On October 11, 2019, the case was won in the UN Committee on Economic, Social and Cultural Rights.

Заголовок: On October 11, 2019, the case was won in the UN Committee on Economic, Social and Cultural Rights. Сведения: 2024-06-30 04:02:28

Maribel Viviana Lopez Alban vs. Spain. Views of the Committee on Economic, Social and Cultural Rights of 11 October 2019 Communication No. 37/2018.

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 along with her children would constitute a violation of article 11 of the Covenant, as she did not have adequate alternative housing. The author explained that her income is not enough to find alternative housing, since she receives only 735.90 euros per month, paid to her as a minimum integration allowance. The author also claimed that prior to her eviction, the State authorities had not offered her any alternative housing.

The Committee's legal position is that evictions should not lead to the appearance of homeless persons or persons vulnerable to violations of other human rights. In cases where affected persons are unable to provide for themselves, 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 decision to evict was taken by the authorities of the State party or by private individuals, for example, the owner of the property (See: Ben Jazia and Bellili v. Spain, paragraph 15.2.). If, in the event of eviction, the State party does not guarantee or provide alternative housing to the affected person, 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 [to the International Covenant on Economic, Social and Cultural Rights] (paragraph 9.1 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 their available resources to exercise this right. Participating States can choose from a wide variety of strategies necessary to achieve this goal. However, any measures taken should be informed, specific and as clearly as possible aimed at the realization of this right as quickly and effectively as possible. 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 9.2 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 a particular context. They include the following: legal provision of accommodation; availability of services, materials, facilities and infrastructure; cost-acceptability; livability; economic accessibility; a geographical location that allows access to social services (education, employment, medical care); and cultural adequacy that ensures 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 9.3 of the Considerations).

In certain circumstances, States Parties may demonstrate 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 such housing. In such circumstances, it is possible to use temporary accommodation in the premises of an emergency housing stock that 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 9.4 of the Considerations).

The Committee considers that, in order to optimize the resources of their social services, States parties may establish requirements or conditions that applicants must meet 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 a State party (See: Ben Jaziya and Bellili v. Spain, paragraph 17.2.). 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, by necessity or in good faith, occupy real estate without having a legal title to it (paragraph 10.1 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 10.2 of the Considerations) (See: Ben Jaziya and Bellili v. Spain, paragraph 17.2.).

In all cases, it is necessary to distinguish between the property of persons who need it for use as housing or for obtaining vital income, and the property of financial institutions... The conclusion that eviction is not a reasonable measure at a particular time does not necessarily mean that eviction orders cannot be issued. Nevertheless, the principles of expediency and proportionality may require the suspension or postponement of the execution of an eviction order in order not to expose the evicted persons to the risk of ending up in situations of poverty or violation of other rights enshrined in the Covenant. An eviction order may also be conditioned by other factors such as ordering administrative authorities to take assistance measures to mitigate the consequences of eviction in the interests of tenants... [A] The principle of proportionality of eviction implies not only consideration of the consequences of this measure for the evicted persons, but also the need for the owner to regain possession of this property (paragraph 11.5 of the Considerations).

The Committee recalls that the concept of adequate housing implies a guarantee of accommodation, which cannot be said about shelters (paragraph 13.2 of the Views).

The Committee's assessment of the factual circumstances of the case: the author moved into the dwelling on March 1, 2013. On December 2, 2016, on the complaint of the bank that owned the dwelling, the Criminal Court No. 15 found the author guilty of committing a criminal offense consisting in self-seizure of the dwelling, partially relieving her of responsibility due to the state of necessity in which she was occupying the dwelling. The court decided to return the dwelling to the possession of the bank to which it belonged. This decision was confirmed by the Madrid Provincial Court on July 25, 2017 (paragraph 11.1 of the Considerations).

The author did not comply with the instructions on the return of property and remained in the dwelling, but the eviction was still carried out only on June 25, 2018.

In her petitions for the suspension of the eviction, the author noted: She is in a particularly vulnerable economic situation and has no alternative housing to move to in the event of eviction. In addition, on May 8, 2018, the social services of the Madrid City Hall sent a report to the Madrid Criminal Court No. 28, in which they reported that they were unable to provide social housing to the family. The Committee noted that the author's allegations regarding her right to housing had not been examined by the judicial authorities. In this regard, the Committee stressed that despite the refusal of requests to suspend the procedure on February 9 and May 10, 2018, the eviction was carried out only on June 25, 2018, i.e. one and a half years after the decision was made in the first instance (paragraph 11.3 of the Views).

