DISSENTING OPINION OF JUDGE K Ū RIS

1. Paragraph 158 of the judgment contains a methodological fallacy. The majority, having admitted that “the applicant was of good behaviour and constituted no threat to public order”, go on to state that “the applicant ’ s personal conduct, however virtuous, cannot be decisive on its own when weighed in the balance against the public interest which is served by the consistent application of legitimate public policy” (emphasis added).

A balance is an equilibrium, even if not an ideal one, between the two matters in question. It is thus a relationship . What is meant by these “related two” aspects is explained in paragraph 157: “the central question under Article 2 § 4 of Protocol No. 4 is ... whether, in striking the balance at the point at which it did, Parliament exceeded the margin of appreciation afforded to it under that Article” (emphasis added). Thus, the interests of the individual applicant are juxtaposed and weighed against the restrictions stemming from statute law, that is to say, from general measures as such, and not against their application to that individual . These general measures, after their most amica ble examination (see paragraphs 142–57), are assessed, by the majority, as expressing the “interests ... of society as a whole” (paragraph 161). From this angle, the applicant ’ s interests pertaining to the improvement of her and her family ’ s well-being – and let it be emphasised, not at anyone else ’ s expense! – are apparently a reality that is parallel to the societal interests and not as important as the latter. The judgment deals with individuals ’ interests as if they – or at least some of them, or rather those of some individuals, – are not part of a societal interest. Social scientists from Adam Smith and Jeremiah Bentham to Vilfredo Pareto and Roscoe Pound, let alone contemporary protagonists of enlightened and/or rational self-interest, would perhaps shrug their shoulders. But this is not the point I want to make.

2. As a matter of principle, general measures (i.e. public policy) may be alright (“legitimate”) as such, but this does not mean that each and every application of these measures can be justified by virtue of the overall justification for the policy in general. The application, to a particular individual, of even a seemingly “very good” law does not mean that that person ’ s right under the Convention will not actually be violated.

The Court was set up not to approve or disapprove of general measures (i.e. policies) as such, or their consolidation in national legislation, but to examine their application to individual persons from the standpoint of its compatibility with the Convention. Still, I do not go so far as to argue that the majority could not express themselves as to – and thus approve of (even if indirectly) – the aim of the Dutch State ’ s general policy to reverse the trends of “increasing social problems in particular inner-city areas of Rotterdam resulting from impoverishment caused by unemployment and a tendency for gainful economic activity to be transferred elsewhere ... by favouring new residents whose income was related to gainful economic activity of their own” (paragraph 142). Perhaps they could, especially as they did not openly endorse this policy and even cast some doubt on it (by being “prepared to accept that it would have been possible for Parliament to regulate the situation differently” (ibid.)). But who would reasonably assert that the application of that policy to the instant applicant contributed to these legitimate aims? In particular, would anyone agree that that application “foster[ed] diversity and counter[ed] the stigmatisation of particular inner-city areas as fit only for the most deprived social groups” (ibid.)? In my opinion, even if the general policy sought to counter “the stigmatisation of particular inner-city areas”, its application to the instant applicant indeed stigmatised her. It ’ s as plain as that. Or, to quote the late Leonard Cohen (“Everybody Knows”, from “I ’ m Your Man”, 1988, Columbia Records):

Everybody knows the fight was fixed

The poor stay poor, the rich get rich

That ’ s how it goes

Everybody knows

Here, “poor” is not only “the poor as a class”. It is also an individual “poor”. Including the applicant in the instant case.

3. In this case, it is not the general legislative policy, as consolidated in the impugned Act of Parliament that is under challenge. What is under challenge from the point of view of the Convention is the concrete manifestation of the implementation of that policy, its application to the instant applicant (and, by extension, to her family), i.e. to a specific individual. Justification (“legitimisation”) for general measures – legislative policy, as consolidated in a statute – must not be extended so that their application to an individual is also automatically justified (“legitimised”).

4. Of course, the majority are mindful that it is the Court ’ s role to look into the individual situation. In paragraph 136 it is reiterated (and the Court ’ s abundant case-law is referred to) that the Court ’ s “task is not to review domestic law in abstracto , but to determine whether the manner in which it was applied to, or affected, the applicant gave rise to a violation of the Convention” (emphasis added). But, having said that, the majority ’ s reasoning, alas, goes in the opposite direction: as the policy as such is justified (“legitimised”), so is its application in the instant case. This is the starting point of the reasoning – but also the crowning argument, which allows the majority to find that there h as been no violation of Article 2 of Protocol No. 4.

