The case of Hamid Saidawi and Masir Farah v. Italy. Views of the UN Committee on Economic, Social and Cultural Rights dated March 13, 2024. Communication No. 226/2021.
In 2021, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Italy.
The authors argued that the national courts had ruled in favor of the railway company's claim to regain control of property, which it had neglected for many years, instead of guaranteeing socially vulnerable families the right to housing, inviolability and dignity. The Committee concluded that the failure to conduct a sufficiently comprehensive analysis of the proportionality of the eviction constituted a violation by the State party of the authors' right to housing under article 11 of the Covenant.
The Committee's legal position is that the human right to adequate housing is one of the fundamental rights crucial to the enjoyment of all economic, social and cultural rights, as well as other civil and political rights. The right to housing should be guaranteed to everyone, regardless of income level or access to economic resources, and Participating States should take all necessary steps to this end to the maximum extent of their available resources (paragraph 8.1 of the Considerations).
Forced evictions are prima facie incompatible with the requirements of 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 consistent with the Covenant and in accordance with the general principles of expediency and proportionality between the legitimate purpose of the eviction and the consequences of the eviction for the persons concerned. This obligation follows from the interpretation of the State party's obligations under article 2, paragraph 1, of the Covenant, read in conjunction with article 11, as well as taking into account the requirements of article 4 of the Covenant, which sets out the conditions under which such restrictions on the enjoyment of the rights provided for in the Covenant are permissible (paragraph 8.2 of the Views).
Thus, for an eviction to be justified, it must meet a number of requirements stipulated in article 4 of the Covenant. First, restrictions on the right to adequate housing must be legally enforced. Secondly, the restriction should contribute to the "general welfare in a democratic society." Thirdly, it must be proportionate to the mentioned legitimate purpose. Fourthly, a restriction should be necessary, in the sense that if one can reasonably expect that various means of achieving a given goal will be successful, then the one that least infringes on the right should be used. Finally, the positive results achieved as a result of eviction, which contributes to the common good, should outweigh its impact on the use of the restricted right. The more serious the impact on the rights enshrined in the Covenant, the more attention should be paid to the justification of such a restriction. The availability of alternative adequate housing, the personal circumstances of the tenants and their dependents, as well as their cooperation with the authorities in finding suitable solutions are the most important factors to consider when analyzing the situation. In addition, a distinction must inevitably be made between evictions from real estate owned by individuals who need it as housing or to provide vital income, and real estate owned by financial institutions or other entities. Therefore, a State party would violate the right to adequate housing if it determined that a person occupying property without legal title should be evicted immediately, regardless of the circumstances under which the eviction order should be executed. An analysis of the proportionality of the measure applied should be carried out by a judicial or other impartial and independent body authorized to issue orders to end the violation and provide effective remedies. This body must determine whether the eviction complies with the provisions of the Covenant, including the above-mentioned elements of the proportionality criterion provided for in article 4 of the Covenant. 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 violation of other rights enshrined in the Covenant. The issuance of an eviction order may also be conditioned by other factors, such as an order to the administrative authorities to take measures to assist tenants in order to reduce the consequences of their eviction (paragraph 8.3 of the Considerations).
There should be no alternative measures or measures that involve less interference with the right to housing, and the persons concerned should not be left in a situation that violates other provisions of the Covenant or human rights, or be subjected to such a situation (paragraph 8.4 of the Considerations).
Procedural safeguards that should be provided in relation to eviction include: (a) The possibility of conducting real consultations on alternative housing with affected persons and, if a lack of resources means that there are no viable alternatives, the requirement that administrative authorities present available options in order to ensure that the eviction does not leave anyone homeless; (b) Proper and informed notification of all affected persons before the scheduled eviction date; (c) Informing all affected persons, within a reasonable time, of the proposed evictions and, where appropriate, of the alternative use of land or housing; (d) The presence of government officials or their representatives at the time of the eviction, especially if it concerns groups of persons; (e) Proper identification of all persons carrying out the eviction; (f) the inadmissibility of carrying out eviction orders in particularly bad weather or at night, unless the consent of the affected persons has been obtained; g) the provision of legal remedies to challenge the eviction; and (h) Providing legal assistance to persons in need of it so that they can apply to the courts for restoration of their rights (paragraph 8.5 of the Considerations).
