Date of the decision: 18 February 2021
Country: Spain
Jurisdiction: Committee on Economic, Social and Cultural Rights
Legal basis: Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights
Subject: Eviction of claimants from their home - Right to adequate housing
The applicants seized the UN Committee on Economic, Social and Cultural Rights (CESR) complaining that Spain has violated their rights and those of their children under article 11 (1) of the Covenant, by proceeding to the eviction of the family from their rental apartment and by moving them from state hostels to shelters without providing them with adequate permanent housing.
Ms El Goumari and Mr Tidli’s and their four children, two of them with disabilities, lived in an apartment paying 480€ monthly rent. When Mr Tidli lost his job they could not continue to pay the rent. In January 2018, a Court of First Instance in Madrid declared the rental agreement terminated for non-payment and ordered the family to leave the unit. They applied for a stay of eviction, but in March 2018 several attempts of eviction were made and in April they were finally evicted. They were rehoused in an emergency housing of the municipality where they stayed for ten days before being moved to a shelter where they stayed for over six months. The applicants stated the shelter they were housed in was in very poor conditions, in an overcrowded situation and with cockroaches and bedbugs and shabby mattresses.
In October 2018, when being seven months pregnant, MS El Goumari had a miscarriage.
After that, the family was again relocated to first a Municipal emergency hostel and then another hostel. After the maximum time allowed for a stay in the hostel was over, they were offered a place at the municipal emergency social service centre but declined due to overcrowding living conditions. They found an apartment in an irregular settlement where they pay 300€ rent, but have only an oral rental agreement. Because of their precarious situation, the family has no right to any social benefit.
The Government’s view
The Government argued that it had provided for the applicants’ family’s basic needs as the State grants them free access to public health and education. The Spanish State sustained that the right to housing is not an “absolute right to be provided with housing by the authorities if public resources are insufficient for the provision of such housing”. Furthermore, the Spanish state argued that there had been no violation of art. 11(1) of the covenant because socials services had been notified of the scheduled evictions and they had been following the families’ needs since 2003 and they had made efforts to help the family find a place to live and work for Mr Tidli.
The applicant’s view
The applicant underlines that after the evictions the State let them in a state of “total uncertainty”. Furthermore, the Court of First instance of Madrid had not carried out a proportionality test. The accommodation they were provided with was not adequate housing, especially not for a family with four children, including a pregnant mother and two children with disabilities.
Admission of the case
The Committee admits the communication as they admit the applicant’s allegations that the State had violated their right to decent and adequate housing meets the requirements of referring to a potential violation of a right established in the Covenant.
Merits
When it comes to the merits of the case the Committee confirms that the Madrid Court had not assessed the proportionality of the eviction regarding the rights of the applicants. To assess “whether the eviction of the authors and their children from their habitual residence and their subsequent transfer to various types of temporary housing constituted a violation of the right to adequate housing recognized under article 11 (1) of the Covenant” the Committee recalled its case law.
Regarding the protection against forced eviction, the Committee reminded that forced evictions are incompatible with the Covenant and only justifiable in specific cases: the limitation must be determined by the law, it must promote the general welfare in a democratic society, be proportional to the aim pursued and necessary to achieve the legitimate aim of the limitation. When deciding over the limitation of the right to adequate housing, there must be an analysis of the availability of adequate alternative housing, the personal circumstances of the occupants and their cooperation with the authorities to find solutions.
According to the Committee, the Madrid Court did not consider the proportionality of the eviction by weighing up the legitimate objective of the eviction and its consequences for the evicted persons.
Furthermore, the alternative housing offered by the Spanish State cannot be considered alternative housing.
The Court’s main assessments
9.3. Alternative housing must be adequate. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any given context. They include the following: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; a location which allows access to social facilities (education, employment options, health-care services); and cultural adequacy, such that expressions of cultural identity and diversity may be respected.
10.3 However, despite the authors’ claim that the eviction would affect their right to adequate housing, the Court did not consider the proportionality of the eviction by weighing up the legitimate objective of the eviction and its consequences for the evicted persons. At no time did the Court assess the vulnerability of the authors or, in particular, their minor children, even though the authors requested such assessment, and the Court received a report from the social services requesting the same. Although the eviction was twice deferred, these deferrals were not prompted by a decision of the courts, but rather by events that occurred on the day of the planned eviction and that made it impossible to carry out. Furthermore, the State party’s legislation did not provide the authors with any other judicial mechanism through which to challenge the eviction order that would have given another judicial authority the opportunity to analyse the proportionality of the eviction and the conditions in which it was going to be carried out. The Committee finds, therefore, that the failure to conduct such an assessment constitutes a violation by the State party of the authors’ right to housing under article 11 of the Covenant, read in conjunction with article 2 (1).
11.1 (…) The Committee notes that the alternatives offered – hostels and shelters for short stays – cannot be considered to be alternative housing. (…)
11.5 Finally, the Committee finds that, beyond the aforementioned general measures, the State party has not demonstrated that it considered the particular circumstances of the authors’ case and took all reasonable measures to the maximum of its available resources. For these reasons, and because the situation was the result of an eviction carried out in violation of the Covenant, the Committee considers that the temporary housing and the situations to which the authors and their family were subjected, as well as the housing unit in which they currently reside, constitute a violation of the authors’ right to housing under article 11 of the Covenant.
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