Message: I.D.G. v. Spain. Message No. 2/2014. The Opinion was adopted by the Committee on June 17, 2015.
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
Subject matter: Measures to ensure the full realization of the right to adequate housing.
The Committee's legal position: 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 guaranteed 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. Many elements of the right to adequate housing are closely linked to the availability of appropriate domestic remedies to ensure the effective exercise of this right (paragraph 11.1 of the Opinion).
All persons should enjoy a certain degree of security of residence, which guarantees legal protection against forced eviction, persecution and other threats, and that forced evictions, being prima facie incompatible with the requirements of the International Covenant on Economic, Social and Cultural Rights, can be justified only in the most exceptional circumstances in accordance with the relevant principles of international law. The Committee considers that, in the context of forced eviction processes or processes in which the provision of accommodation may be affected and which may eventually lead to eviction, States parties should ensure that due process is followed so that, in particular, all interested persons have a real opportunity to consult, as well as advance notification of these persons within a sufficient and reasonable time before the set date of eviction (paragraph 11.2 of the Considerations).
Article 2 of the Covenant imposes a number of obligations of an urgent nature. Thus, in accordance with article 2, paragraph 1, of the Covenant, States parties are obliged to take measures to implement the rights recognized in the Covenant "by all appropriate means, including, in particular, the adoption of legislative measures". This requirement includes the adoption of measures to ensure access to effective judicial remedies in respect of the rights recognized in the Covenant, since, as the Committee noted in its general comment No. 9, every right presupposes the existence of a remedy (paragraph 11.3 of the Opinion).
In accordance with the obligation contained in article 2, paragraph 1, of the Covenant, States parties are obliged to provide persons whose right to adequate housing may have been affected, for example in connection with forced eviction or mortgage foreclosure, with an effective and appropriate remedy (paragraph 11.4 of the Considerations).
In accordance with his general comment No. 7, due process of procedure and due process of law are important aspects of all human rights and are particularly important in cases of forced evictions; and that these procedural safeguards of protection include, inter alia, proper and reasonable notification by the State party of all affected persons before the established date the dates of eviction and the provision of legal remedies to these persons. The Committee considers that such remedies are also suitable for other similar cases, such as mortgage foreclosure, where the right to housing may be seriously affected (paragraph 12.1 of the Considerations).
The Committee considers that, in compliance with the above-mentioned obligations, the authorities are obliged to take all reasonable steps and efforts aimed at ensuring that notifications of the most important decisions and judgments of the court in administrative or judicial proceedings are carried out in an appropriate and effective manner so that the affected persons can assert their rights in the relevant process (paragraph 12.2 of the Views).
Notification by publication of an order may be an appropriate means of judicial notification in accordance with the right to effective judicial protection; however, the Committee considers that its use in cases involving possible violations of human rights such as the right to adequate housing, which require judicial supervision, should be a last resort, especially with regard to actions initiating appropriate production. Its use should be strictly limited to cases where all possibilities of personal notification have been exhausted; and it should provide for sufficient and early publicity so that the person concerned has a real opportunity to learn about the beginning of the process and participate in it (paragraph 12.3 of the Opinion).
Improper notification of foreclosure on a mortgage loan, which prevents the person concerned from protecting his rights, constitutes a violation of the right to housing (paragraph 12.4 of the Considerations).
When considering communications, it is not the task of the Committee to verify whether domestic judicial and administrative procedures were in fact in accordance with national legislation. The Committee's work is limited to an analysis of whether the proven facts of the communication constitute a violation by the State party of the economic, social and cultural rights enshrined in the Covenant. Accordingly, the Committee considers that, in each particular case, the responsibility for assessing facts and evidence or for the application of domestic law lies primarily with the courts of the States parties and that these aspects are relevant only if it seems obvious that the assessment of relevant evidence or the application of domestic law is manifestly arbitrary or amounts to a denial of justice, which implies a violation of a right recognized in the Covenant (paragraph 13.1 of the Opinion).
The Committee's assessment of the factual circumstances of the case: [a] the author claims that due to a number of non-payments on her mortgage loan taken out to buy a home where she lives, in 2012 the credit institution began the procedure for collecting this loan, which the author was not properly notified about, as she learned about this collection only after an order was issued to put her home up for auction. As a result, the author believes that in fact she did not have access to effective and timely judicial protection, which prevented her from challenging this claim and defending her right to housing in court, and therefore she is still in a state of helplessness, uncertainty and anxiety (paragraph 10.2 of the Considerations).
