P. and B. v. The Netherlands

The authors of the communication are Ms. B. P. and Mr. P. B., born in 1966 and 1970, respectively, both nationals of Hungary. They claim that the Netherlands has violated their rights under articles 2 (3), 6, 7, 9, 17 and 26 of the International Covenant on Civil and Political Rights (“the Covenant”). The Optional Protocol entered into force for the Netherlands on 11 March 1979. The authors are not represented.

On 12 April 2017, the Committee, acting through its Special Rapporteur on New Communications and Interim Measures, decided not to issue a request for interim measures.

On 26 December 2018, the Committee, acting through its Special Rapporteur on New Communications and Interim Measures, decided to examine the admissibility of the communication separately from the merits.

Mr. B. has been reliant on a high daily dose of medicines for nearly 20 years and suffers from psychiatric and somatic diseases. He and Ms. P. reside in the Netherlands since 2001. They are not partners, but live together. Ms. P. takes care of an injury that Mr. B. sustained in 2014 in Amsterdam due to an attack. A medical certificate dated 8 February 2016 states that Mr. B.’s recovery had been hampered by his financial and housing situation and there was a risk of irreparable harm. Mr. B.’s application for damages for his injury was rejected by the Damages Fund for Victims of Violence on 16 March 2016 because it only had Mr. B.’s testimony. On 29 August 2016, Mr. B. was refused treatment, which, according to the authors, would result in the loss of his leg if not his life.

On 20 January 2015, the municipality of Amsterdam rejected Ms. P.’s application for social benefits as she had not legally resided in the Netherlands for at least five years. In 2015, the authors moved to Haarlem. On 27 July 2015, the municipality of Haarlem accorded to each of the authors monthly social benefits of €549, an amount reduced on the ground that each of them was living together with four other adults. On 13 November 2015, it rejected Mr. B.’s request for review. The District Court of North Holland found the appeal inadmissible on 16 February 2016, because they had not appealed within the statutory time limit. On 29 June 2016, the District Court of North Holland declared Mr. B.’s request for review unfounded. The Court found that it did not result from his health and financial situation that Mr. B. had been unable to appeal in a timely fashion.

On 12 August 2015 and 12 October 2015, Mr. B. and Ms. P. respectively applied for social benefits and a postal address. They also applied for rental subsidies. On 28 September 2015, the municipality of Haarlem rejected their application for rental subsidies because they were obliged to leave their residence by 1 October 2015.

On 27 October 2015, the municipality cancelled the authors’ social benefits because they had not cooperated with “Brede Sociale Toegang” (“BCT”) to determine whether they can claim residence and benefits there. Ms. P. claims in this connection having texted to BCT about their whereabouts each night. The authors were subsequently registered as non-residents in the Basic Civil Registry. Their request for a correction remained unanswered.

On 5 November 2015, Ms. P. requested from the Mayor of Haarlem a postal address and the revocation of the cancellation of their benefits. The authors applied in vain for the registration of a postal address of the municipality multiple occasions.

On 10 March 2016, the municipality of Haarlem informed the authors that it had de-registered them from the Basic Civil Registry based on legislation allowing it when a resident cannot be reached, had submitted no notification of address change received and, following thorough investigations, no information has been obtained regarding his/her stay in the Netherlands.

On 25 June 2016, the authors wrote to the King’s Commissioner for North Holland, seeking relief, including registration in the Basic Civil Registry. They claimed being unable to go to a shelter because of Mr. B.’s need for treatment and hygienic circumstances. The Commissioner forwarded the letter to the municipality of Amsterdam for lack of competence.

On 11 May 2016, the authors’ health insurer informed them that there were doubts whether they were still insured under the Long-Term Care Act and that they must verify their data with the authorities if they were working or resided in the Netherlands. The insurer intended to cease their health insurance as of 5 July 2016.

