Views of the Committee on Economic, Social and Cultural Rights of 20 June 2017 in the case of Mohamed ben Jazia and Nahuel Bellini v. Spain (communication No. 5/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
Subject of the message: eviction of tenants following a lawsuit initiated by the landlord.
Substantive issues: Measures to ensure the full realization of the rights enshrined in the Covenant; the right to adequate housing.
Legal positions:
The right to housing and legal guarantees of residence
The human right to adequate housing is a fundamental right that provides 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 are obliged to take all necessary measures to ensure the full realization of this right to the maximum extent of their available resources (paragraph 13.1 of the Considerations).
All persons should enjoy a certain degree of security of residence, which guarantees legal protection against forced eviction, harassment and other threats. This guarantee also applies to persons who live in rented premises, both public and private, and who should have the right to housing, including after the expiration of the lease period (paragraph 13.2 of the Considerations).
Forced eviction is prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances and in accordance with the relevant principles of international law. The Committee refers to the definition of forced eviction given in its general comment No. 7 (paragraph 3) and emphasizes that this definition is not limited to collective or large-scale evictions, or evictions carried out directly by States parties. Protection from forced eviction also applies to persons living in rented housing (paragraph 13.3 of the Considerations) (See the materials provided by the ESCP network.).
In cases where eviction is justified, the relevant State authorities must ensure that it is carried out in accordance with legislation in accordance with the provisions of the Covenant, including the principle of respect for human dignity enshrined in its preamble and the general principles of expediency and proportionality. All processes in the context of forced eviction and processes that may affect the legal security of residence and lead to eviction should be carried out in accordance with procedural guarantees, ensuring, in particular, that the affected persons have a real and effective opportunity to receive advice. The Committee recalls that there can be no right if there is no legal remedy for it (See communication No. 2/2014, I.D.G. v. Spain, Views adopted on 17 June 2015, paragraph 11.3.<30>, and that thus, in accordance with the obligation contained in article 2, paragraph 1, of the Covenant, States parties are obliged to ensure to persons whose right to adequate housing may have been affected, for example, in connection with forced eviction or the expiration of the lease agreement, an effective and appropriate remedy ((paragraph 13.4 of the Considerations) See communication No. 2/2014, I.D.G. v. Spain, paragraphs 11.3 and 11.4.).
The obligation of the State to protect tenants
States parties are obliged not only to respect the rights enshrined in the Covenant, according to which they should refrain from violating them, but also to protect these rights by taking measures to prevent direct or indirect interference by private individuals in their exercise. If a State party does not take appropriate measures to protect one of the rights provided for in the Covenant, it violates its obligation even if the act that led to the violation of the right was carried out by a private person or entity. Thus, although the Covenant primarily establishes rights and obligations in the context of the relationship between the State party and individuals, the provisions of the Covenant also apply to relations between individuals. Eviction after the expiration of a lease agreement concluded between private individuals may, accordingly, affect the exercise of the rights enshrined in the Covenant. In this regard, the State party's argument that the present communication concerns a conflict between individuals and has nothing to do with the Covenant seems unfounded (paragraph 13.4 of the Views).
The right of evicted persons to housing and access to social housing
Under certain conditions, the eviction of persons from rented housing may be compatible with the provisions of the Covenant, if this action is provided for by law, is taken as a last resort, and the affected persons have access to effective judicial remedies in advance to ensure that the eviction is properly justified, for example, in the case of systematic non-payment of rent or causing damage to the rented property for no reasonable reason. In addition, affected persons should have a real and effective opportunity to obtain prior consultation from public authorities, there should be no alternative and less drastic measures, and affected persons should not find themselves in a situation that in itself violates other Covenant rights and other human rights or exposes affected persons to such a violation (paragraph 15.1 Considerations).
