Respecting International Standards on Home Evictions

FEANTSA and Fondation Abbé Pierre´s 7th annual Overview of Housing Exclusion in Europe report was launched on Thursday 30th of June. This new report takes a look at the state of evictions in Europe. This legal analysis that follows is from chapter 3 of the report, written by María José Aldanas (FEANTSA) and Sarah Coupechoux (Fondation Abbé Pierre). Find the chapter "Respecting International Standards on Home Evictions" in PDF-format here and the full report here.

Introduction

Although legal and commonplace, home evictions threaten a fundamental right of citizens; that of the right to decent housing. There are several types of evictions: so-called judicial evictions, which aim to return property to owners; and so-called administrative evictions, which are carried out for reasons of public interest. For the purpose of this chapter, we will focus on the former.

Moratoria on rental evictions of varying lengths were introduced across Europe during the pandemic. In April 2020, Leilani Farha, then UN Special Rapporteur on the right to housing, called on States to take immediate action against rental evictions: ‘Evictions are not only inconsistent with the “stay home” policy, but forced evictions are a violation of international human rights law’.[1]

Eviction moratoria have repeatedly been extended in the majority of EU states. However, they have now mostly been lifted and hundreds of thousands of people are at risk again. Organisations active across Europe highlighted this risk in June 2021, calling on EU Member States to take immediate and effective action to avoid a surge in evictions throughout Europe.[2]

This chapter aims to provide an overview of international and European law concerning home evictions to help housing rights advocates in their dealings with national and local governments.

Relevant standards of international law

International law recognises the right to adequate housing both as an essential component of the right to an adequate standard of living and as a distinct right in itself. This is a particularly complex right that is not limited to the mere right to shelter, but rather as an entitlement to “a place to live in peace, security and dignity”. 

Article 25(1) of the  Universal Declaration of Human Rights provides for the right to an adequate standard of living for all, including the right to adequate housing.

Article 11(1) of the International Covenant on Economic, Social and Cultural Rights states that everyone has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

According to the Committee on Economic, Social and Cultural Rights,[3] the body responsible for interpreting the International Covenant on Economic, Social and Cultural Rights, adequate housing encompasses seven components according to General Comment No. 4. The first of these is the legal protection of tenure, which implies a certain degree of security of tenure that guarantees legal protection against forced evictions, harassment, and other threats.

General Comment No. 7 is entirely devoted to forced evictions, which can be broadly defined as the ‘permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’. Cases of forced evictions are prima facie incompatible with  the requirements of the above Covenant. They can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.[4]

Under Article 31(3) of the European Social Charter, States Parties must take action to prevent categories of persons in vulnerable situations from becoming homeless.[5] This includes a housing policy for all disadvantaged groups of people in order to ensure their access to social housing (Article 31(3) of the Social Charter).[6] [7]

Even if evictions are considered justified under domestic law (e.g. in cases of persistent arrears of rent or damage to rented property without reasonable cause), they should not result in people being made homeless or vulnerable to a violation of other rights – under international human rights law.

In Resolution of 21 January 2021 on access to decent and affordable housing for all,[8] the European Parliament states that a number of criteria must be met in order for an eviction to comply with international human rights law.

29. (...) including meaningful engagement with those affected, exploration of all viable alternatives, relocation to adequate housing with the agreement of the households affected, so that no one is rendered homeless, as well as access to justice to ensure procedural fairness, and compliance with all human rights; calls on the Commission and the Member States to ensure that where these criteria are not met, evictions are deemed to have been forced, and to constitute a violation of the right to housing;

In order to combat abuses, protect tenants from unlawful evictions, and protect their integrity and dignity, compliance with international standards on home evictions is therefore of vital importance.

Several fundamental principles stand out with regard to this legislation, i.e. recourse to the courts, the principle of proportionality, protection against evictions during winter, and provision of alternative accommodation or housing.

Recourse to the courts

All evictions without recourse to a third decision-making authority are banned.

Principle

Evicted individuals must have access to legal proceedings in which a court can review the legality of the eviction. In particular, a judge should be able to suspend or annul the eviction if the rights of the residents are not respected and to take interim measures in cases of illegal eviction.