Here ’ s the rub. The modalities do not match . This methodology is fallacious. Equally fallacious is the finding based on it, especially in this case, which, in my firm belief, is the least suitable for application of this methodology owing to one factual circumstance to which due regard has not been given (on this, see paragraphs 7–11 below).

5. I do not want to say that there are no additional arguments presented which aim at supporting the starting point. There are some in paragraphs 159–62. But none of them even merits detailed or profound legal analysis, as they all – quite artificially – attempt to convince the reader that the applicant did not really need to change her place of residence, or at least that she did not prove that she needed that change, or that the apartment in which she lived needed “serious renovation work”, etc.

6. All this case is not only about law; this is about something much bigger than law. The above-mentioned considerations manifest a fundamental oversight, if not a certain approach (and if it is an approach, then it is a value approach, I regret to have to name it). Such considerations downgrade an individual ’ s liberty and will to seize the opportunity, once it is there, to improve his or her (and his or her family ’ s) well-being – again, at no one ’ s expense! – to the level of something truly insignificant, which does not merit understanding or appreciation. (In principle, the same goes for the owner ’ s will to have his property vacated because he “wished to renovate it for his own use”, even if he offered the applicant a different property (see paragraph 10), which – without this being rebutted by the respondent Government – was even more suited to the needs of the applicant ’ s family.) Some would say that such an attitude does not behove a court, because, at least under the rule of law, the calling of courts is not only to protect and defend human dignity , whenever it is encroached upon in individual cases, but to boost it by promoting general respect for it. And if this does not behove any court, a fortiori it does not behove this Court.

7. Why has it become possible at all for such reasoning to be laid down on paper?

This possibility stems from the fact that a very important factual circumstance is not given due attention; moreover, it is even not mentioned in the judgment, and this amounts to its concealment from the readers.

In paragraph 10 it is stated that the landlord asked the applicant and her two young children to vacate his property and move to a different one “at the address B. Street 72A, also in the Tarwewijk area”.

What is most important – and not given due regard – is that the proposed property was not only “in the Tarwewijk area”. It was just around the corner; next door – virtually and even literally.

8. I only wonder this: as, under the domestic law, the authorities ’ permits to move to any other residence in Tarwewijk are needed in all cases, would such permit have been necessary to obtain had the applicant and her landlord agreed that it was desirable (for them, not for “society as a whole”!) for her to move to a hypothetical property located on the same corridor, on the same floor, in the same house? Would the application of the impugned general policy, which (as no exceptions are allowed in principle, unless the tenant convinces the authorities that he or she really needs to change his or her place of residence) would have been nothing else but the rejection of the said permit, have been justified also in such a case?

9. In paragraph 159 the majority attempt to address such hypothetical cases:

“Nor is it per se sufficient to point to the fact that the applicant was already resident in Tarwewijk when the housing permit requirement entered into force. ... [T]he purpose of the scheme was to encourage new settlement in distressed inner-city areas by households with an income from sources other than social benefits. The system of the ... Act is not as such called into question by the mere fact that it did not make an exception in respect of persons already residing in a designated area. While the specific modalities of the system are a matter falling within the margin of appreciation of the domestic authorities in this field, it can indeed be assumed that applying it to Tarwewijk residents could have the effect of prompting some of them, as in the present case, to leave the area, thereby making more dwellings available to households meeting the requirements and assisting the furtherance of the policy aim of broadening the social mix.”

The area in question is one which does not have a good name (or at least did not have a good name at the material time). Speaking of “making more dwellings available” seems to ignore this “detail”, just like almost all wishful thinking, typically, tends to ignore something which is not indeed insignificant in reality. I agree that “the specific modalities of the system are a matter falling within the margin of appreciation of the domestic authorities in this field”, however, this does not at all mean that no question arises as to the “fact that [the Act] did not make an exception in respect of persons already residing in a designated area”.

10. But why , in the opinion of the majority, cannot the omissi on of exceptions (see paragraph 9 above) be called into question, especially if – as the majority explicitly admit themselves – the aim of the impugned policy was “to encourage new settlement in distressed inner-city areas ” (emphasis added)?

The word-rich paragraph 159 in fact does not shed any light on this question. The majority ’ s response is simply this: the Court says that there is no question, so no question arises. Roma locuta est, causa finita.

But questions do arise, all sorts of them, legal and moral. And they call for answers.

One of these answers is that the application of the impugned policy to the applicant in the instant case was disproportionate , given her individual factual circumstances.

