CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 6 novembre 2017

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font-size:10pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sDE1FCA9C { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s67F06EFC { font-family:Arial; font-size:10pt; color:#000000 } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic }       GRAND CHAMBER             CASE OF GARIB v. THE NETHERLANDS   (Application no. 43494/09)                     JUDGMENT     STRASBOURG   6 November 2017         This judgment is final but it may be subject to editorial revision.     Table of Contents PROCEDURE THE FACTS I.     THE CIRCUMSTANCES OF THE CASE II.     RELEVANT DOMESTIC LAW A.     The Housing Act B.     The Inner City Problems (Special Measures) Act 1.     Relevant provisions 2.     Legislative history of the Inner City Problems (Special Measures) Act C.     The Housing By-law of the municipality of Rotterdam 1.     2003 version 2.     2006 version D.     The designation decisions E.     The opinion of the Equal Treatment Commission III.     OTHER FACTS A.     The designated areas as proportions of the municipality of Rotterdam B.     Subsequent developments concerning the city of Rotterdam 1.     The 2007 evaluation report 2.     The 2009 evaluation report 3.     The 2011 evaluation report 4.     Evaluation of the Inner City Problems (Special Measures) Act 5.     The Amsterdam University report 6.     The National Programme “Quality Leap South Rotterdam” C.     Subsequent legislative developments 1.     The Inner City Problems (Special Measures) (Extension) Act 2.     Amendment of the Inner City Problems (Special Measures) Act in connection with the selective allotment of housing in order to limit nuisance and criminal behaviour D.     Subsequent events concerning the applicant E.     Other information submitted by the parties IV.     DRAFTING HISTORY OF ARTICLE 2 OF PROTOCOL No.   4 V.     PRACTICE ELSEWHERE VI.     RELEVANT INTERNATIONAL LAW THE LAW I.     SCOPE OF THE CASE BEFORE THE COURT II.     ALLEGED VIOLATION OF ARTICLE   2 OF PROTOCOL No.   4 TO THE CONVENTION A.     Applicability 1.     Whether there has been a restriction 2.     Whether the third or the fourth paragraph of Article   2 of Protocol No.   4 should be applied B.     Merits 1.     Whether the restriction was “in accordance with law” 2.     Whether the restriction served the “public interest” 3.     Whether the restriction was “justified in a democratic society” 4.     Conclusion OPERATIVE PROVISION JOINT DISSENTING OPINION OF JUDGES TSOTSORIA AND DE GAETANO DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE JOINED BY JUDGE VEHABOVIĆ I.     Introduction (§§   1-3) II.     The violation of the right to freely choose one’s residence (§§   4-21) A.     The illegitimacy of the aim pursued by the interference with the applicant’s right (§§   6-14) B.     Lack of proportionality of the interference with the applicant’s right (§§   15-21) III.     Discrimination on grounds of social precariousness (§§   22-39) A.     The discriminatory basis of the Dutch legislation (§§   24-30) B.     The multiplicity of the forms of discrimination (§§   31-39) IV.     Conclusion (§ 40) DISSENTING OPINION OF JUDGE KŪRIS   In the case of Garib v.   the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Mirjana Lazarova Trajkovska,   Nona Tsotsoria,   Işıl Karakaş,   Vincent A. De Gaetano,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Egidijus Kūris,   Iulia Motoc,   Jon Fridrik Kjølbro,   Georges Ravarani,   Gabriele Kucsko-Stadlmayer,   Tim Eicke, judges,   Egbert Myjer, ad hoc judge, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 25   January   and 6   July   2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 43494/09) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Netherlands national, Ms   Rohiniedevie   Garib (“the   applicant”), on 28   July   2009. 2 .     The applicant was represented by Mr   R.S.   Wijling, a lawyer practising in Rotterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr   R.A.A.   Böcker of the Ministry of Foreign Affairs. 3.     The applicant alleged that the restrictions to which she was subjected in choosing her place of residence were incompatible with Article   2 of Protocol No. 4 to the Convention. 4.     The application was allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). On 23   February   2016 a Chamber of that Section composed of Judges Luis López Guerra, President, Helena   Jäderblom, George   Nicolaou, Helen Keller, Johannes Silvis, Branko Lubarda and Pere   Pastor Vilanova, and also of Stephen Phillips, Section Registrar, declared the application admissible and held, by five votes to two, that there had been no violation of Article 2 of Protocol No.   4. The joint dissenting opinion of Judges López Guerra and Keller was annexed to the judgment. On 23 May 2016 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 12   September   2016 the panel of the Grand Chamber granted that request. 