The case of Mohamed ben Jazia and Nahuel Bellini v. Spain. Views of the Committee on Economic, Social and Cultural Rights of 20 June 2017. Communication No. 5/2015.
In 2015, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
In the absence of evidence that the State party has taken all reasonable measures to the maximum extent of available resources, the eviction of the authors and the failure to provide them with alternative housing by the State party's public authorities as a whole, including the regional authorities of Madrid, constituted a violation of their right to adequate housing.
The Committee's assessment of the factual circumstances of the case: the authors claimed that the State party violated their right to adequate housing because, in accordance with a Madrid court order, they were evicted from their rented room. At the same time, their lack of alternative housing and the possible consequences of such a ruling, especially for their minor children, were not taken into account. They drew attention to the fact that during the trial proper legal guarantees were not respected and the authorities did not provide their family with social housing. In addition, in the context of a serious economic crisis, the autonomous community of Madrid sold off part of the social housing stock to private investment funds (paragraph 12.2 of the Considerations).
The State party argued: the authors were evicted on the initiative of a private individual (landlord); the judicial authorities participated in the process only as an intermediary; during the subsequent proceedings in court, all judicial guarantees were respected. In addition, it notes that the social services of the community and the Municipality of Madrid provided assistance to the authors in various matters within their available resources, including financial assistance and assistance in the form of temporary housing for ten days after their eviction, the reason that the financial situation of the family was not improved, it became, in many ways, in the opinion of the State party, the conduct of Mr. Ben Jaziya (paragraph 12.3 of the Views).
The parties did not dispute that the authors permanently resided with their children in a rented room in Madrid; that the court proceedings in Madrid initiated against Mr. Ben Jazia by the landlord led to the eviction of the authors and their children on October 3, 2013; despite the fact that Mr. Ben Jazia at different times he received unemployment benefits and a living wage, at the time of eviction, the authors did not have alternative housing or income to rent other housing; Mr. Ben Jazia repeatedly asked the Madrid Housing Authority (hereinafter referred to as the UFM) to provide him with social housing between 1999 and 2011, but to no avail; between 2012 and 2013, the UFM and other institutions of the Autonomous Community of Madrid sold 2,935 housing units to private investment companies/foundations (paragraph 12.4 of the Considerations).
With regard to the situation of the complainants at the end of their stay in the temporary shelter of the Samur service, the Committee took note of the State party's argument that the Samur service staff informed the authors of the possibility, if necessary, of placing Ms. Bellini and the children in a shelter for women, and Mr. Ben Jaziya - at the homeless assistance center. The authors, in turn, claim that after they were asked to leave the temporary shelter, they were not offered any decent alternative housing. In this regard, the Committee noted that the materials provided by both parties only confirmed that in August 2013, the social services of Tetuan County informed Mr. Ben Jaziya that in the event of eviction of his family and their lack of alternative housing, the aforementioned services would take measures to protect children. The Committee also stressed that the State party did not dispute the authors' claim that, after their ten-day stay in a temporary shelter, they and their children had to spend four nights in their relative's car until an acquaintance offered them accommodation for several weeks (paragraph 12.5 of the Views).
The Committee also noted that the authors did not dispute the information contained in the report of the Madrid Social Services Center dated 24 April 2015 that in 2012 and 2013 Mr. Ben Jazia regularly received financial assistance from the Center to meet his basic needs (paragraph 12.6 of the Views).
In the light of the Committee's finding of the relevant facts and the allegations of the parties, the main question in connection with the communication was whether the eviction of the authors from their rented room after the expiration of the lease agreement on the basis of a court order and without providing the authors with alternative housing violated their right to adequate housing under article 11, paragraph 1, of the Covenant, given that They were left without a roof over their heads. In order to examine this key issue, the Committee considered the argument previously submitted by the State party that the problem arose between private individuals and had nothing to do with the Covenant. The Committee first listed some relevant elements of the right to housing, in particular those relating to persons living in rented housing and the legal protection of this right (paragraph 12.7 of the Views).
The State's obligation to protect tenants
According to the State party, the eviction after the expiration of the lease agreement constituted a conflict between the private tenant and the landlord in the sense that it was not initiated directly by the authorities. However, such a dispute between private individuals is regulated within the framework of the legal system of the State party, which in any case is responsible for ensuring respect for the rights enshrined in the Covenant, including the right of tenants to housing. Thus, although the dispute over the expiration of the lease agreement arose between two private individuals, the State party is obliged, inter alia, to ensure that the eviction of the tenant does not contradict article 11, paragraph 1, of the Covenant (paragraph 14.1 of the Views).
