On October 12, 2021, the case was won in the UN Committee on Economic, Social and Cultural Rights.

Заголовок: On October 12, 2021, the case was won in the UN Committee on Economic, Social and Cultural Rights. Сведения: 2024-05-26 04:14:52

The case of Lorne Joseph Walters v. Belgium. Views of the Committee on Economic, Social and Cultural Rights of October 12, 2021. Communication No. 61/2018.

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

As seen from the text of the Considerations, on August 21, 2017, the author was informed by the owner of the apartment he rented about her decision to terminate the lease agreement in compliance with the requirements for payment of compensation to him in the amount of six months' rent and sending him a corresponding notification six months before the date of termination of the contract. The validity of this notification was recognized by the court of first instance, and then confirmed by the first chamber of the French-speaking court of First Instance in Brussels, which ruled on the author's appeal. However, the court granted the author a postponement to vacate the apartment until September 30, 2018. On 17 September 2018, the bailiff informed the author that his eviction was scheduled for 8 October 2018. Due to the author's hospitalization, the eviction was postponed until October 17, 2018. The Committee notes that on 17 October 2018, the author was evicted from his home. This apartment was put up for rent at a higher price. Since then, the author has been living with friends, is registered with at least one social housing authority and notified the authorities that he needs an apartment of about 80 square meters so that he can store his belongings and receive his granddaughters when they come to him from Canada, if possible, with a small terrace. The author was only offered accommodation in a shelter or a nursing home, which, in his opinion, does not meet his needs (paragraphs 8.2 - 8.3 of the Considerations).

The Committee's legal position: The right to adequate housing is a fundamental right that is crucial for the enjoyment of all economic, social and cultural rights; it is fully linked to other human rights, including those enshrined in the International Covenant on Civil and Political Rights. The right to housing should be ensured for all, regardless of income level or access to economic resources, and States parties should take all necessary measures to the maximum extent of available resources to achieve the full realization of this right (paragraph 9.1 of the Considerations).

Forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances; the relevant authorities must ensure that they 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 affected persons. This obligation arises from the interpretation of the State party's obligations under article 2, paragraph 1, of the Covenant, read in conjunction with article 11, and in accordance with the requirements of article 4, which sets out the conditions under which such restrictions on the enjoyment of rights under the Covenant are permissible (paragraph 9.2 of the Views).

In order for an eviction to be lawful, it must meet the following criteria. Firstly, the possibility of eviction must be provided for by law. Secondly, this measure should contribute to the general well-being in a democratic society. Thirdly, it must be proportionate to the legitimate aim pursued. Fourthly, it should be necessary in the sense that, if there are several means reasonably capable of achieving the same goal, the means that least restricts the relevant right should be chosen. Finally, the positive results achieved by a restriction that contributes to the general well-being 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 of the measure applied. The availability of other adequate housing, the personal circumstances of the tenants and their dependants, as well as their cooperation with the authorities in finding solutions that take into account their situation are also important factors that need to be taken into account when conducting such an analysis. It is also advisable to distinguish between the property of persons who need it for use as housing or for livelihood, and the property of 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 eviction order will be enforced, violates the right to adequate housing. Such an analysis of the proportionality of the measure should be carried out by a judicial authority or other impartial and independent body authorized to issue orders to terminate 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 analysis described above, which are provided for in article 4 of the Covenant (paragraph 9.3 of the Views).

In addition, there should be a real possibility of genuine and effective prior consultations between public authorities and the affected person, alternative means or measures less intrusive to the right to housing should not be provided, and the person affected by this measure should not find himself in a situation in which other Covenant rights or other rights are violated a person or there is a risk of such a violation (paragraph 9.4 of the Considerations).

The obligation of the State to provide alternative housing, if necessary.

Evictions should not lead to the appearance of homeless persons or persons vulnerable to violations of other human rights. In cases where the 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, as appropriate, 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 eviction measure was initiated by the authorities of the State party or a private person, for example, the owner of the housing. If, in the event of eviction, the State party does not guarantee or provide the affected person with alternative housing, it must demonstrate that it has considered the specific circumstances of the case and that even after taking all reasonable measures to the maximum of available resources, the right of the affected person to housing cannot be satisfied. The information provided by the State party should enable the Committee to assess the appropriateness of the measures taken in accordance with article 8, paragraph 4, of the Optional Protocol (paragraph 10.1 of the Views).