5.     The composition of the Grand Chamber was determined according to the provisions of Article   26 §§   4 and   5 of the Convention and Rule   24 of the Rules of Court. Mr   Johannes   Silvis, the judge elected in respect of the Kingdom of the Netherlands, having left the Court, on 15   September   2016 the President of the Court appointed Mr   Egbert   Myjer to sit as an ad hoc judge in his place (Article   26 §   4 of the Convention and Rule   29). At the final deliberations, Judge Gabriele Kucsko-Stadlmayer, substitute judge, replaced Judge András Sajó, who was unable to take part in the further consideration of the case (Rule   24 §   3). Ms Mirjana Lazarova-Trajkovska, whose term of office expired on 1   February   2017, continued to sit in the case (Article   23 §   3 of the Convention and Rule   24 §   4). 6.     The applicant and the Government each filed further written observations (Rule   59 §   1) on the merits. In addition, joint third-party comments were received from the Human Rights Centre of Ghent University and the Equality Law Clinic of the Université libre de Bruxelles, which had been given leave by the President to intervene in the written procedure (Article   36 §   2 of the Convention and Rule   44 §   3). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 25   January   2017 (Rule   59 §   3). There appeared before the Court: (a)     for the Government Mr   R.A.A. Böcker , Ministry of Foreign Affairs,   Agent , Ms   M.J. van Amerongen , Ministry of the Interior and Kingdom   Relations, Mr   V. Moors , Ministry of the Interior and Kingdom Relations, Ms   E. Scharphof , Ministry of the Interior and Kingdom   Relations, Mr   M. Metin , Municipality of Rotterdam,   Advisers ; (b)     for the applicant Mr   R.S. Wijling , Ms   K. Azghay ,   Counsel.   The Court heard addresses by Mr   Wijling, Ms   Azghay and Mr   Böcker, and also their answers to questions from judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1971 and now lives in Vlaardingen. 9.     On 25   May   2005 the applicant moved to the city of Rotterdam. She took up residence in rented property at the address A.   Street 6b. This address is located in the Tarwewijk district in South Rotterdam. The applicant had previously resided outside the Rotterdam Metropolitan Region ( Stadsregio Rotterdam ). 10.     The applicant stated that no later than early 2007 the owner of the property asked her and her two young children to vacate the property as he wished to renovate it for his own use. He offered to let the applicant a   different property at the address B.   Street 72A, also in the Tarwewijk area. She further stated that, since it comprised three rooms and a garden, the property was far more suitable for her and her children than her A.   Street dwelling which comprised a single room. However, whether the A.   Street property was actually renovated or required renovation at all remains in dispute (see paragraph 83 below). 11.     In the meantime on 13   June   2006, Tarwewijk had been designated under the Inner City Problems (Special Measures) Act ( Wet bijzondere maatregelen grootstedelijke problematiek , see paragraph   21 below) as an area where only those households could move into housing who had been granted a housing permit ( huisvestingsvergunning ) to do so in relation to an identified property. Accordingly, on 8   March   2007 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 move to B.   Street 72A. 12.     On 19   March   2007 the Burgomaster and Aldermen gave a decision refusing such a permit. They found it established that the applicant did not satisfy the statutory requirements for a housing permit (see paragraph   21 below) on the basis that she 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 also did not meet the income requirement that would have qualified her for an exemption from the residence requirement. 13.     The applicant, who was represented throughout the domestic proceedings and before the Court by the same lawyer, lodged an objection ( bezwaarschrift ) with the Burgomaster and Aldermen. 14.     On 15   June   2007 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection. Adopting as their own an advisory opinion by the Objections Advisory Committee ( Algemene bezwaarschriftencommissie ), they referred to the fact that housing permits were intended to be an instrument to ensure the balanced and equitable distribution of housing and to the possibility for the applicant to move to a   dwelling not situated in a “hotspot” area. 15 .     The applicant lodged an appeal ( beroep ) with the Rotterdam Regional Court ( rechtbank ). In so far as relevant to the case, she argued that the hardship clause ought to have been applied. She relied on Article   2 of Protocol No.   4 of the Convention and Article   12 of the 1966 International Covenant on Civil and Political Rights. She also submitted that the requirement of six years’ residence in the Rotterdam Metropolitan Area, as applied to her, constituted discrimination based on income status contrary to Article   26 of the International Covenant on Civil and Political Rights. 