In particular, eviction should not lead to homelessness of the affected persons. Thus, if these persons cannot afford alternative housing, 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. States parties should pay special attention to cases where evictions are faced by women, children, the elderly, persons with disabilities, as well as other persons or groups of persons who are systematically discriminated against or in vulnerable situations. 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, such as the landlord (paragraph 15.2 of the Considerations).
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 must make all necessary efforts to the maximum extent of their available resources to comply with this right. To achieve this goal, participating States can take a wide variety of policy measures, including providing housing subsidies to people who cannot afford it. However, any measures taken should be informed, specific and as clearly as possible aimed at the implementation of the above-mentioned right. When developing a policy to provide alternative housing in the event of eviction, the needs of the affected persons and the urgency of the situation, as well as the principle of respect for human dignity, should be taken into account. In addition, States parties should take measures in a coordinated and coordinated manner to address institutional deficiencies and structural causes of homelessness (paragraph 15.3 of the Considerations).
Human rights are indivisible and interrelated. Thus, the obligations of States parties in the field of respect for the right to housing should be interpreted in conjunction with other human rights obligations, especially in the context of eviction, in order to provide the family with the widest possible protection (article 10, paragraph 1, of the Covenant). The obligations of States parties to provide, to the maximum extent of their available resources, alternative housing to evicted persons in need include obligations to protect the family, especially in cases where these persons are responsible for the care of their dependent children and their education (paragraph 15.4 of the Considerations).
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 person's right 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 (paragraph 15.5 of the Views).
Explanations provided by the State party on the lack of access to alternative housing
The Committee considers that, in order to optimize the resources of their social services, States parties should establish requirements and conditions for receiving social benefits. However, these conditions 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, information about these conditions should be brought to the attention of the applicant in a transparent procedure, in a timely manner and in an appropriate form. In addition, it should be borne in mind that housing shortages are often linked to structural problems such as high unemployment or entrenched practices of social exclusion, which public authorities must combat by taking appropriate, timely and coordinated responses to the maximum extent of their available resources (paragraph 17.2 of the Considerations).
The Committee considers that States parties have some freedom in allocating budgetary resources in the most appropriate manner in order to guarantee full effectiveness in the exercise of the rights provided for in the Covenant (see Communication No. 1/2013, Lopez Rodriguez v. Spain, Views adopted on 4 March 2016, paragraph 13.3. See also the Committee's letter of 16 May 2012), and that under certain circumstances they may take regressive measures. Nevertheless, in such cases, the State party must prove that its decision was taken after the most careful consideration of the issue and that it is fully justified in relation to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum amount of available resources. In the context of a serious economic and financial crisis, any changes or possible policy adjustments should, among other things, be temporary and taken in accordance with considerations of necessity, proportionality and non-discrimination (paragraph 17.6 of the Considerations). "In this case, the State party has not justified the need to take the regressive measure described in the previous paragraph, thereby reducing the number of available social housing units at a time when the need for it has increased significantly due to the economic crisis" (paragraph 17.6 of the Considerations).
The Committee's assessment of the factual circumstances of the case: [a] The authors claim that the State party violated their right to adequate housing because, in accordance with court order No. 37, they were evicted from their rented room. At the same time, their lack of alternative housing and the possible consequences of such a ruling, especially for their minor children, were not taken into account. They claim that proper legal guarantees were not respected during the trial and that the authorities did not provide their family with social housing. In addition, in the context of a serious economic crisis, the autonomous community of Madrid sold off part of the social housing stock to private investment funds (paragraph 12.2 of the Considerations).
The State party argues that the authors were evicted on the initiative of a private individual (landlord), that the judicial authorities participated in the process only as an intermediary and that all judicial guarantees were respected during the subsequent proceedings in Court No. 37. In addition, it notes that the social services of the community and the Municipality of Madrid assisted the authors in various matters within their available resources, including providing them with financial assistance and assistance in the form of temporary housing for ten days after their eviction, and that the reason that the financial situation of the family is not The behavior of Mr. Ben Jaziya has been improved in many ways (paragraph 12.3 of the Considerations).