And not only that, such application was not necessary . It was not justified even from the standpoint of that policy itself, because the prohibition on the applicant moving next door did not make the respective “inner-city area” less “distressed”, and no proof was presented by the respondent Government that any “new” settler was effectively “encouraged”, by the prohibition imposed on the applicant, to settle on the different property proposed to the applicant by the owner, or that any new settler would have settled on the property to be vacated by the applicant – property which the owner needed “for his own use”.

11. By the way, where could the applicant move to, had she decided not to stay on the same property? To a more well-off area? Come on. As “everybody knows”, this would not be “how it goes”.

The obvious answer to the above question makes the applicant ’ s case one of discrimination based on her social and economic status, which is something repugnant in the eyes of the Convention.

Indiscriminate policy , whatever understandable or even noble aims it may have at the stage of its formation and consolidation in statutes (which allow for its being declared “legitimate” by courts), having been applied to the applicant (and her family) in an indiscriminate manner , is nothing other than discriminatory . Such application of any policy should have never been endorsed by the Court.

12. These are but a few of the reasons why I am not able to vote for this judgment. To save space and time, I have not dealt, in this opinion, with a number of others. I am not sure that it would be necessary, given that the essential problem with this judgment is that the methodology on which its reasoning is based is at odds with logic, and its underlying approach is at odds with respect for individual liberty and, consequently, with justice. Whichever of these two deficiencies is the cause (making the other one the result) does not matter much, as they complement and reinforce each other.

[1] . As then in force.

[2] . Report H (65) 16, 18 October 1965.

[3] . Freedom of movement of workers. For the current text, see Article 45 of the Treaty on the Functioning of the European Union.

[4] . See paragraphs 20 and 21 of the Grand Chamber judgment. On the evolution, philosophy and effects of this Dutch urban policy, see the fundamental contributions of Van Gent et al. (2017), “Exclusion as urban policy: The Dutch ‘Act on Extraordinary Measures for Urban Problems’”, in Urban Studies 1–17; Uitermark et al. (2017), “The statistical politics of exceptional territories”, in Political Geography 57: 60–70; Ouwehand and Doff (2013), “Who is afraid of a changing population? Reflections on housing policy in Rotterdam”, in Geography Research Forum 33(1): 111–146; Van der Horst and Ouwehand (2012), “ ‘Multicultural Planning’ as a contested device in urban renewal and housing: Reflections from the Netherlands ”, in Urban Studies 49 (4): 861 ‑ 875; Schinkel and Van den Berg (2011), “City of exception. The Dutch revanchist city and the urban homo sacer”, in Antipode 43 (5): 1911-1938; Van Eijk (2010), “Exclusionary policies are not just about the ‘Neoliberal City’: A critique of theories of urban revanchism and the case of Rotterdam”, in International Journal of Urban and Regional Research ” 34 (4): 820-834; Stouten (2010), Changing Contexts in Urban Regeneration: 30 years of modernisation in Rotterdam, Amsterdam, Techne Press; Uitermark and Duyvendak (2008), “Civilizing the city: Populism and revanchist urbanism in Rotterdam”, in Urban Studies 45 (7): 1485-1503; Musterd and Ostendorf (2008), “Integrated urban renewal in The Netherlands: A critical appraisal”, in Urban Research & Practice 1(1): 78–92; Trip (2007), “Assessing quality of place: A comparative analysis of Amsterdam and Rotterdam”, in Journal of Urban Affairs 29 (5): 501-517; Priemus (2004), “Housing and new urban renewal: Current policies in the Netherlands”, in International Journal of Housing Policy 4 (2): 229-246; Uitermark (2003), “‘Social mixing’ and the management of disadvantaged neighborhoods: The Dutch policy of urban restructuring revisited”, in Urban Studies 40 (3): 531-549; and Kloosterman (1996), “Double Dutch: Polarization trends in Amsterdam and Rotterdam after 1980”, in Regional Studies 30 (5): 467-476.

