Views adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in respect of communication No. 133/20191*, 2**
- *Adopted by the Committee at its seventy-second session (26 September–14 October 2022). ↩
- **The following members of the Committee participated in the examination of the communication: Aslan Abashidze, Mohamed Ezzeldin Abdel-Moneim, Nadir Adilov, Asraf Ally Caunhye, Laura-Maria Crăciunean-Tatu, Peters Sunday Omologbe Emuze, Ludovic Hennebel, Karla Vanessa Lemus de Vásquez, Seree Nonthasoot, Lydia Ravenberg, Preeti Saran, Shen Yongxiang, Heisoo Shin, Rodrigo Uprimny and Michael Windfuhr. Pursuant to rule 23 of the rules of procedure under the Optional Protocol, Mohammed Amarti and Mikel Mancisidor de la Fuente did not participate in the examination of the communication. ↩
Date of adoption of Views: 10 October 2022
1.1 The authors of the communication are Fatima El Mourabit Ouazizi, a national of Spain born on 1 June 1996, and Mohamed Boudfan, a national of Morocco born on 12 January 1995. They are acting on their own behalf and on behalf of their two minor children, S.B.E.M., born on 27 October 2016, and M.B.E.M., born on 21 September 2018. The authors claim that they are victims of a violation of their rights under article 11 (1) of the Covenant because, despite their lack of alternative housing, they have been ordered evicted from the dwelling they have lived in since 2014. The Optional Protocol entered into force for the State party on 5 May 2013. The authors are not represented by counsel.
1.2 On 3 May 2019, the Committee, acting through its Working Group, registered the communication and, taking note of the authors’ claim that they did not have alternative housing and that being evicted would therefore cause them irreparable harm, requested the State party to take interim measures consisting either of the suspension of the eviction while the communication is being considered or of the provision of adequate alternative housing for the authors, in genuine consultation with them.
1.3 In the present decision, the Committee first summarizes the information and the arguments submitted by the parties; it then considers the admissibility and the merits of the communication and, lastly, draws its conclusions.
A. Summary of the information and arguments submitted by the parties
2.1 On 15 November 2014, as a result of a problem they had with the people they were living with, the authors occupied an empty dwelling belonging to the Social Housing Agency, the public housing authority of the Community of Madrid.
2.2 On 27 July 2016, in the context of criminal proceedings for unauthorized occupation brought by the Agency against the authors, Trial and Investigating Court No. 5 of Navalcarnero, in judgment No. 135/16, upheld the owner’s complaint, finding the authors guilty as charged and ordering their eviction from the dwelling they were living in.
2.3 On 19 August 2016, the authors filed an appeal, which was dismissed on 10 January 2017 by the Provincial High Court of Madrid.
2.4 On 27 January 2017, the authors were ordered to vacate the property within 10 days or, if they did not do so voluntarily, to prepare to be evicted on 6 April 2017. The authors filed an application for reconsideration with a subsidiary appeal, which was dismissed. The eviction, however, did not take place.
2.5 In September 2017, three years after having occupied the dwelling, the authors applied to the property owner for the regularization of their situation. Their application was rejected because they did not comply with the conditions for regularization – in particular because they had been convicted of unauthorized occupation of the dwelling in question.
2.6 A second date for the eviction, 15 November 2017, was set. That planned eviction was also suspended. Later, a third date for the eviction, 2 April 2019, was set; that eviction, too, was suspended.
2.7 Also on 2 April 2019, the Court set a fourth date, 7 May 2019, for the eviction. On 24 April 2019, the authors filed an application with the Court, asking it to suspend the eviction until they had alternative accommodation; attached to their application was a report, requested by the authors, issued by the Social Welfare Services Agency on 16 April 2019 and containing an account of the authors’ appointments with Agency personnel.
Complaint
3.1 The authors claim that, because they did not have alternative accommodation and because their income is not large enough for them to find housing on the private market, an eviction would violate their rights under article 11 of the Covenant.
