Access to justice for the right to housing in Spain: lights and shadows onto a disputed right

Sonia Olea Ferreras. 

Advocacy Team – Cáritas Española

1.Real figures to date:

In Spain, human rights-based public policy about housing does not exist and housing is seen as an economic investment. Current data gives us an idea of the hundreds of thousands of people who are struggling to access and maintain a house:

• House prices are rising uncontrollably up to twelve times the monthly salaries (according to the press).
• Six out of ten evictions are due to procedures derived by the LAU (Urban Rental Law). 9557 in the last three months of 2018. 63.7% of the evictions were from rented housing (According to the General Council of the Judiciary)
• 585,047 evictions between 2008 and 2017 in Spain (PAH, a direct action campaign group)
• According to a survey by FOESSA in 2018, 13.6% of the population not only have problems paying the mortgage or the rent but also utility bills to live a decent life.
• 7.4% pay the mortgage or rent late.
• 15% pay the utility bills late.
• According to INE (National Statistics Centre) almost 4.5 million people spend 40% of their income on housing.
• More than two thousand people live in plastic settlements in the middle of the forest in Huelva (Cáritas Huelva).
• The provision of subsidised housing (Vivienda protegida) has fallen drastically from 63,990 units in 2008 to 2618 in 2017. According to the latest report from the Ombusdperson in 2013 there were 10,000 empty protected houses.
• The latest data on record collected in 2011 by the official statistics body, the INE, shows that 3,443,365 houses were empty as at that date.
• Six out of ten people living in social exclusion for the first time are affected by housing problems (FOESSA 2018).

2.- The path to access to justice for the right to housing in Spain in the last five years: a mountain of shadows.

The path to justice in cases of the lack of ability to exercise this right or to lose this human right has not been an easy process for families and people that live in Spain. What is more, the legal tools to combat this situation have come fundamentally from the international level (Europe and the United Nations).

Even so, the Spanish Government has taken several years to implement these decisions and sentences.

• Rulings by the European Court of Justice against Spain: for breaching the rights of citizens as consumers (contractual terms, retroactive annulment, etc) and non-compliance with the provisions of Directive 93/13/ EC (Aziz, Sanchez Morcillo, Hidalgo Rueda cases and accumulated affairs - the cancelation or nullity of unfair terms against consumers and more transparency).

• The intervention of the European Court of Human Rights suspending evictions in cases where the victim has no access to alternative accommodation: Based on articles 3 and 8 of the European Convention on Human Rights and not seeking alternative accommodation (Case IVIMA (Madrid) Ap. 77842/12 A.M.B. and Others v. Spain (12.12.2012). Cañada Real Case (Madrid) App. 3537/13 Raji and Others v. Spain (01.31.2013). Salt Case (Girona) Ap. 62688/13 Ceesay Ceesay and Others v. Spain (15.10.2013).

We have to make special reference to the recommendations and decisions by the ESCRC[1] which have not received a response. They obligate the Spanish Government to suspend any eviction process which does not provide alternative accommodation. Even when children are involved, including cases in which the person or people involved are in an extremely vulnerable situation; and in cases with the pertinent Interim measures from the ESCR Committee. These evictions are taking place every week[2].

The General recommendations from the ESCRC in 2015 were:

• To adopt appropriate legislative and/or administrative measures to ensure that in judicial proceedings in relation to the eviction of tenants, defendants are able to object or lodge an appeal so that the judge might consider the consequences of eviction and its compatibility with the Covenant;
• To adopt the necessary measures to resolve the lack of coordination between court decisions and the actions of social services which can result in an evicted person being left without adequate accommodation;
• To take the necessary measures to ensure that evictions involving persons who do not have the means of obtaining alternative housing are carried out only following genuine consultation with the persons concerned and once the State has taken all essential steps, to the maximum of available resources, to ensure that evicted persons have alternative housing, especially in cases involving families, older persons, children and/or other persons in vulnerable situations;
• To develop and implement, in coordination with the autonomous communities, with maximum of available resources, a comprehensive plan to guarantee the right to adequate housing for low-income persons, in keeping with general comment No. 4.  This plan should provide for the necessary resources, indicators, time frames and evaluation criteria to guarantee these individuals’ right to housing in a reasonable and measurable manner.