All illegal evictions, i.e. those without recourse to a third decision-making authority, are banned. Evictions can therefore only be decided by the judge, upon request of the landlord or owner, or by the administrative authorities.

Case law

According to the ECHR, an order issued by the authorities to leave a dwelling must be necessary and meet procedural safeguards as part of a fair decision-making process before an independent tribunal which meets the requirements of Article 8 (Connors v. the United Kingdom, Sections 81-84; Bjedov v. Croatia, Sections 70-71).[9]

In an example of home repossession, Monika Kusionova v. SMART Capital A.S., C-34/13 from 20 September 2014,[10] the Court of Justice of the European Union recognises that the loss of the family home is not only likely to seriously affect consumer rights,[11] but also places the family of the consumer concerned in a particularly difficult situation.[12]

The Court of Justice of the European Union found that ‘the possibility for the competent national court to adopt any provisional measure would appear to constitute an adequate and effective means of putting an end to the application of unfair terms’. It concluded that ‘the provisions of Directive 93/13 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings. The legislation permits the recovery of a claim based on potentially unfair contractual terms through the extrajudicial enforcement of a security interest over the immovable property provided as collateral by the consumer. This is only insofar as that legislation does not, in practice, make it impossible or excessively difficult to safeguard the rights which that directive confers on the consumer as this is a matter for the national court to ascertain’ (see point 68, provision 1).

The Court of Justice of the European Union stated that the legal context of the case included Article 7 of the above Charter (right to respect for private and family life): ‘In Union law, the right to housing is a fundamental right guaranteed by Article 7 of the Charter which the referring court must take into account when implementing Directive 93/13’, and Article 38, which requires a high level of consumer protection. This decision is remarkable because of its strong emphasis on consumers’ fundamental rights under EU law.

Evictions due to mortgage default or home repossession must be carried out in accordance with the law, and those affected must be able to effectively challenge the eviction and receive sufficient notice to do so. In particular, a judge should be able to suspend or annul the eviction if the rights of the residents are not respected and to take interim measures in case of illegal eviction.

In the case of Aziz, the Court of Justice of the European Union ruled that the state must put in place a system to effectively protect consumers against the risk of eviction from their homes as part of enforcing mortgage guarantees, until a final court decision is made.[13]

In the Banco Popular Espagnol SA case,[14] the CJEU ruled that the State must allow the judge to assess the unfairness of a clause in the contract in the context of home repossession proceedings, and to adopt interim measures to ensure the maximum effectiveness of the final measure, i.e. to suspend the proceedings if necessary.

Practices in Member States

In Spain’s 2008 fiscal crisis, many people were unable to effectively challenge their eviction or were not given adequate notice to do so. In practice, thousands of evictions in Spain, affecting vulnerable groups in particular, were carried out under a legal procedure that did not guarantee the owners a genuine right to challenge the contractual terms of the loan. This, coupled with irresponsible lending practices, reveals how Spain has failed to provide sufficient protection against evictions in both law and practice.[15]

CJEU rulings have allowed Spanish judges to temporarily suspend evictions while proceedings to investigate the possible existence of unfair terms in their contracts take place. The government has had to reform the law to ensure compliance with European requirements on several occasions.

In order to protect tenants against evictions with the intervention of public, France’s 2014 Alur Law deemed it a criminal offence to ‘force a third party to leave the place they live without having obtained the assistance of the State’ via a final court decision, using ‘force, threats, assaults, or constraints’. The penalty is three years' imprisonment and a fine of EUR 30,000 (Art. 226-4-2 of the French Criminal Code).