16.     The Regional Court gave a decision dismissing the applicant’s appeal on 4   April   2008 (ECLI:NL:RBROT:2008:BD0270). In so far as relevant to the case before the Court, its reasoning was as follows: “Section 8(1) of the Inner City Problems (Special Measures) Act [see paragraph   21 below] provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [sc. the Minister of Housing, Spatial Planning and the Environment ( Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer )]. The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life ( leefkwaliteit ), particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view. The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve the quality of life of the inhabitants of those districts (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 2004/2005, 30   091, no.   3 [i.e. the Explanatory Memorandum ( Memorie van Toelichting ), see paragraph   31 below], pages   11-13). In view of the aims of the law, as set out, these temporary restrictions on the freedom to choose one’s residence cannot be found not to be justified by the general interest in a democratic society. Nor can it be found that, given the considerable extent of the problems noted in certain districts in Rotterdam, the said restrictions are not necessary for the maintenance of ordre public . The Regional Court takes the view that the legislature has sufficiently shown that in those districts the ‘limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime. As regards the violation of Article 26 of the International Covenant on Civil and Political Rights posited by [the applicant], the Regional Court takes the view that sufficient reasons have been given (Parliamentary Documents, Lower House of Parliament, 2004/2005, 30 091, no.   3, pp.   18-20) that in so far as these measures constitute an indirect distinction, this distinction has sufficient objective justification. The Regional Court observes in this connection that the restrictions based on the Inner City Problems (Special Measures) Act imposed by the 2003 Housing By-law [of   the Municipality of Rotterdam] ( Huisvestingsverordening 2003 ) constitute only a   minimal and temporary restriction on the freedom to choose one’s residence. In so finding, the Regional Court notes that it does not appear – and [the applicant] has not made out a case – that [she] cannot obtain fitting housing elsewhere in the Municipality or the Region.” 17 .     The applicant lodged a further appeal ( hoger beroep ) with the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ). As she had done before the Regional Court, she invoked Article 2 of Protocol No. 4 to the Convention and Articles   12 and   26 of the International Covenant on Civil and Political Rights. 18 .     On 4   February   2009 the Administrative Jurisdiction Division gave a   decision (ECLI:NL:RVS:2009:BH1845) dismissing the applicant’s further appeal. In so far as relevant to the case before the Court, its reasoning included the following: “2.3.2.     The right freely to choose one’s residence, provided by Article   2 of Protocol No.   4, may, under the fourth paragraph, be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society. The right of everyone freely to choose one’s residence, laid down in Article   12 §   1 of the International Covenant on Civil and Political Rights, shall not be subject to any restrictions except those which are provided by law and are necessary to protect public order. The Administrative Jurisdiction Division observes in this connection that the concept ‘public order’ in the Covenant includes, in addition to the prevention of disorder, public safety, the prevention of crime and all universally accepted fundamental principles corresponding to human rights on which a   democratic society is based. The arrangement set out in section   2.6(2) of the 2003 Housing By-law constitutes a restriction on Garib’s free choice of a place of residence. It is not disputed that this restriction is provided for by law and is inspired by the interest that society has in [ensuring] the quality of life in districts of major cities. The Administrative Jurisdiction Division finds that, considering that the area in issue is one designated under section   5 of the Inner City Problems (Special Measures) Act, the Burgomaster and Aldermen were entitled to take the view that the restriction [on freedom to choose one’s residence] is justified in the general interest in a democratic society within the meaning of Article   12 §   3 of the 1966 International Covenant on Civil and Political Rights. The area in issue is a so-called ‘hotspot’, where, as has not been disputed, the quality of life is under threat. The restriction resulting from section   2.6(2) of the 2003 Housing By-law is of a temporary nature, namely for up to six years. It is not established that