3.2 The authors state that they have no alternative accommodation because: (a) they cannot apply for public housing from the Social Housing Agency, as they are illegally occupying Agency housing; (b) they cannot apply to the Agency for regularization of their housing situation because they have been convicted of unauthorized occupation; (c) they were informed at the Arroyomolinos Town Hall, where they had a meeting on 16 February 2019, that no public housing was available; (d) the alternative offered by the Social Welfare Services Agency, a room in a Red Cross shelter for women who have experienced gender-based violence,4 was unsuitable, since only one of the authors – the woman – and her children, not the male author, would have access to the room, and accepting the offer would involve separating the family; and (e) their income, the male author’s wages of €900 a month from his work at a fast-food chain restaurant, was not large enough for them to pay market-rate rent.5
Additional information from the authors
On 23 July 2019, the authors informed the Committee that, on the day of the registration of the communication and the Committee’s request for the State party to take interim measures (3 May 2019), they were notified that, at the request of the mayor of Arroyomolinos, the eviction scheduled for 7 May 2019 had been suspended for two months. A fifth eviction date, 5 July 2019, was therefore set. The authors again applied to the Court for a suspension of the eviction; on 19 June 2019, the Court suspended the eviction “pending the Committee’s decision”.
State party’s observations on admissibility and the merits
5.1 On 6 November 2019, the State party informed the Committee that it had taken the interim measures requested of it. The Court had stayed the eviction five times, and the process was currently suspended pending the Committee’s final decision; the authors, as a result, are not currently facing eviction.
5.2 The State party also notes, however, that under the Optional Protocol, interim measures are to be taken only in exceptional circumstances. In the present case, as can be seen from the social report of the Arroyomolinos Town Council,6 one of the authors, the man, earns wages of between €900 and €1,000 a month, while the other author receives welfare benefits of €430 a month, making their total income, to which must be added the free services the family members are entitled to (health care, legal aid and schooling for the children), much higher than the minimum wage, the authors’ assertion to the contrary notwithstanding. Similarly, the State party points out that, according to general comment No. 7 (1997), it is recognized that in some cases, such as when property has been occupied by force, evictions are justifiable, that they should be carried out in accordance with the law, with adequate legal remedies for those affected, and that the relevant government officials should be present during the eviction.
- Social report of the Arroyomolinos Town Council transmitted to the Subdirectorate-General for Constitutional Matters and Human Rights, p. 2. ↩
5.3 The State party also submits that the communication should be found inadmissible because the authors, by failing to seek alternative housing before unlawfully occupying someone else’s home or accept alternatives proposed by the Social Welfare Services Agency after having unlawfully occupied that home, have not exhausted domestic remedies. As the social report of the Arroyomolinos Town Council shows,7 the authors have turned down the following alternatives: (a) centres for mothers: “resource not accepted by the user”; (b) emergency accommodation made available by the emergency social services: “resource not accepted by the user”; and (c) a search for alternatives in the private market in other municipalities: the female author was not receptive to the proposal, arguing that she did not wish to leave the municipality, in which the families of both authors lived. The State party notes, too, that the social report issued by Social Welfare Services Agency at the authors’ request and annexed to the initial communication also shows that: (a) in August 2016, the Agency asked them whether they could live with their parents, who live in the same municipality, an option that the authors rejected without providing an explanation; and (b) in April 2019, the authors were informed of the housing provided by Empresa Municipal de Gestión de Servicios de Arroyomolinos S.A., a municipal services management company, but indicated that they had not applied for this housing because they were unaware of it. In addition, the State party notes that they were given financial aid of €500 to help them find housing and that they did not use that aid for that purpose, remaining instead in the dwelling in question.
