On October 10, 2022, the case was won in the UN Committee on Economic, Social and Cultural Rights.

Заголовок: On October 10, 2022, the case was won in the UN Committee on Economic, Social and Cultural Rights. Сведения: 2024-05-03 18:16:13

The case of Josefa Hernandez Cortez and Ricardo Rodriguez Bermudez v. Spain. Views of the Committee on Economic, Cultural and Social Rights of October 10, 2022. Communication No. 26/2018.

In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.

As seen from the text of the Considerations, the authors of the communication were Spanish nationals. They submitted a communication to the Committee on their own behalf and on behalf of their minor daughters S. and I. The authors claimed that their eviction, as well as the eviction of their daughters, would violate their rights under article 11 of the Covenant.

Legal positions of the Committee:

Legal protection against forced evictions.

The human right to adequate housing is crucial for the enjoyment of economic, social and cultural rights and is linked in all its aspects to other human rights, including those enshrined in the International Covenant on Civil and Political Rights. The right to housing should be guaranteed to everyone, regardless of income level or access to economic resources, and participating States should take all necessary measures to realize this right to the maximum extent of their available resources (paragraph 8.1 of the Considerations).

Forced evictions are prima facie incompatible with the Covenant and can only be justified in the most exceptional circumstances, and the relevant authorities must ensure that such evictions are carried out on the basis of legislation compatible with the Covenant and in compliance with the general principles of expediency and proportionality between the legitimate purpose of eviction and the consequences of eviction for the evicted persons. This obligation arises from the interpretation of the State party's obligations under article 2, paragraph 1, of the Covenant in conjunction with article 11 of the Covenant and in accordance with the requirements of article 4 of the Covenant, which establishes a general framework of permissible restrictions on the enjoyment of rights under the Covenant (paragraph 8.2 of the Views).

In order for forced eviction to be lawful, it must meet the following criteria. First, it must be done legally. Secondly, the restriction should contribute to the "general welfare in a democratic society." Thirdly, the restriction must correspond to the mentioned legitimate purpose. Fourth, the restriction should be necessary in the sense that if there are several means to achieve the legitimate purpose of the restriction, the least restrictive means should be chosen. Finally, the positive results achieved as a result of eviction, which contributes to the common good, should outweigh its impact on the use of the restricted right. The more serious the impact on the rights protected by the Covenant, the more attention should be paid to the justification for such a restriction. The availability of other adequate housing, the personal circumstances of the residents and their family members, as well as their cooperation with the authorities in finding suitable housing for them are also important factors that should be taken into account when analyzing the situation. It is imperative to distinguish between real estate owned by private individuals who need the relevant property for use as housing or for livelihood, and real estate owned by financial or any other structures. Thus, a State party that provides for the immediate eviction of a person in the event of termination of the lease agreement, regardless of the circumstances under which the forced eviction order will be enforced, violates the right of the person concerned to adequate housing. An analysis of the proportionality of the measure applied should be carried out by a judicial or other impartial and independent body authorized to order the termination of the violation and provide effective remedies. This body must determine whether the eviction complies with the provisions of the Covenant, including the elements of the proportionality criterion set out above, provided for in article 4 of the Covenant. 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 reduce the consequences of their eviction (paragraph 8.3 of the Considerations).

There should also be a real possibility of conducting good-faith and effective preliminary consultations between public authorities and evicted persons, alternative means or measures less restrictive to the right to housing should be provided, and persons affected by this measure should not find themselves in a situation in which other Covenant rights or other human rights are violated or There is a risk of such a violation (paragraph 8.4 of the Considerations).

The obligation of the State to provide other housing if necessary

Evictions should not lead to homelessness or vulnerability to violations of other human rights. In cases where evictees are unable to provide for themselves, the State party should take all necessary measures, making maximum use of available resources, to provide, as appropriate, other appropriate housing, resettlement or access to fertile land. The State party is obliged to take reasonable measures to provide other housing to persons who may become homeless as a result of eviction, regardless of whether the decision to evict was made by the authorities of the State party or private entities, for example, the owner of the housing. If, in the event of eviction, the State party does not guarantee or provide the evicted person with other housing, it must demonstrate that it has considered the specific circumstances of the case and that the evicted person's right to housing could not be satisfied even after taking all reasonable measures to the maximum of its available resources. The information provided by the State party should enable the Committee to assess the reasonableness of the measures taken in accordance with article 8, paragraph 4, of the Optional Protocol (paragraph 9.1 of the Views).

The obligation to provide other housing to evicted persons in need implies that, in accordance with article 2, paragraph 1, of the Covenant, States parties must take all necessary measures to the maximum extent of available resources to exercise this right. To achieve this goal, Participating States can pursue a wide variety of strategies. However, any measures taken should be deliberate, specific and as clearly as possible aimed at the realization of this right in the most urgent and effective manner. Alternative housing strategies in the event of forced evictions should be commensurate with the needs of the affected persons and the urgency of the situation, and should be implemented with respect for the dignity of the individual (paragraph 9.2 of the Considerations).