The principle of proportionality

Principle

When a landlord demands the eviction of a tenant, the courts are confronted with the enforcement of two different sets of rights that may be contradictory or conflicting, i.e. the right to property and the right to housing. The loss of a home is an extreme form of interference with the right to respect for the home. Any person facing eviction should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of relevant principles, such as the right to respect for his or her private and family life (Article 8 of the European Convention on Human Rights; Article 7 of the EU Charter of Fundamental Rights), even if his or her right to tenure has ended (McCann, 2008).[16]

The principle of proportionality requires that particular attention be paid to the consequences of an eviction, in order to determine its reasonableness, in particular whether it leads to homelessness, regardless of whether the tenure is legal or not. For an eviction to be justified, three criteria must apply: legality, legitimacy and necessity in a democratic society, a criterion established by case law and made famous by the European Court of Human Rights judgement Winterstein and Others v. France [17]

Case law

The main cases in which the European Court of Human Rights has recognised violations of the Convention concern forced evictions of Roma or Travellers include Connors (2004), Yordanova (2012), Winterstein (2013) and Bagdonavicius (2016). The principle of proportionality must be applied in cases of residents in public land.

In the case of Yordanova v. Bulgaria,[18] the European Court of Human Rights  found that circumstances threatening an entire community and a long-term settlement should be treated entirely differently from normal cases of an individual being evicted from illegally occupied property.

In Winterstein v. France, the applicants alleged a violation of Article 8 of the European Convention on Human Rights because of an eviction from land which they had been living on for a long time. The European Court of Human Rights found that the requirement that the applicants vacate the land and remove all edifices constituted an interference with their right to respect for private and family life, and a home. It held that, although this interference is lawful and pursues the legitimate aim of defending the rights of others via environmental protection, it cannot be regarded as ‘necessary in a democratic society’ within the meaning of the above Article 8.

In Hirtu and Others v. France, 2020,[19] concerning the eviction of Roma living in an unauthorised encampment, the European Court of Human Rights stated that their needs as an underprivileged social group has to be taken into account in the proportionality assessment that national authorities had a duty to undertake (Section 75).

In two more recent cases, Faulkner v. Ireland and Mc Donagh v. Ireland,[20] the Court stated as follows: ‘In considering whether an eviction is proportionate, whether the home had been legally established will be relevant. If so, this factor will weigh against the legitimacy of requiring the person to move. Conversely, if the home was illegally established, the individual’s position would have to be regarded as less strong.’

The European Court of Human Rights has ruled that Article 8 of the European Convention on Human Rights does not require a proportionality test for private rental sector evictions, consequently limiting the applicability of this principle to the public sector. In F.J.M. v. the United Kingdom,[21] the applicant was evicted following a possession order without being able to raise defence on the grounds of proportionality. The applicant claimed that the order was disproportionate in her case, and that she should have been able to ask the court to undertake a proportionality assessment before granting a possession order and evicting her. The application based on UK evictions in this case was declared inadmissible. The European Court of Human Rights found that there was no requirement for a proportionality check for occupiers of private sector premises.

However, the system of the International Covenant on Economic, Social and Cultural Rights has recently paved the way for a broader approach – based on state obligations – to be taken. The Committee on Economic, Social and Cultural Rights  in López Alban v. Spain,[22] found that Spain had violated the right to housing of the applicant and her children, as their eviction had taken place without guaranteeing them adequate alternative accommodation and without a prior assessment of proportionality. The CESCR explains that: ‘the principles of reasonableness and proportionality might make it necessary to suspend or postpone the eviction order so as to avoid subjecting the evicted persons to situations of indigence or violations of other rights contained in the Covenant.’

Practices in Member States

In France, several court decisions have introduced the principle of proportionality in favour of residents’ rights.[23] This is the case of a decision handed down by the Montreuil District Court ruling on an eviction: ‘In the absence of a specific plan by the municipality justifying the recovery of the premises, a disturbance to public order and any steps taken by the Town Hall to provide these destitute families with alternative to eviction, the Court holds that this eviction disproportionately infringes on the right to respect for private and family life and to a home’.[24]

Undertaking a proportionality assessment that the district judge had avoided, the Versailles Court of Appeal held that ‘the consequences of the immediate and provisional execution of the decision, given in summary proceedings ‘are manifestly excessive in the absence of any effective proposal for rehousing and schooling for the children’.  [25]

Protection and support for residents

Principle

In order to preserve the privacy and dignity of residents, international law provides for certain safeguarding measures and prohibits evictions from homes at night and during winter.