On 12 October 2016, the authors’ address registration application was refused. On an unspecified date, an officer of the National Office for Identity Data informed the authors that that they correctly appeared as non-residents in the Basic Civil Registry, given their lack of a residential or postal address. In February 2017, Ms. P. requested from the ombudsman of Amsterdam that Mr. B. be provided with a temporary postal address and that his health insurance and social benefits be reactivated. On 6 April 2017, the municipality of Amsterdam decided rejected the social benefits application by Mr. B., against which he appealed. On 14 June 2017, the municipality rejected another application by Mr. B., following his non-appearance at a meeting. In July 2017, Mr. B. changed domicile, but the municipal authorities remained unwilling to assist him.

The municipality of Amsterdam granted Ms. P. social benefits because of homelessness from 9 March 2017 onwards. It informed her that it would report this to the Immigration and Naturalisation Service (“IND”), given the possible consequences for the qualification of the legality of her stay in the Netherlands. On 26 April 2017, the IND sent a letter to Ms. P. informing her that it was investigating the legality of her stay. Ms. P. applied to the IND in response and requested the municipality to withdraw its notification. The IND sent her a decision on 20 July 2017 concluding that she had never had legal residence because she had been de-registered twice from the Basic Civil Registry for more than six months due to stays abroad and had therefore forfeited any rights as an E.U. citizen. The IND declared her request for review inadmissible on 29 January 2018 because she had filed it outside the legal time limit.

The authors claim that the State party has violated article 6 of the Covenant as their health insurances were cancelled and Mr. B. was refused treatment in spite of the seriousness of his medical situation. Moreover, the decision to accord a reduced amount of social benefits was incorrect, as the authors are not partners and the authorities mistakenly concluded that they were sharing living costs. Municipal representatives refused to acknowledge Mr. B.’s special circumstances. This decision and the refusal of postal address registrations has endangered the authors’ lives.

In the authors’ opinion, the State party has breached article 7 of the Covenant as even if they were to be granted social benefits again, they would spend the rest of their lives on a weekly budget of €50, under continuous state control. They would be forced to choose between their health, their life or their independence. The conditions for the reactivation of their health insurance, including budget control, are furthermore unacceptable. The procedures for Mr. B.’s social benefits applications suffered from such delays that it was clear that the municipality of Amsterdam intended to render him homeless.

The authors claim that the State party violated article 9 of the Covenant by rejecting the authors’ application for rental subsidies, thus excluding them from adequate housing. They are capable of living responsibly but only with a basic income.

The above facts, as well as the courts’ decisions on the authors’ social benefits applications, amount to a violation of article 2 (3) of the Covenant. The decision of the District Court of North Holland of 29 June 2016 moreover failed to acknowledge evidence that the decision of 13 November 2015 reached the authors only on 17 November 2015. The decision failed to point out that refusing registration of a postal address is contrary to the Basic Civil Registry Act. The District Court should have considered that the authors have no income and that Mr. B. has a chronic illness. The Court rendered its decision 29 days after the deadline for doing so, but still reaffirmed that the authors’ appeals were inadmissible as submitted late.

The authors consider that the State party has violated article 17 of the Covenant by rejecting their applications for postal address registrations and by damaging their honour and reputation. This has precluded their ability to correspond.

The authors claim to be victims of discriminatory treatment by the State party, in breach of article 26 of the Covenant. The authorities have intended to withdraw their legal residence status. The authors’ de-registration from the Basic Civil Registry means that they could not get legal representation. Without further details, they claim that Dutch nationals are excused for everything, whereas non-nationals are subjected to surveillance and different rules, and they can be denied anything. The State party has created an unbalanced relationship between itself and non-nationals not part of the workforce. The decisions by the District Court of North Holland are visibly biased.

