Rosario Gomez-Lemon Pardo against Spain. Views of the Committee on Economic, Social and Cultural Rights dated March 5, 2020. Communication No. 52/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The author claimed that her eviction would constitute a violation of article 11 of the Covenant, as she had no other suitable place to live. The author pointed out that the proposed housing options were not suitable for her: a hostel - because you can only stay in it at night, and a nursing home is also not suitable, because entry and exit stop after 20.00. The author also drew attention to the fact that due to her age and health condition, these options are suitable for She has even less, because on October 9, 2012, she was diagnosed with cancer, and on October 2, 2015. She was recognized as having a disability in 41%. At the time of registration of the message, she was expecting cancer surgery, which was scheduled for October 2018. In addition, the author explained that she could not live in the house, which she owns as common property with her husband, who lives in it, and she is afraid of being subjected to violence again.
The Committee's legal position: The human right to adequate housing is a fundamental right that serves as the basis for the realization of all economic, social and cultural rights and is linked in all its aspects to other human rights, including the provisions of the International Covenant on Civil and Political Rights. The right to housing should be guaranteed to all, regardless of income or access to economic resources, and States parties should take all necessary measures to achieve the full realization of this right to the maximum of their available resources (paragraph 8.1 of the Considerations).
Forced eviction is prima facie incompatible with the [International Covenant on Economic, Social and Cultural Rights] and can only be justified in the most exceptional circumstances. In the event that eviction may affect the evictee's right to housing, the competent authorities should ensure that it is carried out in compliance with legislation compatible with the Covenant and in accordance with the principle of proportionality of the legitimate purpose of eviction and its consequences for the evicted (paragraph 8.2 of the Considerations) (See: Ben Jazia and Bellili v. Spain, paragraph 13.4.).
The Committee notes that 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, if this does not contradict the Rights enshrined in the Covenant (paragraph 9.2 of the Views).
When eviction may result in the evictee being deprived of access to adequate housing and exposing him to the risk of impoverishment or other violation of his rights protected by the Covenant, there is an obligation to examine the proportionality of this measure. This 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... The Committee notes that article 4 of the Covenant establishes conditions allowing for restrictions on the enjoyment of rights under the Covenant. 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 be proportionate to the legitimate purpose mentioned. Fourth, a restriction 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 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 author's rights protected by the Covenant, the more attention should be paid to the justification for such a restriction. Such a review of the proportionality of the measure should be conducted by a judicial authority or other impartial and independent body authorized to order the termination of the violation and provide an effective remedy. This body must determine whether the eviction is in accordance with the Covenant, including the above-mentioned elements of the proportionality criterion provided for in article 4 of the Covenant (paragraph 9.4 of the Views).
[H] The regulatory framework [governing the eviction of people from their homes in accordance with legislation compatible with the Covenant] should provide that judicial authorities or other impartial and independent bodies authorized to order the cessation of violations and provide effective remedies should determine the proportionality of applications for eviction in such circumstances. The analysis of the proportionality of eviction involves studying not only the consequences of this measure for the evicted, but also, among other things, the affected interests of the party or person who has the right to demand eviction. The availability of other adequate housing, the circumstances of the identity of the tenants and their dependents, and their cooperation with the authorities in finding solutions that take their situation into account, are also crucial factors in conducting such a study. It is necessary to distinguish between the real estate of persons who need it for living or for obtaining a livelihood, and the property of financial or any other structures (See: Lopez Alban v. Spain, paragraph 11.5.). Thus, a State party [determining] that a person whose lease has been terminated must be immediately evicted, regardless of the circumstances under which the eviction order will be enforced, violates the right to adequate housing <30> (paragraph 9.5 of the Considerations).
The Committee emphasizes that the decision that eviction is not a reasonable measure at the moment does not necessarily mean the following: an eviction order cannot be made. However, the principle of 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. An eviction order may also establish other requirements, such as requiring administrative authorities to take measures to assist tenants to reduce the consequences of eviction. Thus, the need to examine the proportionality of the eviction may lead to consideration of the expediency of postponing the eviction while the competent authorities discuss with the evictees the various options available (paragraph 9.6 of the Considerations).
The Committee recalls that, in accordance with its practice (See: C.S.R. v. Spain (E/C.12/66/D/51/2018), paragraphs 7.6 and 7.7.), the adoption of interim measures in accordance with article 5 of the Optional Protocol is essential for the performance of the functions entrusted to the Committee under Protocol (Committee against Torture, Subakaran R. Tirugnanasampantar v. Australia (CAT/C/61/D/614/2014), para. 6.1.), since the meaning of interim measures is, inter alia, to protect the reliability of the process entrusted to him for the protection of the rights provided for in the Covenant in the event of a risk of irreparable damage (See: mutatis mutandis European Court of Human Rights (Grand Chamber), Mamatkulov and Askarov v. Turkey (Applications No. 46827/99 and 46951/99), judgment of 4 February 2005, paragraph 128 ("The Participating States have undertaken obligations to refrain from any action or omission, capable of preventing the real exercise of the applicant's right to an individual complaint. The failure of the State party to comply with protective measures is considered as an obstacle to the real consideration by the Court of the applicant's complaint and the real exercise of rights by the person, and, consequently, as a violation of article 34 of the Convention"); and the Committee against Torture, Subakaran R. Tirugnanasampantar v. Australia, paragraph 6.1.). Any State party that does not take such interim measures violates the obligation to comply in good faith with the individual communications procedure established in the Optional Protocol [to the Covenant] (Human Rights Committee, general comment No. 33 (2008) on the obligations of States parties under the Optional Protocol to the International Covenant on Civil and Political Rights, para. 19.). It also limits the Committee's ability to provide effective remedies to persons who claim to be victims of a violation of the Covenant (paragraph 10.2 of the Views).
