the individual.

An examination of the interference committed by the Dutch authorities with the applicant's freedom to choose her residence must therefore focus on the particular effects of the individual measure sustained by her. However, the Chamber judgment, like that of the Grand Chamber, had focused on the legitimacy of the general measure adopted by the Government and on the public interest that was supposed to be upheld by that measure. In the Chamber's view, inter alia, ‘the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case’17.. The same reasoning can be found more subtly in the Grand Chamber's effort to assess in abstracto whether the Inner City Problems (Special Measures) Act was compliant with the Convention and in its wish to rule urbi et orbi upon the legitimacy under the Convention of the Rotterdamwet policy option18.. As a result, the majority have implicitly endorsed the reasoning previously adopted in Animal Defenders International v. the United Kingdom, where the Court had accepted that the State could take general measures applying to pre-defined situations regardless of the specific circumstances of each individual case, even if those measures might lead to difficulties in certain cases19.. Such an analysis at the general level considerably increases the State's margin of appreciation in the restriction of individual rights for the sake of collective goals.

In the light of the foregoing, the result of the assessment of the applicant's situation was a foregone conclusion, if not a fatality. The so-called weighing-up by the majority of the applicant's personal conduct, ‘however virtuous’, against the ‘legitimate’ public policy of the respondent State, was simply cosmetic20.. The use of the proportionality test in respect of the individual measure applied to the applicant was merely an illusion. Indeed, being inspired by an unacceptable pro auctoritate ideology, the majority even contend that the applicant should have justified her preference for a given residential area and disclosed private information to the public authorities, thus making the assumption that the State should exercise a paternalistic, if not totalitarian, role in respect of certain deprived population categories21.. In so doing the majority have de facto reversed the burden of proof as regards the proportionality of the State's interference with the applicant's right. And in so doing the majority have ultimately contradicted the following principle of international law, which is now firmly established22.:

By contrast, the Court has already had occasion to explain that the State's margin of appreciation will be restricted where ‘a particularly important facet of an individual's existence or identity is at stake’23.. While it usually holds this discourse when it comes to interference with the right to private and family life, there is no doubt that the right to freely choose one's residence, and more broadly questions related to the place of abode, may benefit from the same conclusion. Furthermore, the Court has already indicated that the margin of appreciation afforded to the State will be narrower ‘if a restriction on fundamental rights applies to a particularly vulnerable group in society’, and that the Government ‘must have very weighty reasons for the restrictions in question’24.. Consequently, the transposition of the ‘general’ reasoning from the Animal Defenders judgment (cited above) is not suited to the present case. Similarly, the reference to a broad margin of appreciation in the implementation of an urban policy, or more generally an economic and social policy, is quite out of place in the circumstances of the present case25.. Having regard to the considerable repercussions that housing policies may have for the private and family life and vulnerability of the most underprivileged members of society, the position to be taken on these questions cannot be one of withdrawal or of excessive deference vis-à-vis the national authorities, without undermining the very substance of the Convention mechanism. The Court has, moreover, reiterated on many occasions that ‘[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’26..

This fundamental premise reminds us that the Court's mission consists in securing the effective enjoyment of Convention rights at an individual level. As the Court first stated expressly in Handyside v. the United Kingdom, European supervision ‘covers not only the basic legislation but also the decision applying it, even one given by an independent court’27.. Therefore the scrutiny of the interference sustained by Ms Garib must not be exercised exclusively or principally at the level of the general measure regulating housing permits for deprived neighbourhoods — which would, in any event, lead to the conclusion that it was illegitimate, as I have already shown — but also and above all must also concern the individual measure by which the applicant was denied such a permit. The Explanatory Report in respect of Protocol No. 428. confirms this view because its drafters chose not to provide, under Article 2 of the Protocol, that the right to freely choose one's residence could be restricted for economic reasons, thus showing that the choice of a general policy, and of a general economic policy in particular, could not trump individual rights. This was one of the arguments put forward by the proponents of the position adopted at the time, to the effect that ‘[t]he adoption of the other view would allow States to restrict the freedom of movement not only of aliens but also of their own nationals on economic grounds and this would be a retrograde step rather than a step forward in the protection of individual rights’29.. Indeed, ‘[t]he majority of the Committee was against the inclusion of a provision permitting restrictions on the ground of economic welfare’30.. Thus, any mercantilist interpretation of the fourth paragraph, accepting a restriction of the right to freely choose one's residence based exclusively or primarily on criteria of general economic welfare, such as the criterion of the inhabitants' income, would run counter to the express intention of the drafters of Protocol No. 4. But this is precisely the possibility that the Grand Chamber has wrongly accepted in the present case31..