Other accommodation should be sufficient. Even if sufficiency is partly determined by social, economic, cultural, climatic, environmental and other factors, the Committee considers that it is possible to identify some aspects of this right that should be taken into account for this purpose in any particular context. These aspects include, in particular, the following: legal protection of residence; availability of services, materials, amenities and infrastructure; accessibility in terms of costs; livability; accessibility of the location, ensuring social access (to education, work, health care); as well as cultural sufficiency, allowing the right to express cultural identity and diversity to be used (paragraph 9.3 of the Considerations).

In certain circumstances, States Parties may demonstrate that even after all the efforts they have made to the maximum of their available resources, it has been impossible to provide permanent other housing to the evicted person who needs it. In such circumstances, it is possible to use temporary accommodation in maneuverable fund premises that do not meet all the requirements for sufficient other housing. At the same time, States should strive to ensure that temporary housing is compatible with the protection of the human dignity of evicted persons, meets all safety requirements and that its provision is not a permanent solution, but a step towards providing adequate housing. It is also necessary to take into account the right of family members not to be separated and the right to a reasonable level of privacy protection (paragraph 9.4 of the Considerations).

The legality of the eviction order.

The Committee recalls that the obligation of States parties to ensure the realization of the right to adequate housing is based on the fulfillment of two types of material obligations. First, States Parties may not deprive persons and their families of housing by eviction or otherwise without providing another solution if necessary, and the strict conditions set out above must be respected. Secondly, States parties have a positive obligation to take appropriate measures to ensure the realization of the right to adequate housing. The right to housing is defined according to the criteria established by the Committee in its general comment No. 4 (1991) as the right to live in housing in peace, security and dignity, and includes guarantees of accommodation, availability of services, affordability, liveability, accessibility, suitability of location and cultural relevance (paragraph 10.4 of the Considerations).

The Committee's assessment of the factual circumstances of the case:

The legality of the eviction order.

The Committee examined whether the eviction of the authors from the housing they occupied was a violation of the right to adequate housing. The authors did not claim that they did not enjoy procedural guarantees, and it did not follow from the information provided to the Committee that this process was arbitrary (paragraph 10.1 of the Views).

The Committee has taken note of the State party's argument that the Covenant cannot be used to justify the taking of other people's property, as this would be contrary to the right to private property of others. The Committee recognized the legitimate interest of the State party in ensuring the protection of all rights recognized in its legal system, provided that this does not conflict with the rights set forth in the Covenant. Since the authors' lack of ownership of the housing occupied by them was established in court, the Committee considered that there was a legitimate reason for the eviction of the authors' family (paragraph 10.2 of the Considerations).

The Committee noted that the authors had repeatedly requested that their eviction be suspended due to their socio-economic situation and that over the past five years the court had repeatedly suspended the eviction of the authors on humanitarian grounds, and in recent years due to the application of legislative measures taken by the State party in the field of social protection. The Committee noted the State party's contention that it had taken all necessary measures to the maximum extent of its available resources to ensure that the authors' rights were satisfied at the expense of public funds. These measures included the payment of a statutory social benefit of 834 euros per month to ensure an adequate standard of living for the authors and their daughters and to meet their needs for food, clothing and adequate housing. The Committee noted that, according to publicly available information, the social benefit was a measure aimed at ensuring that all citizens could live with dignity. Since 2016, the family has also received assistance from social services. The Committee therefore concluded that, despite the prescribed measure of eviction, the State party's authorities conducted a reasonableness and proportionality check, taking into account the socio-economic situation of the authors and the impact that the eviction could have on their right to housing, and decided to postpone it in order not to expose the evicted persons to a situation of deprivation of livelihood or violations of other rights enshrined in the Covenant (paragraph 10.3 of the Views).

It was found that the State party had not violated this obligation, as it had agreed to suspend the eviction in accordance with the Committee's interim measures. However, in the present case, the State party has not demonstrated that it has taken adequate measures to ensure the authors' right to housing in accordance with the criteria set out above. The Committee noted in this regard that the authors, a family with two minor daughters, were in a "state of need" - as recognized by the court in 2016 - and for several years they had made significant efforts to bring their situation of need to the attention of the State authorities. Moreover, although the State party suspended the execution of the eviction order by allowing the authors to remain in the occupied dwelling, however, such suspension, based on repeated suspension of the execution of the eviction order, is incompatible with the requirement of a guarantee of residence (paragraph 10.4 of the Considerations).

This situation was aggravated by the requirement set out in subparagraph "d" of paragraph 1 of Article 19 of Decree No. 52/2016, according to which a person occupying residential premises without the consent of the owner cannot apply for social housing. The Committee recalled that, in a previous similar communication, it had already concluded that this requirement could consolidate the already vulnerable situation of people in need. The Committee found that the application of this requirement is incompatible with the nature of the right to adequate housing. The authors occupied real estate without legal ownership because they were in a state of need, which was recognized by the local court, but they were deprived of the opportunity to apply for social housing. The Committee reiterated its earlier recommendation to the State party to amend this legislation in order to bring it into line with the Covenant (paragraph 10.5 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 (paragraph 11 of the Views).



© 2011-2018 Юридическая помощь в составлении жалоб в Европейский суд по правам человека. Юрист (представитель) ЕСПЧ.