The parties do not dispute the fact that the authors permanently resided with their children in a rented room in Madrid; that the court proceedings in Court No. 37, initiated against Mr. Ben Jazia by the landlord, led to the eviction of the authors and their children on October 3, 2013; that, despite the fact that Mr. Ben Jazia received unemployment benefits and subsistence allowance at different times, at the time of eviction, the authors did not have alternative housing or income to rent other housing; that Mr. Ben Jazia repeatedly requested the Madrid Housing Authority (hereinafter referred to as the UFM) to provide him with social housing between 1999 and 2011, but without success; and that between 2012 and 2013, the UFM and other institutions of the Autonomous Community of Madrid sold 2,935 housing units to private investment companies/funds (paragraph 12.4 Considerations).
With regard to the situation of the complainants at the end of their stay in the temporary shelter of the Samur service, the Committee takes note of the State party's argument that the Samur service staff informed the authors of the possibility, if necessary, of placing Ms. Bellini and the children in a shelter for women, and Mr. Ben Jaziya - at the homeless assistance center. The authors, in turn, claim that after they were asked to leave the temporary shelter, they were not offered any decent alternative housing. In this regard, the Committee notes that the materials provided by both parties confirm only that in August 2013, the social services of Tetuan County informed Mr. Ben Jaziya that in the event of eviction of his family and their lack of alternative housing, the aforementioned services will take measures to protect children. The Committee also notes that the State party does not dispute the authors' claim that, after their ten-day stay in a temporary shelter, they and their children had to spend four nights in their relative's car until an acquaintance offered them accommodation for several weeks (paragraph 12.5 of the Views).
The Committee also notes that the authors do not dispute the information contained in the report of the Madrid Social Services Center dated 24 April 2015 that in 2012 and 2013 Mr. Ben Jazia regularly received financial assistance from the Center to meet his basic needs (paragraph 12.6 of the Views).
In the light of the Committee's finding of relevant facts and allegations by the parties, the main question in connection with the communication is whether the eviction of the authors from their rented room after the expiration of the lease agreement in accordance with court order No. 37 and without providing the authors with alternative housing violated their right to adequate housing under article 11, paragraph 1, of the Covenant, with considering that they were left without a roof over their heads. In order to examine this key issue, the Committee will consider the argument previously submitted by the State party that the problem arose between private individuals and has nothing to do with the Covenant. The Committee will first list some relevant elements of the right to housing, in particular those relating to persons living in rented housing and the legal protection of this right (paragraph 12.7 of the Views).
The State's obligation to protect tenants
According to the State party, eviction after the expiration of the lease agreement constitutes a conflict between private tenant and landlord in the sense that it is not initiated directly by the authorities. However, such a dispute between private individuals is regulated within the framework of the legal system of the State party, which in any case bears the ultimate responsibility for ensuring respect for the rights enshrined in the Covenant, including the right of tenants to housing. Thus, although the dispute over the expiration of the lease agreement arose between two private individuals, the State party is obliged, inter alia, to ensure that the eviction of the tenant does not contradict article 11, paragraph 1, of the Covenant (paragraph 14.1 of the Views).
The trial of the eviction case in court No. 37.
The Committee is now considering whether the eviction of the authors from their rented room constitutes a violation of their right to adequate housing. The Committee notes that the lessor informed Mr. Ben Jazia of its intention not to renew and terminate the lease agreement on March 15 and July 12, 2012, in accordance with articles 9 and 10 of the City Lease Act and paragraph 1 of article 1569 of the Civil Code, that the contract expired on August 31, 2012 and that, despite this, the authors refused to leave the room. In response to the landlord's request on May 30, 2013 Court No. 37 decided to evict the authors due to the expiration of the lease agreement in accordance with paragraph 4 of article 440, and paragraph 3 of article 549 of the Law on Civil Proceedings. Thus, the eviction measure against the authors was taken in accordance with the law (paragraph 16.1 of the Considerations).