Case law

In the case of European Roma Rights Centre (ERRC) v. Greece,[26] the European Committee of Social Rights held that evictions should take place in accordance with applicable rules of procedure that are sufficiently protective of the rights of the persons concerned and enforced in accordance with these rules. Protection for those threatened with eviction should include: a duty to consult with the parties concerned to find alternative solutions, a duty to give reasonable notice, a ban on night or winter evictions, access to legal remedies, access to legal aid, and compensation for unlawful evictions.

The European Committee of Social Rights reiterated these principles in the case of ERRC v. Bulgaria, no. 31/2005, of 18 October 2006, finding in particular that evictions should be prohibited at night and in winter.

Since 2013, the UNC Committee on Economic, Social and Cultural Rights is competent to receive and consider communications from individuals who complain that their rights have been violated. It has repeatedly ruled on the violation of the right to housing guaranteed by the constitution and on evictions in Spain, and more than a hundred complaints are still pending.[27]

In M.B.D. v. Spain,[28] the Committee on Economic, Social and Cultural Rights highlighted the obligation on the state to take positive steps to guarantee the right to housing even where eviction is justified. However, certain conditions must be met, including access to effective judicial remedies, genuine consultation with those concerned, consideration of alternatives, guarantees that eviction will not result in the violation of other rights, special protection for vulnerable groups, and reasonable steps to provide alternative accommodation.

At the same time, the above committee requested the following ‘individual recommendations’ from the Spanish government in 2015:

According to the European Social Charter, eviction is the deprivation of housing on grounds of either insolvency or wrongful occupation.[29] States must put in place procedures to limit the risk of eviction. The obligation to promote and provide housing also includes a guarantee against unlawful eviction.[30]

To be consistent with the European Social Charter, legal protection for individuals threatened with eviction must be provided by law and include:

• an obligation to consult with those concerned to find alternative solutions to the eviction;
• an obligation to give reasonable notice in advance of the eviction date;
• a ban on evictions at night or in winter;
• the provision of legal remedies;
• access to legal aid; and
• compensation in the event of an illegal eviction.

Practices in Member States

Winter bans on evictions exist in Austria, Belgium’s Brussels-Capital, and Wallonia regions (for social housing and under certain conditions), Bulgaria (discretionary for courts), France, Hungary, Poland, and Romania.[31]

In France, eviction proceedings against tenants who do not pay their rent are suspended in winter, even in the case of substantial rental arrears. The winter ban runs from 1 November to 31 March.[32] After an extension to the winter ban, evictions have resumed against a backdrop still marked by the pandemic. An inter-ministerial circular dated 28 April 2021 instructing prefects not to enforce an eviction order without alternative accommodation in place has only been partially complied with. Although a predicted explosion of rental evictions on 1 April 2021 did not happen and government measures to compensate landlords have been taken, this does not mean that individual cases have been resolved. The fear remains that from April 2022 onwards, the various court decisions on evictions will be enforced by the prefectures after the reprieve granted over the last two years.[33]

Suspending the enforcement of an eviction order granted by a court is a key measure to protect occupants, and effectively prevent evictions leading to homelessness. This allows the occupant to remain in their home – sometimes indefinitely. Such suspensions are often granted at the discretion of the court on humanitarian or personal grounds, although in some cases there are prescribed criteria that may be related to characteristics of a household and other factors such as the availability of alternative accommodation. In general, suspensions are intended to ensure the protection of children and to enable vulnerable households to access social or financial support and alternative accommodation.

In many Member States, such suspensions are prescribed by law (ES, FI, FR, HU, IT, LT, LV, PL, PT, and SI). In general, suspension of an eviction decision is not possible or is limited (BE and DK), and in some Member States it is limited to certain reasons (DE, EE, ES, IE, IT, LT, LV, PT, and UK) such as the ability to repay, existence of children/disabled persons in a household, or the fact that the dwelling is located in a municipality with 'significant housing problems’.[34]

In Germany, a court can prohibit or temporarily suspend the enforcement of an eviction order if it causes ‘immoral hardship’ to a tenant. ‘Immoral hardship’ exists when the eviction endangers the life or health of the tenant, e.g. in cases of serious physical or mental illness, or restricting health conditions due to old age or impending childbirth (Article 765a of Germany’s ZPO). [35]

