The case of Fatima El Ayoubi and Mohamed El Azwan Azouz v. Spain. Views of the Committee on Economic, Social and Cultural Rights of February 19, 2021. Communication No. 54/201.
In 2016, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The Committee considered that there was a legitimate basis for taking action to evict the authors. However, the court did not consider the question of proportionality between the legitimate purpose of the eviction and the consequences of the eviction for the affected persons. There has been a violation of article 11 of the International Covenant on Economic, Social and Cultural Rights.
As seen from the text of the Considerations, the authors moved into the apartment in December 2016. On March 1, 2017, based on a complaint from the bank that owned the apartment, the court ordered the authors to vacate this dwelling, since they occupied it illegally without having any legal title. This decision was confirmed by the Provincial Court of Madrid on 4 October 2017 (paragraph 14.1 of the Considerations). The authors were able to stay in this apartment due to the suspension of three eviction orders. The Committee also noted that on August 31, 2020, the court of first instance set a new date for eviction - January 13, 2021 (paragraph 14.2 of the Considerations). There has been a violation of article 11 of the Covenant.
The Committee's assessment of the factual circumstances of the case: it was noted that, for the State party, allowing the authors to remain in the home would be tantamount to legalizing (through the exercise of the right to housing) a violation of the property right of the institution to which the home belongs. Since the authors were ordered to vacate someone else's home in the framework of civil proceedings, the Committee considered that there was a legitimate reason for taking action to evict the authors. However, the court did not consider the question of proportionality between the legitimate purpose of the eviction and the consequences of the eviction for the affected persons. In fact, the court did not balance the advantage of this measure at that time - in this case, the protection of the property right of the real estate owner institution - with the consequences that this measure could have for the rights of the evicted persons. Thus, the analysis of the proportionality of eviction involves not only considering the consequences of this measure for the evicted persons, but also the need for the owner to regain possession of this property. In all cases, a distinction should be made between the property of persons who need it for use as housing or livelihood, and the property of financial institutions, as in this case. The conclusion that eviction is not a reasonable measure at a particular time does not necessarily mean that an eviction order cannot be issued. Nevertheless, the principles of expediency and proportionality may require that the execution of an eviction order be suspended or postponed so that the evictees do not find themselves in a situation of poverty or violation of other rights enshrined in the Covenant. The issuance of an eviction order may also be conditioned by other factors, such as ordering the administrative authorities to take measures to assist residents to mitigate the consequences of their eviction (paragraph 14.5 of the Considerations).
Despite the authors' claims that this measure would negatively affect their right to adequate housing, the court of first instance did not balance the damage caused by the authors as a result of living in someone else's apartment with the damage they tried to avoid by moving into this apartment, being at risk of being on the street. The Committee noted that the court considered that the reasons given by the authors, related to their special need for housing due to their difficult financial situation and their son's health problems, were not sufficiently respectful to occupy the appropriate housing; In response to one of the authors' requests for a postponement of the eviction, the court indicated only that the arguments presented by the authors could not be considered justified in the framework of "proceedings of this kind". The State party's legislation also did not provide for any other judicial mechanism that the authors could use to challenge eviction orders so that another judicial authority could assess the proportionality of the eviction or the conditions under which it should be carried out. The failure to carry out such an analysis constituted a violation by the State party of the authors' right to housing, as enshrined in article 11, paragraph 1, of the Covenant, read in conjunction with article 2, paragraph 1 (paragraph 14.6 of the Views).
The Committee's conclusions: The State party violated the authors' right within the meaning of article 11, paragraph 1, of the Covenant.