The Committee's assessment of the factual circumstances of the case: it was established that the author had lived all her life in the house rented by her parents in 1963, and continued to live in it and pay rent after the death of her parents. In 1982, the author acquired a house with her husband, with whom they live separately, and currently occupies this house, which is in his exclusive use, although under the terms of the separation agreement, both spouses retain joint ownership and use of the house. The author was subjected to gender-based violence and reported it to her clinic and social welfare authorities. In addition, she had a recognized disability of 41%. On April 30, 2013, the landlord filed a lawsuit against the author to evict her. On February 20, 2014, the Court of First Instance No. 86 of Madrid declared the lease of the house terminated. This decision was confirmed in the second instance by the Provincial Court of Madrid and appealed to the Supreme Court on September 20, 2017. On March 12, 2018, the Court of First Instance No. 86 of Madrid ordered the author to vacate the house on May 16, 2018. The first time the eviction was suspended due to an administrative error, and the second time due to the support of several citizens protesting in front of the author's house. The author applied for a stay of eviction after receiving notification of each eviction order, claiming that she had no other accommodation. On 14 May 2018, the author submitted an application for social housing (paragraph 7.2 of the Considerations).
The author was evicted after the termination of the lease agreement by the court of first instance No. 86 by a decision confirmed in the second and cassation instances. The author did not claim that she did not enjoy procedural guarantees, and it did not follow from the information provided to the Committee that this process was arbitrary (paragraph 9.1 of the Views).
The author did not vacate the house and continued to live in it, so the Court of First Instance No. 86 of Madrid decided to evict her. The Committee noted the State party's contention that the claim of the owner of the property, an individual, should be taken into account.... The judicial authorities decided to terminate the lease agreement after a trial, in which the author did not claim that her procedural rights had not been respected. The Committee considered that there was a legitimate reason that could justify the author's eviction (paragraph 9.2 of the Views).
The Committee noted that the court rejected the author's applications for a stay of eviction, where she reported her situation of special economic vulnerability and her lack of other housing. In rejecting the request to suspend the eviction, the Court of First Instance No. 86 of Madrid did not consider the question of proportionality between the legitimate purpose of the eviction and its consequences for the evicted. Moreover, the State party's legislation did not provide the author with any other mechanism to appeal the eviction order, which should have been executed almost immediately so that another authority could assess the proportionality of the eviction or the conditions in which it should have been carried out (paragraph 9.3 of the Considerations).
The Committee stressed that the State party's authorities had invited the author to apply for a place in a home for people who are able to support themselves, in a shared apartment for the elderly or in a shared home, and that she had rejected these options because they were not suitable for her in her situation (paragraph 9.6 of the Views).
The Committee concluded that, in the circumstances of the present case and in the light of all the documentation provided to it, the author was deprived of the opportunity for the proportionality of her eviction to be examined by a judicial or other impartial and independent body with the authority to order an end to the violation and provide an effective remedy. The Committee considered that such an examination had not been carried out, and this constituted a violation by the State party of the author's right to housing, as set out in article 11 of the Covenant in conjunction with article 2, paragraph 1 (paragraph 9.7 of the Views).
The Committee notes that "following the events described in the present communication, the State party has adopted new legislation according to which the court is obliged to inform the social security authorities about the eviction of persons in a vulnerable situation, and if the social security authorities determine the vulnerability of persons against whom an eviction order has been issued, the court has the right to suspend the eviction, so that the social security authorities can provide assistance for up to one month, or three months if the claim is filed by a legal entity [See article 441 of Law No. 1/2000 on civil proceedings, as amended by Royal Decree-Law No. 7/2019 on urgent measures in the field of housing and rent]. This legislation could have prevented such violations of the right to housing as set out in the present Considerations and could have been useful in restoring the applicant's position" (paragraph 9.8 of the Considerations).
The Committee indicated that on October 17, 2018, the author was evicted, despite the Committee's request for [temporary interim] measures and without providing other suitable housing, after having a discussion with her. In the absence of an explanation from the State party of the reasons why interim measures could not be taken, the Committee concluded that, in the circumstances of the present case, the State party had violated article 5 of the Optional Protocol (paragraph 10.3 of the Views).
The Committee's conclusions: The State party violated the author's right to an effective remedy under article 11, paragraph 1, of the Covenant, in conjunction with article 2, paragraph 1, and in accordance with the requirements of article 4. The Committee also considered that the State party violated article 5 of the Optional Protocol (paragraph 12 of the Views).