[5] . The term gentrification comes from gentry , meaning persons of high birth or social standing, just below the nobility in social rank. The aim of this urban policy is to encourage more wealthy people to appropriate an area in the city that has previously been occupied by less privileged inhabitants or users, thus transforming the economic, social, cultural and ethnic profile of the urban area for the benefit of a higher social stratum. For an introduction to the literature on this urban policy, see Zuk et al. (2015), “Gentrification, Displacement and the Role of Public Investment: A Literature Review”, Federal Reserve Bank of San Francisco Working Paper 2015-05; Feldman (2014), “Gentrification, urban displacement and affordable housing: Overview and research roundup”, Harvard Kennedy School’s Shorenstein Center; Mathema (2013), “Gentrification, An updated Literature Review”, Poverty & Race Research Action Council; Van der Graaf and Veldboer (2009), “The effects of state-led gentrification in the Netherlands”, in Duyvendak et al. (eds), City in sight: Dutch dealings with urban change, Amsterdam , Amsterdam University Press, pp. 61-80; Atkinson and Wulff (2009), “Gentrification and displacement: a review of approaches and findings in the literature”, AHURI Positioning Paper No. 115; Marcuse et al. (eds) (2009), Searching for the Just City: Debates in Urban Theory and Practice , New York: Routledge; Lees (2008), “Gentrification and social mixing: towards an inclusive urban renaissance?”, in Urban Studies 45 (12): pp. 2449-2470; Biro (2007), “Gentrification: Deliberate Displacement, or Natural Social Movement?”, in The Park Place Economist , vol. 15; Galster (2007), “Neighbourhood social mix as a goal of housing policy: A theoretical analysis”, in International Journal of Housing Policy 7 (1): 19-43; Holmes (2006), “Mixed Communities: Success and Sustainability”, Joseph Rowntree Foundation; Joseph (2006), “Is mixed ‑ income development an antidote to urban poverty?”, in Housing Policy Debate 17 (2): 209-234; and Tunstall an d Fenton (2006), “In the mix: A review of mixed income, mixed tenure and mixed communities: what do we know?”, London and York: Housing Corporation, Joseph Rowntree Foundation and English Partnerships.

[6] . Paragraphs 36-39 of the Grand Chamber judgment.

[7] . Paragraph 16 of the Grand Chamber judgment.

[8] . Ibid.

[9] . Paragraph 18 of the Grand Chamber judgment.

[10] . Ibid.

[11] . Paragraph 79 of the Grand Chamber judgment. The wording used in the new versions of sections 5(3) and 10(1) and (2) of the Act are clear: “In order to reduce inconvenience and crime, … it appears that there is a reasonable suspicion that their accommodation will lead to an increase of nuisance or crime in that complex, that street or that area.”

[12] . Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310.

[13] . See, in particular, my dissenting and partly dissenting opinions in Muršić v. Croatia ([GC], no. 7334/13, ECHR 2016) and A and B v. Norway ([GC], nos. 24130/11 and 29758/11, ECHR 2016) .

[14] . See Pinto, “El principio pro homine . Criterios de hermenéutica y pautas para la regulación de los derechos humanos”, in Abregu and Courtis (eds), La aplicación de los tratados sobre derechos humanos por los tribunales locales , Buenos Aires, Centro de Estudios Legales y Sociales/Editores del Puerto, 1997, p. 163 (my translation). In the original version the author speaks of “ un criterio hermenéutico qui informa todo el derecho de los derechos humanos, en virtud del cual se debe acudir a la norma más amplia, o a la interpretación más extensiva, cuando se trata de reconocer derechos protegidos” . See also, inter alia , Castilla, “El principio pro persona en la administración de la justicia”, in Cuestiones constitucionales , 2009, no. 20, and Amaya Villareal, “El principio pro homine : Interpretación extensiva vs. El consentimiento del Estado”, in Revista Colombiana de derecho internacional , 2005, pp. 337-380.

[15] See Wemhoff v. Germany , 27 June 1968, § 8 [law part] , Series A no. 7, and, following a long tradition of the Inter-American Court, Ricardo Canese v. Paraguay , 31 August 2004, Series C no. 111, § 181. This principle is based on Article 31 of the Vienna Convention on the Law of Treaties, which prescribes a teleological interpretation of international law.

[16] . See Handyside v. the United Kingdom , 7 December 1976, § 48, Series A no. 24.

[17] . See paragraph 113 of the Chamber judgment.

[18] . See paragraph 156 of the Grand Chamber judgment.

[19] . See An imal Defenders International v. the United Kingdom [GC], no. 48876/08, § 106, ECHR 2013, with a reference to Ždanoka v. Latvia [GC], no. 58278/00, §§ 112 ‑ 15, ECHR 2006 ‑ IV.

[20] . See paragraphs 158 and 166 of the Grand Chamber judgment.

[21] . See paragraphs 162 and 166 of the Grand Chamber judgment.

[22] . United Nations General Assembly, “Guiding principles on extreme poverty and human rights”, 18 July 2012, A/HRC/21/39, § 36. The United Nations Human Rights Council adopted these principles by consensus in its Resolution 21/11 in September 2012. It should be pointed out that those principles also emphasise the need to “[r]evise legal and administrative frameworks to protect persons living in poverty from inappropriate intrusion into their privacy by the authorities. Surveillance policies, welfare conditionalities and other administrative requirements must be reviewed to ensure that they do not impose a disproportionate burden on those living in poverty or invade their privacy” (ibid., § 72).