The Committee notes that the authors refused to leave the rented room, despite the fact that the landlord informed them in advance that he would not renew the contract and that the latter expired on August 31, 2012. In addition, the authors have not paid monthly rent since June 2012. In the absence of information that would indicate that the landlord's application was unfounded or unnecessary, the Committee concludes that there were legitimate grounds for the eviction of the authors (paragraph 16.2 of the Views).
The Committee takes note of the authors' claim that judicial guarantees were not respected during the eviction process and that their request for a lawyer was rejected by the competent authorities. The Committee also takes note of the State party's arguments that all due process guarantees applicable under the Covenant were respected during the consideration of the case in Court No. 37... The Committee notes that Mr. Ben Jazia received gratuitous legal assistance and the right to represent him during the trial and that his lawyer filed several petitions for various judicial remedies; that Mr. Ben Jazia was informed in advance of the expiration of the lease and the eviction; and that the latter was conducted at the appropriate time and in the presence of court officials, police officers and representatives of interested parties (paragraph 16.3 of the Considerations).
The Committee also takes note of the authors' statement that court No. 37 issued a decision on their eviction without assessing the possible consequences of such a measure for the authors, especially for their minor children, and that the legislation does not provide for the right of [the defendants] to appeal the decision on eviction or submit petitions in which they could state the consequences of eviction. They can only file a claim for full or partial repayment of their rent. In this regard, the Committee notes that by its decisions of 30 May and 2 and 22 July 2013 Court No. 37 decided to evict the authors in accordance with paragraph 4 of article 440 (after its amendment according to Law No. 37/2011), paragraph 3 of article 549 and paragraph 1 of article 556 of the Law on Civil Proceedings and subsequently confirmed this decision. In accordance with these provisions, as well as with paragraph 1 of article 444 of the above-mentioned law, during the proceedings, the defendant could only make statements concerning the payment of rent or circumstances directly related to the eviction procedure. In addition, the Committee notes that, despite the absence of specific legislation that would allow a judge to assess the compatibility of this measure with the provisions of the Covenant during an oral eviction trial, on 30 May 2013 Court No. 37 decided to call on the Council, the Family Administration and Social Services of the Municipality of Madrid to take measures within their competence in order to prevent Mr. Ben Jazia from being left homeless and socially isolated, and, in particular, to inform the court within 20 days of the specific measures taken in order to to ensure that his minor children have adequate and proper housing. On July 2, 2013, this application was resubmitted. In addition, the Court, at the request of Mr. Ben Jaziya, repeatedly postponed the eviction (paragraph 16.4 of the Considerations).
The Committee takes note of the measures taken by Court No. 37 to prevent the authors, in particular their minor children, from being left without a roof over their heads and from being subjected to violations of other human rights, and considers that the court has actually assessed the potential consequences of eviction, despite the fact that it has no such obligations in accordance with the law. However, the right to housing in the State party is not a fundamental right that can be directly protected under the amparo procedure. In addition, as part of the oral proceedings of an eviction case, judges are not required by law to postpone the eviction until the affected person finds alternative housing. Moreover, the legislation does not clearly and specifically stipulate that the courts have such an obligation or may instruct other State bodies, such as social services, to take coordinated measures to prevent homelessness of the evicted person. In this context, October 3, 2013 Court No. 37 decided to evict the authors and their children, despite their lack of alternative housing or sufficient income to obtain housing in the real estate market, as well as despite the fact that the Madrid Social Service Center did not respond in a timely manner to the court's request (paragraph 16.5 of the Considerations).
As a result, after staying in the temporary shelter of the Samur service, the authors and their children were forced to sleep in a relative's car for four days... The Committee considers that the eviction of the authors in the absence of confirmation of their availability of alternative housing constitutes a violation of their right to adequate housing unless the State party demonstrates that even after taking all reasonable measures to the maximum of available resources and considering the specific circumstances of the authors' case, their right to housing could not be satisfied. In this case, the burden of proof falls even more on the State due to the fact that the interests of the authors' minor children, aged about one and three years old, were affected. The Committee begins to analyze the validity of the State party's explanations (paragraph 16.6 of the Views).