The denial of a housing permit to Ms Garib, who wished to move into a larger flat in the district where she was already living, did not correspond to any necessity in the light of the circumstances of the case. Accordingly, it cannot be considered, as the Grand Chamber has done, that the measure was justified by the appropriateness of the means used in relation to the aims pursued. The Equal Treatment Commission had found that the 2003 By-law and the Inner City Problems (Special Measures) Bill entailed indirect discrimination based on race in the case of persons of non-European immigrant descent and on gender in the case of working mothers, and that these distinctions were not justified given the availability of alternative measures32.. The reports on the implementation of the legislation in question, as now available, reveal that no noteworthy improvement has been achieved by the measures. They thus illustrate that the problems which the authorities had intended to combat cannot be attributed to the ‘poor’. So in spite of filtering candidates for housing according to their income, and thus ensuring the gradual cleansing of these areas, no significant progression in the quality of life or feeling of safety has been recorded. To make matters worse, the effects of this legislation are quite alarming. The 2007 report reveals that only 40% of individuals who have been denied a housing permit on account of their social and economic situation have found new housing rapidly. That number reached two thirds in 2009. However, in that same year, the report reveals that, while the number of residents in receipt of benefit had declined in the sensitive neighbourhoods, the perceived lack of safety had not at all been reduced but had even increased there. The authors even admitted that ‘the effect of the housing permit in this respect was limited’33.. The data in the 2011 report are no more positive34.. The most recent report from Amsterdam University, published in 2015, contains the same findings almost ten years after the entry into force of the Inner City Problems (Special Measures) Act35.. It certainly confirms the lack of safety and of quality of life in the areas concerned, but above all states that ‘the designated districts have shown a more negative development in their scores than the other districts of the city’, and that ‘it still appears that the districts covered by the Act display a significantly worse development than the other districts of Rotterdam’36.. The measure in question has thus quite simply proved ineffective for the pursuit of the legitimate aim announced by the authorities37..

However, even though it was supposed to be temporary in nature38., the legislation was extended and strengthened by an amendment, which entered into force on 14 April 2014, even though it had clearly not produced the intended effects39.. With the possibility of renewal for successive four-year periods from the entry into force of this amendment, the measure is thus prolonged indefinitely. In other words, the façade of the ‘limited duration’ attached to the measure of ‘indirect distinction’, to use the Council of State's wording, has fallen away40.. After more than ten years of application of a discriminatory policy vis-à-vis the poor, without seeing the slightest success, neither an increase in living standard, nor a reduction in criminal behaviour and public disorder in the districts concerned, the legislature insisted and persisted in its mistake by adopting the above-mentioned amendments to the law, which entered into force in 201741..

Lastly, the necessity of the measure in question is further contradicted by an examination of the facts of the case. While Ms Garib derived her income from social-security benefit, she was already living in the Tarwewijk neighbourhood. Consequently, her eviction did not fall within the aims of the law, which sought to modify the composition of the population of the areas concerned by selecting new arrivals. There is no guarantee that the new occupants of Ms Garib's former housing, or that to which she wanted to move, would have been recipients of work income. The fact of living for more than six years in the area concerned allows a derogation from the mechanism, but Ms Garib failed to satisfy that condition. Therefore, the fact of denying a permit to a person who is already a resident of the neighbourhood but has lived there for less than six years does not make any sense in the light of the aims of the law and the disputed measure cannot, having regard to all of the foregoing considerations, be regarded as necessary for the pursuit of the stated legislative aim.