[23] . See Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I .

[24] . See Alajos Kiss v. Hungary , no. 38832/06, § 42, 20 May 2010.

[25] . See paragraphs 137 and 138 of the Grand Chamber judgment.

[26] . See Airey v. Ireland , 9 October 1979, § 24, Series A no. 32.

[27] . See Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24.

[28] . Explanatory Report in respect of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, Strasbourg, 16 September 1963, STE no. 46.

[29] . Paragraph 15 (f) of the Explanatory Report .

[30] . Paragraph 18 of the Explanatory Report .

[31] . On this point I share the view expressed in the joint dissenting opinion of Judges López Guerra and Keller appended to the Chamber judgment (paragraph 6). To put this more clearly: the interpretation put forward in paragraph 109 of the Grand Chamber judgment, according to which 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” is literally at odds with the first sentence of paragraph 18 of the Explanatory Report , which refers expressly to that fourth paragraph. The drafting committee, in the fourth paragraph, had certainly accepted restrictions based on the public interest, but with the exception of those based on the requirements of “economic welfare”.

[32] . See paragraph 45 of the Grand Chamber judgment.

[33] . See paragraph 62 of the Grand Chamber judgment.

[34] . See paragraph 70 of the Grand Chamber judgment.

[35] . I fail to see why the majority considered this report not to be relevant (see paragraph 148 of the Grand Chamber judgment). While the majority have relied on the precedent of Lithgow and Others v. the United Kingdom (8 July 1986, § 132, Series A no. 102) , they have overlooked the much more recent finding in S.H. and Others v. Austria ([GC], no. 57813/00, § 84, ECHR 2011) that the Court may take account of developments occurring since the national authorities’ decisions. Moreover, the majority themselves have used the 2009 and 2011 evaluation reports in their argument (see paragraph 154 of the Grand Chamber judgment). It must be concluded from the majority’s reasoning that documents issued subsequent to the facts of the case have not all been given the same weight.

[36] . See paragraph 74 of the Grand Chamber judgment.

[37] . At this juncture it is noteworthy that the assessment by Amsterdam University has been confirmed by the most recent data. See Van Gent et al. (2017), “Exclusion as urban policy” , cited above : “This review examines the socio-spatial effects of the Act in Rotterdam between 2006 and 2013. While the Act produces socio-demographic changes, the state of the living environment in designated areas seems to be worsening rather than improving. Our findings show that the policy restricts the rights of excluded groups without demonstrably improving safety or liveability. … the Act contributes to a worsening housing market position of the excluded residents … the mobility and choices of unemployed residents have been restricted.”

[38] . It was approved in 2006 for an initial term of four years (see paragraph 40 of the Grand Chamber judgment).

[39] . See paragraphs 78 and 130 of the Grand Chamber judgment. In 2010 the designations of “sensitive areas” introduced in 2006 were extended for a second four-year term (see paragraph 41 of the Grand Chamber judgment).

[40] . As stated by Uitermark et al. in “The statistical politics of exceptional territories”, cited above , p. 66: “The exceptional becomes the new normal. This also happened with the Rotterdam Act. … This is all the more remarkable considering that the Act was explicitly presented as a temporary measure that should be used as a last resort – ministerial documents literally refer to the measure as an ultimum remedium .”

[41] . See paragraph 79 of the Grand Chamber judgment.

[42] . See Klass and Others v. Germany , 6 September 1978, § 59, Series A no. 28 .

[43] . In paragraphs 87-92 of the Grand Chamber judgment, the majority present at some length the Danish example of practices adopted in other Council of Europe States, but that is a quite different situation. In Denmark, the restrictions applicable to “residents out of work” concern only candidates for social housing. That has nothing to do with the applicant’s situation in the present case. The specialised literature confirms the uniqueness of the Dutch legislation (see Van Gent et al. (2017), “Exclusion as urban policy”, cited above , p. 5).

