On February 28, 2022, the case was won in the UN Committee on Economic, Social and Cultural Rights.

Заголовок: On February 28, 2022, the case was won in the UN Committee on Economic, Social and Cultural Rights. Сведения: 2024-05-12 04:43:38

The case of Aisha Nasser v. Spain. Views of the Committee on Economic, Social and Cultural Rights of 28 February 2022. Message No. 127/2019.

In 2019, 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 author stated that she was unable to provide herself with housing on her own due to her social and marital status, since her family's income was generated only from funds allocated through the Madrid Autonomous Community monetary allowance in the amount of 587.78 euros, known as a minimum social income allowance. The author does not have a job, and her opportunities to enter the labor market are very limited, since she cannot read and write. The author considered that, in view of these circumstances, the order to evict her without providing other housing also contradicts the obligations arising for the State party from the adoption of the Covenant, and in fact constitutes a violation of article 11 of the Covenant. The author recalled that she had stated in court that she had no other place to live. Nevertheless, the court decided to continue the eviction procedure, leaving the decision on the possible postponement of eviction or even on the provision of housing to the family under a social rental agreement at the discretion of the organization that owns the relevant property. To date, attempts to reach these solutions have not yielded positive results (paragraph 3.2 of the Considerations).

The Committee's legal position: 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 States parties should take all necessary measures to fully 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 requirements of the Covenant; they 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 respecting the general principles of expediency and proportionality between the legitimate purpose of eviction and the consequences of eviction for the persons concerned (See case: "Ben Jazia et al. v. Spain"), paragraph 13.4.). 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 and in accordance with the requirements of article 4, which establishes a general framework of permissible restrictions on the enjoyment of rights under the Covenant (See the case: Gomez-Limon Pardo v. Spain, paragraph 9.4.) (paragraph 8.2 of the Considerations).

In order for forced eviction to be lawful, it must meet the following criteria. First, it must be carried out legally. Secondly, eviction should contribute to the general well-being in a democratic society. Thirdly, it must be proportionate to the legitimate purpose mentioned. Fourthly, it should be necessary in the sense that if there are several measures that can reasonably lead to the achievement of the purpose of this restriction, then the measure that least restricts the right should be chosen. Finally, the positive results achieved as a result of eviction, which contributes to the general welfare, 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... These are the most important factors that need to 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 (See the case: Lopez Alban v. Spain, paragraph 11.5.). 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 above-mentioned elements of the proportionality criterion provided for in article 4 of the Covenant (paragraph 8.3 of the Views).

In addition, there should be a real possibility of genuine and effective prior consultations between public authorities and persons affected by eviction, alternative means or measures should be provided that would less infringe on the person's right to housing, and the person affected by forced eviction should not find himself in a situation where the Covenant or other provisions are violated human rights or there is a risk of such violations (See the case: "Ben Jazia et al. v. Spain", paragraph 15.1.) (paragraph 8.4 of the Views).

Evictions should not lead to the appearance of homeless persons and persons vulnerable to violations of other human rights. In cases where affected persons are unable to provide for their livelihood, the State party should take all necessary measures, making maximum use of available resources, to provide, depending on the specific circumstances, appropriate alternative housing, resettlement or access to fertile land. The State party is obliged to take reasonable measures to provide alternative housing to persons who may be left homeless as a result of eviction, regardless of whether the decision to evict was taken by the authorities of the State party or by private individuals, for example, the landlord (See the case: "Ben Jazia et al. v. Spain", paragraph 15.2.). If, in the event of eviction, the State party does not guarantee or provide alternative housing to the affected person, it must demonstrate that it has considered the specific circumstances of the case and that the person's right to housing cannot 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 alternative housing to evicted persons in need implies that, according to 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 policies. At the same time, any measures taken should be informed, specific and as clearly as possible aimed at exercising this right in the most expeditious and effective manner. Strategies for providing alternative housing in the event of forced evictions should be commensurate with the needs of the affected persons and the urgency of the situation, as well as be implemented with respect for the dignity of the individual. In addition, States parties should take concerted and coordinated measures to address institutional failures and structural causes of housing shortages (paragraph 9.2 of the Considerations).

Alternative housing should be sufficient. Although sufficiency is determined in part by social, economic, cultural, climatic, environmental and other factors, the Committee considers that it is nevertheless possible to identify some aspects of this right that can be taken into account to determine sufficiency in a particular context. They include, in particular, the following: legal provision of accommodation; availability of services, materials, facilities and infrastructure; accessibility in terms of costs; livability; accessibility for those who are entitled to it; geographical location, allowing access to employment opportunities, medical care, schools and other social institutions; and cultural adequacy, allowing respect for the right to express cultural identity and diversity (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 alternative housing to an evicted person who needs alternative housing. In such circumstances, it is possible to use temporary accommodation in maneuverable fund premises that do not meet all the requirements for adequate alternative 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 (See the case: Lopez Alban et al. v. Spain, paragraph 9.1 - 9.4.). 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 Committee's assessment of the factual circumstances of the case: it was established that the author of the communication lived in a dwelling under a lease agreement, which was canceled after foreclosure was levied on the property of the owner of her dwelling, mortgaged under a mortgage agreement. The author was notified of this situation on June 30, 2017, and her lease agreement was declared cancelled by an order dated September 5, 2017. On February 8, 2018, a decision was made to forcibly evict the residents of the house. The author repeatedly asked for this eviction to be suspended, but it eventually took place on January 21, 2020. In addition, the Committee notes that since 2011 and at least until 2019, the author has repeatedly applied to social services for assistance, including requests for social housing (paragraph 7.2 of the Views).

In the light of the Committee's finding of the relevant facts and the materials submitted by the parties, the question raised in the communication was whether the forced eviction of the author and the minors under her care from their place of residence was a violation of the right to adequate housing. The Committee responded to this question by recalling its doctrine of legal protection against forced evictions. He then analysed the case of the author's forced eviction and answered the specific questions raised in his communication (paragraph 7.5 of the Views).

The Committee began to examine whether the author's eviction from the home she occupied constituted a violation of the right to adequate housing, or whether such interference could be justified as a restriction of her right to housing under article 4 of the Covenant. The author did not claim that she did not enjoy procedural guarantees, and the information available to the Committee did not suggest that the relevant trial was arbitrary (paragraph 10.1 of the Views).

The Committee recognized the legitimate interest of the State party in ensuring the protection of all rights existing in its legal system, provided that this does not conflict with the rights set out in the Covenant. Since the termination of the author's legal title was established by judicial procedure, the Committee considered that there was a legitimate reason for the eviction of the author's family (paragraph 10.2 of the Views).

However, although the author claimed that this measure would affect her right to adequate housing, this statement did not force the court to consider the proportionality of the consequences of eviction for the evicted persons with the legitimate purpose of this measure. The Court did not assess the impact of this measure on the rights of the author and her family, although the author requested it and submitted relevant documents. During the period from March 2018 to January 2020, the period of eviction of the author's family was extended several times, these extensions, as stated in the decisions themselves, were possible only because the landlord agreed to suspend the eviction. The State party's legislation does not provide for any other judicial mechanism that the author could use to challenge an eviction order so that another judicial authority could assess the proportionality of the eviction or the conditions in which it should be carried out arbitrarily (paragraph 10.3 of the Considerations).

The Committee's conclusions: The court's failure to review compliance with the proportionality criterion in the eviction constituted a violation by the State party of the author's right to housing, as enshrined in article 11 of the Covenant, read in conjunction with article 2, paragraph 1, of the Covenant.



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