The case of Hakim El Ghumari and Ahmed Tidli v. Spain. Views of the Committee on Economic, Social and Cultural Rights of February 18, 2021. Communication No. 85/2018.
In 2018, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
As could be seen from the text of the Considerations, the author claimed that her eviction, which was decided and suspended by the Madrid Investigative Court No. 30 at that time, would constitute a violation of article 11, paragraph 1, of the Covenant, since she did not have an alternative option of adequate housing. The author also claimed that during the criminal proceedings against her, her needs and difficult financial situation were not taken into account and that she was convicted of the crime of illegally taking possession of someone else's real estate. The author also claims that the eviction may seriously affect the schooling of her children and that, since she has recently become a mother, she cannot get a job (paragraph 3 of the Considerations).
Legal positions of the Committee: See information on the above-mentioned Views of the Committee on Economic, Social and Cultural Rights of 19 February 2021 in the case of Fatima El Ayoubi and Mohamed El Azwan Azuz v. Spain. Message No. 54/2018.
The Committee's assessment of the factual circumstances of the case: the question of whether the alternative housing options provided by the State party after the eviction are appropriate alternative housing was investigated. The Committee noted that the alternative housing options provided could not be considered as alternative housing, since they were dormitories and shelters for temporary stay. Therefore, the Committee came to consider whether temporary housing met the standards of respect for human dignity and safety and whether it could not be a permanent solution rather than a step towards providing adequate housing (paragraph 11.1 of the Considerations).
Regarding the first point, it should be pointed out that the concepts of dignity and safety include, among other things, such factors as stability and certainty in terms of the time frame of stay, hygiene of alternative housing and the availability of personal space to meet people's needs. In this regard, the Committee noted the living conditions at the Pinar de San Jose shelter (overcrowding, unsanitary conditions and lack of privacy). The Committee noted that, according to the State party, the proposed alternative accommodation was located on the outskirts of Madrid, but within the municipality, but it was even further from the school of children, two of whom had disabilities and who already had to travel a long time to their school every day. In addition, the Committee pointed out that during the stay of the authors at the Pinar de San Jose Shelter, at the Velcom Hostel (for the second time) and at the Alonso Martinez shelter, they were constantly forced to leave it without offering any alternative (temporary or otherwise). The Committee stressed that this had prompted civil society to take action to end the authors' insecurity and improve their living conditions. The Committee noted that during these months of anxiety and uncertainty, Ms. El-Ghumari lost her child in the seventh month of pregnancy. The Committee did not consider that these conditions ensured respect for the dignity of the authors and their children, especially since they were the result of an eviction carried out in violation of the Covenant (paragraph 11.2 of the Views).
With regard to the time frame for the use of the proposed housing, although temporary options are not permanent solutions, the Committee concluded: the State party has not proved that the alternative housing allocated to the authors represented a step towards providing them with adequate housing. Moreover, the authors were constantly in danger of having to leave the proposed dormitories or shelters without the possibility of obtaining other temporary alternative housing (paragraph 11.3 of the Considerations).
With regard to the authors' current housing, the Committee did not consider that it constituted adequate housing, since, on the one hand, the terms of the contract did not allow the authors to access all the benefits mentioned by the State party itself in its observations, and, on the other hand, the accommodation in one room of a family of eight people significantly exceeded The limit of three people per room, which was determined by the Department of Economic and Social Affairs of the United Nations Secretariat to assess overcrowding, Therefore, this room did not meet the criteria for adequate housing (paragraph 11.4 of the Considerations).
The Committee considered that, in addition to the general measures mentioned above, the State party had failed to demonstrate that it had taken into account the specific circumstances of the case and had taken all reasonable measures to the maximum extent of its available resources (paragraph 11.5 of the Views).
The Committee's conclusions: The temporary alternative housing options provided to the authors and their family and the situation in which they found themselves, as well as the housing in which they lived, constituted a violation of the authors' right to housing, enshrined in article 11 of the Covenant.
The case of Soraya Moreno Romero v. Spain. Views of the Committee on Economic, Social and Cultural Rights of 22 February 2021. Message No. 48/2018. As could be seen from the text of the Considerations, the author claimed that her eviction, which was decided and suspended by the Madrid Investigative Court No. 30 at that time, would constitute a violation of article 11, paragraph 1, of the Covenant, since she did not have an alternative option of adequate housing. The author also claimed that during the criminal proceedings against her, her needs and difficult financial situation were not taken into account and that she was convicted of the crime of illegally taking possession of someone else's real estate. The author also claimed that the eviction could have seriously affected her children's schooling and that, since she had recently become a mother, she was unable to get a job (paragraph 3 of the Considerations).