the supply of housing outside the areas designated by the Minister in the Rotterdam Metropolitan Region is insufficient. What [the applicant] has stated about waiting times does not lead the Administrative Jurisdiction Division to reach a different finding. The Administrative Jurisdiction Division further takes into account that pursuant to section 7(1), introductory sentence and under b of the Inner City Problems (Special Measures) Act, the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated. In view of these facts and circumstances the Administrative Jurisdiction Division finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality. The Administrative Jurisdiction Division therefore finds, as the Regional Court did, that section   2.6(2) of the 2003 Housing By-law does not violate Article   2 of Protocol No.   4 of the Convention or Article   12 of the 1966 International Covenant on Civil and Political Rights. 2.3.3.     As to Garib’s argument that section   2.6(2) of the 2003 Housing By-law violates Article   26, first sentence, of the International Covenant on Civil and Political Rights because it entails an indirect distinction, the Administrative Jurisdiction Division holds as follows. Since a relatively large number of people are resident in the areas covered by that section who are dependent on social-security benefits under the Work and Social Assistance Act, section   2.6(2) can lead to an indirect distinction being made. Such a distinction is permitted if there is an objective and reasonable justification for that distinction and the difference in treatment that flows from it. Whether such is the case must be considered in the light of the question whether the making of the distinction serves a legitimate aim and is proportionate to the aim sought to be achieved, i.e. is a suitable means to achieve that aim and the aim cannot be achieved by other, less intrusive means. Section   2.6(2) of the 2003 Housing By-law is intended by the Local Council ( gemeenteraad ) to effect differentiation in the districts in order to increase the quality of life. Given the seriousness of the problems the solution thereof must be considered a legitimate aim. The income requirement set by section   2.6(2) of the 2003 Housing By-law is the final measure of a package of measures ( pakket van maatregelen ) introduced to meet that goal. It has not, or not sufficiently, been disputed that the other measures in themselves produce insufficient effect. Considering the fact that the measure is limited in time and it does not appear that Garib cannot obtain suitable housing elsewhere in the Municipality or the Region, the Administrative Jurisdiction Division agrees with the Regional Court that the Burgomaster and Aldermen, taking into account the fact that the legislature created the possibility to make use of this means by statute and explicitly and the legislature equally weighed the need to open this possibility in addition to the existing possibilities, had good reasons to take the view that, in addition to the measures already in existence, this measure too is necessary and proportionate. 2.3.4.     Finally, Garib has submitted that the Burgomaster and Aldermen were wrong to find that the particular circumstances on which she relied did not constitute grounds to apply the hardship clauses. These particular circumstances are that her present dwelling is too small for her and her two children and that its poor state of repair causes her inconvenience ( voor overlast zorgt ). It is the policy of the Burgomaster and Aldermen to apply the hardship clauses only in untenable situations, for example in cases of violence. Like the Regional Court, the Administrative Jurisdiction Division takes the view that the Burgomaster and Aldermen were entitled to consider that there is no such situation in the present case.” II.     RELEVANT DOMESTIC LAW A.     The Housing Act 19.     In so far as relevant to the case before the Court, the Housing Act ( Huisvestingswet ) provides as follows: Section   2 “1.     If the local council finds it necessary to lay down rules concerning the taking into use, or permitting the use, of housing ..., or concerning changes to the housing supply ..., it shall adopt a housing by-law ( huisvestingsverordening ). 2.     For the purpose of applying the first paragraph, the local council shall investigate, in any case, the extent to which the effect can be achieved that in permitting the use of relatively low-cost housing priority is given to house-seekers who, in view of their income, are especially dependent on such housing. ...” B.     The Inner City Problems (Special Measures) Act 1.     Relevant provisions 20.     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. 21 .     As in force at the relevant time, provisions of the Inner City Problems (Special Measures) Act relevant to the case were the following: Section   5 “1.     