S3503569

Vlaicu Motrescu
Working Group 2.2
Week 3 Legal Skills

General Questions

1. Ms Rohiniedevie Garib was renting a property at the address A. Street 6b in the

Tarwewijk district in South Rotterdam (consideration 6), when her landlord asked her to
move to another one of his propreties at the address B. Street 72A, which she accepted
(consideration 7). For her to take up a new residence, however, she needed a housing
permit, as per the Inner City Problems Act, for which she applied on 8 March 2007 at the
Burgomaster and Aldermen of Rotterdam (consideration 8). The application was rejected,
on the grounds that the applicant was not a resident of the Rotterdam Metropolitan
Region for 6 years prior and was also dependent on social-security benefits under the
Work and Social Assistance Act, therefore not having the necessary income that would
dismiss the necessity for such a permit (consideration 9).
2. Ms Garib lodged an objection with the Burgomaster and Alderman (consideration 10),
which was subsequently dismissed on 15 June 2007, based on an advisory opinion by the
Objections Advisory Committee which stated that housing permits are an instrument to
ensure the balanced and equitable distribution of housing (consideration 11), following
which the applicant lodged an appeal with the Rotterdam Regional Court, stating that the
hardship clause was necessary to apply, based on Article 2 of Protocol No. 4 of the
ECHR and Article 12 of the 1966 International Covenant on Civil and Political Rights,
both stating that ”Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose his residence.”
(consideration 12). The Regional Court dismissed the appeal, on the basis that Section
8(1) of the Inner City Problems Act allowed restrictions of the freedom of residence in
certain areas in order to reverse a process of overburdening and decreasing quality of life,
restrictions which would be justified by the general interest of a democratic society and
the purposed of maintaining public order (consideration 13). Ms Garib lodged another
appeal with the Administrative Jurisdiction Division of the Council of State
(consideration 14), which was dismissed based on the reasoning that under section 5 of
the Inner City Problems Act, the Burgomaster and Aldermen are justified to restrict the
freedom of movement 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
restriction, which resulted from section 2.6(2) of the 2003 Housing Bye-law was not
permanent, and should residents of a certain restricted area have significant difficulties in
finding housing, the Minister was able to remove that status from the area, therefore
neither did it violate Article 2 of Protocol 4 of the ECHR (consideration 15). On 27
September 2010 Ms Garib moved to Vlaardingen, a municipality part of the Rotterdam
Metropolitan Region (consideration 68). As of 25 May 2011 she had been resident in the
Rotterdam Metropolitan Region for more than six years and became entitled to reside in
one of the areas designated under the Inner City Problems Act regardless of her sources
of income (consideration 69).
3. Main question of law: Were the applicant’s rights of freedom of movement and residence,
provided by Article 2 of Protocol No. 4 of the ECHR and Article 12 of the 1966
International Covenant on Civil and Political Rights, violated?
a. Has there been a restriction on the rights provided by Article 2 of Protocol No. 4
of the ECHR?
b. Was the restriction in accordance with law and justified by the public interest in a
democratic society?
 2. The rights protected by Article 2 of Protocol No. 4 of the ECHR, namely the rights to
freedom of movement and residence, can be restricted when the State is acting in the
public interest of a democratic society and its’ action are in accordance with law.
3. The Court stated that there has been indeed imposed a restriction on the rights provided
by Article 2 of Protocol No. 4 of the ECHR, as the property has been completely
available to Ms Garib and her family, and she was willing to occupy it, but the refusal of
a housing permit has interfered with her freedom to choose her residence (consideration
105). But the restriction was in accordance with law, based on the Inner City Problems
Act and the 2003 Housing Bye-law of the municipality of Rotterdam, and justified by the
public interest in a democratic society, as its’ aim was to reverse the decline of
impoverished inner-city areas and to improve quality of life generally, and the State, as
per ECHR, has the right to impose certain restrictions in this case (consideration 112 &
113). Therefore, the State was within law and acting in the benefit of public interest , and
had not violated the rights of freedom of residence and movement that Ms Garib was
provided under Article 2 of Protocol No. 4 of the ECHR.
4. The judges disagree with the Court’s decision based on the fact that, first, the restrictions
mentioned in paragraph 4 of Article 2 of Protocol No.4 should only be applied to
specific/particular areas, and not in general, as to make the interferences with the
freedoms provided by Article 2 of Protocol No.4 as restricted as possible (consideration
5-9). Second, the judges argue that there was no legitimate aim in the decision, as there
was no real threat to public order - granting the housing permit would not have infringed
upon any other citizen’s rights, therefore was not in a democratic societies’ public interest
(consideration 10-15). Thirdly, the judges deem as discriminatory the decision to restrict
a citizen’s freedom of residence based solely upon his/her socioeconomic standing
(consideration 16-21).

Specific Questions

1. The legal basis upon which the applicant had to lodge an objection before she could
lodge an appeal with Rotterdam Regional Court is article 7:1 of GALA, which states
exactly that.
2. The arguments that the Administrative Jurisdiction Division used to substantiate its
decision were based on the reasoning that under section 5 of the Inner City Problems Act,
the Burgomaster and Aldermen are justified to restrict the freedom of movement 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 restriction, which resulted from
section 2.6(2) of the 2003 Housing Bye-law was not permanent, and should residents of a
certain restricted area have significant difficulties in finding housing, the Minister was
able to remove that status from the area, therefore neither did it violate Article 2 of
Protocol 4 of the ECHR (consideration 15). On 27 September 2010 Ms Garib moved to
Vlaardingen, a municipality part of the Rotterdam Metropolitan Region (consideration
68).
3. The applicant presented statistics that the measures of the Government were not
appropriate to the problems which they were supposed to solve, as out of 2835 housing
permit applications only 184 have been refused, and the quality of life stayed the same,
therefore claiming that there was no correlation between the socioeconmic standing of
the applicant and the quality of life in a given zone (consideration 101 & 103). Also, the
applicant declared that the refusal was granted by 2 authoritative Government bodies
(consideration 102), therefore could not be considered a democratically implemented
legislative action. The applicant also argued that she had no criminal record and no
history of misbehaviour and that she had already been living in Tarwewijk when she
applied for a housing permit, so that her taking up residence at a new address in the same
area would not have added to the social problems there (consideration 104).