Three years later, civil society organisations[3] are forced to continue claiming for:

• The need to address a Strategic Plan that addresses the chronic lack of social housing in Spain:
  
  • Development of a Strategic Social Housing Plan
  • Implementation of a state housing law[4]
  • Implement social housing promotion and recovery plans with systems of participation and evaluation
  • Budget increase in housing policies
  • Modification of the State Housing Plan 2018-2021. Inclusion of social housing in this Plan
• Modify the Civil Procedure Law to achieve the cessation of evictions until there is a housing alternative and of course with the intervention of Social Services in the follow-up of this process in coordination with the reference courts.

These public policies requested by the United Nations to our State are not only not being carried out but also the eviction processes without alternative accommodation are being questioned by the State Attorneys (Constitutional and Human Rights General Subdirection). They are posing in its communications to the courts and tribunals of reference that "the precautionary measures adopted by the Committee (DESC) lack binding effects".

With that indirectly inducing that the evictions are not suspended and, finally, many families and people are deprived of their right to housing.

3.- Small lights on the road:

In recent years, most of the Autonomous Communities have drafted laws on the social function of housing, including in the law of the Basque country, recognizing it as a subjective and administratively reclaimed right.

Two court sentences of our Supreme Court have been key: the one issued in 2018 in the case of Angeles Gonzalez Carreño (Court Sentence No. 1263/2018), which establishes the mandatory status for a Committee Decision (case of application of optional protocols); and, secondly, in Court Sentence no. 1.797 / 2017 that cancels an entry for forced execution of resolution of launching by the IVIMA at home in case of occupation with children because the judge does not carry out the due consideration of the interests at stake and their proportionality.

During 2018 we have seen how a Parliamentary Intergroup was constituted to follow up on the Recommendations of Sixth Periodic Report ESCR of Spain 2018.

In addition, given the number of communications against the Spanish State before the ESCR Committee, action protocols began to be initiated between the Permanent Mission of Spain in Geneva, the Human Rights Office of the Ministry of Foreign Affairs and the Ministry of Justice, to send the request for precautionary measures to the judges and courts of reference in their case.

A special department has also been created in the Ministry of Justice for the follow-up of international treaties and their committees.

In recent months the current Government has initiated two processes of reform

• Legal: about various regulations[5] that affect the human right to housing at the state level,
• Politician: and the creation of the second Human Rights Plan, also containing a specific section for housing.

In the first case it was not ratified by the Parliament and was derogated and in the second it has been interrupted by the call for general elections without finishing the current legislature.

Thanks to the work and struggle of “La PAH” there is a proposal for a law on state housing in Parliament.

And, finally, civil society has been organized to monitor the general recommendations (mentioned above) given by the ESCR Committee to our Government in 2017, both before the judiciary, parliament and Ministries involved; as in coordination with the Ombusdperson (essential body for the monitoring of the guarantee of Human Rights by the States). The members of the Monitoring Group of the DESC Decision created more than a year ago are: La PAH, Amnesty International, CAES (Centro de Asesoría y Estudios Sociales), FEANTSA, ObservatoriDESC, Provivienda, Fundación General de la Abogacía, Arquitectura sin Fronteras, Federación Regional de Asociaciones Vecinales de Madrid, Federación de Asociaciones Vecinales de Barcelona, Sindicato de Inquilinos, ESCR-Net and Cáritas Española.

One of the great achievements of this Group has been to obtain from the Permanent Commission of the General Council of the Judiciary the agreement (10/31/2018) to disseminate the ESCR Decision to all judicial bodies through the superior courts of justice and add it to their continuous education plans for judges.

Very slowly, step by step, we are opening windows to the access to justice for the Human Right to housing that in our country does not find the due support from its government.