The Minister [of Housing, Spatial Planning and the Environment] can, if so requested by the local council ( gemeenteraad ), designate areas in which persons seeking housing may be made subject to requirements under sections 8 and 9 of this Act. 2.     The indication referred to in the first paragraph shall be for a term of up to four years. At the request of the local council, this term can be extended once only for up to four more years. [Section   7] shall apply by analogy.” Section   6 “1.     When making the request referred to in section   5(1), the local council shall satisfy the Minister of Housing, Spatial Planning and the Environment that the intended designation of the areas mentioned in the request: (a)     is necessary and appropriate to combat inner-city problems in the municipality; and (b)     meets requirements of subsidiarity and proportionality. 2.     The designation referred to in section 5(1) shall be given only if the requirements of the first paragraph have been met, and if the local council has satisfied the Minister of Housing, Spatial Planning and the Environment that persons seeking housing to whom, as a result of such designation, a housing permit for taking housing in the designated areas into their use cannot be granted retain sufficient possibility to find housing suitable for them within the region in which the municipality is situated. ...” Section   7 “1.     The Minister shall rescind the designation referred to in section   5 if it is apparent to him that: ... b.     persons seeking housing to whom a housing permit allowing them to take into use housing within the designated areas cannot be granted as a result of the designation referred to in section   5 have insufficient possibility to find housing suitable for them within the region in which the municipality is situated. ...” Section   8 “1.     The local council can, if it considers [such a measure] necessary and appropriate for combating inner-city problems ( grootstedelijke problematiek ) within the municipality and it meets the requirements of subsidiarity and proportionality, determine in the housing by-law that persons seeking housing who have been resident without interruption of the region within which the municipality is situated for less than six years can only be eligible for a housing permit allowing them to take into use housing belonging to categories designated in that by-law if they dispose of: (a)     an income from work under a contract of employment; (b)     an income from an independent profession or business; (c)     an income from an early retirement pension; (d)     an old-age pension within the meaning of the General Old Age Pensions Act ( Algemene Ouderdomswet ); (e)     an old-age pension or survivor’s pension within the meaning of the Wages (Tax   Deduction) Act 1964 ( Wet op de loonbelasting 1964 ); or (f)     a student grant within the meaning of the Student Grants Act 2000 ( Wet op de studiefinanciering 2000 ). 2.     The local council shall determine in the housing by-law that the Burgomaster and Aldermen can grant a person seeking housing who does not meet the requirements set out in the first paragraph a housing permit allowing them to take into use housing as referred to in that paragraph if denying them that housing permit would lead to iniquity of an overriding nature ( een onbillijkheid van overwegende aard ). ...” Section   17 “The Minister shall send a report to Parliament on the effectiveness and effects of this Act in practice to Parliament every five years after the entry into force of this Act.” 2.     Legislative history of the Inner City Problems (Special Measures) Act (a)     The advisory opinion of the Council of State and the Further Report 22.     The Council of State scrutinised the Inner City Problems (Special Measures) Bill and submitted an advisory opinion to the Queen. The Government forwarded the opinion to Parliament, together with their comments (Advisory Opinion of the Council of State and Further Report ( Advies Raad van State en Nader Rapport ), Parliamentary Documents, Lower House of Parliament, 2004/2005, 30 091, no.   5). 23 .     The applicant, in her observations, draws attention to several remarks made by the Council of State. In so far as relevant to the case before the Court, these included, firstly, concerns about the unwanted side effects of regulating access to housing in inner-city areas on the availability of housing for low-income groups in surrounding municipalities; secondly, concerns about persons with income from sources other than social-security benefits being compelled to accept housing in depressed neighbourhoods against their wishes; thirdly, concerns about compatibility with human rights treaties, including the International Covenant on Civil and Political Rights and Protocol No.   4 to the Convention; and, lastly, concerns about the implicit distinction based on income, which might lead to indirect distinctions on grounds of race, colour or national or ethnic origin. 24 .     