Italian legislation allows for the suspension of court-authorised evictions, sometimes indefinitely, for social reasons, which can be seen as a response to the lack of affordable rental housing and the inadequacy of the housing market. Accordingly, it is possible to have up to four rental suspensions on evictions – up to 90 days, up to 18 months, or almost indefinitely – where housing difficulties are experienced. [36]

In Spain, organisations have criticised the Spanish government’s inadequate and insufficient response to the recommendations issued by the Committee on Economic, Social and Cultural Rights. A civil society organisation was set up to follow up on the implementation of decisions and recommendations.[37] In the Sixth Periodic Report of Spain dating from 2018, the Committee on Economic, Social and Cultural Rights highlighted the measures adopted by Spain for the prevention of evictions due to repossession or rental arrears but denounced the lack of an appropriate legislative framework determining the necessary legal and procedural guarantees. It reiterated its previous recommendation and called on the Spanish government to adopt a legislative framework setting out the requirements and procedures for eviction.[38]

Provision of alternative accommodation”

Principle

Where persons affected by evictions are unable to provide for themselves, the State in question shall make provision for the adoption of all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement, or access to productive land, as appropriate, is available.  

If an eviction can be justified as being in the public interest, States must rehouse or financially support evicted households. ‘Legal safeguards must be in place including the provision of adequate housing alternatives to ensure that individuals, particularly children, women, and those with illnesses or disability, are not left homeless or vulnerable’.[39]

Case law

In the above case of M.B.D. and Others v. Spain,[40] the UN Committee on Economic, Social and Cultural Rights found that the eviction of the applicants and their two minor children despite no alternative accommodation constituted a violation of their right to adequate housing. This decision criticised Spain, recommending that ‘the necessary measures to ensure that evictions affecting persons who lack the resources to secure alternative housing are only carried out after (...) has taken all the necessary steps, to the maximum of its available resources, so that the evicted persons have access to an alternative dwelling, especially in those cases involving families, the elderly, children and/or other vulnerable people’. The burden of proof is therefore on the State to show that it has considered all relevant circumstances and taken all reasonable steps to the maximum of its available resources. The Committee on Economic, Social and Cultural Rights ruled that a heavier burden existed since the best interests of two minor children were at stake.

In the case of ECHR v. Bulgaria,[41] the European Committee of Social Rights found that ‘the evictions (...) would constitute a violation of the right to housing and its corollary of not making individual[s] homeless’. It reiterated that ‘States parties must ensure that eviction procedures are justified and carried out in conditions that respect the dignity of the persons concerned, and that alternative accommodation is available’.

In the case of Yordanova and Others v. Bulgaria,[42] the eviction was suspended with an interim measure ordered by the European Court of Human Rights. The government had not demonstrated that alternatives to eviction had been seriously considered, for example, by legalising construction, installing pipes for drinking water and sewage disposal, and providing assistance in finding housing where necessary. The authorities also failed to take into account the risk of applicants becoming homeless.

In the recent case of Faulkner v. Ireland, [43] the Court held that ‘if no alternative accommodation is available, the interference is more serious than when it is available. The more suitable the alternative accommodation, the less serious the interference constituted by the applicant’s removal from his or her current accommodation’. Assessing the suitability of alternative accommodation is a task that involves taking into account the particular circumstances and needs of the people concerned as well as the requirements, rights, and interests of the local community. In this regard, a wide margin of discretion should be given to the national authorities who are clearly better placed to make such an assessment.