The Committee's legal position: States parties generally enjoy a certain degree of discretion in regulating issues such as the unlawful acquisition of someone else's immovable property, as well as in determining judicial remedies aimed at protecting the right of ownership of immovable property in a democratic society. However, such freedom of action is not unlimited and should not conflict with the obligations of States parties under the Covenant and other applicable human rights treaties. In particular, the Committee considers that if a person is evicted in the context of criminal proceedings, the competent authorities should ensure that legal remedies are available and that the eviction is carried out in accordance with legislation compatible with the Covenant and in compliance with the general principles of expediency and proportionality of the consequences of eviction for the affected persons for the legitimate purpose of eviction (the Gomez-Lemon Pardo v. Spain" (E/C.12/67/D/52/2018), paragraph 8.2.). This obligation follows from the interpretation of the State party's obligations under article 2 (paragraph 1), the Covenant, considered in conjunction with article 11, and the requirements of article 4, which establishes the conditions under which restrictions on the enjoyment of rights under the Covenant are permissible (Ibid., para. 9.4.). Therefore, evictions as a result of criminal proceedings should not become As a general phenomenon, they must be defined by law, contribute to the general well-being in a democratic society, correspond to the legitimate goal pursued and be strictly necessary. The State party should justify the criminal prosecution of persons with a view to their eviction in each specific case and examine the existence of other, less burdensome measures to achieve the legitimate purpose of restriction (paragraph 12.4 of the Views).
See also information on the above-mentioned Views of the Committee on Economic, Social and Cultural Rights of February 19, 2021 in the case of Fatima El Ayubi and Mohamed El Azwan Azuz v. Spain. Message No. 54/2018.
The Committee's assessment of the factual circumstances of the case: The Committee took note of the fact that the author had the opportunity to challenge and appeal the decisions taken at first instance and that she was assisted by a lawyer (paragraph 12.2 of the Views).
The Committee also took note that, for the State party, allowing the author to continue living in this residential building would be tantamount to legalizing criminally punishable acts and violating, within the meaning of national legislation, the property rights of the institution that owns the premises. Since the author was found guilty of a minor crime of unlawful seizure of someone else's real estate, the Committee considered that there was a legitimate reason for such a measure as the author's eviction. The Committee noted that the Madrid Court of Inquiry No. 30 had examined all the author's allegations concerning her right to housing and the question of the proportionality of the eviction measure. At first, namely on May 29, 2018, the court postponed the eviction. In its decisions of August 20 and September 28, 2018 and May 28, 2019, the court refused to postpone the eviction again, emphasizing, in particular, that the author was given an additional period for eviction from the residential premises, that the situation was brought to the attention of social services, that the author was offered housing in a residential building of communal settlement, from which she refused, and that it was necessary to take into account the interests of the other side of the enforcement proceedings, and also to resolve the author's situation, taking into account the need to execute the sentence and terminate the criminal acts (paragraph 12.3 of the Considerations).
With regard to the case in question, the Committee noted that the author had not contacted either the national authorities or the Committee with allegations that her case had been considered in criminal proceedings. The Committee recalled the practice of its decisions, according to which, if, in the light of the submitted documentation, facts were revealed that were confirmed in an adversarial manner and in respect of which the parties could submit their observations and comments clearly indicating a possible violation of the norm provided for in the Covenant, but not mentioned by the author of the communication, the Committee may consider a possible violation even those articles to which the parties did not refer, provided that it does not exceed the requirements stated in the communication (The case of Trujillo Calero v. Ecuador (E/C.12/63/D/10/2015), paragraph 9.10.). Taking into account the circumstances of the case and in the light of the materials submitted by the parties, the Committee considered that in this case this issue is not subject to consideration (paragraph 12.5 of the Views).
The Committee took note of the State party's position that, in the event of the imminent eviction of the author of the complaint (the applicant), temporary accommodation in the living quarters of the maneuver fund offered to the author by social services was an adequate measure indicating the fulfillment by the State party of its obligations under the Covenant to take all measures within available resources to provide the author with an alternative housing. The Committee noted that the author refused offers of temporary accommodation in communal housing, which, according to social services, was part of a social housing plan to assist the family in achieving autonomy and obtaining affordable housing on the private market in terms of its economic capabilities. The Committee indicated that the author had rejected the proposal on the grounds that it was a temporary accommodation. As for the offer of assistance in finding housing appropriate to the author's financial capabilities, the author only stated that it was necessary, first of all, to try to negotiate with the owner of the apartment she occupied; there was no evidence that the author contacted social services to obtain additional information about any of the three options. The Committee noted that the author had not provided any evidence that the proposed temporary accommodation was incompatible with human dignity, unsafe or unacceptable for other reasons (paragraph 12.6 of the Views).
The Committee's conclusions: In the absence of other elements that would indicate that the State party had not taken all possible measures to protect the author's rights, the Committee considered that the materials submitted to it did not indicate a violation of article 11 (paragraph 1) of the Covenant.