On February 19, 2021, the case was won in the UN Committee on Economic, Social and Cultural Rights.

Заголовок: On February 19, 2021, the case was won in the UN Committee on Economic, Social and Cultural Rights. Сведения: 2024-05-27 03:13:55

The case of Fatima El Ayoubi and Mohamed El Azwan Azouz v. Spain. Views of the Committee on Economic, Social and Cultural Rights dated February 19, 2021. Message No. 54/2019.

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

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 of first instance No. 3 Navalcarnero 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 No. 3 Navalcarnero set a new date for eviction - January 13, 2021 (paragraph 14.2 of the Considerations).

The Committee's legal position: In order to optimize the resources of their social services, States parties may establish requirements or conditions that applicants must comply with in order to receive social services, such as alternative housing. States can also take measures to protect private property and prevent illegal and unfair acquisition of real estate. However, the conditions of access to social services must be reasonable and carefully designed, not only to avoid possible stigmatization, but also because when a person applies for alternative housing, his behavior cannot in itself serve as a basis for refusal to provide social housing by the State party. In addition, when interpreting and applying the rules governing access to social housing or alternative settlement by courts and administrative authorities, it is necessary to avoid entrenching systemic discrimination and stigmatization against people living in poverty who, out of necessity or with good intentions, occupy real estate without having legitimate grounds for it (paragraph 13.1 of the Considerations).

In addition, to the extent that the shortage of available and affordable housing is the result of growing inequality and speculation in housing markets, Participating States have an obligation to address these structural causes by taking appropriate, timely and coordinated responses to the maximum extent of their available resources (paragraph 13.1 of the Considerations).

The right to private property is not one of the rights enshrined in the Covenant, but recognizes the legitimate interest of the State party in ensuring the protection of all rights recognized by its legislation, provided that this does not contradict the rights enshrined in the Covenant grounds (paragraph 14.5 of the Views).

See also the legal positions of the Committee set out above The case of Lorne Joseph Walters v. Belgium. Views of the Committee on Economic, Social and Cultural Rights of October 12, 2021. Message No. 61/2018.

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 (by exercising the right to housing) a violation, within the meaning of national legislation, 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. At the same time, the Court of First Instance No. 3 Navalcarnero did not consider the question of proportionality between the legitimate purpose of eviction and the consequences of 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, it is necessary to distinguish 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 No. 3 Navalcarnero did not proportionate 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 eviction, the court indicated only that the authors submitted arguments cannot 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.



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