In addition to it being necessary, an interference with Convention rights must be proportionate in itself, that is to say that it must ensure a fair balance between the interests at stake42.. Once the proportionality test is applied to the individual measure, the interference with the applicant's right in the present case does not satisfy that condition, for a number of reasons.

The most significant element of the non-proportionality of the measure lies in the total lack of any individual examination of the applicant's situation. While the Government admitted from the outset that there had been an interference with Ms Garib's right, the authorities had not found it necessary to assess its impact on her individual situation. The same omission can be seen in the reasoning of the Administrative Jurisdiction Division, which merely noted that ‘it does not appear that Garib cannot obtain suitable housing elsewhere in the Municipality or the Region’.

The applicant is a single mother of two children and she relies on benefit to provide for her family all by herself. She was initially living in a small run-down flat with her children when her landlord offered her the rental of a three-bedroom flat better suited to their needs and located only about forty metres away. She had already started fitting out her new flat when she received the decision refusing her a housing permit. Since the applicant was already living in the area concerned, the refusal to authorise her move to a flat that was available and in the same area — having regard to the living conditions of the family and the effects of the measure on their already precarious situation — cannot be regarded as striking a fair balance between the considerable individual interest at stake here and the collective interest that the measure was supposed to serve.

Lastly, there is no doubt that less restrictive measures could have been used to fulfil the ‘stated’ aim of the legislation in question. Work to regenerate and promote these districts could also have been envisaged in order to attract higher income households. A strengthening of police presence and the implementation of social policy actions could also have contributed to improving the feeling of safety and quality of life. It is also particularly significant that the Netherlands is the only European State to have adopted, to my knowledge, this type of strategy43.. While many other countries seek to influence the composition of the population of urban areas in a perspective of desegregation, as is the case for example of France, Germany, Switzerland or Belgium, those countries have, by contrast, opted for the settlement of underprivileged groups in various areas by imposing minimum quotas of social housing44.. Ultimately, it is difficult to understand how the eviction of the residents of the district in question could have been more effective with a view to its ‘deghettoisation’, in the light of the considerable interference caused by this type of measure with the fundamental rights of those concerned45..In reality, the crux of the matter seems in my view to lie elsewhere, namely in the almost open intention of the Government to rid the areas concerned of the most underprivileged residents by means of this housing policy, while at the same time massively reducing investment in positive integration programmes for marginalised groups, in the restructuring of public services and in the renovation of buildings in those areas46..

The combat against extreme poverty has become a fundamental development issue, especially since the 1990s. Economic development and the increase of wealth have paradoxically drawn attention to the most underprivileged, who have been left out of this phenomenon. The considerable discrepancy in living standards, sometimes within a single society, has given rise to a real awareness at the international level. The definition of precariousness (lack of basic security) as promoted by the United Nations is particularly significant. It reads as follows49.:

This definition is particularly useful since it has the merit of immediately highlighting the multifaceted nature of poverty and its consequences. Poverty thus contains within it a highly destructive potential as it jeopardises the fulfilment of many fundamental freedoms. This is the reason why the United Nations has entreated the member States to adopt poverty reduction strategies based on human rights50.. The eradication of poverty is, in particular, among the millennium goals set out in 200051.. Thus envisaged, social precariousness is a global issue for international human rights law, illustrating once again, if need be, the interdependency and indivisibility of human rights.