The Government responded to these concerns. Side effects affecting surrounding municipalities were to be expected only if the municipality concerned could not guarantee the availability of alternative housing itself; at all events, other local authorities would be consulted before the Minister gave a decision and the number and extent of the urban areas to be designated were expected to be limited. It was normally left to those seeking housing whether to react to an offer of housing or not; there was thus no compulsion. Moreover, while the effect of designation under the Inner City Problems (Special Measures) Act might well be to shorten waiting lists and encourage persons with income from sources other than social-security benefits to take up residence there, this was actually an intended effect. The measures in issue were justified in terms of Article   12 §   3 of the International Covenant on Civil and Political Rights and Article   2 §   3 of Protocol No.   4 to the Convention. It could not be excluded that members of minority groups might be affected indirectly, but the aim thereby served was legitimate, the means chosen were appropriate to that aim, alternative means were not available and the requirement of proportionality had been met. In the latter connection, the Government pointed to the requirement that sufficient alternative housing had to be available within the region for those in need of it before an urban area could be designated under the Act; if after all this proved not to be the case, the Minister would withdraw the designation. 25.     Changes were made to the Explanatory Memorandum ( Memorie van Toelichting ) reflecting the points raised. (b)     The Explanatory Memorandum 26 .     It is stated in the Explanatory Memorandum to the Inner City Problems (Special Measures) Bill (Parliamentary Documents, Lower House of Parliament 2004/2005, 30 091, no.   3) that it was enacted in response to a   specific wish expressed by the authorities of the municipality of Rotterdam. The emergence of concentrations of “socioeconomically underprivileged” in distressed inner-city areas had been observed, with serious effects on the quality of life owing to unemployment, poverty and social exclusion. Many who could afford to move elsewhere did so, which led to the further impoverishment of the areas so affected. This, together with antisocial behaviour, the influx of illegal immigrants and crime, was said to constitute the core of Rotterdam’s problems. The need therefore existed to give impetus to economic improvement locally. Quick results were not expected, for which reason the Act was intended to remain in force indefinitely; however, its effects would be reviewed in five years’ time. 27.     In addition to the local authorities of Rotterdam, those of other cities had been asked for their input. Interest in the aims and measures of the Act had been expressed by the remaining three of the four major cities – Amsterdam, The Hague and Utrecht, in addition to Rotterdam – and other municipalities, large towns in particular. It would, however, be left to each municipality to choose for itself the measures to adopt in response to local needs. 28 .     Measures available under the Act included offering tax incentives and subsidies with a view to promoting economic activity in affected areas. Other measures were aimed at regulating access to the housing market in particular areas. 29 .     In the longer term, measures including the sale of rental property, the demolition of substandard housing and its replacement by higher-quality, more expensive residential property were envisaged. As a short-term temporary measure, intended to offer a “breathing space” for more permanent measures to produce their effects, it was proposed on the one hand to encourage settlement by persons with an income from employment (or past employment), professional or business activity or student grants and on the other to stem the influx of socioeconomically deprived house-seekers with a view to increasing population diversity. 30 .     At the same time it was recognised that those denied settlement in the areas in issue should be provided with suitable housing elsewhere in the city or region concerned. If that was not secured, the areas affected would not be designated under the legislation proposed or an existing designation would have to be withdrawn as the case might be. 31 .     