The obligation to provide alternative housing to evicted persons in need implies that, in accordance with article 2, paragraph 1, of the Covenant, States parties shall take all necessary measures to the maximum extent of available resources to exercise this right. In order 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 the realization of this right in the most expeditious and effective manner. Strategies for providing alternative housing in the event of evictions should be commensurate with the needs of the affected persons and the degree of 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 10.2 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 need to be taken into account for this purpose in any given context. They include the following: legal provision of accommodation; availability of services, materials, facilities and infrastructure; accessibility in terms of costs; liveability; physical accessibility; geographical location that allows access to social services (education, employment, medical care); cultural adequacy that allows the right to express cultural identity and diversity to be respected (paragraph 10.3 of the Considerations).

In certain circumstances, States Parties may demonstrate that even after all the efforts they made to the maximum of their available resources, it was not possible to provide permanent alternative housing to an evicted person who needed alternative housing. In such circumstances, it is possible to use temporary accommodation in emergency housing facilities 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 its provision is not a permanent solution, but a step towards providing these persons with 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 10.4 of the Considerations).

The Committee recalls that States parties should take steps to ensure that the share of housing-related expenses is generally commensurate with income. In accordance with the principle of affordability, tenants should be protected by appropriate means from unreasonable rent levels or increases and from any undesirable consequences that this legislation may have for vulnerable groups of the population (for example, such as the elderly). The Committee drew attention to the fact that States parties have the right to adopt a number of possible policy measures to implement the rights enshrined in the Covenant, including the right to adequate housing, in particular measures to regulate the rental housing market (paragraph 11.4 of the Views).

The Committee notes that, according to article 5, paragraph 2, of the Covenant, no restriction or derogation of any fundamental human rights recognized or existing in any country by virtue of law, conventions, rules or customs is permitted on the pretext that the Covenant does not recognize such rights or that it recognizes them in a smaller volume. These include the right to private property, enshrined in the legislation of the State party and article 1 of Protocol No. 1 to the European Convention on Human Rights, ratified by the State party. At the same time, a violation by States parties of their obligation to protect the rights enshrined in the Covenant will be considered their inability to prevent or suppress the conduct of enterprises leading to a violation of these rights or allegedly capable of leading to their violation. Consequently, housing policy should be aimed at guaranteeing access to adequate housing. Such a policy should ensure that tenants are adequately protected to ensure the basic elements of the right to adequate housing, such as legal security of residence, affordability or livability (paragraph 11.5 of the Considerations).

The Committee recalls that States parties should take special measures, to the maximum of their available resources, to ensure the full enjoyment by older persons of all the rights recognized in the Covenant. The Committee notes that recommendation 19 of the Vienna International Plan of Action on Ageing emphasizes that housing for the elderly should be considered as more than just a roof over their heads, and that, in addition to the physical component, the psychological and social significance of housing should also be duly taken into account. In this regard, the objectives of the national policy should include assistance to the elderly so that they continue to live in their homes for as long as possible (achieving this through the restoration, reconstruction and improvement of housing, while adapting it to the physical possibilities of the elderly in terms of access and use). Without such special measures, general policies that may be acceptable to the general population may have an excessively negative impact on the enjoyment of the rights enshrined in the Covenant by older persons, especially those in difficult socio-economic situations. In addition, the issue of renting housing may be more acute for older people than for the rest of the population, especially if they have rented this housing for a long time, since they may have already formed a familiar social circle in their area and a change of housing may be a strong shock for them (paragraph 11.6 of the Considerations).

The lack of flexibility in the provisions of the law and its excessive consequences for the author.

The Committee considers that the law, which periodically allows landlords to terminate the lease agreement without explanation and without providing any other guarantees or compensation, may negatively affect the legal provision of accommodation and become one of the reasons for a significant actual increase in prices in the rental housing market, which may affect the availability of affordable housing. Consequently, such a rule is contrary to the Covenant (paragraph 12.1 of the Views).

The possibility of excessive impact of such a policy (See: paragraph 12.1 of the Considerations.) The right to adequate housing for certain groups of the population who are in a vulnerable situation entails a double obligation for any State Party choosing such legislation. First, the State party should establish a mechanism to monitor the impact of the application of this legislation on the most vulnerable and marginalized groups of the population in order to make the necessary adjustments in order to avoid excessive impacts that may lead to violations of the right to adequate housing of a particular group, for example, elderly people in difficult socio-economic situations. Secondly, the relevant policy should provide mechanisms and flexibilities to prevent the application of legislation from having an excessive impact in certain cases (paragraph 12.3 of the Considerations).

The conditions for providing alternative housing to an evicted person, consistent with the obligations of States parties under the Covenant, may vary depending on the level of development of the State and its available resources. A radical change of housing by a person of the author's age can seriously undermine his habitual way of life (paragraph 12.6 of the Considerations).