The State party argues that in her appeal, the author referred to another address belonging to her family members, in connection with which the above-mentioned dwelling is not her permanent place of residence; that court No. 31 sent the author notifications of the enforcement of this penalty in accordance with the law at the address that the author herself notarized a certified mortgage loan agreement; that only after a number of unsuccessful attempts to notify the author personally, Court No. 31 ordered the notification to be carried out by publishing an order in accordance with paragraph 3 of article 686 of the CPC (Code of Civil Procedure of Spain.); and that notification by publishing a court order meets the requirements of the right to effective judicial protection. In addition, the State alleges that the author allegedly voluntarily refused to receive notification of the appropriate penalty and court decision No. 31 on the initiation of enforcement proceedings ..., as indicated in the notification dated September 28, 2012. Finally, the State party informed the Committee that the eviction, foreclosure or sale of the mortgaged housing had not been carried out in any case, since the author had submitted an ordinary remedy on the basis of which the enforcement proceedings had been suspended, i.e. the author still lived in this dwelling and her rights had not been infringed (paragraph 10.3 of the Views).
With regard to the nature of the mortgaged housing that is the subject of the present communication, the Committee takes note of the author's explanation that by another address belonging to her family members mentioned by her in the enforcement proceedings, she meant the housing of one of her family members ... while she lives in housing, which is in question; and that she is not the owner of any other housing. The documentation provided by the author ..., which has not been disputed by the State party, confirms her claims. The documentation submitted to the Committee indicates that the dwelling in question is the author's permanent place of residence and that she is not the owner of any other dwelling. Thus, in the light of the documents of the present case, as well as information received from the parties, the Committee considers the housing in question as the author's permanent residence (paragraph 10.4 of the Opinion).
As for the author's absence on September 28, 2012, when the notification of the filing of the claim of the credit institution and of the court decision No. 31 on its acceptance for production was made, the Committee notes that neither the copy of the notification of the General Directorate of Judicial Notices and Law Enforcement Procedures of the City of Madrid[a] dated September 28, 2012, submitted by the author, nor any other document does not indicate that the author was in her permanent place of residence and refused to receive the notification made by court order No. 31 (paragraph 10.5 of the Opinion).
In the light of the Committee's findings on the facts of the present case, the main legal question related to the present communication is whether the author's right to housing, as enshrined in article 11, paragraph 1, of the Covenant, was violated as a result of the initiation by the State party of enforcement proceedings for foreclosure on a mortgage loan, as alleged by The author, she was not properly notified, which prevented her from defending her rights recognized in the Covenant (paragraph 10.6 of the Considerations).
According to the documents of the present case, on June 21, 2012, Court No. 31 initiated enforcement proceedings to foreclose on the author's mortgaged real estate. However, the author only found out about this on April 4, 2013, when she received notification of an order to auction her real estate, without being able to defend her rights during enforcement proceedings. In September and October 2012, four unsuccessful attempts were made to notify the court decision No. 31 on the acceptance of the claim for production, since the author was absent from her place of residence, the address of which she indicated for sending notifications. The bailiff confirmed that her name was on the mailbox in the relevant building; and that the concierge was present there at least twice, as noted in the documents of the General Directorate of Judicial Notices and Law Enforcement Procedures of the City of Madrid[a]..., which, accordingly, was accepted or should have been taken into account by Court No. 31. On October 30, 2012, Court No. 31 gave permission to publish its order for a bulletin board for the purpose of implementing a notification that was not brought to the attention of the author in a timely manner (paragraph 13.2 of the Opinion).
The Committee pays tribute to the repeated efforts of Court No. 31 aimed at personally notifying the author of the court's decision to accept a foreclosure case against her mortgaged real estate. However, the Committee considers that the State party has not proved that Court No. 31 has exhausted all available means of making personal notification (for example, did not explain [lo] the reasons why Court No. 31 did not notify the author by leaving a note or notification in her mailbox, or in any other way provided for in the CPC, such as as the delivery of a notification to the concierge or a neighbor from the nearest apartment), and limited itself to indicating that after unsuccessful attempts to notify the author, the notification in accordance with the law was carried out by publishing an order. In addition, the State has not provided any serious justification for its claim that during one of the notification attempts, the author allegedly hid so that the notification would not be handed to her personally. Thus, the Committee considers that, even if it can be concluded that the notification of the author by publishing the order is in accordance with the CPC, such notification of foreclosure must in any case be appropriate in accordance with the norms of the Covenant relating to the right to housing ..., which in this case were not respected, i.e. the notification was inappropriate (paragraph 13.3 of the Opinion).
