The case is "Sara Vasquez Guerreiro v. Spain". Views of the UN Committee on Economic, Social and Cultural Rights dated October 9, 2023. Communication No. 70/2018.
In 2018, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The author, a citizen of the Kingdom of Spain, claimed on her own behalf and on behalf of her minor children that the eviction from the home in which they lived at that time violated her rights and the rights of her children under article 11 of the Covenant, since she did not have an adequate alternative home. The Committee found that the State party had violated the right of the author and her children, as enshrined in the provisions of the Covenant, as well as article 5 of the Optional Protocol (interim measures of protection).
Legal positions of the Committee:
legal protection against forced evictions
The human right to adequate housing is crucial for the enjoyment of economic, social, cultural and environmental rights and other civil and political rights. The right to housing should be guaranteed to everyone, regardless of income or access to economic resources, and States parties should take all necessary measures to fully realize this right to the maximum extent of their available resources (paragraph 8.1 of the Considerations).
Forced eviction is prima facie incompatible with the Covenant and can only be justified in the most exceptional circumstances. The relevant competent authorities should ensure that evictions are carried out in accordance with legislation compatible with the Covenant and in accordance with the general principles of expediency and proportionality of the legitimate purpose of eviction and the consequences of eviction for the affected persons. This obligation arises 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 establishes a general framework of permissible restrictions on the enjoyment of rights under the Covenant (paragraph 8.2 of the Views).
In order for an eviction to be acceptable, it must meet the following requirements.
First, the limitation of the right to adequate housing must be determined by law.
Secondly, the restriction should contribute to the "general welfare in a democratic society."
Thirdly, the restriction must meet the specified legitimate purpose.
Fourthly, restriction should be necessary, in the sense that if there are several means that are obviously capable of achieving the desired goal, the means that least restricts the right should be chosen.
Finally, fifthly, the positive results achieved by a restriction that contributes to the general well-being should outweigh its impact on the enjoyment of the restricted right. The more serious the restriction affects the rights protected by the Covenant, the more attention should be paid to the justification of such a restriction. The availability of other adequate housing, the personal circumstances of the residents and their family members, as well as their cooperation with the authorities in finding suitable housing for them are also important factors that must be taken into account when analyzing the situation. It is also imperative to distinguish between eviction from real estate owned by private individuals who need the relevant property for use as housing or for livelihood, and eviction from real estate owned by financial or any other structures (paragraph 8.3 of the Considerations).
An analysis of the proportionality of the measure applied should be carried out by a judicial 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 elements of the proportionality criterion set out above, provided for in article 4 of the Covenant. The conclusion that eviction is not a reasonable measure at a particular time 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 8.4 of the Considerations).
The following procedural aspects of protection should also be applied in eviction procedures:
(a) The possibility of conducting real consultations with affected persons about available alternative housing options, and in the absence of acceptable alternatives due to lack of own resources, an order to the administrative authorities to present available options so that eviction does not lead to homelessness;
(b) Proper and reasonable notification of all affected persons before the scheduled eviction date;
(c) Informing all interested parties within a reasonable time of the planned evictions and, where applicable, of the alternative purpose for which the land or dwelling will be used;
(d) The presence of government officials or their representatives at the time of eviction, especially if it concerns a group of persons;
(e) Proper identification of all persons carrying out the eviction;
(f) The inadmissibility of evictions in bad weather or at night, unless the consent of the evicted persons has been obtained;
(g) Providing legal remedies to challenge the eviction; and
(h) Providing legal assistance to persons in need so that they can seek judicial restoration of their rights (paragraph 8.6 of the Views).
The obligation of the State to provide alternative housing in case of need
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
legal protection of residence;
availability of services, materials, facilities and infrastructure;
accessibility in terms of costs;
suitability for living;
availability;
Geographical location in a healthy and supportive environment that provides access to public and social services (education, employment, health and transport),
as well as cultural acceptability, that is, benevolence for cultural identity and diversity (paragraph 9.3 of the Considerations).
The adoption of interim measures under article 5 of the Optional Protocol is necessary to fulfill the function entrusted to the Committee under the Protocol, since the purpose of interim measures is, inter alia, to preserve the integrity of the process, thereby ensuring the effectiveness of the mechanism for the protection of Covenant rights in cases where there is a risk of irreparable harm. The failure to take such interim measures is incompatible with the obligation to comply in good faith with the individual communication procedure under the Optional Protocol and does not allow the Committee to provide effective remedies to persons claiming to have suffered as a result of a violation of the Covenant (paragraph 13.2 of the Views).
The Committee's assessment of the factual circumstances of the case: it is considered that the lack of a proper assessment of proportionality constituted a violation by the State party of the author's and her children's right to housing in accordance with article 11 of the Covenant (paragraph 10.7 of the Views).
The Committee found that there had been no genuine consultations with stakeholders. Despite the fact that the author applied to various administrative institutions and appealed against the eviction orders in court, there was no evidence of effective consultations within the framework of the judicial process to consider alternative options to eviction (paragraph 11.3 of the Considerations).
According to the principle of increasing autonomy, the children should have been heard during the proceedings, which did not happen in this case. The courts did not take into account that the author is a woman, mother and head of a family with two children, in a difficult financial situation, and did not consider the possible disproportionate consequences of eviction for her and her children due to discrimination suffered by women, lack of equal opportunities for access to adequate housing and employment, as well as disproportionately greater, The proportion of caregiving responsibilities performed by women is higher than that of men (paragraph 12.3 of the Considerations).
The Committee noted that on 25 June 2019, the author and her children were evicted, despite the Committee's request for temporary measures and without providing sufficient alternative housing with prior consultations (paragraph 13.3 of the Views).
In the absence of an explanation by the State party of the reasons why it did not comply with the interim measures, the Committee stated that, in the circumstances of the case, the State party had violated article 5 of the Optional Protocol (paragraph 13.4 of the Views).
The Committee's conclusions: The eviction of the author and her children in the absence of a proper proportionality assessment by the judicial authorities, including consideration of the possible disproportionate consequences of eviction for the author and her family, taking into account the principle of the best interests of the child, as well as without respect for procedural guarantees in the form of adequate and genuine consultations and the right of children to be heard, constituted a violation of the right to adequate housing (paragraph 14.1 of the Considerations).