In this same case, the European Court of Human Rights recalled the limits of the scope of Article 8 of the European Convention on Human Rights. The Court reiterated that this provision does not recognise the right to be provided with a home - let alone in a particular location or confer a right to have housing problems resolved by the authorities; with the obligation to take positive steps to house the homeless limited in scope (see Hudorovič and Others v. Slovenia, nos. 24816/14 and 25140/14, 114, 10 March 2020).[44]

Practices in Member States

In practice, many people are not rehoused after being evicted. ‘In Europe, there is evidence that while a large majority of evicted households managed to find accommodation, a quarter remained homeless’ (FEANTSA, 2017). Benjaminsen and Others (2015) found that 21% of homeless people in Denmark considered eviction to be a determining factor in their situation. Some 25% of homeless people in Sweden, 7% in Greece, and 54% in Slovenia considered eviction to be a causal factor (Socialstyrelsen 2012; Klimaka 2008; Dekleva and Razpotnik 2007). This Danish study also found that one year after an eviction, 18% of those evicted were not included on the housing register, meaning that they were still experiencing unstable living conditions (staying with friends or family) or homeless. In Finland, a quarter of evicted people were facing housing exclusion. Some 78% of those evicted were male and 22% were female (Erkkilä and Stenius-Ayoade 2009).[45]

According to a study of 66 evicted households conducted by the Foundation Abbé-Pierre in France, 32% had not found a permanent home within timeframes ranging from one to three years later. [46]

The Spanish government waited several years before starting to enforce the decisions and recommendations of the UN Committee on Economic, Social and Cultural Rights. A draft law on the right to housing is likely address these issues. According to announcements detailed on the Spanish government’s website, there appears to be a willingness to act in several areas, including improving the regulation of the eviction procedure in vulnerable situations or regulating the proposal of housing solutions by the social services to the persons concerned, thus avoiding homelessness following eviction.[47] Some civil society organisations and parliamentary groups have tabled amendments to ensure that the legislation reflects their demands.[48]

Suspension of evictions through interim measures

In cases of serious violations of fundamental rights, some courts provide for emergency mechanisms to suspend eviction proceedings.

Under Rule 39 of its Rules of Procedure, the European Court of Human Rights may, recommend interim measures to any State Party to the European Convention on Human Rights. According to established legal practice, interim measures are urgent measures which only apply where there is an imminent risk of irreparable harm.

Interim measures are only applied in limited areas, such as threats to life or ill-treatment prohibited by Article 3 of the European Convention on Human Rights (prohibition of torture or inhuman or degrading treatment). More exceptionally, such measures may be recommended in response to certain requests concerning the right to respect for private and family life (Article 8 again). The European Court of Human Rights can decide to suspend an eviction where the victim has no alternative accommodation lined up.[49]

In Spain, the European Court of Human Rights ordered the suspension of evictions where no alternative accommodation has been offered under Articles 3 and 8 of the European Convention on Human Rights: A.M.B. and Others v. Spain,[50] Raji and Others v. Spain,[51] and Ceesay Ceesay and Others v. Spain.[52] In the latter case, the European Court of Human Rights gave the Spanish government 20 days to explain the measures that the local authorities would implement in order not to violate the Convention, with special reference to children, housing, and social welfare.

In the case of P.H. and Others v. Italy,[53] the applicants made a request to the European Court of Human Rights for interim measures under Article 39, requesting that the State provide them and their families with adequate accommodation and suspend further evictions. It adjourned a review of the application after asking the parties to provide more information. While it was not clear from the Italian government’s response to the European Court of Human Rights questions whether the applicants had been rehoused or not, an interim measure was introduced ordering the provision of temporary accommodation for the minors and their parents without separating them.

In the Yordanova case referred to above, the European Court of Human Rights granted an interim measure to stop the eviction of a long-established Roma community after they had exhausted all available remedies in the Bulgarian legal system.

Similarly, the European Committee of Social Rights can also provide for immediate action under Rule 36 of its Rules of Procedure. This occurred in the European Roma Rights Centre (ERRC) v. Belgium case[54], complaint no. 195/2020.  

Supplementing the provisions of the European Social Charter above, the European Committee of Social Rights has established that where evictions take place, ‘it is the responsibility of the state to ensure that evictions, when carried out, respect the dignity of the persons concerned even when they are illegal occupants, and that alternative accommodation or other compensatory measures are available’. The European Committee of Social Rights also made a statement in this regard in the case of FEANTSA v. France, recalling that evictions ‘must be justified, and occur in a way that respects the dignity of the persons concerned, and that alternative accommodation is available’.[55]