[44] . For an introduction to the various alternative urban regeneration policies applied in Europe, see Widmer and Kübler (eds), Regenerating Urban Neighbourhoods in Europe, Eight case Studies in six European Countries , Aarau Centre for Democracy Studies, Working Paper Nr. 3, May 2014, with an article by Van Ostaaijen, “Regenerating Urban Neighbourhoods (RUN): an overview for Rotterdam”, pp. 179-212; Uitermark (2014), “Integration and control: The governing of urban marginality in Western Europe”, in International Journal of Urban and Regional Research 38(4): 1418 ‑ 1436); van Ham et al. (eds) (2012), Neighborhood Effects Research: New Perspectives , Dordrecht: Springer; Van Gent (2010), “Housing context and social transformation strategies in neighbourhood regeneration in Western European cities”, in International Journal of Housing Policy 10(1): 63–87; Van Gent et al. (2009), “Disentangling neighborhood problems; Area-based interventions in Western European cities”, in Urban Research & Practice 2(1): 53–67; Ireland (2008), “Comparing responses to ethnic segregation in urban Europe”, in Urban Studies 45 (7): 1333-1358; and Galster (2007), “ Should policy makers strive for neighborhood social mix? An analysis of the Western European evidence base ”, in Housing Studies 22 (4): 523-545.

[45] . A housing policy favourable to the poor should “[e]nsure adequate public expenditure on affordable housing and promote policies and programmes that enable access to affordable housing for persons living in poverty. Such policies and programmes should accord priority to the most disadvantaged groups and may include housing finance programmes, slum upgrading, titling and regularization of informal settlements, and/or State subsidies for rent or credit for housing ownership” (“Guiding principles on extreme poverty and human rights”, cited above, § 80). See also Committee on economic, social and cultural rights, General Comment no. 4/1991: The right to adequate housing (Art. 11 (1) of the Covenant), 1 January 1992, § 11: “States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others.”; and Human Rights Committee, General Comment no. 27 on Freedom of Movement (Article 12), 2 November 1999 (§§ 16 and 17) : the Committee criticised provisions requiring individuals to apply for permission to change their residence or to seek the approval of the local authorities of the place of destination.

[46] . See on this point the findings of fact by Van Gent et al. (2017), “Exclusion as urban policy” , cited above , pp. 5 and 14.

[47] . “ Guiding principles on extreme poverty an d human rights”, cited above, § 8, p. 5.

[48] . See paragraph 95 of the Grand Chamber judgment. See also the joint dissenting opinion of Judges L ó pez Guerra and Keller appended to the Chamber judgment, referring to the “applicable principle s concerning discrimination” (§ 14).

[49] . Final report on human rights and extreme poverty, submitted by the Special Rapporteur, Mr. Leandro Despouy , and adopted by a Sub-Commission of the Commission on Human Rights, Geneva, 1996 (E/CN.4/Sub.2/1996/13), p. 63.

[50] . “Guiding principles on extreme poverty and human rights”, cited above, § 50.

[51] . United Nations General Assembly, “ Millennium Declaration ”, 8 September 2000 (A/RES/55/2).

[52] . See also Dire ctive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin , and Directive 2 004/113/EC of the Council of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, which prohibits discrimination in access to housing. On EU law in this area see “The meaning of racial or ethnic origin in EU law: between stereotypes and identities, European network of legal experts in gender equality and non-discrimination”, drafted by Lilla Farkas, 2017, with an interesting analysis of the present case; “La discrimination dans le logement, Réseau européen des experts juridiques en matière de non-discrimination”, drafted by Julie Ringelheim and Nicolas Bernard, 2013; and “Report on measures to combat discrimination directives 2000/43/EC and 2000/78/EC”, Country Report 2011, The Netherlands, by Rikki Holtmaat.

[53] . Law no. 2016-832 of 24 June 2016 on the prevention of discrimination on grounds of social pr ecariousness, JORF no. 0147, 25 June 2016.

[54] . Article 9 § 3.

[55] . Article 14.

[56] . Article 11.

[57] . Inter-American Court of Human Rights (IACtHR), Gonzales Lluy et al. v. Equador , judgment of 1 September 2015 (Preliminary Objections, Merits, Reparations, and Costs), Series C no. 298, § 291.

[58] . Loiz idou v. Turkey (merits), 18 December 1996, § 43, Reports of Judgments and Decisions 1996 ‑ VI.

[59] . Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008.

[60] . On the vulnerability of the poor in the light of the Convention, see Lavrysen (2015), “Strengthening the protection of Human Rights of Persons Living in Poverty under the ECHR”, in Netherlands Quaterly of Human Rights , 33 (3), pp. 293-325.

[61] . Stateme nt of interpretation on Article 30, see also Conclusions 2003, France, p. 227.

[62] . For a discussion on the legal value of this kind of normative text, see my separate opinion in Muršić ( cited above ).

[63] . “Guiding principles on extreme poverty and human rights” (cited above), § 79.

[64] . Ibid., § 80.