The decision by the IND put Ms. P. in an unacceptable situation, because only people who have lived in the Netherlands for less than five years can be reported to the IND. The authors suspect that the letters from the IND were falsified because they were sent by different people, were not signed and are unlawful. The IND misinterpreted the ‘non-resident’ registration of Ms. P. in the Basic Civil Registry to mean that she resided outside of the Netherlands. The IND made its decision despite the determination by the Ministry of the Interior that the authors had been living in the Netherlands continuously.

The authors demand that the State party register their address, pay the entirety of their debts and provide them with at least €5000 immediately, reactivate and guarantee their health insurance for the rest of their lives, grant them social benefits in the amount of that designated for persons living alone plus rental subsidies with assurances of lifelong payments, permit them to freely choose their residence, accord damages for the attack suffered by Mr. B. and withdraw its fraud investigations against them.

By note verbale of 3 July 2017, the State party challenges the admissibility of the communication. The State party notes that the communication is almost incomprehensible and thus insufficiently substantiated.

The State party submits that it understands the essence of the communication to be that the authors claim that the municipality of Haarlem has denied them a postal address. As a fixed or postal address is a prerequisite for receiving benefits under section 40 of the Participation Act, this resulted in the denial of their social benefits. They also risked losing their health insurance.

The decision of 27 October 2015 to cancel the authors’ benefits followed an investigation into their residential situation, which established that they did not have a fixed address in Haarlem and had failed to comply with the conditions for being granted a postal address. The District Court of North Holland declared the authors’ appeal inadmissible.

The State party argues that this course of events results from the authors’ failure to comply with the eligibility conditions for a postal address and their general unwillingness to cooperate with the authorities. The authors cannot be considered victims of any violation of the Covenant. The communication is therefore inadmissible as insufficiently substantiated.

Additionally, the authors have not availed themselves of all available domestic remedies, given that they failed to lodge their appeals in a timely manner.

However, the aforementioned facts have been surpassed by more recent events. The authors currently reside in Amsterdam and Ms. P. has been provided with a postal address and social benefits. Mr. B. has been given an opportunity to have the same made available to him, which would also make him eligible for health insurance. However, so far he has proven reluctant to meet with the local authorities to this end. The authors can therefore no longer be considered victims of any violations of the Covenant, if they ever could have been. Additionally, given that Mr. B. refuses to meet with the authorities, he cannot be considered to have availed himself of even a single domestic remedy.

In their comments on the State party’s observations dated 10 September 2018 and subsequent submissions dated 17, 21 and 23 October 2016, 22 November and 14 December 2016, 25 March, 7 August and 9 August 2017, 8 November 2017, 14, 15, 17 and 19 December 2017, 17, 19, 24 and 26 January 2018, 26 February 2018, 10 April 2018, 11 September 2018, 23 November 2018, 13 March 2019, 11, 12 and 16 April 2019, 31 May 2019, 12 and 20 June 2019, 13 July 2019 and 5 September 2019, the authors reaffirm that they are victims of violations of articles 6, 7, 9, 17 and 26 of the Covenant. They cannot obtain redress domestically and their communication is based on documented facts, whereas the State party’s observations are mostly based on assumptions and incomplete or faulty reports.

The authors submit that they never committed fraud. Their rental contracts show that they should have received the amount of social benefits for persons living alone rather than that for cohabitation. They made it clear to the authorities that they are unable to pay their rent with the reduced amount of social benefits. The authors have resided in the Netherlands for long enough to be treated as Dutch nationals.

On 28 September 2017, the municipality of Amsterdam informed Ms. P. that the decision of the IND meant that the payments of her benefits would be ceased starting the next day. On 23 January 2018, the municipality rejected Ms. P.’s request for review. The District Court of Amsterdam rejected her appeal on 31 July 2018. Ms. P. then appealed to the Central Appeals Council. She had separately requested the review of the decision of the municipality of Amsterdam not to accord her social benefits. On 2 October 2017, the municipality informed her that it had received a notification giving rise to doubts as to whether her official residence address was still correct. It requested an updated address and stated that it would be de-registering her should the investigation confirm that she had left the official address. Ms. P. was de-registered from the Basic Civil Registry as of 6 November 2017. She submitted another application for social benefits on 4 September 2018, which was rejected on 6 September 2018 on the ground that she did not legally reside in the Netherlands. Her subsequent application of 11 December 2018 was rejected on 14 December 2018 based on a lack of new relevant facts. Her request for review was rejected on 17 April 2019.

