TrustHLT/LaCour huggingface dataset:
GR1 (Government): today's hearing is set in the context of governmental powers to address problems that our big cities are facing today.
GR1 (Government): We are all aware of the downside of present-day urbanization, segregation between rich and poor neighborhoods, and an accumulation of problems in the latter.
GR1 (Government): We see this happen in cities all over the continent, and the city of Rotterdam is no exception.
GR1 (Government): Dutch national and local authorities are determined to get to grips with these problems.
GR1 (Government): Regulating access to the housing market is just one of many tools at their disposal.
GR1 (Government): My task today is to explain that the availability of this tool is in full compliance with our human rights obligations, and in particular, that its application in the case of Mrs. Garip was equally in conformity with her human rights.
GR1 (Government): It's not every day that a case concerning the freedom to choose one's residence is examined by the court, even less so in the setting of an oral hearing before the Grand Chamber.
GR1 (Government): From that perspective, the government understands the decision of the court's panel to submit Mrs. Garip's application to the Grand Chamber.
GR1 (Government): As a point of departure, the government refers to the Chamber's judgment of the 23rd of February 2016, to which it fully aligns itself.
GR1 (Government): I will, in the coming minutes, certainly discuss also the dissenting opinion of two members of the Chamber attached to the judgment.
GR1 (Government): I will use the first half of the time available discussing the general legal and political background of the measure which lies at the heart of the application.
GR1 (Government): In doing so, I will pay due attention to the arguments adduced not only by the applicant herself, but also by the intervening parties.
GR1 (Government): The second half, I will focus on Mrs. Garip's
GR1 (Government): individual situation.
GR1 (Government): Mr. President, as we have duly explained in our written
GR1 (Government): memorial of the 24th of October 2016, the measure prohibiting Mrs. Garip to take up residence
GR1 (Government): in a dwelling of her choice and move from the Bullstraat to the Bonaventurastraat was rooted in the Inner City Problems Special Measures Act.
GR1 (Government): And in order to avoid repetition of this lengthy title, I will simply call it the Act as of now.
GR1 (Government): The Act aims to increase the powers and options municipalities have to tackle urban problems at local level if, and this is essential, existing measures have proven insufficient.
GR1 (Government): The considerable social, economic, and spatial problems encountered in certain areas in the municipality of Rotterdam prompted the provisions of the Act.
GR1 (Government): The extent of the problems encountered in these areas was such that the limits of the capacity for absorption had been reached as regards care and support for the socioeconomically disadvantaged.
GR1 (Government): There were an accumulation of problems affecting the quality of life, a high concentration of unemployed, a reduction in support for bona fide economic activities and services, a stagnated integration, and considerable dissatisfaction among the population about the livability of their neighborhoods.
GR1 (Government): With regards to the necessity and proportionality of the measure, I should stress at the outset that regulation of the housing market goes hand in hand with other measures, such as measures to improve the business and investment climate in the areas concerned and measures against antisocial behavior.
GR1 (Government): In any assessment of the Act, it is important to realize that each measure is part of a broader package.
GR1 (Government): The legislative history of the Act reveals that the measures set out in the Act were carefully scrutinized against the background of Articles 12 and 26 of the International Covenant on Civil and Political Rights, Article 14 of the Convention, Article 2 of the Fourth Protocol to the Convention, Article 1 of the Twelfth Protocol to the Convention, and Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.
GR1 (Government): As a result, there are important safeguards against improper or disproportional use of the measure complained of.
GR1 (Government): First of all, the measure is a last resort, only applicable if it has been convincingly established that less far-reaching measures cannot bring the results desired.
GR1 (Government): Second, and in line with my previous point, the measure is applied only in well-defined, very limited areas.
GR1 (Government): This ensures that those whose applications for housing permits are rejected retain maximum opportunity to find housing elsewhere.
GR1 (Government): Third, the measure is not applied with regard to those who have been resident in the region for six years or more.