[65] . The Court has never before been asked to examine a case with such major consequences for the right to housing of underprivileged groups, as for the political geography of European cities. On the protection of the right to housing in international and European law, see Office of the United Nations High Commissioner for Human Rights, “The Rights to Adequate Housing”, Factsheet no. 21 (Rev. 1), and Kenna and Uhry, Lent déploiement d’une chrysalide : Le droit européen au logement , 2016.

[66] . CRI(2008)3, Third report on the Netherlands , adopted on 29 June 2007, §§ 72-75. See also CRI(2013)39, Fourth report on the Netherlands, adopted on 23 June 2013, §§ 87-91, expressing specific concerns about discrimination in the access to housing of temporary workers coming from Poland and other Eastern European countries.

[67] . Report by the Commissioner for Human Rights Mr Thomas Hammarberg on his visit to the Netherlands , 21-25 September 2008, CommDH(2009)2, § 158.

[68] . ECSR, Conclusions 2011, the Netherlands , Article 31-1, 2011/def/NLD/31/1/EN.

[69] . Th e extremely clear and significant words of the ECSR report read as follows : “The Committee reiterates that States Parties shall guarantee equal treatment with respect to housing on the grounds of Article E of the Charter. Article E prohibits discrimination and therefore establishes an obligation to ensure that, in the absence of objective and reasonable justifications, any individual or groups with particular characteristics enjoys in practice the rights secured in the Charter. Moreover, Article E not only prohibits direct discrimination but also all forms of indirect discrimination. Discrimination may also arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all ( International Associa tion Autism-Europe (Autisme) v. France , Complaint No. 13/2002, decision on the merits of 4 November 2003, § 52 and Centre on Housing Rights and Evictions ( C OHRE) v. Italy , Complaint No. 58/200 9, decision on the merits of 25 June 2010, § 35). As regards the right to housing the Committee has held that equal treatment must be assured to the different groups of vulnerable persons, particularly low-income persons, unemployed, single parent households, minors, persons with disabilities including mental health problems, persons internally displaced due to wars or natural disasters, etc. (Conclusions 2003, France).”

[70] . The ECSR Conclusions of 2015 on Article 31-1, 3 1-2 and 31-3 concerning the report submitted by the Netherlands remain silent on this subject. It is clear that the Government had avoided the subject in their report.

[71] . Concluding observations of the Human Rights Committee, 25 August 2009, CCPR/C/NLD/CO/4, §18.

[72] . Ibid.

[73] . As pointed out by Van Gent et al. (2017), “Exclusion as urban policy”, cited above , p. 14: “The Act was also expanded in 2016 to not only improve living conditions but also target public safety more directly. It now holds provisions to allow the exclusion of residents based on police records of crime, ‘anti-social behaviour’, and suspicions of extremism and radicalism. These policy changes represent a further step towards a reliance on profiling and exclusion.” See in general, about territorial stigmatisation and the stigmatising effect of urban policies, especially the policy of urban gentrification, Wacquant et al. , “Territorial stigmatization in action”, in Environment and Planning A 2014, 46: 1270-1280; Sakizlioglu and Uitermark (2014), “The symbolic politics of gentrification: the restructuring of stigmatized neighborhoods in Amsterdam and Istanbul”, in Environment and Planning A 2014, 46: 1369-1385; Van Duin et al. (2011), “Marginality and stigmatization: identifying with the neighbourhood in Rotterdam”, Annual RC21 Conference 2011; Musterd (2008), “Residents’ views on social mix: Social mix, social networks and stigmatisation in post-war housing estates in Europe”, in Urban Studies 45 (4): 897–915; Van der Laan Bouma-Doff (2007), “Confined Contact. Residential segregation and ethnic bridges in the Netherlands”, in Urban Studies 44 (5/6): 997-1017; and Dean and Hastings (2000), Challenging Images: Housing Estates, Stigma and Regeneration , Bristol: Policy Press.

[74] . D .H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV. See also OrÅ¡uÅ¡ and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010.

[75] . Hugh Jordan v. the United Kingdom , no. 24746/94, § 154, 4 May 2001.

[76] . Timichev v. Russia , nos. 55762/00 and 55974/00, § 57, ECHR 2005 ‑ XII.

[77] . Digest of the Case Law of the Europea n Committee of Social Rights, 1 September 2008.

[78] . Joint Dissenting Opinion of Judges L ó pez Guerra and Keller appe nded to the Chamber judgment (§ 18).

[79] . Lancker, “Effects of poverty on the living and working conditions of women and their children, in Main causes of female poverty, compilation of in-depth analyses”, Brussels, European Parliament, 2015, pp. 8-13.

