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: 2024-06-14 05:03:34

The case of Fatima El Ayoubi and Mohamed El Azwan Azouz v. Spain. Views of the Committee on Economic, Social and Cultural Rights of February 19, 2021. Communication No. 54/2018.

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 Views, the authors argued that, due to their lack of alternative housing and the possibility of access to housing outside the sphere of State and social rent due to insufficient income, their eviction from the housing in which they lived constituted a violation of their rights enshrined in article 11 of the Covenant (paragraph 3 of the Views).

The Committee's legal position: The human right to adequate housing is a fundamental right, constitutes the basis for the enjoyment of all economic, social and cultural rights and is fully linked to other human rights, including those set out in the International Covenant on Civil and Political Rights. The right to housing should be ensured to all, regardless of income level or access to economic resources, and States parties should take all necessary measures to achieve the full realization of this right to the maximum extent of available resources (paragraph 11.1 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, and the relevant authorities must ensure that they 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 affected persons (the Ben Jaziya case and others against Spain", paragraph 13.4.). This obligation follows 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 provides for conditions under which restrictions on the enjoyment of rights under the Covenant are permissible (paragraph 11.2 of the Views) (Gomez-Limon Pardo v. Spain (E/C.12/67/D/52/2018), paragraph 9.4.).

In order for the eviction to be justified, the following criteria must be met. First, the restriction must be determined by law. Secondly, the restriction should contribute to the general well-being in a democratic society. Thirdly, the restriction must correspond to the mentioned legitimate purpose. Fourth, the restriction must be necessary (in the sense that if there are several measures that can reasonably lead to the achievement of the purpose of this restriction, the measure that least restricts the right should be chosen). Finally, the positive results that can be achieved by a restriction that 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 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 should be taken into account when conducting such an analysis. It is also necessary 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 (The case of Lopez Alban v. Spain (E/C.12/66/D/37/2018), paragraph 11.5.). The State-A participant providing that a person who occupies a dwelling without a legal title must be immediately evicted, regardless of the circumstances under which the eviction order will be executed, 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 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 11.3 of the Views).

In addition, it should be possible to conduct good-faith and effective prior consultations between public authorities and affected persons, alternative means or measures less intrusive 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 However, there is a risk of such a violation (paragraph 11.4 of the Considerations).

In particular, 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 they were evicted at the initiative of the State party's authorities or private individuals, for example, the owner of the property (Ben Jazia et al. v. Spain, paragraph 15.2.). If, in the event of eviction, the State party does not guarantee or provide the affected person with alternative housing, it must prove that it has studied the specific circumstances of the case and that even after taking all appropriate measures to the maximum of available resources, it was not able to ensure the right of the affected person to housing. 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 12.1 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. To achieve this goal, Participating States can choose a wide range of strategies. 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 urgency of the situation, and should 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 homelessness (paragraph 12.2 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 should 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; cost-acceptability; liveability; affordability; geographical location, allowing access to social services (education, employment, medical care); cultural adequacy, allowing respect for the right to express cultural identity and diversity. It is also necessary to take into account the right of family members not to be separated (paragraph 12.3 of the Considerations).

In certain circumstances, States Parties may prove 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 conditions, it is possible to use temporary accommodation in the premises of an emergency housing stock, which does not meet all the requirements for sufficient 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 adequate housing (paragraph 12.4 of the Considerations) (Lopez Alban v. Spain, paragraphs 9.1 - 9.4.).

In order to optimize the resources of their social services, Participating States may establish requirements or conditions that must be met by applicants 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 13.2 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. 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 to obtain a livelihood, and the property of financial institutions, as in this case (Lopez Alban v. Spain, paragraph 11.5.). The conclusion that eviction is not a reasonable measure at that time or another specific moment 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).

The Committee's assessment of the factual circumstances of the case: the question was investigated whether the decision to evict the authors from their occupied housing violated their right to adequate housing, or whether such interference could be qualified as a justified restriction of their right to housing in accordance with article 4 of the Covenant. 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 Committee noted that the authors were able to stay in the apartment due to the suspension of three eviction orders. The Committee also pointed out 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).

In their petitions to suspend the eviction, the authors reported that they were in a particularly difficult financial situation, their son had health problems, including his disability at 33%, and they had no alternative housing to move to in the event of eviction. In addition, the social services of the Municipality of El Alamo have compiled several reports indicating that the family was in a vulnerable position due to a difficult financial situation and that the competent authorities were unable to solve the housing problem of the authors who need alternative housing. The Committee took note of the authors' information that their housing rights had not been taken into account by the judicial authorities. In this regard, the Committee noted the following - despite the fact that on 4 June and 7 September 2018, applications for suspension of eviction were rejected, but the decision to evict the authors was not enforced (paragraph 14.3 of the Views).

The Committee took into account that the authors were able to appeal the decisions taken by the court of first instance and to use the assistance of a lawyer. In addition, the Committee stressed that 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 the proceedings were arbitrary (paragraph 14.4 of the Views).

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. However, the Committee took note of the following - the Navalcarnero Court of First Instance No. 3 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 (paragraph 14.5 of the Considerations).

In this case, 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 (even at the 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 and that in response to one of the authors' requests for a postponement of eviction, the court indicated only that the submitted The authors of the 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 Committee therefore considered that 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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