GR1 (Government): This period was chosen in accordance with the provisions on social cohesion set out in the Housing Allocation Act.
GR1 (Government): Fourth, the measure is not applied indiscriminately to all persons who lack income from work.
GR1 (Government): For instance, it is not applied to the elderly nor to students.
GR1 (Government): Fifth, the minister's decision to designate areas under the Act must always be preceded by a detailed description by the municipal council explaining why the problems cannot be tackled using other means.
GR1 (Government): Sixth, an area will not be designated under the Act unless it is established that appropriate alternative housing in the same region is available to those who will be denied settlement in the area concerned.
GR1 (Government): Seventh, the measure is of a temporary nature.
GR1 (Government): After four years, an application to extend the designation may be submitted, subject to the same requirements that pertain to the initial application.
GR1 (Government): Eighth, the Act is subject to evaluation every five years by the minister.
GR1 (Government): In Rotterdam, the implementation of the Act is also regularly evaluated by the municipality itself.
GR1 (Government): And finally, the Act contains a hardship clause that may be applied where the refusal of a housing permit would result in an iniquity of an overriding nature.
GR1 (Government): I will come back to this issue when discussing the individual situation of Mrs. Karip.
GR1 (Government): Mr. President, allow me to say a few words
GR1 (Government): on the evaluation of the measures under the Act, which have been brought forward in support of the application.
GR1 (Government): In our memorial, we have given a summary of the findings laid down in the respective evaluation reports and emanating from contributions by local experts whose work involves the application of the measure.
GR1 (Government): The reports themselves are in the court's file.
GR1 (Government): They demonstrate that more people with work are moving to the area, and that the diversity of the population in economic terms increases, which is precisely what the measure is aimed at.
GR1 (Government): Now, critics will say that the measure has not demonstrably helped to improve public safety.
GR1 (Government): Safety, however, was never the aim of this particular measure in contrast to other measures.
GR1 (Government): I stress that safety is only one aspect of the broad term quality of life.
GR1 (Government): Quality of life equally refers, for instance, to spatial aspects, social cohesion, and social characteristics of neighborhoods such as population makeup.
GR1 (Government): Be that as it may, the Act had entered into force slightly more than one year before Mrs. Garib's application for a housing permit was refused,
GR1 (Government): a moment when no realistic assessment of its overall effects would have been feasible.
GR1 (Government): All reports assessing these effects date from after that period.
GR1 (Government): The court is called to conduct an ex-tunc review of the facts giving rise to the application.
GR1 (Government): This is not to say that ex-post facto developments are meaningless, pardon my French, but their contribution could not in retrospect qualify an act of government as a human rights violation where that qualification would not be appropriate before the developments occurred.
GR1 (Government): More specifically, there is nothing in the evaluation reports that makes it unjustified for the legislator to have assumed that regulation of access to the housing market could contribute to alleviating the accumulation of problems in the areas concerned, a high concentration of households without income from work being one of those problems.
GR1 (Government): I should also dwell for a moment on the issue of stigmatization, which has been brought forward inter alia by the two dissenting judges as a negative effect of the measure complained of.
GR1 (Government): I would not deny that citizens like the applicant, who are dependent on social welfare benefits, may suffer from stigmatization.
GR1 (Government): However, the government strongly opposes any suggestion that the measure contributes to such stigmatization.
GR1 (Government): It is rather the other way around.
GR1 (Government): The government considers a concentration of inhabitants without jobs in a particular neighborhood an element far more likely to contribute to stigmatization of the persons involved than measures to avoid such concentration.
GR1 (Government): As I've said before, these measures aim to improve the quality of life in the areas concerned, thus increasing the area's popularity and decreasing any negative connotation attaching to the inhabitants.
GR1 (Government): Similarly, the government does not believe that the fact that unsuccessful applicants need to settle elsewhere would contribute to their being stigmatized.
GR1 (Government): That brings me to the second part of my pleadings, the individual situation of Mrs. Garry.