Going beyond its personal dimension and the dramatic effects it entails for the daily life and future of those concerned, poverty further modifies, in the most negative possible way, their relationship with others and with society. The risk of stigmatisation and discrimination is both aggravated and aggravating for individuals in a precarious situation. Access to certain basic services, like their full and complete integration into the social fabric, may be jeopardised by their social and economic situation, as a result of negative stereotypes and prejudices being perpetuated. Accordingly, many international instruments prohibit discrimination on grounds of ‘economic condition/status’ or ‘social origin’, for example: Article 26 of the International Covenant on Civil and Political Rights; Article 2 § 2 of the International Covenant on Economic, Social and Cultural Rights; Article 1 of the American Convention on Human Rights; Article 1 § 1 of the ILO Convention concerning Discrimination in Respect of Employment and Occupation; the UNESCO Convention against Discrimination in Education; or Article 14 of the European Convention on Human Rights and Article 1 of Protocol No. 12. Article 30 of the European Social Charter provides in particular for the right to protection against poverty and social exclusion, requiring States to52.:

This is also the case of much domestic legislation, particularly under French law, which adds ‘the particular vulnerability stemming from [the] apparent or known economic situation’ to the criteria of discrimination penalised by law since 201653.. Article 3 of the Italian Constitution proclaims the equality of all citizens before the law without any distinction ‘in personal or social conditions’. Belgian law prohibits discrimination based inter alia on ‘wealth’ or ‘social origin’. This phenomenon is not limited to Europe because illustrations can be found in the Constitutions of South Africa54., Bolivia55. or Ecuador56., for example. The Inter-American Court of Human Rights has already implemented such rules. In the case of Gonzales Lluy v. Ecuador, it included poverty among the grounds for the discrimination sustained by the applicant in finding a violation of Article 1(1) of the American Convention on Human Rights. That court explained clearly that ‘Talia Gonzales Lluy suffered discrimination derived from her situation as a person living with HIV, a child, a female, and living in conditions of poverty’57.. It is clear, therefore, that poverty is seen by the Inter-American judges as a potential factor of discrimination, prohibited by the American Convention. In view of this uniform conception of poverty as a prohibited ground of discrimination, it is appropriate once again to point out the need to interpret the European Convention not in a vacuum58., but in the light of the relevant international law, or of any consensus that may emerge among the States parties. It has always been clear in Europe that ‘the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein’59.. It is thus essential to bear in mind that social precariousness figures among the grounds of discrimination prohibited under Article 14 of the Convention60..

It is undeniable that there is a connection between housing policy and risks of discrimination which can arise from such policy, based on precarious individual situations. In its comments on Article 30 of the Social Charter, the European Committee of Social Rights (ECSR) had previously indicated that ‘[t]he measures taken for such a purpose must promote and remove obstacles to access to fundamental social rights, in particular employment, housing, training, education, culture and social and medical assistance.’61.. The ‘Guiding principles on extreme poverty and human rights’ of the United Nations, which set out norms of ‘soft law’62., deal specifically with this question. They call for the implementation of an adequate right to housing and security of tenure, observing as follows63.:

The States parties are thus asked to ‘[a]ccord priority to individuals and communities living in poverty in housing and land allocation, especially where access to work and services is available’64..

A number of international authorities and bodies have shown particular concern about the Dutch housing policy at issue in the present case. The majority have quite simply ignored the reiterated and consistent positions of the United Nations Human Rights Committee, the ECSR, the European Commission against Racism and Intolerance (ECRI) and the Council of Europe's Commissioner for Human Rights, as to the specific question discussed here. This is yet another methodological choice on the part of the majority that I have difficulty understanding. It is particularly hard to comprehend why the highly commendable work of the ECSR, which is the competent body on questions of the right to housing and discrimination in access to housing, has been ignored65..

Already in 2007, in its third report on the situation in the Netherlands, ECRI adopted the following position66.:

In the 2009 report on his visit to the Netherlands, the Council of Europe's Commissioner for Human Rights emphasised the discriminatory potential of this legislation vis-à-vis the poor and the unemployed, and called for it to be reviewed67..