Explanations provided by the State party on the lack of access to alternative housing
The Committee notes that the State party does not dispute that the authors' family needed social housing, and only claims that the Madrid Social Service Center provided them with assistance, including housing search, within its available resources, and that the reason that the financial situation of the family was not improved, It was largely the behavior of Mr. Ben Jaziya (paragraph 17.1 of the Considerations).
In this case, the State party does not claim that Mr. Ben Jazia did not comply with the requirements or conditions for applying for social housing, but only questions the reasonableness of his behavior in finding work and alternative housing and trying to meet the conditions and requirements for receiving other social benefits. Thus, the State party has not demonstrated that the authors have not fulfilled any of the conditions for obtaining social housing that they were informed about. On the contrary, the Committee notes that after the birth of the children, Mr. Ben Jazia asked the UFM to provide him with social housing at least three or four times and that on June 4, 2013, he again submitted the application to the UFM, attaching court Order No. 37 of May 30, 2013. Faced with imminent eviction, Mr. Ben Jazia asked Court No. 37 to contact the social services of the Autonomous Community and the Municipality of Madrid and ask the UFM and the ICWH to provide him with alternative social housing (paragraph 17.3 of the Considerations).
The State party also noted that the UFM currently receives 8,000 applications for social housing annually and has approximately 260 housing units in Madrid. The State party seems to be implicitly pointing out that, despite the authors fulfilling the requirements for obtaining social housing, it was not provided to them in 2012-2013, when the eviction of the authors became inevitable due to limited available resources (paragraph 17.4 of the Considerations).
The Committee considers that the State party's arguments are insufficient, as they do not indicate that all possible efforts have been made and all available resources have been used to ensure, as a matter of priority, respect for the right to housing of persons who, as the authors, find themselves in an extremely vulnerable situation. For example, the State party has not justified the need to refuse to provide social housing to the authors in connection with the use of resources for the development by public authorities of a general policy or emergency action plan for the phased implementation of the right to housing, especially for persons in extremely vulnerable situations. Moreover, the State party did not explain to the Committee the reasons why the Madrid regional authorities, such as the UFM, sold off part of the social housing stock to private investment funds, thereby limiting access to it, despite the fact that the number of social housing units in Madrid is significantly lower than demand every year. It also did not explain how such a measure was justified from the point of view of the law and why it was the most appropriate in order to ensure the full enjoyment of the rights enshrined in the Covenant. For example, in 2013, the UFM sold 2,935 houses and other housing units to a private company in the amount of 201 million euros, explaining the need to restore the budget balance (paragraph 17.5 of the Considerations).
Finally, the Committee proceeds to consider the State party's argument that the Samur service informed the authors that if they did not find housing after the maximum period of stay at the Samur Social Madrid temporary shelter, Ms. Bellini and the children could be placed in a women's shelter, and Mr. Ben Jazia - at the homeless assistance center, and that the Social Service Center of the Municipality of Madrid offered them a similar alternative. Such a proposal, if considered more carefully, implies family separation, which is contrary to the State party's obligation to provide the widest possible protection and assistance to the family as the basic unit of society, as provided for in article 10, paragraph 1, of the Covenant. In this regard, the State party has not explained to the Committee why the authors did not have alternative options (paragraph 17.7 of the Views).
For the above reasons, the Committee concludes that the State party has not provided any reasonable justification as to why, even after taking all reasonable measures to the maximum extent of available resources, alternative housing could not be provided to the authors (paragraph 17.7 of the Views).
The Committee's conclusions: In the absence of evidence that the State party has taken all reasonable measures to the maximum extent of available resources, the eviction of the authors and the failure to provide them with alternative housing by the State party's public authorities as a whole, including the regional authorities of Madrid, constitutes a violation of their right to adequate housing (paragraph 18 of the Views).