GR1 (Government): As a starting point, I should like to rectify an impression emanating from both this dissenting opinion to the chamber judgment and the third party intervention to the present proceedings.
GR1 (Government): The terms poverty and vulnerability play a pivotal role in the arguments used by the dissenters and the third parties.
GR1 (Government): The government categorically rejects that picture.
GR1 (Government): Poverty and vulnerability are subjective concepts depending on many individual circumstances.
GR1 (Government): We cannot accept for a fact that a person or a family living on social welfare in the Netherlands is by definition poor and vulnerable.
GR1 (Government): The Grand Chamber has drawn such conclusion, for instance, with regard to asylum seekers in Greece in its judgment in the case of MSS versus Belgium and Greece.
GR1 (Government): With regards to people living with HIV in the case of Kiyutin versus Russia and with regard to disabled persons in its judgment of last month in the case of Bilani Natch versus Hungary.
GR1 (Government): The government submits with all due respect that the situation of those groups is incomparable to the group of persons depending on social welfare in the Netherlands.
GR1 (Government): More importantly, however, nothing in Mrs. Garry's objection
GR1 (Government): to the rejection of her application for a housing permit nor in her application to the court justifies the automatic conclusion that she was poor and vulnerable.
GR1 (Government): Both documents are fully focused on her complaint that she was not at liberty to move to the dwelling of her choice.
GR1 (Government): No allegations of poverty or vulnerability were made and we therefore disagree with any attempt to frame this case accordingly.
GR1 (Government): That said, we do agree that Mrs. Garry was subjected,
GR1 (Government): was subject to an interference of her freedom to choose her residence when she was denied a housing permit for the dwelling of her choice.
GR1 (Government): The parties also agree that this interference was in accordance with law as required by Article 2 of the Fourth Protocol to the Convention.
GR1 (Government): Finally, I believe we agree that the authorities intention to improve the quality of living in deprived areas constitutes a legitimate aim under the Convention.
GR1 (Government): It thus remains for me to argue that the interference was in accordance with the other criteria mentioned in either Paragraph 3 or 4 of Article 2.
GR1 (Government): In our memorial, we have set out why we believe, in line with the Chamber judgment, that Paragraph 4 is the more appropriate provision here.
GR1 (Government): There is nothing in Paragraph 4 nor in the Travaux Preparatoire to the Convention to suggest that such choice would be ill-conceived.
GR1 (Government): However, since we believe that the interference may equally be justified in the light of Paragraph 3, as explained in our memorial, I will not dwell on this particular issue any longer and refer to the Grand Chamber's judgment in this regard.
GR1 (Government): Suffice to say that the maintenance of ordre public, the protection of the rights and freedoms of others, and the public interest in general provide, in the government's view, adequate justification for the interference complained of.
GR1 (Government): My subsequent remarks may be understood against the background of either Paragraph 3 or 4 of Article 2 of Protocol 4.
GR1 (Government): Upon receipt of Mrs. Karib's objection
GR1 (Government): to the rejection of a request for a housing permit, the authorities in Rotterdam considered the question of whether the hardship clause set out in the Act should be applied.
GR1 (Government): The hardship clause, after all, may be seen as a concrete expression of the fact that the Act itself introduced an interference of one of the rights guaranteed by the Convention.
GR1 (Government): It reminds us of the fact that the Convention contains individual rights and that any interference must be justifiable in the individual case at hand.
GR1 (Government): The authorities concluded that no iniquity of an overriding nature would result from refusal of a housing permit to Mrs. Karib
GR1 (Government): and that the hardship clause was therefore not applicable.
GR1 (Government): Their decision was subsequently upheld in legal proceedings.
GR1 (Government): In order to properly appreciate this chain of decisions, it is important to have regard to the specific features of Mrs. Karib's housing situation,
GR1 (Government): insofar as these were known to the authorities.
GR1 (Government): Mrs. Karib moved to the Boelstraat No. 6B
GR1 (Government): on 25 May 2005.