In its 2011 findings on the report submitted by the Netherlands, the ECSR expressed concern about the relevant Dutch legislation's potential discrimination as a result of the income criterion for housing permits68.. The ECSR pointed out that the general interest in improving the quality of housing in certain areas had to be weighed against the specific interest of the vulnerable category69.. It thus instructed the Netherlands Government as follows:

This request has remained unanswered70..

At UN level, the Human Rights Committee also expressed concern about this situation in its conclusions on the periodical report submitted by the Netherlands in 2009. As it clearly state71.:

Like the ECSR, its conclusion was that ‘[t]he State party should ensure that its regulation of access to housing does not discriminate against low-income families and respects the right to choose one's residence’72..

The Inner City Problems (Special Measures) Act has, since 2006, indeed applied a difference in treatment based on a person's source of income. It provides in section 5 that the Minister can designate areas in which persons seeking housing may be made subject to certain requirements. Section 8 of the Act (see paragraph 21 of the judgment) thus requires one of the following sources of income:

This difference in treatment depending on the income source is not, in reality, based on any objective justification but on a latent stigmatisation of the most disadvantaged groups who are often living off welfare. This can be seen from the language used by the authorities in this connection, as already mentioned. The Explanatory Memorandum in respect of the Bill explained as follows (see paragraph 26 of the judgment):

The Regional Court, in its decision of 4 April 2008 to dismiss the applicant's appeal, already indicated that ‘in those districts there [was] a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime’ (see paragraph 16 of the judgment). In the eyes of both the legislature and the domestic court, poverty and social disorder are thus closely linked. This approach becomes even clearer in the light of the above-mentioned amendment (see paragraph 8 above), which entered into force in 2017, extending the category of person excluded from the designated areas to any individual who is known to the police or the courts, or who is suspected of being likely to contribute to an increase in disturbance or crime in the relevant area. Such a proposition is totally at odds with the principle of the presumption of innocence and again reveals the dangerous stigmatisation in which the authorities have engaged73.. It is thus sufficient to be merely suspected of being likely to cause potential nuisance (and it is not known how this is taken into consideration) or of belonging to a defined category of vulnerable person (those who do not have work income) in order to sustain a considerable interference with the right to freely choose one's residence. It is not the pragmatic finding of the need for sufficient income to pay one's rent which forms the basis of the different in treatment, but indeed the underlying treatment of benefit recipients as troublemakers who should be removed from the areas intended for regeneration.

In reality the applicant has been used as a scape-goat of society, in spite of her particularly vulnerable situation. The law in question affects de facto a specific underprivileged category on which it imposes unfavourable treatment compared to the treatment of the majority group. The precarious population groups who find themselves in this situation are thus subject to a double punishment, because they face poverty-related difficulties in combination with constant social stigmatisation. The link systematically made by the law between disorder and other forms of incivility, on the one hand, and poverty, on the other, is nonsensical and is not corroborated by any statistical evidence. Such a misconception contributes to the perpetuation of stereotypes with dramatic effects for these population groups, whereas, on the contrary, they need particular assistance to rise above their condition. Legislation which institutionalises such stereotypes and has considerable negative consequences for individuals cannot therefore be perceived as objectively justified for the purposes of the Convention. In my view, it would have been better to deal with the present case under Article 14 in order to identify and condemn the discrimination suffered by Ms Garib on account of the precarious nature of her personal situation.