Although the State party has policy-making powers in matters of regulating rental agreements, it is at the same time obliged to provide appropriate remedies to guarantee legal security of residence, which implies the provision of adequate alternative housing (paragraph 12.7 of the Considerations).

The Committee's assessment of the factual circumstances of the case: it was established that the author was notified of the termination of the lease agreement in accordance with current legislation, which guaranteed him to receive notification six months before the end date of the lease and compensation in the amount of six months' rent. The issue of this termination of the contract was considered by three judicial authorities, in which the author, with the help of a lawyer, was able to present all his allegations, analyzed in compliance with all guarantees (paragraph 11.2 of the Considerations).

The Committee noted that in this case, the law applicable in the State party allowed the landlord to terminate the lease without a reason, but at the same time provided substantial guarantees for the tenant: the lease cannot be terminated at any time, and, as was the case with the author, the landlord must notify the tenant in advance of the termination of the contract and pay compensation to him. In addition, in some cases, the judge may grant a delay to protect tenants in a vulnerable position. Thanks to these guarantees provided for tenants, this legislation is generally and abstracto compatible with the Covenant and the right to adequate housing (paragraph 12.1 of the Considerations).

The inflexible application of this law in the specific conditions of rising rents in the Brussels-capital region and taking into account the special needs of older people could have an excessively negative impact on low-income older people. Such excessive exposure may be the result of specific market conditions combined with inflexible application of legislation (paragraph 12.2 of the Considerations). The Committee noted that people over the age of 64 are more likely than other groups of the population to face a situation of termination of a lease agreement (paragraph 12.2 of the Considerations).

The Committee considered that in this case neither the judicial authorities nor the social services had sufficiently taken into account the possible excessive consequences of forced relocation for particularly vulnerable persons, such as elderly people in difficult financial situations. And this happened despite the fact that the author lived in his rented apartment for 25 years, always fulfilled his contractual obligations and at the moment was already an elderly man with a small income, but strong social ties in his area (paragraph 12.4 of the Considerations).

The Committee stressed that the State party could take various measures, to the maximum of its available resources, to mitigate the effects of the application of relevant legislation on the author. For example, a mediation procedure could be used to adjust the rent with the financial support of the State party in order to make it available to the author. Due to the lack of flexibility in the application of the law on this issue, neither this nor any other option allowing the author to stay in a rented apartment has been studied. This option seemed very reasonable, given the indisputable facts set out in this message, namely that the landlord continued to rent the apartment at a higher price. In these circumstances, if the law were more flexible, the State party could, to the maximum extent of its available resources, provide the author with a subsidy that would allow him to continue living in a rented apartment (paragraph 12.5 of the Considerations).

In this context, the author's request for alternative housing, which would avoid the rupture of all existing social ties, cannot be called unfounded, especially given that the State party has one of the highest per capita income indicators in the world (paragraph 12.6 of the Considerations).

The Committee found that the author was offered two accommodation options: a shelter or a nursing home. The author rejected these proposals as they could not serve as an acceptable alternative that would meet his needs. In these circumstances, the Committee decided that the accommodation options offered to the author - a shelter or a nursing home - go beyond the criterion of sufficiency of temporary housing, taking into account the special needs of the author as an elderly person, especially since, as already noted, the application of the legislation of the State party, allowing to terminate the lease agreement without reason, created special difficulties in the housing market for vulnerable persons - for groups of the population who find it increasingly difficult to find adequate alternative housing in their urban environment. This is especially true for low-income families with children and the elderly, whose economic opportunities are extremely limited (paragraph 12.7 of the Considerations).

According to the information provided in the preceding paragraphs, that is, taking into account that the author was provided with compensation and notification, but the alternative housing options offered to him did not meet the sufficiency criterion, as well as taking into account the excessive impact that the termination of the lease agreement had on him as an elderly person with a low income, the Committee concluded: in the present case, the inflexible application of the rental legislation and the related eviction procedure constituted a violation by the State party of the author's right to adequate housing, enshrined in article 11, considered separately and in conjunction with article 2, paragraph 2, of the Covenant (paragraph 12.8 of the Views).

Despite the fact that the author was evicted and a violation of his right to adequate housing was found, the Committee considered that the State party complied with the request for interim measures because it had in good faith offered the author what, in the State party's opinion, constituted adequate alternative housing at that time. The Committee concluded that no provision of the Optional Protocol had been violated (paragraph 12.95 of the Views).

The Committee's conclusions: The State party violated the author's right under article 11, paragraph 1, of the Covenant.

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