The trial of the eviction case in court
The Committee considered whether the eviction of the authors from their rented room was a violation of their right to adequate housing. The Committee noted that the lessor informed Mr. Ben Jazia of its intention not to renew and terminate the lease agreement on March 15 and July 12, 2012, in accordance with articles 9 and 10 of the Urban Lease Act and paragraph 1 of article 1569 of the Spanish Civil Code, that the contract expired on August 31, 2012 and that, despite To this, the authors refused to leave the room. In response to the lessor's petition, on May 30, 2013, the court decided to evict the authors due to the expiration of the lease agreement in accordance with paragraph 4 of article 440, and paragraph 3 of article 549 of the Law on Civil Proceedings. Thus, the eviction measure against the authors was taken in accordance with the law (paragraph 16.1 of the Considerations).
The Committee pointed out that the authors refused to leave the rented room, despite the fact that the landlord informed them in advance that he would not renew the contract and that the latter expired on August 31, 2012. In addition, the authors have not paid monthly rent since June 2012. In the absence of information that would indicate that the landlord's application was unfounded or unnecessary, the Committee concluded that there were legitimate grounds for evicting the authors (paragraph 16.2 of the Views).
The Committee took note of the authors' claim that judicial guarantees had not been respected during the eviction process and that their request for a lawyer had been rejected by the competent authorities. The Committee also took into account the State party's arguments that, during the trial, all due process guarantees applicable under the Covenant were respected. The Committee noted that Mr. Ben Jazia had received gratuitous legal assistance and the right to represent him during the trial and that his lawyer had filed several petitions for various remedies; that Mr. Ben Jazia had been informed in advance of the expiration of the lease and the eviction; and that the latter had been conducted in at the appropriate time and in the presence of court officials, police officers and representatives of interested parties (paragraph 16.3 of the Considerations).
The Committee also took note of the authors' statement that the court had ordered their eviction without assessing the possible consequences of such a measure for the authors, in particular for their minor children, and that the law did not provide for the right of the defendants to appeal the eviction decision or to file petitions in which they could outline the consequences of the eviction. They could only file a claim for full or partial repayment of their rent. In this regard, the Committee noted: by its decisions of 30 May and 2 and 22 July 2013, the court decided to evict the authors in accordance with paragraph 4 of article 440, paragraph 3 of article 549 and paragraph 1 of article 556 of the Law on Civil Procedure and subsequently confirmed this decision. On the basis of these provisions, as well as with paragraph 1 of article 444 of the above-mentioned law, during the proceedings, the defendant could only make statements concerning the payment of rent or circumstances directly related to the eviction procedure. In addition, the Committee stressed that, despite the absence of specific legislation that would allow a judge to assess the compatibility of this measure with the provisions of the Covenant during an oral eviction trial, on 30 May 2013 the court decided to call on the Council, the Family Administration and Social Services of the Municipality of Madrid to take measures within their competence to in order to prevent Mr. Ben Jaziya from being left without a roof over his head and his social isolation, and, in particular, to inform the court within 20 days of the specific measures taken to, to ensure that his minor children have adequate and proper housing. On July 2, 2013, this application was resubmitted. In addition, the Court, at the request of Mr. Ben Jaziya, repeatedly postponed the eviction (paragraph 16.4 of the Considerations).
The Committee took note of the measures taken by the court to prevent the authors, in particular their minor children, from being left homeless and from being subjected to violations of other human rights, and considered that the court had actually assessed the potential consequences of eviction, despite the fact that it had no such obligation in in accordance with the law. However, the right to housing in the State party is not a fundamental right that can be directly protected under the amparo procedure. In addition, as part of the oral proceedings of an eviction case, judges are not required by law to postpone the eviction until the affected person finds alternative housing. Moreover, the legislation does not clearly and specifically stipulate that the courts have such an obligation or may instruct other State bodies, such as social services, to take coordinated measures to prevent homelessness of the evicted person. In this context, on October 3, 2013, the court decided to evict the authors and their children, despite both their lack of alternative housing or sufficient income to obtain housing in the real estate market, and the fact that the Madrid Social Service Center did not respond in a timely manner to the court's request (paragraph 16.5 of the Considerations).