GR1 (Government): From a legal point of view, this was unproblematic since the area encompassing the Boelstraat was not designated under the Act before 13 June 2006.
GR1 (Government): Mrs. Karib subsequently applied for a housing permit
GR1 (Government): for Bonaventurastraat 72A on 8 March 2007.
GR1 (Government): From the available documentation, it is not entirely clear whether her application originated in a perceived obligation to vacate the house for renovation purposes or for personal use by the landlord.
GR1 (Government): In the condition of the Boelstraat dwelling, in an autonomous wish to move to a larger house, or perhaps in a combination of any of these.
GR1 (Government): Whatever Mrs. Karib's motives,
GR1 (Government): respectable as they all were, none of them justify the conclusion that refusal of a housing permit would lead to an iniquity of an overriding nature and thus trigger the hardship clause.
GR1 (Government): They all seem to be fairly common motives for any wish to move house and no specific additional circumstances were adduced in the domestic proceedings.
GR1 (Government): So let's have a look at each of these motives.
GR1 (Government): Should the landlord's wish to dispose of the dwelling for whatever purpose have given rise to Mrs. Karib's application
GR1 (Government): for a housing permit, such a wish could not lawfully create an obligation to vacate the house.
GR1 (Government): The landlord's desire to dispose of his rented property is legally irrelevant and does not negate a tenancy contract.
GR1 (Government): In case of an intended renovation, and this particular point was adduced just now by the Applicants' Council, the law imposes an obligation on the owner to provide temporary alternative housing where necessary.
GR1 (Government): In such circumstances, there is no formal change of address and no housing permit is required.
GR1 (Government): Upon completion of the renovation, the tenant returns to the original dwelling.
GR1 (Government): Insofar as the condition of the Bulstraat dwelling lay at the root of Mrs. Karib's wish to move house,
GR1 (Government): I note that, coming from outside the Rotterdam area, Mrs. Karib had moved to that dwelling
GR1 (Government): less than two years before she applied for a housing permit for Bonaventurestraat.
GR1 (Government): It appears unlikely that a condition she considered acceptable in May 2005 would no longer be acceptable in March 2007.
GR1 (Government): In any case, not to an extent that would qualify the impossibility to move as an iniquity of an overriding nature.
GR1 (Government): Assuming that Mrs. Karib simply wanted to move
GR1 (Government): to a bigger house, it is important to put the differences between the two dwellings at issue into perspective.
GR1 (Government): The Bulstraat dwelling has continuously been referred to as a single-room dwelling.
GR1 (Government): The government submits that it was originally a three-room dwelling, but probably in the course of time, interior walls have been removed by or for the benefit of a previous tenant.
GR1 (Government): It is true that the Bonaventurestraat's dwelling is slightly larger than the one at the Bulstraat, but it would be wrong to consider this a one-dimensional improvement and ignore the fact that the monthly rent was probably higher, particularly since the owner of both houses was the same person.
GR1 (Government): Mr. President, the elements I have just summed up
GR1 (Government): all appear somewhat particular, and one might wonder why we need to discuss private circumstances of 10 years ago in such detail.
GR1 (Government): The answer to that question is because we need to get a clear picture of what the authorities were looking at back in 2007.
GR1 (Government): Only then can we appreciate their decision not to apply the hardship clause to Mrs. Karib.
GR1 (Government): Criticizing their decision is nearly equivalent to criticizing the existence of a power to regulate the housing market in accordance with the Act.
GR1 (Government): After all, understandable as Mrs. Karib's wish
GR1 (Government): to move house may have been, nothing has been brought forward that points to inequity or unfairness as a result of the denial of her request.
GR1 (Government): Arguing that such criterion constitutes too high a threshold is tantamount to arguing that applications may never be refused and that regulation of the housing market in this manner contravenes the Convention per se.
GR1 (Government): That conclusion, as I hope to have demonstrated, is not shared by the government.