The Committee drew attention to the fact that, for the State party, allowing the author to remain in the home would be tantamount to legalizing, through the exercise of the right to housing, criminally punishable conduct and violation, within the meaning of national legislation, of the property right of the institution to which the home belonged. The Committee pointed out that the right to private property is not a right referred to in the Covenant, but recognized the legitimate interest of the State party in ensuring the protection of all rights existing in its legal system, provided that this does not contradict the rights set out in the Covenant. Since the author was found guilty of the criminal offence of self-arrest, the Committee considered that there was a legitimate reason that could justify the author's eviction. Nevertheless, the Committee indicated the following - the Madrid Criminal Court No. 28 did not consider the question of proportionality between the legitimate purpose of eviction and its consequences for the evicted persons. In fact, the court did not balance the advantage of this measure available 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 11.5 of the Considerations).

[X] Although the author claimed that this [eviction] measure would affect her right to adequate housing, her claim did not lead to consideration by the Criminal Court No. 28 or any other judicial authority of the proportionality of the interference, as required by article 4 of the Covenant. The Madrid Criminal Court No. 15 considered the question of proportionality between the harm caused by the author by committing an offense in the form of self-seizure and the difficult situation that she tried to alleviate by committing it, the court concluded that she was partially relieved of responsibility due to the state of necessity. Nevertheless, this consideration did not relate to the decision to issue an order for the return of housing, which was contained in the same sentence. The State party's legislation also did not provide the author with any other judicial mechanism to challenge the eviction order, which had to be executed almost immediately so that another judicial authority could assess the proportionality of the eviction or the conditions under which it should be carried out (paragraph 11.6 of the Considerations).

The Committee noted that the author tried to rectify her position as a person occupying an apartment without a legal title in order to stop this illegal action by applying for social housing while she was in such a difficult situation. This application was not satisfied, since the current rules establish as an essential requirement that any applicant should not occupy a dwelling or real estate without sufficient legal right to do so and without the consent of the owner. The Committee stressed that the State party did not question the fact that the author's family needed social housing, but limited itself to the assertion that before the eviction, the author could not apply for housing in the public housing services of the Madrid Community. The Committee took into account that this requirement may be aimed at reducing the number of cases of illegal occupation of housing, but noted that the State party did not provide arguments to justify this requirement, which prevented the author from being included in the list of applicants for housing. The State party has also failed to substantiate the fact that there are no other measures less unfavorable to people to reduce the number of cases of illegal occupation of housing, such as reducing the number of empty dwellings (paragraph 12.1 of the Considerations).

The Committee considered that the application to the author of the requirement for access to the waiting list for applicants for public housing led her to a dead end, forcing her to live with her children in a temporary shelter for cohabitation or live in poverty before she could become an applicant for social housing. In addition, [the Committee] pointed out that such a restriction on access to social housing could lead to shifting the burden of the consequences of their parents' actions onto children. Attention was drawn to the fact that in this case the State did not demonstrate or claim that, due to the lack of available resources before the eviction, it could not provide the author and her family with alternative housing without refusing to include her in the list of applicants on the grounds that she occupied residential real estate without title (thereby depriving the author of the slightest possibility of access to available alternative housing). The Committee pointed out that the application of this requirement is incompatible with the nature of the right to adequate housing. In view of the above, the Committee concluded that the exclusion of the author from the social housing program, without taking into account her situation of need, consolidated her illegal situation and led to her eviction (paragraph 12.2 of the Considerations).

The Committee noted that the longest stay of the author and her children in the shelter was three months, after which she was notified that she needed to leave the shelter with her family, although this situation was later resolved thanks to the intervention of participants in the public rally. In view of this, shelters, as described by the State party, are a temporary solution to the housing issue, and not adequate housing (paragraph 13.2 of the Views).

Having concluded that the alternative provided to the author was not adequate housing, and in the absence of any further explanation from the State party as to why interim measures could not have been complied with, the Committee, in accordance with its practice concerning the obligation of States parties to comply in good faith with interim measures, considers that the State party- The party, in the circumstances of the case, violated article 5 of the Optional Protocol.

The Committee's conclusions: The State party violated the right of the author and her children within the meaning of article 11, paragraph 1, of the Covenant.



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