by Sonia Olea Ferreras
Cáritas Spain
In application of the Optional Protocol to the United Nations International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), a third decision to the Spanish State was issued by the UN Committee on Economic, Social, and Cultural Rights last week for violating article 11 of the Covenant, specifically in relation to Article 11.1: "The States Parties to the present Covenant recognize the right of everyone 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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.", further developed in their general comments No 4 and No 7.
What follows is a set of brief contextualising remarks to help us carry out a more detailed analysis over the coming days.
In 2015, Spain failed to guarantee (E/C.12/55/D/2/2014 ) effective access to the courts to protect the right to adequate housing and among the final general recommendations, with particular reference made to eviction processes:
(a) Ensure access to legal remedies for people facing foreclosure proceedings for non-payment of loans;
(b) Adopt relevant legislative and/or administrative measures to ensure that in foreclosure proceedings, notification by edict is strictly limited to situations in which all means making a personal notification have been exhausted; and to allow sufficient publicising and time so that the person concerned has the opportunity to become fully aware of the commencement of the procedure and attend it;
c) Adopt relevant legislative measures to ensure that the foreclosure procedure and procedural rules establish appropriate requirements and procedures to be followed before turning to a home auction or an eviction, in compliance with the Covenant and taking into account general comment No. 7 of the Committee.
Two years later, in 2017, there was a anotherdecision (E/C.12/61/D/5/2015) following the eviction of a tenant family as a result of legal proceedings initiated by the landlord (private owner of a dwelling). The Committee considered that "in the absence of reasonable arguments of the State party in relation to all measures taken up to the maximum of its available resources, the eviction of the authors, without guarantee of alternative housing by the authorities of the State party, including the regional authorities of Madrid, constituted a violation of their right to adequate housing." Thus violating Article 11.1 of the OP-ICESCR (in conjunction with articles 2.1 and 10.1 of the same Covenant). The general recommendations to our State were the following:
(a) Adopt relevant legislative and/or administrative measures to ensure that, in tenant eviction proceedings, defendants can object or bring an appeal in order for the judge to consider the consequences of the eviction and the compatibility of this measure with the Covenant.
(b) Take the necessary measures to overcome the problems of non-coordination between judicial decisions and actions taken by social services that may lead to an evicted person being left without adequate housing.
c) Take the necessary measures to ensure that evictions affecting persons who lack the resources to secure alternative housing are only carried out after there has been a genuine and effective consultation with these persons and that the State party 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, elderly people, children and/or other vulnerable people.
d) Formulate and implement, in coordination with the autonomous communities and to the maximum of its available resources, a comprehensive plan to guarantee the right to adequate housing of people with low incomes, in accordance with the General Observation No. 437. This plan should include the resources, measures, deadlines and evaluation criteria that will reasonably and verifiably guarantee the right to housing for such persons.
Once again (keeping in mind that over one hundred communications by individuals/families who consider that their human right to adequate housing has been violated by the Spanish State are still pending before the CESCR), only a few days ago, a third decision (E/C.12/66/D/37/2018) for breaching Article 11.1 of the OP-ICESCR and, by extension, the right to adequate housing of a mother and her six children, considering that "the eviction of the family occurs without an examination of proportionality by the authorities constituted a violation of their right to housing. Similarly, the Committee considers that the refusal of the public housing author's application without taking into account her situation of need and only because she was occupying a dwelling without a legal title constituted, in itself, a violation of her right to adequate housing."
As in the previous cases, in addition to giving particular recommendations regarding whistleblowers, the latest decision contains substantial general recommendations for our politicians and legislators with respect to the implementation of public policies and related legislation:
(a) Develop a regulatory framework that regulates the evictions of people from their homes, incorporating the judicial authorities to carry out a proportionality assessment between the purpose pursued by the measure and its consequences on persons as well as the compatibility of this measure with the Covenant, in all cases, including those of occupation without a legal title;
(b) Ensure that persons subject to an eviction order may object to the decision or appeal it for the judicial authorities to examine the proportionality between the legitimate purpose pursued by the measure and its consequences on individuals as well as their compatibility with the Covenant, in all cases, including those of occupation without a legal title;
(c) Take the necessary measures to enable all persons to access social housing, on an equal footing, , removing any unreasonable conditions that exclude anyone at risk of homelessness. In particular, the State should eliminate the automatic exclusion of lists of home applicants from all persons occupying a dwelling by necessity, with no legal title;
d) Take the necessary measures to ensure that evictions affecting persons without resources to secure alternative housing are only carried out after there has been a genuine and effective consultation with these persons and that the State party has taken all the necessary steps, to the maximum of their available resources, so that the evicted have an alternative dwelling, especially in those cases involving families, elderly people, children and/or other people in vulnerability;
(e) Formulate and implement, in coordination with the autonomous communities and to the maximum of their available resources, a comprehensive plan to guarantee the right to adequate housing of people with low incomes, in accordance with the General Observation No. 4. This plan shall include the resources, measures, deadlines and evaluation criteria that will reasonably and verifiably guarantee the right to housing of such persons;
(f) Establish a Protocol for the fulfilment of requests for precautionary measures issued by the Committee, informing all relevant authorities of the need to comply with them to ensure the integrity of the procedure.
Recommendations linking the Spanish State (in all its political, legislative and jurisdictional fields and at national, regional and local levels) to the compulsory progressive realisation of the human right to adequate housing, especially for vulnerable individuals and families excluded from society.
Legal Support Group
2 November 2019