GR1 (Government): Mr. President, the intervening parties
GR1 (Government): request the Grand Chamber to also express itself on an alleged violation of Article 14 of the Convention on Prohibition of Discrimination, which was taken together with Article 2 of Protocol 4 to the Convention.
GR1 (Government): In that respect, I should observe the following.
GR1 (Government): The original application to the Court did not include any reference to Article 14, not even in substance, nor did the Chamber ex officio examine the application against the background of that article.
GR1 (Government): Even the dissenting judges, while replacing the majority's reference to Article 8 of the Convention by a reference to Article 14, merely did so as a source of inspiration in the interpretation of Article 2 of Protocol 4, not as a separate assessment of the case under Article 14.
GR1 (Government): In her request for referral of the case to the Grand Chamber and in her memorial, the applicant herself would appear to follow the same approach, rather than expand her application as such.
GR1 (Government): In any case, an examination of Article 14 couldn't possibly form part of the current proceedings before the Grand Chamber.
GR1 (Government): Not only does the Court's case law object to such a step, I refer in particular to the Court's judgment of 2008 in the case of Govacic versus Slovenia, also the system of the Convention prohibits a first examination by the Grand Chamber in a case that was referred to it by virtue of Article 43 of the Convention.
GR1 (Government): A first examination by the Grand Chamber is only possible after relinquishment of jurisdiction by the Chamber pursuant to Article 30 of the Convention, which requires the approval of the parties as long as the 15th Protocol to the Convention hasn't entered into force.
GR1 (Government): This scenario, however, is irrelevant here.
GR1 (Government): It is true that the Court is master of the characterization to be given in law to the facts of the case, the jura novit curia principle.
GR1 (Government): The interveners rightfully point at the Grand Chamber's judgment in the case of Serife Yigit versus Turkey.
GR1 (Government): However, a characterization must relate to the facts as included in the original application.
GR1 (Government): The facts set out in the application simply do not include any discriminatory behavior by the State.
GR1 (Government): No facts or figures were brought forward to support the conclusion that certain groups are more affected by the measure than others or that Mrs. Karip was discriminated against
GR1 (Government): on the basis of any status she may have under Article 14 of the Convention.
GR1 (Government): This is particularly problematic in view of the fact that the formulation of Article 14 is open-ended.
GR1 (Government): In other words, the government is not certain which status of Mrs. Karip is at issue
GR1 (Government): and what exactly it has to defend itself against.
GR1 (Government): I note in passing, although legally that may not be very decisive, but I still mention it, that different from the Serife Yigit case, the Grand Chamber did not invite the government to express itself on this particular issue, not even in its letter to the government of 29 September 2016, in which it put forward several specific requests for additional information.
GR1 (Government): None of those questions related to the issue of discrimination.
GR1 (Government): Until today, therefore, the government is uncertain whether it is expected to express itself on this particular issue.
GR1 (Government): Since we are better safe than sorry, I should add that the government is confident that a scrutiny of the application against Article 14, taken together with Article 2 of Protocol 4, could not lead to the establishment of a violation of the prohibition of discrimination.
GR1 (Government): And the final remarks I'm going to make about this, I ask the interpreters to be alert, because there may be some changes with respect to the text I sent in originally.
GR1 (Government): It is important to note, first of all, that the Act does not refer to any status covered by Article 14.
GR1 (Government): For that reason alone, there could be no direct discrimination.
GR1 (Government): Should the Court be of the view that the neutral formulation of the Act does not preclude forms of indirect discrimination, the government submits that this would be justified on grounds that are materially the same as the ones put forward in relation to Article 2 of Protocol 4.
GR1 (Government): In short, the aim of the Act is to enable neighbourhoods with an accumulation of socioeconomic and physical problems to recover and stand on their own feet.
GR1 (Government): The measure complained of constitutes a last resort to become operational only after other measures have failed and only as part of an integrated approach.
GR1 (Government): Turning again to Mrs. Garib herself,