This violation in the notification procedure would not constitute a violation of the right to housing if it did not have significant consequences for the protection of the author's right to the effective use of his home, for example, if the person concerned could have resorted to another appropriate procedural mechanism to protect his rights and interests. The position of the State party seems to be exactly this, since it argues, without giving serious reasons, that the author's loss of the opportunity to participate in enforcement proceedings does not have serious consequences, since in any case, the possibilities of protection available to the debtor during enforcement proceedings are very limited from a legal point of view, but he, in turn, has the option of ordinary proceedings is available, allowing him to challenge the payment of a mortgage loan without any restrictions; and that the author submitted a written statement in accordance with paragraph 3 of Article 695 of the CPC, referring to the illegality of a number of provisions of the mortgage loan agreement, and she even managed to achieve the suspension of enforcement proceedings and the sale of her home, since, by virtue of a recent decision of the European Court of Justice, these ordinary remedies allow, inter alia, to suspend Foreclosure on mortgaged property and its sale (paragraph 13.4 of the Considerations).
In the context of the present communication, due to the specifics of the issue of improper notification raised by the author, it is not the task of the Committee to generally consider whether the internal rules of the State party governing the foreclosure of mortgaged real estate (in particular, a house or apartment) and its subsequent sale comply with the right to housing... In this case, the Committee is limited to considering whether, by virtue of the already established improper notification of the author, her right to protection was significantly affected, which would mean a violation of the right to housing (paragraph 13.5 of the Opinion).
According to the CPC in force at the time of these events, the debtor can challenge the auction on very limited grounds, such as repayment of a mortgage pledge or a corresponding obligation, as part of the enforcement procedure of a court decision. As part of this process, he cannot challenge, for example, illegal provisions of the contract. On the contrary, ordinary proceedings provide the debtor with broad and open grounds for challenging the relevant loan. In this case, it can be argued that failure to appear for enforcement proceedings is not necessarily a particularly serious circumstance, since in any case, the debtor has at his disposal the option of ordinary proceedings to assert his rights. But in order for this provision to be justified, ordinary proceedings should make it possible to suspend enforcement proceedings and auction of the relevant real estate object, since otherwise protection through ordinary proceedings will not be enough to ensure the right to housing, since the relevant person will not be able to prevent the sale of his real estate; he will have the opportunity to receive in the end only compensation or the return of property, if possible. The Committee considers that improper notification of the author took place on October 30, 2012, when Court No. 31 issued the relevant order. The State party must be referring to the decision of the European Court of Justice in case N C-415/11, Mohamed Aziz v. Catalunya, dated March 14, 2013, adopted a few months after this improper notification. So, based on this decision, it is obvious that until that moment declaratory lawsuits did not allow suspending the foreclosure procedure on the mortgaged property. Thus, the author was deprived of the opportunity to protect her interests during the enforcement proceedings in order to ultimately prevent the auction, and at the time of improper notification, ordinary proceedings could not even be considered as an adequate possible alternative mechanism, since it did not allow the suspension of enforcement proceedings (paragraph 13.6 of the Considerations).
The Committee considers that this improper notification at that time constituted a violation of the right to housing, which was not subsequently corrected by the State party, since the author was refused both the annulment of the court decision on the auction and the amparo procedure, according to which she appealed to the Constitutional Court (paragraph 13.7 of the Opinion).
Taking into account all the submitted materials, the Committee considers that the facts at its disposal indicate that court No. 31 did not take all reasonable measures to properly notify the author of the claim of the credit institution for foreclosure on the mortgaged property ... in order to ensure that it really informed of the commencement of proceedings in this case, and, as a result, Court No. 31 deprived the author of the opportunity to properly defend his right to housing in court (paragraph 14 of the Opinion).
The Committee's conclusions: By failing to comply with its obligation to provide the author with an effective remedy, the State party violated her rights under article 11, paragraph 1, of the Covenant, read in conjunction with article 2, paragraph 1, of the Covenant.