The Dutch housing legislation does not only give rise to direct discrimination by expressly excluding precarious population groups from certain residential areas. Its application by the authorities also results de facto in making some of the individuals concerned assume particularly heavy consequences, unlike other population categories, and thus in subjecting them to a less favourable treatment than that enjoyed by other Dutch citizens. This is the epitome of indirect discrimination. The European Court is already familiar with this concept as defined in D.H. v. Czech Republic: ‘a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group’74.. The heart of such indirect discrimination thus lies in a de facto situation caused by a legal provision which is not expressly directed against a particular group. Indirect discrimination is all the more pernicious as it is not blatant. It is sometimes not even intended by the legislature. Nevertheless, the Court found in the case of Hugh Jordan v. the United Kingdom75. that intent to discriminate was not necessary for indirect discrimination to be established. Once there has been an allegation, it is then for the State to prove that the legislation in question does not produce any disproportionate detrimental effects for a given group76.. The ECSR has also issued a warning against this type of policy, pointing out as follows77.:

In the present case, the dissenting judges at the time of the Chamber judgment had already made the following remark about the income-based restriction78.:

Studies have indeed shown that women — and especially single mothers — are more exposed to the risk of poverty than men79.. Similarly, the statistics available — and the Court has previously found statistical evidence to be admissible in discrimination cases80. — show that migrants are over-represented in the categories of persons facing the risks of poverty and social exclusion in the Netherlands81.. Accordingly, the measure at issue has a greater impact on women and non-European migrants, as a sub-set of the group targeted as a whole by the national legislation and already suffering from the direct discrimination that, in my view, it causes. It is quite simply inconceivable that a vulnerable category should be the object of direct discrimination and that certain sub-categories within it are additionally the object of de facto or indirect discrimination on grounds of sex or ethnic origin. This state of affairs has considerably increased the vulnerability of Ms Garib, who, in addition to the initial consequences of the measure imposed on her, has also suffered from its effects by ricochet. All this serves to highlight the inadequacy of the justification given by the State in its attempt to make the relevant difference in treatment seem acceptable.

However, the essential contribution of the Garib case in the field of discrimination, and one that the Court — both the Chamber and the Grand Chamber — has unfortunately refused to consider, lies in the highlighting, through the facts of the case, of a particular form of discrimination that European human rights law must incorporate into its bulwark of legal protection. I refer to the concept of ‘intersectional discrimination’, which represents a reality that has been virtually disregarded to date by the European system, whereas it has been increasingly acknowledged in international law. It is now indispensable to take this phenomenon into consideration in order to reach a global and comprehensive understanding of the various discrimination situations and thus guarantee the effectiveness of the Convention rights.

The concept of intersectional discrimination appeared for the first time in the context of American feminist thought, in the writings of Kimberle Crenshaw, who addressed the specific situation of women of colour being subjected to discrimination based on both gender and ethnic origin. In her work she sought to devise a notion to identify the ‘intersection’ or cross-over between forms of discrimination suffered by this sub-group as a result of the combination of their gender and colour. She thus explains that ‘[b]ecause of their intersectional identity as both women and of color within discourses that are shaped to respond to one or the other, women of color are marginalized within both [gender and race]’79.. The concept of intersectionality thus helps us to perceive the relevant situations as a whole, rather than, as before, from a purely one-dimensional perspective. Going beyond the aggregation of factors of discrimination, this method allows us to consider the effects of the intersection of the relevant forms of discrimination. To sum up, it is a question of acknowledging the composite nature of the sources of discrimination and the synergy of their effects. It is therefore the interaction and simultaneous impact which distinguish between intersectional discrimination and multiple forms of discrimination80.. In the course of the preparatory work for the World Conference against racism, racial discrimination, xenophobia and related intolerance, Radhika Coomaraswamy, who was then the Special Rapporteur on violence against women, submitted a Report to the United Nations General Assembly in which she set out a relevant working definition of the concept. She expressed the following view41.:

This analytical tool, which is particularly effective as it allows multidimensional discrimination to be addressed in a holistic manner and the actual consequences for victims to be assessed, has gradually found its way into the sphere of international human rights law. The Committee on the Elimination of All Forms of Discrimination against Women, for example, indicated as follows in its recommendation no. 2842.:

The Committee on Economic, Social and Cultural Rights emphasised in its General Comment no. 20 as follows43.:

This concept has not only been acknowledged at a theoretical level, it has also been implemented in practice on various occasions. For example, in the case of Alyne da Silva Pimentel Texeira v. Brazil, the Committee on the Elimination of All Forms of Discrimination against Women found as follows44.:

Nor is the concept of intersectional discrimination unknown to the European Court itself. It was addressed in the B.S. v. Spain judgment, where the Court noted as follows45.:

The Inter-American Court of Human Rights seems to be more advanced in this area. It addressed the relevant notion in the case of Artavia Murillo et al. v. Costa Rica, where it took the view that ‘the interference had a differentiated impact on the victims owing to their situation of disability, gender stereotypes and, for some of the victims, to their financial situation’46.. It then expressly enshrined the notion a few years later in the case of Gonzales Lluy et al. v. Ecuador. It found as follows as regards the situation of the applicant and her family (she was a young girl from a deprived background with HIV, who had been denied access to education):

The Inter-American Court went on to develop its reasoning more clearly as follows47.:

The intersection of the various factors of discrimination is flagrant here and the effects of their synergy can thus be clearly understood.

It is precisely this consideration of the additional harmful effects produced by the combination of factors of discrimination which has proved indispensible in addressing complex situations of discrimination. It is not always sufficient to add together the multiple factors of discrimination, especially where the intersection between them exacerbates their consequences. Such synergy does not necessarily result in an accumulation of forms of unitary discrimination, but in a new form of multidimensional discrimination. In view of the significance of the phenomenon, its consequences in terms of the effectiveness of the guaranteed rights, and the international consensus obtaining at the present time, the Court must today include this aspect in its scrutiny under Article 14 of the Convention.

Ms Garib's situation was, unfortunately, an ideal case for this type of analysis. Indeed, as I have already mentioned, the applicant was affected by the measure in question in a quite specific manner on account of her poverty and her status as a woman. While she thus had more chance, statistically, of facing difficulty in finding housing, it is also not hard to imagine the hurdles she had to overcome as the single mother of two children. There is therefore no doubt that the applicant's intersectional situation, being both a woman and impoverished, considerably exacerbated her vulnerability vis-à-vis the Dutch housing policy in question. In order to assess the effects of the interference with her right to freely choose her residence, the authorities and — all the more so — the Court, should have taken into consideration this particular vulnerability resulting from the combination of a number of factors of discrimination. To treat Ms Garib as any other citizen or to see her through the prism of her poverty, or that of her status as a woman, would not enable a holistic analysis of the negative effects for her personal life of the decision to deny her a housing permit. It was indispensible, in the circumstances at issue, to assess the aggregate effect of the whole body of factors and thus to reach the indisputable finding that the measure in question could not have been proportionate.

The Inner City Problems (Special Measures) Act applies to a number of named municipalities including Rotterdam. It empowers those 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.

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

Section 6

Section 7

Section 8

Section 17

The 2003 Housing Bye-law of the municipality of Rotterdam set rules for, among other things, the distribution of low-rent housing to low-income households by empowering the Burgomaster and Aldermen to issue housing permits. In designated areas it was forbidden to take up residence without a housing permit if the rent was lower than a specified amount. The Bye-law set out criteria for the Burgomaster and Aldermen to apply in granting such housing permits; these criteria included a correlation between rent and income levels and another between the number of rooms in particular dwellings and the number of persons comprising a household.

On 1 October 2004 the municipality of Rotterdam introduced, on an experimental basis, a bye-law under which only households with an income between 120 per cent of the statutory minimum wage and the upper limit for compulsory public health insurance (ziekenfondsgrens; approximately double the statutory minimum wage at the time) were entitled to a housing permit allowing them to take up residence in moderate-cost rented housing.

In January 2006 the 2003 Housing Bye-law of the municipality of Rotterdam was 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).

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.

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’).

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.

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.

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.

Of the persons refused a housing permit, 73 (40 % of all those who met with a refusal) had managed to find housing elsewhere relatively quickly.

