In the recent case of Garib v. the Netherlands, the Court considered that a policy imposing minimum income conditions on persons wishing to settle in a number of inner-city areas of the city of Rotterdam did not violate the freedom to choose one’s residence as guaranteed by Article 2 Protocol No. 4. In doing so, the Court over-relies on the margin of appreciation doctrine and fails to acknowledge the discriminatory and stigmatizing effects of such policy faced by persons living in poverty.
The facts and the judgment
The case concerns the policy of the city of Rotterdam, in application of the Inner City Problems (Special Measures) Act (also known as Rotterdam Act), to require persons wanting to take up a new residence in a number of inner-city areas (“hotspot” areas) of the city to apply for a housing permit. In order for such housing permit to be granted, a person must either reside for at least six years in the Rotterdam Metropolitan Region or he or she must comply with a minimum income requirement – in particular disposing of an income of at least 120 per cent of the statutory minimum wage. The purported aim of this policy was to reverse the decline of impoverished inner-city areas by encouraging wealthier persons to move into those areas.
The applicant, a single mother with two children, had taken up residence in a rented property in Tarwewijk district, one of the designated areas, in May 2005. A number of months later, the landlord asked her to vacate the property as he wished to renovate it for his own use. He however offered to let the applicant another property in the same area – a three-room apartment with a garden – which the applicant considered far more suitable for her and her children than the single-room apartment she was living in. However, in the meantime, Tarwewijk had been designated as a “hotspot” area, and in March 2007, the City authorities decided not to grant the applicant, who was dependant on social benefits, a housing permit because she did not meet the income requirement that would have qualified her for an exemption from the six-year residence requirement. Her subsequent appeals failed and as a result she was forced to relocate to the municipality of Vlaardingen.
The Court first recognizes that there had been a restriction on the applicant’s freedom to choose her residence, taking into account the fact that the property concerned “was actually available to her on conditions she was willing and able to meet.” This is in itself interesting given the scarce amount of cases relating to the freedom to choose one’s residence under Article 2 Protocol No. 4. Because the restriction complained of is a geographically confined one, the Court examines the case from the viewpoint of the limitations clause of § 4.
Subsequently, the Court turns to the application of the paragraph 4 test, holding that the restriction had been “in accordance with law” (in particular the Rotterdam Act), and that it served the legitimate aim “to reverse the decline of impoverished inner-city areas and to improve quality of life generally”. The Court’s analysis mainly focuses on the question whether there was a “reasonable relationship of proportionality” between the means employed and the aim pursued. The Court starts its proportionality analysis by making a number of contestable legal-methodological choices which effectively preordain the outcome of the case:
- It decides to examine the restriction as a general measure, in light of the controversial Animal Defenders approach: focusing primarily on the general justification given for a general measure, holding that the more convincing such general justification, the less importance it will attach to the impact of a general measure in a particular case. The dissenting judges rightly fail to see why a restriction would be more “justified” or “necessary” solely because the restrictive measure is of a general nature, and prefer to focus on the individual application of a restriction – be it based on a general or an individual measure.
- The Court accords a wide margin of appreciation to the State – which implies that the Court will only question judgments by national authorities as to what is in the public interest insofar as they are “manifestly without reasonable foundation” – because the case raises “complex social, economic and political issues.” Again, the dissenting judges consider this approach to be inappropriate, arguing that the margin should have been narrower, in particular because the challenged measure was linked to source of income and could thus constitute indirect discrimination on the grounds of social origin and gender and because the poor could be considered as “a vulnerable group in and of themselves”.
- Related to the deferential approach resulting from this wide margin of appreciation, the Court confines itself to verifying whether the challenged measure was suitable to the legitimate aim pursued – in other words, whether it could contribute to the realization of such aim – instead of conducting a genuine proportionality analysis. Such a genuine proportionality analysis would have placed more emphasis on the question of the impact of the challenged measure on the individual and on the question whether the means-ends relationship was sufficiently fine-tuned (encompassing the question whether less restrictive alternatives would have equally served the same aim).
- The Court only applies a very procedural approach, focusing mainly on “the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature”, rather than genuinely addressing the substance of the case itself.
As a result of these four legal-methodological choices, the Court’s examination basically collapses into a very deferential inquiry into whether the domestic authorities had not “manifestly unreasonably” considered the challenged general measure to be suitable to achieve the aim of reversing the decline of impoverished inner-city areas, downplaying the relevance of the impact of such measure on the individual concerned. It is clear that basically any measure could pass such lenient test. The Court readily dismisses the risk of indirect discrimination raised by the Council of State and the Equal Treatment Commission – laconically considering that “[i]t is in the nature of things that the legislative process involves criticism of legislative proposals” – and considers the availability of alternative solutions as not rendering in itself the challenged measure unjustified. The Court therefore considers the general measure in principle justified and does not consider the individual circumstances to be such as to outweigh the public interest served. With respect to the latter question, the Court merely notes that the applicant
“has however stated no reason, cogent or otherwise, for wishing to live in Tarwewijk rather than in other areas of the city of Rotterdam or the Rotterdam Metropolitan Area where suitable housing might have been available.”