Since 2017, the authors have been living in a caravan in Amsterdam as part of around 40 “City Nomads”. Social benefits were accorded to Mr. B. starting from 14 August 2017, his health insurance was reactivated and he underwent several operations. On 20 September 2018, the authors reported that they had been re-registered in the Basic Civil Registry.

Mr. B. was denied any opportunity for a municipal shelter because his municipal file said that he was fully self-reliant. However, false data were later entered to reach the conclusion that he was not self-reliant. Since he resided in a caravan and had been complying with the rules and regulations, he must be considered self-reliant. On 7 October 2017, Mr. B. was facing urgent hospitalisation. He was in danger of losing both of his legs because he had not been able to afford medical treatment. On 14 March 2019, the municipality of Amsterdam decided that Mr. B. was eligible for a place in a government shelter. Mr. B. requested a review of this decision, because he had applied for a “recovery studio”, as received by other members of the City Nomads, and that he had psychological and somatic problems. The municipality rejected his request on 9 May 2019 because he required more support than offered in the recovery studios. The municipality wished to force him into “some unacceptable city care arrangement”, the opposite of the “normal independent social housing” of which he was in need. The authorities relocated the City Nomads, including the authors, in October 2019. The new location constitutes a danger to the authors’ safety and there is a “total disregard” for fire safety rules. Water and electricity connections had been refused. The provision of such services to Dutch nationals only is a violation of E.U. law, given the authors’ foreign nationality. A next appointment for social housing for Mr. B. was scheduled for December 2019.

On 18 October 2018, the clinic treating Mr. B., Brijder, confirmed in writing that it had had to stop his treatment because he was no longer living in Haarlem, even though it is not a requirement to undergo treatment in one’s place of residence. Mr. B. contests having agreed that the Municipal Health Service (“GGD”) would take over his treatment and claims that his file has been tampered with. Mr. B. requested Brijder to reassume responsibility for his treatment, because the GGD was ignoring his diagnoses, as intended, according to the authors, by the municipality of Amsterdam. The GGD clinic was standing in the way of Mr. B.’s social housing application and was discriminating him because of his nationality. The authors submit that the sharing of false information by Brijder with the GGD amounts to a further violation of article 17 of the Covenant and that the interference with Mr. B.’s treatment is in violation of articles 6 and 9 of the Covenant.

As for Ms. P., the notification by the municipality of Amsterdam of her benefits was incomplete and incorrect. When she was granted social benefits in 2014 and 2015, this had no effect on her residence status, because the authorities had ascertained that she had resided in the Netherlands for longer than five years. The authorities continued to refuse to acknowledge the legality of Ms. P.’s stay in the Netherlands. She could therefore not reactivate her health insurance or social benefits. She requested the municipality of Amsterdam on 22 January 2019 to reregister her in the Basic Civil Registry and to provide her with social benefits. In October 2019, Ms. P. informed that her case before the Central Appeals Council remained pending, showing that procedures before the Dutch courts are subject to unreasonable delays.

By note verbale of 6 December 2018, the State party informed the Committee that the authors’ comments did not give the State party any reason to change its position.

On 20 January 2020, the authors submitted further comments, arguing that they had relocated to the new location of the Amsterdam city nomads at the Westpoortweg and that their addresses had been registered accordingly. However, the municipality of Amsterdam refuses to provide running water and disregards fire safety regulations, given that the caravans are too close to each other. The authors have therefore been staying at Mr. B.’s family home in Budapest since December 2019 in order to continue the treatment of his legs. However, Mr. B. was still be going to attend a housing appointment with the municipality in January 2020. As for Ms. P., her case before the Central Appeals Council remains pending. She remains without income and health insurance.