Amparo procedure: in the law of Spain and a number of Latin American countries (Mexico, Ecuador, Peru, etc.), a special procedure is a means of protecting the basic constitutional rights of the individual, in many ways similar to a constitutional complaint. The main difference is that amparo is individual in nature. The amparo procedure is usually conducted by the Supreme or Constitutional Court and fulfills a dual protective purpose: it protects the citizen and his basic guarantees; It also protects the Constitution itself, ensuring that its principles are not violated by acts or actions of the State that undermine the fundamental rights proclaimed in it. It resembles in some ways constitutional remedies such as a judicial protection order in Brazil and a constitutional complaint in Germany.
Explanations provided by the State party on the lack of access to alternative housing
The Committee noted that the State party did not dispute that the authors' family needed social housing, and only claimed that the Madrid Social Service Center provided them with assistance, including housing search, within its available resources, and that the reason that the financial situation of the family was not improved, It was largely the behavior of Mr. Ben Jaziya (paragraph 17.1 of the Considerations).
In the present case, the State party did not claim that Mr. Ben Jazia had failed to comply with the requirements or conditions for applying for social housing, but only questioned the reasonableness of his conduct in finding work and alternative housing and trying to meet the conditions and requirements for receiving other social benefits. Thus, the State party has not demonstrated that the authors have not fulfilled any of the conditions for obtaining social housing that they were informed about. On the contrary, the Committee noted that after the birth of the children, Mr. Ben Jazia requested the authorities to provide him with social housing at least three or four times and that on 4 June 2013 he again submitted the application, attaching to it a court order dated 30 May 2013. Faced with imminent eviction, Mr. Ben Jazia asked the court to contact the social services of the Autonomous Community and the Municipality of Madrid and ask the local authorities to provide him with alternative social housing (paragraph 17.3 of the Considerations).
The State party also noted that local authorities currently receive 8,000 applications for social housing annually, and have approximately 260 housing units in Madrid. The State party apparently indirectly indicated that, despite the authors fulfilling the requirements for obtaining social housing, it was not provided to them in 2012-2013, when the eviction of the authors became inevitable due to the limited resources available (paragraph 17.4 of the Considerations).
The Committee considered that the State party's arguments were insufficient, as they did not indicate that all possible efforts had been made and all available resources had been used to ensure, as a matter of priority, respect for the right to housing of persons who, as the authors, found themselves in an extremely vulnerable situation. For example, the State party has not justified the need to refuse to provide social housing to the authors in connection with the use of resources for the development by public authorities of a general policy or emergency action plan for the phased implementation of the right to housing, especially for persons in extremely vulnerable situations. Moreover, the State party did not explain to the Committee the reasons why the Madrid regional authorities sold off part of the social housing stock to private investment funds, thereby limiting access to it, despite the fact that the number of social housing units in Madrid was significantly lower than demand each year. It also did not explain how such a measure was justified from the point of view of the law and why it was the most appropriate in order to ensure the full enjoyment of the rights enshrined in the Covenant. For example, in 2013, the regional authorities sold 2,935 houses and other housing units to a private company in the amount of 201 million euros, explaining the need to restore the budget balance (paragraph 17.5 of the Considerations).
Finally, the Committee considered the State party's argument that the Samur service informed the authors that if they did not find housing after the maximum period of stay at the Samur Social Madrid temporary shelter, Ms. Bellini and the children could be placed in a women's shelter, and Mr. Ben Jazia in the Center for assistance to the homeless, and that the Social Service Center of the Municipality of Madrid offered them a similar alternative. Such a proposal, if considered more carefully, implied family separation, which is contrary to the State party's obligation to provide the widest possible protection and assistance to the family as the basic unit of society, as provided for in article 10, paragraph 1, of the Covenant. In this regard, the State party has not explained to the Committee why the authors did not have alternative options (paragraph 17.7 of the Views).
For the above reasons, the Committee concluded that the State party had not provided any reasonable justification as to why, even after taking all reasonable measures to the maximum of available resources, alternative housing could not be provided to the authors (paragraph 17.7 of the Views).
The Committee's conclusions: In the absence of evidence that the State party has taken all reasonable measures to the maximum extent of available resources, the eviction of the authors and the failure of the State party's public authorities to provide them with alternative housing constituted a violation of their right to adequate housing (paragraph 18 of the Views).