The Court therefore concludes that there had not been a violation of Article 2 Protocol 4.
In their dissenting opinion, judges López Guerra and Keller rightly criticize the majority for failing to grasp the discrimination aspect of the case. The Court fails to recognize that the challenged measure constitutes both direct discrimination on the ground of socio-economic disadvantage – which is suspect per se since it risks reproducing and reinforcing existing patterns of socio-economic disadvantage – and indirect discrimination on the ground of gender and ethnic origin, since the challenged measure is likely to have a disparate impact along gender and ethnic lines, more likely affecting women (in particular single mothers like the applicant) and persons belonging to an ethnic minority – as was indeed suggested by the Dutch Council of State and the Equal Treatment Commission. Recently, in the Di Trizio case, the Court firmly acknowledged that the “very weighty reasons” test applies not only to direct but also to indirect discrimination on the basis of gender, and the same reasoning would likely apply to indirect discrimination on the basis of ethnic origin.
Applying the higher intensity of review required by such a discrimination analysis, would also have allowed the Court to better grasp the stigmatizing effects of the policies concerned. The justification of the policy offered by the domestic authorities both at the national level and in Strasbourg indicates that persons living in poverty are in the first place considered as sources of social problems and crime. This stigmatizing effect is criticized by the dissenters who hold that “[t]he poor do not per se pose a threat to public security, nor are they systematically the cause of crime.” The dissenters consider any legislation which results in the stigmatisation of persons living in poverty to be per se problematic. Such stigmatization justifies a policy of cracking down on rather than helping persons living in poverty to improve their situation, which was clearly at play in the case at hand. Poor individuals are pushed out of their boroughs and they are thereby rendered invisible, without addressing the roots of their socio-economic problems, allowing wealthier individuals to replace them. Strikingly, the Court legitimized such policies by welcoming the fact that the challenged measure was linked to a twenty-year programme involving investment in infrastructure and housing. In other words, instead of directly improving the quality of living of poor individuals by investing in their boroughs, the authorities seemingly adopted a gentrification-prone approach of preferring to await the arrival of middle classes before investing in the areas concerned, which casts doubt on their willingness to genuinely address the roots of the problem. Instead of simply accepting the benevolent character of such programme, the Court should at least have required the State to indicate the expected impact of the programme as well as to give at least some indication as to who actually benefits therefrom: new middle class inhabitants or poor individuals as well.
Even to the extent that the authorities were in fact interested in ameliorating the living circumstances of persons living in poverty as well, such policies remain stigmatizing, since their paternalist character denies the agency of the persons concerned. This was particularly striking in the case at hand, given the fact that the applicant had in fact managed to find an apartment that was more suitable for her and her children, but was nonetheless denied the agency to improve her living circumstances on her own terms. The dissenting judges rightly point out the fact that the majority had failed to respect the applicant’s agency by requiring her to state reasons for wishing to continue living in Tarwewijk, considering it more appropriate to take as a starting point the fact that “the applicant has the right to choose her residence, and she is not obliged to justify this choice.” The power dynamics behind this type of agency-denying paternalist policy become clear if one considers the mere fact that the law concerned did not offer the possibility to likewise impose maximum income or resource requirements in homogenous middle or upper class areas. Stigmatizing assumptions concerning the incapacity of persons living in poverty to improve their living circumstances themselves conveniently justify gentrification policies that ultimately serve middle class interests, making poor individuals invisible, thereby discarding of the need to improve their socio-economic position. It is unfortunate that the Court in the Garib case missed the opportunity to emphasize that at the core of any human rights based approach to addressing socio-economic problems should be a concern to find solutions that respect and empower rather than restrict the agency of persons suffering from socio-economic disadvantage.
 Paragraph 4 is less strict than paragraph 3, which applies to geographically non-confined restrictions. Paragraph 3 holds that “No restrictions shall be placed on the exercise of these rights other than such are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Paragraph 4 on the other hand holds that: ““The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” In their dissenting opinion, judges López Guerra and Keller argue in favour of applying the stricter paragraph 3 test.
 In doing so, the dissenting judges refer to my article “Strenghtening the Protection of Human Rights of Persons Living in Poverty under the ECHR”, in which I explore what a human rights based approach to poverty may look like in the context of the ECHR.