[80] . D.H. and Others v. the Czech Republic , cited above , § 180 .

[81] . See p aragraph 74 of the Grand Chamber judgment on the passage of the excellent report by Amsterdam University already cited: “More often than the reference group, the potentially refused are young, male and live alone. More often than the reference group, the potentially refused are of non-European foreign origin, and much more often, they are from the European migrant population. Trends between 2004 and 2013 show a strong increase in the proportion of persons among the European migrant population, principally from Eastern European countries like Poland, Bulgaria and the Czech Republic.” See also the article by Van Gent et al ., “Exclusion as urban policy”, cited above : “While the criteria for excluding residents seem clear-cut, our analyses show that a wide net is cast. A dynamic and diverse group of low-income residents is targeted, with the implicit assumption that these individuals are a burden. At the expense of the rights and entitlements of this group, the government expands its discretion by increasing its possibilities to exercise power in the form of enclosure and exclusion. The Act originates in right wing politics that promote strong-arm tactics with the promise of ‘getting things done’ and reasserting control over the city …” As to the motivation of and the increased risk caused by such urban policies of discrimination against ethnic minorities, under the slogan “The color is not the problem, but the problem has got a color”, see Ouwehand and Doff, “Who is afraid of a changing population?”, cited above, pp. 112, 129, 138 and 139: “Although the final regulations do not discriminate on ethnicity, but use economic proxies instead, it cannot be denied that the policy was developed to lower the predicted increase in ethnic minorities in certain neighborhoods in the city and that ethnic minority households would be affected the most. Secondly, city leaders equated an increase in ethnic minority households with an increase in physical and social problems. Although the majority of these households do not have criminal records and do not show anti-social behaviour, they are all equated with problems. Politicians and practitioners exhibited a tendency to stereotype ethnic minorities as problematic; the same type of stereotyping occurs along with the increase of immigrant workers from other European countries, such as Poland, Bulgaria and Romania. These observations support the conclusion that the policy was not based on thorough and precise argumentation but rather on a pure political populist stance.”

[82] . See Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color”, Stanford Law Review Vol. 43, No. 6 (Jul. 1991), p. 1244 ( French translation in “Cartographie des marges : intersectionnalité, politique de l’identité et violences contre les femmes de couleur”, in Cahier du genre , 2005/2, no. 39, p. 54 ) , and the pioneer text, Crenshaw (1989), “Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics”, in University of Chicago Legal Forum , 139; and for a recent review of the literature, see Goldblatt, Intersectionality in international anti-discrimination law: addressing poverty in its complexity , (2015) 21(1) Australian Journal of Human Rights 47.

[83] . The NGO ATD Quart Monde summarises this comparison as follows (translation): “multiple discrimination and intersectional discrimination are manifested in two different ways . First, various factors may come together: a migrant woman may suffer discrimination at work on account of her origins and because she is a woman. Secondly, the factors may interact with each other; thus, a young woman may suffer from discrimination in employment because she is likely to become pregnant. Intersectional discrimination obtains where two or more criteria interact to the point where they are inextricable” ( Discrimination et pauvreté - Livre blanc : analyse, testings et recommandations , October 2013, p.13).

[84] . United Nations General Assembly “ Review of reports, studies and other documentation for the preparatory committee and the world conference ” , A/CONF.189/PC.3/5, 21 July 2001, § 23.

[85] . Committee on the Elimination of All Forms of Discrimination against Women, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women , 24 th session, 2010, CEDAW/C/GC/28, § 18.

[86] . Committee on Economic, Social and Cultu ral Rights, General Comment no. 20, Non-discrimination in economic, s ocial and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20, § 17. Whilst t he Committee seems to place multiple and intersectional discrimination under the same head, it does refer later on in this Comment (§ 27) to “the intersection of two prohibited grounds of discrimination, e.g. where access to a social service is denied on the basis of sex and disability”, and this also corresponds to the scope of intersectional discrimination per se .

[87] . Committee for the Elimination of All Forms of Discrimination against Women , Alyn e da Silva Pimentel Teixeira v. Brazil , Comm. no. 17/2008, 27 September 2011, § 7.7.

[88] . B.S . v. Spain , no. 47159/08, § 62, 24 July 2012.

[89] . IACtHR, Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica , judgment of 28 November 2012 (Preliminary Objection, Merits, Reparations a nd Costs), Series C no. 257, § 314.

[90] . IACtHR, Gonzales Lluy et al. v. Ecuador , cited above , § 290.

[91] . Antoine de Saint-Exupéry, Citadelles , 1948.