On 21 February 2020, the State party reiterated that the communication should be declared inadmissible. It expresses concern as the authors’ submissions are difficult to follow and regrets that they did not avail themselves of legal aid, for which the Dutch legal aid system provides. The authors are part of the so-called city nomads, a group of people wishing to reside in Amsterdam on their own terms.⁴ The municipality pursues a toleration policy towards the group, allowing them to live in a designated location and providing special care and assistance to vulnerable members. The authors left the group for some time and re-joined it at the Westhavenweg in Amsterdam in the period 2017-2019. They are presently allowed to stay at the Westpoortweg in Amsterdam, until the end of 2021. Each member is issued with an individual temporary exemption order. In the authors’ case, these have not yet been issued because of their current absence. The municipality’s liaison officer is aware of Mr. B’s medical condition, including burns for which he receives weekly treatment. He is also being treated at the GGD. For the past two years, the liaison officer has tried together with the GGD and a care institution to arrange temporary housing enabling Mr. B.’s wounds to heal in hygienic conditions, but each time the authors have turned down the offer.

4. The State party refers to the municipal policy with respect to the city nomads, according to which drinking water and sanitation are available at the Westpoortweg location and that running water and electricity for limited use will be provided free of charge as of March 2020. ↩

Before considering any claims contained in a communication, the Committee must, in accordance with rule 97 of its rules of procedure, decide whether it is admissible under the Optional Protocol.

The Committee notes, as required by article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under any other international procedure of investigation or settlement.

The Committee further notes the State party’s objection that the communication is inadmissible because the authors have not exhausted domestic remedies, by failing to lodge a timely appeal to the District Court of North Holland and, in the case of Mr. B., by refusing to meet with the authorities. The Committee also notes that the authors claim that Ms. P.’s appeal before the Central Appeals Council is unreasonably prolonged, that their de-registration from the Basic Civil Registry prevented them from getting legal representation and that they cannot obtain redress from domestic procedures. The Committee recalls its jurisprudence that, although there is no obligation to exhaust domestic remedies if they have no chance of being successful, authors of communications must exercise due diligence in the pursuit of available remedies, and mere doubts or assumptions about their effectiveness do not absolve the authors from exhausting them.⁵

5. See, for example, V.S. v. New Zealand (CCPR/C/115/D/2072/2011), para. 6.3. ↩

With respect to registration in the Basic Civil Registry, the Committee observes that, even though the authors filed a complaint with the ombudsman of Amsterdam, it does not appear that they engaged any judicial remedies. Regarding the authors’ social benefits applications, the Committee observes that the District Court of North Holland found that they had lodged their appeal outside of the legal time limit. The Committee observes that the authors contest the tardiness of their appeals, which they claim to have filed in a timely fashion because they received the decision of 13 November 2015 only on 17 November 2015. The Committee notes, however, that the decision in question indicates that an appeal must be filed within six weeks after the date of its publication. The authors have not explained why they were not able to do so. The Committee notes moreover that it does not appear from the information on file that the authors have obtained a final decision on the merits of their claim, nor that they had explained why they were not in a position to do so.

Accordingly, the Committee considers that the authors have failed to adequately explain their positions that their judicial proceedings have been unreasonably prolonged, or that the domestic remedies available in the Netherlands are unavailable to them or would be otherwise ineffective. The Committee therefore concludes that in the present case, the authors have failed to exhaust all available domestic remedies and thus the communication is inadmissible under article 5, paragraph 2 (b) of the Optional Protocol.

The Human Rights Committee therefore decides: (a) That the communication is inadmissible under article 5, paragraph 2 (b) of the Optional Protocol;