- Ibid., p. 3. ↩
5.4 As for the merits of the communication, the State party argues that it has not violated the Covenant, as unlawfully occupying another person’s property, by force, is not an act protected under the Covenant. The State party notes that, without having previously applied for social housing, the authors are occupying, without legitimate title, property owned by another – the Social Housing Agency, as it happens. The State party points out that article 11 of the Covenant does not oblige States to provide housing for everyone if they do not have the resources to do so. The right to housing is not an enforceable right but a right that obliges States to take appropriate measures to promote public policies whose aim is to improve access to decent housing. The right to housing is a constitutional obligation or directive that must inform the actions of the public authorities. In fact, public housing is being developed, and ownership of some of the land used for the construction of such housing, for which financing is being provided, is being transferred at no charge. In addition, the State party points out that measures have been taken to facilitate access to both ownership (through income tax relief, mortgage subsidies and assistance for young people) and rental housing (through assistance for access to the private rental market) in the private residential market. The State party notes that measures have also been taken to try to keep people in the private residential property market from losing their homes by adopting legislation imposing a moratorium on evictions for failure to make mortgage payments and instituting a code of good practice for banks with a view to avoiding defaults. In this regard, the State party points out that between 2012 and 2017, more than 24,000 evictions were suspended, 38,500 debts were restructured, 7,000 debts were settled and 9,020 housing units were allocated through the Social Housing Fund. In addition, measures have been taken to respond to urgent needs in cases of legitimate evictions, and the courts have developed protocols for coordination with the Social Welfare Services Agency before evictions take place, thereby making it possible to carry out assessments and provide emergency housing.8 The Agency is responsible for assessing and monitoring the needs of families, and in the Community of Madrid there are administrative procedures for the assessment of circumstances of particular need whose aim is to ensure orderly access to public housing by using objective criteria to assess applicants’ needs.9 A scoring system must thus be followed to allocate housing first to those who need it most.
5.5 The State party claims that since needs may sometimes exceed public resources, the right is a right not to a particular dwelling but to an adequate assessment of and response to those needs as soon as the public resources available permit.
5.6 The State party also argues that the authors’ rights under article 11 of the Covenant have not been violated because their financial resources are equal to an amount greater than the minimum wage and because the family’s overall resources should be considered to include not only the authors’ monetary income (in this case, between €900 and €1,000 a month from the paid work done by one of the authors, in addition to €430 a month in welfare benefits received by the other author) but also the income in kind to which they are entitled (educational, legal and health services, for example).
5.7 In addition, the State party argues that the authors’ rights under article 11 were not violated because they were responsible for acts or omissions that have prevented them from obtaining public assistance. In the State party’s view, the authors’ lack of adequate housing is a consequence of their acts or omissions alone, not of any failure to act by the authorities. The State party notes that the authors have turned down several alternatives proposed by the Social Welfare Services Agency (centres for mothers, emergency accommodation, a housing search in other municipalities and housing provided by Empresa Municipal de Gestión de Servicios de Arroyomolinos). The social report of the Arroyomolinos Town Council also states:
An attempt has been made to encourage [the authors] to understand that they face a real risk of eviction and to help them keep their family together by providing alternative accommodation, but because of the suspension of the latest scheduled eviction, efforts to provide them with alternative accommodation have come to a halt, as [the authors] prefer to await the outcome of the legal appeal they filed. At the Social Welfare Services Agency, we believe that [the authors] should continue their search for alternative housing, as the uncertain outcome of their appeal, together with the tightness of the current housing market in Madrid, makes the process of finding housing long and complex.10
- Social report of the Arroyomolinos Town Council transmitted to the Subdirectorate-General for Constitutional Matters and Human Rights, p. 4. ↩
5.8 Lastly, the State party also argues that, in the present case, the authors’ rights under article 11 of the Covenant have not been violated because the eviction has not taken place and because complaints must refer to real violations, not simply hypothetical or potential ones. The family’s eviction has been suspended five times.
