**заявительница ([§§ 32](https://bukva.ai/docs/postanovlenie-4349409/statya-17#p100627) - [33](https://bukva.ai/docs/postanovlenie-4349409/statya-17#p100635))**
32.
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 has 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 omission 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.