Date of the decision : June 17th 2015
Jurisdiction : UN Committee on Economic, Social and Cultural Rights (under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights)
Legal basis : Article 2 §1 (obligation for States parties to achieve progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures) and Article 11 §1 (right to adequate housing) of the International Covenant on Economic, Social and Cultural Rights
M s. I.D.G, a Spanish homeowner, learned that her home was being auctioned after she fell behind on payments during the economic crisis. After her case was dismissed by the Spanish Constitutional Court, she argued before the UN CESR that the rights she enjoys under the Covenant mean that courts must ensure that notice of mortgage foreclosure is effectively served. Yet in her case, after the failed attempts to serve notice in person at her home, the Court proceeded directly to the posting of notice without making use of other forms or methods of serving notice as established in the Civil Procedure Act. As a result of the Court’s lack of diligence, she was not notified of the mortgage enforcement proceedings brought by the lending institution or of the decision to admit the proceedings, and received no other communication prior to the auction order. She argued that in practice the failure to notify her prevented her from mounting a legal response to the suit and protecting her right to housing in court, since she became aware of the existence of the proceedings only when the Court ordered the auction of her home.
Moreover, she argued that the legislation regulating mortgage enforcement proceedings does not adequately protect people’s right to mount a proper legal defence of their homes. People affected by these proceedings are in many cases unaware that their creditors have filed a lawsuit until they are dispossessed or evicted. What is more, the State party’s procedural law precludes the court in cases of this kind from taking precautionary measures to ensure that its final decision is fully effective, for example where the terms of the contract are unfair. In this regard, referring to article 2, paragraph 1, of the Covenant, Ms. I.D.G argued that the State party had not taken adequate legislative measures to achieve the full realization of the right to housing and to guarantee that right under article 11, paragraph 1, of the Covenant.
Observatori DESC and Plataforma de los afectados por la hipoteca have estimated that 400,000 mortgage foreclosures took place in Spain between 2008 and 2012, as millions faced unemployment and the national housing budget declined.
Results and key consequences of the case :
For this first case decided under the OP-ICESCR, the UN CESR has issued historic recommendations, finding Spain in violation of the right to housing, reinforcing and further interpreting Spain’s human rights obligations:
- Principle of access to justice: States are accountable for the realization of all human rights, and individuals or groups of individuals have a right to remedy if they consider that their human rights are not respected. The Committee said that Spain should assure that no eviction takes place against I.D.G., if she is not protected by due process guarantees, as well as calling on the government to cover her legal costs. The Committee also reminded Spain of its obligation to ensure that the country’s legislation and its application are consistent with human rights, including guaranteeing access to remedy, adequate notification and procedural protections in cases of foreclosure.
- Right to housing: "The human right to adequate housing is a fundamental right central to the enjoyment of all economic, social and cultural rights and is inextricably linked to other human rights, including those set forth in the International Covenant on Civil and Political Rights. The right to housing should be ensured to all persons irrespective of income or access to economic resources, and States parties shall take whatever measures are necessary to achieve the full realization of this right. Many component elements of the right to adequate housing are closely bound up with the provision of domestic legal remedies to ensure the effective enjoyment of the right" (§ 11.1) .
- Third party intervention in the case: the UN Committee on ESCR accepted a third party intervention from the International Network for Economic, Social and Cultural Rights (ESCR-Net). In accepting third party interventions from civil society, the UN Committee has opened this process to legal reasoning and related expertise from all regions, striving to provide constructive guidance to states on relevant human rights approaches and remedies.
- The ICESCR and other human rights treaties require governments to respect, protect and fulfill economic, social and cultural rights, based on their maximum available resources and with international assistance and cooperation.
This case, I.D.G. v. Spain (Communication 2/2014), represents an important opening for justice for individuals and groups affected by ESCR violations; however, countries must first ratify the OP-ICESCR before their residents can access the CESCR using the mechanism of communications. Civil society, foremost via the NGO Coalition for the OP-ICESCR coordinated by ESCR-Net, was central to the drafting and adoption of the OP-ICESCR, and the Coalition continues an active campaign encouraging countries to ratify and reinforce their existing human rights obligations by ensuring access to effective remedy.
To learn more:
To read the full case, click here.
To read OpenDemocracy article on this case, click here.