5.9 In short, summing up the above points, the State party is of the view that, for there to have been a violation of the Covenant, the authors would have had to show: (a) that they were in need; (b) that the authorities did not set aside resources to the greatest extent possible; (c) that, if the maximum available resources have been set aside but not all needs have been met, the resources have not been set aside on the basis of rational and objective criteria; and (d) that the authors had not deliberately and knowingly placed themselves in the situation that they are objecting to, thereby contriving to ensure that they do not receive public assistance.
Complainants’ comments on the State party’s observations on admissibility and the merits
6.1 On 2 January 2021, the authors reiterated the claims they made in the initial communication, insisting that they cannot apply for public housing from the Madrid Social Housing Agency because they are illegally occupying a dwelling. In the authors’ view, their fundamental right to decent and adequate housing is thus violated.
6.2 With regard to alternative accommodation, the authors point out that a centre for mothers would have meant separating the family; that emergency accommodation made available by the Emergency Social Services Department would not have been suitable either, as such accommodation, which is for the very short term, is not decent, healthy or suitable for children; that the economic aid of €500 to help them find housing “makes no sense”, since rent in the area is approximately €700 a month; and that they have looked for alternatives in other municipalities, the neighbouring municipality of Móstoles in particular, but that rent there is also around €700 a month.
B. Committee’s consideration of admissibility
7.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 10 of its rules of procedure under the Optional Protocol, whether the communication is admissible.
7.2 The Committee notes that the State party indicates that the communication should be found inadmissible for the authors’ failure to exhaust domestic remedies, since they did not seek alternative housing before their unlawful occupation of the dwelling in question, accept any of the alternatives proposed thereafter by Social Welfare Services Agency (a centre for mothers, emergency accommodation or a search for housing in a more affordable municipality) or apply to Empresa Municipal de Gestión de Servicios de Arroyomolinos for housing when the Agency informed them of that possibility. The Committee also notes the authors’ view that accepting accommodation in a centre for mothers would have meant separating the family, that short-term emergency accommodation is not a decent, healthy or suitable place for a family and that they had indeed sought alternatives in other municipalities, in the neighbouring municipality in particular, albeit without success, as the rent is also high elsewhere.
7.3 The Committee is of the view that, in the present communication, the question of admissibility is closely tied to the merits of the case, since the issue is whether the authors exercised due diligence in complying with the requirements established by the State party for access to alternative housing. The Committee, observing the principle that action should be taken when doubts remain, therefore declares the communication admissible and proceeds to consider it on the merits.
C. Committee’s consideration of the merits
Facts and legal issues
8.1 The Committee has considered the present communication taking into account all the information provided to it, in accordance with article 8 of the Optional Protocol.
8.2 The Committee notes that, according to the authors, being evicted from the dwelling they are occupying would violate their rights under article 11 of the Covenant because (a) their income is not sufficient to find housing on the private market and (b) they have no alternative accommodation since (i) they cannot apply to the Social Housing Agency for public housing because they are illegally occupying a dwelling owned by the Agency, (ii) they cannot apply to the Agency to regularize their housing situation because they have been convicted of unauthorized occupation, (iii) the Arroyomolinos municipal authorities currently have no public housing and (iv) accepting the alternative offered by the Social Welfare Services Agency, a room in a Red Cross shelter for women, which would involve separating the family, is infeasible.