The question of compatibility with human rights treaties, including the International Covenant on Civil and Political Rights and Protocol No.   4 to the Convention, was addressed in the following terms: “ 4.3     Compatibility with treaties, the Constitution ( Grondwet ) and the General Equal Treatment Act ( Algemene wet gelijke behandeling ) The measures proposed constitute a minor restriction on the right freely to choose one’s residence, as protected by Article   12 §   1 of the International Covenant on Civil and Political Rights (hereafter the Covenant), Article   2 of Protocol No.   4 to the European Convention on Human Rights (hereafter the Convention) and Articles   18 and   43 of the Treaty establishing the European Community [1] . Article   12 §   1 of the Covenant guarantees the right to freedom of settlement ( vrijheid van vestiging ) to anyone who is lawfully on Netherlands territory. The measures adopted in this Bill constitute only a minor restriction of this right to freedom of settlement. The restriction applies only to the areas designated by the Minister of Housing, Spatial Planning and the Environment on the application of the local council. It is moreover a precondition for such designation and the application of the measures proposed that persons seeking housing who are affected by the requirements to be imposed on the basis of the proposed sections   8 and   9 should retain sufficient possibilities to find a dwelling elsewhere in the municipality or the region. If that is not guaranteed, the area shall not be designated or the designation shall be withdrawn by the Minister of Housing, Spatial Planning and the Environment. The measures proposed will therefore not result in those persons seeking housing being unable to settle in the municipality within which the measures referred to will be applied or the region within which that municipality is situated. The minimal restriction on the right to freedom of settlement that may be the consequence of the measures proposed is justified, because the measures serve to protect public order as referred to in Article   12 §   3 of the Covenant. The concept of public order includes, in addition to the prevention of disorder, public safety, the prevention of crime and all universally accepted fundamental principles corresponding to human rights on which a democratic society is based. The measures proposed in this Bill are intended to prevent an increased concentration of socioeconomically (more) deprived groups in certain areas or districts as a result of selective migration. The measures enable the municipality to tackle the existing segregation of incomes across the city in a short time by regulating the offer of housing. The influx of socioeconomically disadvantaged does, after all, have the consequence that a correspondingly greater demand is placed on social security structures, that support for economic activities and services is reduced and that the integration of immigrant groups is hampered. This threatens social isolation for both native-born households and households of immigrant descent in those districts. To counter this development a temporary restriction of the influx of socioeconomically (more) deprived groups is required. These measures therefore serve the protection of public order as referred to in Article   12 §   1 of the Covenant. As indicated [elsewhere in the Explanatory Memorandum], a sort of breathing space is thus created for the district concerned, so that the measures generally already ongoing to provide durable improvement of the situation in those areas or districts can actually produce their effects. Article   2 §   4 of Protocol No.   4 to the Convention guarantees the right of everyone lawfully within Netherlands territory freely to choose their residence. With regard to this right, too, there is merely a minor restriction within the meaning of Article   2. In the relevant case-law it has in any case been held that within the framework of assessments under the Convention States enjoy a certain margin of appreciation when it comes to measures in the field of socioeconomic policy, including housing policy. In the Government’s considered opinion, this restriction can, as the Council of State says in its advisory opinion, be justified in reliance on Article   2 §   4 of Protocol No.   4 to the Convention. That fourth paragraph admits of restrictions on the right freely to choose one’s residence if that is in the public interest in a democratic society. In the Government’s considered opinion the measures proposed in this Bill are, for the reasons set out above (in relation to Article   12 of the Covenant), in the general interest. ... In addition, the measures affect the right to equal treatment, as protected by, among other provisions, Article   1 of the Constitution, Article   26 of the Covenant, Article   5 of the International Convention on the Elimination of All Forms of Racial Discrimination, Article   14 of the Convention and Article   1 of Protocol No.   12 to the Convention. Based on income, a person seeking housing who has been resident in the region for less than six years either qualifies or does not qualify for a housing permit for a dwelling in the designated area. In addition, a person seeking housing may qualify to be granted a housing permit for a dwelling in the designated area with priority, based on socioeconomic characteristics. A distinction based on income must be objectively justified pursuant to Article   1 of the Constitution and the international treaties mentioned. As has been remarked above, within the framework of assessments under the Convention, States enjoy a certain margin of appreciation when it comes to housing policy. The question whether objective justification exists for the measures proposed, in so far as these measures give rise to an indirect distinction on one of the grounds aforementioned, must be answered with the assistance of the following four questions. 