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.

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’), during which the events complained of took place.

During this period, the social housing bodies had let 1,712 dwellings in the areas concerned. Since the social housing bodies could only accept tenants who qualified for a housing permit, no applications for such a permit had been rejected in this group.

Out of 6,469 applications for a housing permit relating to privately-let housing, 4,980 had been accepted (77%); 342 had been refused (5%); and 296 had been pending at the beginning of July 2009. Examination of a further 851 (13%) had been discontinued without a decision being taken, generally because these applications had been withdrawn or abandoned; the assumption was that many of these applications would in any case have been rejected. It followed, therefore, that if the pending cases were not taken into account, approximately one-fifth of this category of applications had been either refused or not pursued to a conclusion.

The reason to reject an application for a housing permit had been related to the income requirement in 63% of cases, sometimes in combination with another ground for rejection; failure to meet the income requirement had been the sole such reason in 56% of cases.

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%).

The hardship clause had been applied 185 times — expressed as a percentage of applications relating to privately-let housing, 3% of the total. These had been cases of preventing squatters from taking over housing left empty (antikraak), illegal immigrants whose situation had been regularised by a general measure (generaal pardon), assisted living arrangements for vulnerable individuals (begeleid wonen), cooperative living arrangements (woongroepen), start-up enterprises, the re-housing of households forced to clear substandard housing for renovation, and foreign students. In addition, in one-third of cases the hardship clause had been applied because a decision had not been given within the prescribed time-limit.

The effects of the measure were considered 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 accumulation of housing problems:

Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork. They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords, provided that it be actively enforced and administrative procedures be simplified. Others with a professional involvement in the Rotterdam housing market mentioned the dissuasive effect of the measure on would-be new residents of the affected areas.

The report suggested that the housing permit requirement might no longer be needed for one of the existing ‘hotspots’ (not Tarwewijk). Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four.

A third evaluation report, this time commissioned by Rotterdam's City Development Service (Housing Department), was published by the Centre for Research and Statistics in August 2012 (second revised edition). It covered the period from July 2009 until July 2011 (‘the 2011 evaluation report’).

Based on the same indicators and methodology as the previous report, it concluded that the housing permit system should be continued in Tarwewijk and two other areas (including one in which it had been introduced in the meantime, in 2010); discontinued in two others; and introduced in one area where it was not yet in force.

On 18 July 2012 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a separate evaluation report assessing 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 Kwaliteitssprong Rotterdam Zuid, see below)) had been started in the southern parts of Rotterdam in 2011.

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.

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.

On 19 November 2013 the Government introduced a Bill proposing to amend the Inner City Problems (Special Measures) Act (Parliamentary Documents, Lower House of Parliament 2013/2014, 33 797, no. 2). The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector, give municipalities broader powers of enforcement and make further temporal extension of the Act possible.

The Inner City Problems (Special Measures) (Extension) 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 Inner City Problems (Special Measures) Act, as amended).

A further Bill was introduced on 8 October 2015 (Parliamentary Documents, Lower House of Parliament 2015/2016, 34 314, no. 2). It purports to grant municipalities powers to deny housing permits to individuals with a criminal record. According to its Explanatory Memorandum (Parliamentary Documents, Lower House of Parliament 2015/2016, 34 314, no. 3), the intention is to provide a legal basis for measures likely to constitute interferences with the right of freedom to choose one's residence, as guaranteed by Article 2 of Protocol No. 4 of the Convention and Article 12 of the International Covenant on Civil and Political Rights, and — since the measures in issue will of necessity entail the disclosure to local authorities of police information — with the right to private life as guaranteed by inter alia Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 7 of the Charter of Fundamental Rights of the European Union. It is currently pending in the Lower House of Parliament.

The Court considers that the application raises questions of fact and law which are sufficiently serious that its determination should depend on an examination of the merits. No other grounds for declaring it inadmissible have been established. The Court therefore declares it admissible.