8.3 The Committee also notes that, according to the State party, the eviction has been suspended five times and that it is currently pending the Committee’s decision, in accordance with the Committee’s request for the State party to take interim measures. In addition, the Committee notes that, as the State party points out, in some cases, such as when property has been occupied by force, evictions, as stated in general comment No. 7 (1997), are justifiable, although they should be carried out in accordance with the law, with adequate legal remedies for those affected, and the relevant government officials should be present during the eviction, as was planned in this case before the eviction was suspended. Furthermore, according to the State party, the authors’ rights under article 11 of the Covenant have not been violated because (a) not only do the authors have economic resources well above the minimum wage but they also enjoy free educational, legal and health services; (b) the authors are responsible for acts or omissions that have prevented them from obtaining public assistance, having rejected several alternatives proposed by the Social Welfare Services Agency (centres for mothers, emergency accommodation, possible housing in other municipalities and housing provided by Empresa Municipal de Gestión de Servicios de Arroyomolinos) and for having refused to work with the Arroyomolinos municipal authorities, who tried to help them find a viable housing alternative (see para. 5.7); and (c) illegally and forcibly occupying the property of a third party is not protected by the Covenant. The State party also notes that, without having previously applied for social housing, the authors illegally occupied a housing unit owned by the Social Housing Agency. According to the State party, the right to housing is not an enforceable right but a right that obliges States to take appropriate measures to promote public policies whose aim is to improve access to decent housing; it is a right to an adequate assessment of needs and a response to those needs as soon as the public resources available permit. The State party notes that there are administrative procedures for the evaluation of circumstances of special need whose purpose is to ensure orderly access to public housing by using objective criteria to assess applicants’ needs. In short, the State party is of the view that for there to have been a violation of the Covenant in this case, the authors would have had to show that: (a) they were in need; (b) the authorities did not set aside resources to the greatest extent possible; (c) if resources have been set aside to the greatest extent possible but not all needs have been met, those resources were not set aside on the basis of rational and objective criteria; and (d) they had not deliberately and knowingly placed themselves in the situation that they are objecting to.
8.4 Accordingly, the legal issue in the present case is whether, in the authors’ specific case, the State party has taken steps, to the maximum of its available resources, to ensure the realization of their right to adequate housing, enshrined in article 11 (1) of the Covenant. To answer this question, the Committee will recall the obligation of States parties under the Covenant to develop policies for the full realization of the right to housing and the possibility for States parties to oblige individuals to take on certain reasonable burdens or duties that they must take on for those policies to be successful. The Committee will thus be able to consider this particular case to determine whether or not there was a violation of the authors’ right to housing.
Housing policies and beneficiaries’ obligations
9.1 The Committee notes that under article 2 (1) of the Covenant, States parties have a positive obligation to take steps, to the maximum of their available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means. In particular, according to the Committee’s general comment No. 4 (1991), each State party is required to take whatever steps are necessary to achieving the full realization of the right to adequate housing, including the adoption of a national housing strategy.11 The Committee is of the view that when the effective enjoyment of a fundamental right depends on progressive steps, the least that the relevant authorities can do to safeguard progress is, as it happens, to have a programme or plan designed to ensure the effective enjoyment of the right.12 As noted in the Guidelines for the Implementation of the Right to Adequate Housing of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, the measures taken must be deliberate, concrete and targeted towards the fulfilment of the right to housing within a reasonable time frame.13
- General comment No. 4 (1991), para. 12. ↩
- In decision T-760 of 2008, the Constitutional Court of Colombia, citing its decision T-595/02 of 2002, stated that, although the claimant “does not have the right to immediate and individualized enjoyment of the benefits he has requested, he does have the right to the existence of a plan in that respect” (para. 3.3.9). ↩
- A/HRC/43/43, para. 19 (b) (guideline No. 2). ↩
9.2 The Committee is of the view that the authors of a communication who claim to be victims of a violation of article 11 (1) of the Covenant must demonstrate a degree of diligence in their search for housing, including having made it known to the competent authorities that they were in need of decent housing. The Committee notes that States parties may establish administrative procedures to facilitate the protection of the right to housing, including by requiring individuals to take certain administrative steps to inform the authorities of their need for help with the protection of their right to housing. Although these procedures should not place an excessive or unnecessary burden on individuals or have discriminatory effects, the Committee is of the view that an individual’s failure to take the necessary steps to seek assistance from the administrative authorities with a view to gaining access to alternative housing constitutes an important element14 in determining not only whether the claim that the State party has failed to fulfil its obligations has been substantiated (as required under article 3 (2) (e) of the Optional Protocol) but also whether, if the communication is found admissible, the State party really did violate the right in question – here, the right to housing.