1.     Is the distinction made to further a legitimate aim? 2.     Is the distinguishing measure appropriate; can the legitimate aim be met by means of the distinction made? 3.     Is the requirement of subsidiarity met; can the legitimate aim not be achieved by other means which impinge on the principle of equality less? 4.     Is the requirement of proportionality met; is there a balance between the legitimate aim and the interests impinged on? Legitimate aim The powers granted by sections   8 and   9 can be applied to support measures in districts that are under severe stress aimed at improving the position of those districts. The aim is to ‘assist the recovery’ of districts that have to contend with a cumulation of problems of a social, economic and physical nature. Moreover, it concerns a   temporary restriction of the influx of persons seeking housing whose socioeconomic position is relatively weak. The Government are of the opinion that in this case the aim is a legitimate one. The powers set out in sections   8 and   9 of this Bill may therefore be used only in districts that are under very serious stress. This is a measure that may not and will not be resorted to lightly. Appropriate The aforementioned aim will be achieved by not admitting persons seeking housing who have completed less than six years’ residence in the region to dwellings in the designated areas. The result will be that the pressure on those areas will be reduced as a consequence of the reduced inflow of persons seeking housing who are in a   socioeconomically weaker position. To ensure that the measure does not impact (too) negatively on the regional housing market and the necessary flexibility within the region, the said requirements are not set to persons seeking housing who have been resident in the region for six years or longer. Subsidiarity The Major Cities Policy is intended to keep middle and higher incomes in the city and prevent the concentration in certain districts of low-income groups. As remarked [elsewhere in the Explanatory Memorandum], this is a long-term process. In the short term additional measures will therefore be needed to prevent the situation from deteriorating further. When the Minister of Housing, Spatial Planning and the Environment considers whether designation of areas in which requirements based on sections   8 and   9 may be imposed on persons seeking housing is justified, it will also be weighed to what extent the instruments provided by the Housing Act, as already in force, have made enough of a difference. The Government are accordingly of the opinion that the aim cannot be achieved by other means in respect of these areas. Proportionality The aim is to improve the situation in areas that are under severe stress. The interest that is (partially) affected is the interest that persons seeking housing who do not qualify for a housing permit in the designated areas but who are dependent on the supply of low-cost housing have in being able to find housing suited to their needs. The precondition that is posed explicitly as regards designation of areas and use of the powers granted by sections   8 and   9 is that the persons seeking housing who are not granted a housing permit as a result of that designation retain sufficient possibilities elsewhere in the region to find a dwelling suited to their needs. Their interest in finding a dwelling suited to their needs is to some extent impinged on; they are (temporarily) unable to settle in particular areas within the municipality. Since they (must) have possibilities elsewhere in the municipality and the region, this restriction is proportionate to the aim pursued by it. The requirement that persons seeking housing who do not qualify for a housing permit in the designated areas should have sufficient possibilities elsewhere in the municipality or the region to find a dwelling suited to their needs will in practice limit the maximum size of areas that can be designated. After all, if too many areas, or too large a part of the area of the municipality, is proposed by the local council for designation, then the chance for these persons seeking housing to find a dwelling will be significantly reduced, the result being that this necessary precondition will no longer be met. The Government consider that adopting the powers provided for by sections   8 and   9 of the Act is necessary to achieve a legitimate aim, namely relieving the pressure on urban areas that are under severe stress, and also that these powers are suited to that aim. Moreover, the Government are of the opinion that adopting the powers provided for by sections   8 and &#xa0