The Committee recalls that the State's obligations with regard to the right to housing must be interpreted together with all other human rights obligations and, in particular, in the context of eviction, with the obligation to provide the family with the widest possible protection. The obligation of States parties to provide, to the maximum extent of available resources, alternative housing to evicted persons who need it includes the protection of the family unit, especially when the evicted persons are responsible for the care and upbringing of dependent children (paragraph 8.7 of the Considerations).
In cases where affected persons are unable to provide for their livelihood, the State party should take all necessary measures, making the maximum use of available resources, to provide, as appropriate, adequate alternative housing, resettlement or access to fertile land. The State party has an obligation to take reasonable measures to provide alternative housing to persons who may become 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. 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 the person's right to housing cannot be satisfied even after taking all reasonable measures to the maximum of its available resources. The information provided by the State party should enable the Committee to assess the validity of the measures taken in accordance with article 8, paragraph 4, of the Optional Protocol (paragraph 9.1 of the Views).
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. These aspects include, in particular, the following: legal provision of accommodation; availability of services, materials, facilities and infrastructure; accessibility in terms of costs; liveability; actual accessibility; location in a healthy environment that provides access to public and social services (education, employment and health care); and cultural adequacy to ensure respect for expressions of cultural identity and diversity (paragraph 9.3 of the Considerations).
In certain circumstances, Participating States may demonstrate that even after all the efforts they have made to the maximum of their available resources, it has been impossible to provide a permanent alternative place of residence to an evicted person who needs alternative housing. In such circumstances, it is possible to use temporary accommodation in premises that do not meet all the requirements for adequate alternative housing. At the same time, States should strive to ensure that temporary housing is compatible with the protection of the human dignity of displaced persons, meets all the requirements of security and safety, and that its provision is not a permanent solution, but a step towards adequate housing. It is also necessary to take into account the right of family members not to be separated and the right to a reasonable level of privacy protection (paragraph 9.4 of the Considerations).
The Committee noted that the measures taken in the context of eviction should be reasonable and appropriate, taking into account the existing interests and circumstances of the affected persons (paragraph 10.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case: Despite the authors' various requests for social housing and the fact that social services had known about their need for such housing since 2011, the authors had not been offered any adequate alternative housing that would allow each family to stay together. The Committee notes that the authors requested a meeting with the competent authorities and provided the railway company with an opportunity to resolve their situation as tenants. These attempts at cooperation were not taken into account when deciding on the eviction of the authors. Moreover, the eviction was not the result of a request from a person who needed housing to live or earn a vital income, but a court case initiated by the State railway company, which had not paid attention to the premises for several years (paragraph 10.3 of the Considerations).
The Committee considered it appropriate to state that, in the light of the specific circumstances of these cases, an appropriate proportionality test should have taken into account: weighing the socio-economic vulnerability of the authors and their families; the differentiated impact of eviction on the authors as heads of economically precarious households; the best interests of children and their right to be heard; the authors' previous petitions for getting social housing; the availability of social housing provided by responsible administrative authorities and the availability of alternative solutions to the problem; and the long period of time during which the authors lived in these houses. In order to assess the situation of the authors, the relevant authorities should have conducted real and effective consultations with them and requested information from the relevant administrative authorities on the availability of social housing for the authors and their families (paragraph 10.5 of the Considerations).
The Committee's conclusions: Eviction of the authors and their families without proper judicial review of proportionality, without consideration of the disproportionate impact that eviction may have on the authors and their families, and the best interests of the child, as well as without due process guarantees of adequate and meaningful consultation, would constitute a violation of the authors' right to adequate housing (paragraph 11.1 of the Considerations).