- Taghzouti Ezqouihel v. Spain (E/C.12/69/D/56/2018), paras. 6.3–6.4, Loor Chila v. Spain (E/C.12/70/D/102/2019), paras. 6.3–6.4, and Sariego Rodríguez and Dincă v. Spain (E/C.12/70/D/92/2019), paras. 7.2 and 7.4. ↩
9.3 The Committee notes that deciding whether the authors exercised the degree of diligence expected of them in requesting assistance from the authorities must always involve considering their particular situation, since the degree of diligence expected of those who are in a situation of vulnerability cannot be the same as that of those who are not. The Committee also notes that considering the diligence of the authors does not mean that the Committee is following the clean hands doctrine, which, though it may be legitimate in other spheres, is unacceptable for determining who may or may not have been the victim of a human rights violation.
Case in question
10.1 In the present case, the Committee notes that the State party is promoting the development of public housing and providing land and financing for the construction of low-cost housing; it has also taken measures to facilitate access to home ownership and rental housing in the private residential market; it has taken measures to try to keep people in the private residential property market from losing their homes by adopting legislation imposing a moratorium on evictions for failure to make mortgage payments and instituting a code of good practice for banks with a view to avoiding defaults; it is also taking measures to address urgent needs in cases of eviction considered legitimate; furthermore, it is implementing protocols to ensure that the courts and the social service agencies cooperate before evictions with a view to carrying out assessments and offering alternative housing. In this regard, the Social Welfare Services Agency uses a scoring system to assess the needs of families in a bid to ensure orderly access to public housing.
10.2 The Committee observes, moreover, that the authors have failed to explain why, when informed of the possibility, they did not apply to Empresa Municipal de Gestión de Servicios de Arroyomolinos for housing. The Committee also observes that the authors have also failed to explain why they did not ask the authorities for help with their search for alternative housing until September 2017, when, with the conclusion of the criminal proceedings for unauthorized occupation, they applied to the Social Housing Agency for regularization of their situation. In addition, the Committee notes that, although the authors state that they met with the Arroyomolinos municipal authorities on 16 February 2019 in search of a solution, that meeting took place five years after they had put themselves in a precarious housing situation by occupying a dwelling without legal title to it.
10.3 The Committee agrees with the authors that a room in a Red Cross shelter for women victims of gender-based violence would not have been a suitable alternative for the authors, mainly because it would have meant separating the family; the Committee also agrees with the authors that emergency accommodation made available by the Emergency Social Services Department would not have been an adequate alternative either, mainly because it is only a short-term alternative. However, the Committee is of the opinion that the authors have not explained why housing in other municipalities or housing provided by Empresa Municipal de Gestión de Servicios de Arroyomolinos was not a viable alternative that would have enabled them to exercise their right to adequate housing.
10.4 Accordingly, the Committee is of the opinion that the authors have not demonstrated that they have taken the basic steps to ask the administrative authorities for help first to gain access to social housing and then, in view of the possible eviction, to find another housing alternative. Nor does the Committee find that the State party’s procedures for initial access to social housing or then to another housing alternative made excessive or discriminatory demands of the authors that they would have been unable to satisfy. The Committee is thus of the view that, given the authors’ lack of diligence, it is not possible to conclude that their situation can be attributed to the State party, and there is also no evidence of any arbitrary steps by the State party that violated the authors’ right to adequate housing under article 11 (1) of the Covenant.
D. Conclusion
Taking into consideration all the information made available to it, the Committee, acting under the Optional Protocol, finds that the facts of which it has been apprised in the communication do not constitute a violation of article 11 (1) of the Covenant.
Pursuant to article 9 (1) of the Optional Protocol, the Committee therefore decides that the present decision will be transmitted to the State party and to the authors of the communication.