Decision adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, concerning communication No. 213/20211*, 2**
- *Adopted by the Committee at its seventy-third session (13 February–3 March 2023). ↩
- **The following members of the Committee participated in the examination of the communication: Mohamed Ezzeldin Abdel-Moneim, Nadir Adilov, Asraf Ally Caunhye, Laura-Maria CrăciuneanTatu, Peters Sunday Omologbe Emuze, Santiago Manuel Fiorio Vaesken, Ludovic Hennebel, Joo-Young Lee, Karla Vanessa Lemus de Vásquez, Seree Nonthasoot, Lydia Carmelita Ravenberg, Julieta Rossi, Preeti Saran, Shen Yongxiang and Michael Windfuhr. In accordance with rule 23 of the rules of procedure under the Optional Protocol, Mikel Mancisidor de la Fuente did not take part in the consideration of the communication. ↩
Date of adoption of decision: 27 February 2023
1.1 The authors of the communication, received on 12 April 2021, are Dunia Mariles Acosta Martínez, a national of Honduras born on 14 January 1986, and Abderrahim Amaghnouge, a national of Morocco born on 1 January 1986. They are submitting the communication on their own behalf and on behalf of their children, Rania and Chams Amaghnouge Acosta, twins born on 17 January 2017. The authors claim that, should they be evicted, the State party would be violating their rights under article 11 (1) of the Covenant. They are represented by counsel, Carlos Alberto Alonso Espinosa.
1.2 On 21 April 2021, the Committee, acting through its working group on communications, registered the communication. Noting the authors’ claim that they did not have alternative housing and that being evicted would therefore cause them irreparable harm, the Committee requested the State party to take interim measures either to suspend the eviction of the authors pending the consideration of the communication or to provide them with adequate alternative housing, in genuine consultation with them. On 17 August 2021, the State party requested the Committee to consider the admissibility of the communication separately from the merits and to withdraw the request for interim measures. On 13 July 2022, the Committee, taking into account the information provided by the parties, decided to withdraw its request for interim measures and to consider the admissibility of the communication separately from the merits.
1.3 In the present decision, the Committee will first summarize the information and the arguments submitted by the parties, without taking a position. It will then consider the admissibility of the communication and, lastly, set out its conclusions.
A. Summary of the information and arguments submitted by the parties
Before registration of the communication
2.1 In 2019, the authors found themselves without a place to live and moved in with Ms. Acosta Martínez’s sister, who was living without legal title in an apartment owned by a real estate company, owned in turn by a financial institution. The author’s sister had previously been ordered to vacate the apartment, by a judgment of 13 June 2017 of Court of First Instance No. 56 of Barcelona. On 15 October 2018, a decree was issued granting the occupants one month to vacate the apartment. The author’s sister was notified of this decision on 24 October 2018.
2.2 On 7 November 2018, the lawyer representing the author’s sister requested an extension of the deadline to vacate the apartment. After subsequent proceedings, on 6 February 2019, the same Court ordered a temporary stay of the eviction proceedings and requested the plaintiff to submit pleadings. On 14 October 2019, the author’s sister’s request for a stay was dismissed and a new eviction date of 16 January 2020 was set.
2.3 On an unspecified date, the author’s sister moved out of the apartment. The authors and their children remained, as they had no alternative accommodation. On 8 February 2019, the authors submitted an application for emergency social housing.
2.4 On 13 January 2020, the owner of the apartment requested the suspension of the authors’ eviction for 60 days in order to negotiate a possible solution with them. The Court accepted this request, as well as subsequent requests of the same nature, pending the outcome of the talks. On 2 February 2021, the real estate company requested the resumption of the enforcement proceedings. On 17 March 2021, the Court admitted the authors as a party to those proceedings.
2.5 On 22 March 2021, the Court issued a new eviction order for 23 April 2021, which was served on the authors. On 1 April 2021, the authors’ lawyer requested a stay of eviction under Royal Decree-Law No. 37/2020 on urgent measures to address situations of social and economic vulnerability in the housing and transport sectors. On 21 April 2021, the Court decided to suspend the eviction order while that request was being processed.
2.6 The authors consider that, by applying for a stay of eviction, they have exhausted domestic remedies. They claim that since they were not a party to the original eviction proceedings, they were unable to file an appeal on the merits of the eviction order.
After registration of the communication
2.7 On 14 May 2021, the Court granted the authors’ request under Royal Decree-Law No. 37/2020 and suspended the eviction order for the duration of the state of alert decreed in response to the coronavirus disease (COVID-19) pandemic.
Complaint
3.1 The authors contend that their eviction would violate their right to housing and to an adequate standard of living under article 11 (1) of the Covenant. They claim that they are in a vulnerable situation and that their health and well-being and that of their minor children would be compromised if they were to be evicted. The family would no longer have access to electricity and running water, and the children would not be able to go to school.
3.2 The authors state that they do not have alternative housing, as they cannot live with relatives and cannot afford to rent or buy an apartment. They maintain that, at the time of submission of the communication, Ms. Acosta Martínez was the only member of the family receiving an income, which consisted of a monthly social benefit of €1,100 and a monthly salary of €256.30 from a part-time job. The authors assert that their application for social housing has not been accepted and that Social Services are unable to offer them alternative accommodation.4
- No details were provided. ↩
State party’s observations on admissibility
4.1 In its observations of 17 August 2021, the State party maintains that the communication is inadmissible owing to the authors’ failure to exhaust domestic remedies and because it constitutes an abuse of the right to submit a communication. The State party provides additional factual information, which is reflected in the factual background set out above (see paras. 2.1–2.7).
4.2 The State party points out that, according to the information available in Social Services reports, Mr. Amaghnouge has found employment, which presumably has had a positive impact on the family’s income and its ability to find alternative housing.
4.3 Furthermore, the State party contends that the communication is inadmissible because the authors had not exhausted domestic remedies at the time of its submission. The State party explains that it has created various remedies enabling persons at risk of homelessness to apply for a stay of eviction until they have found alternative accommodation with the assistance of Social Services. These remedies were established by Royal Decree-Law No. 11/2020 on supplementary urgent social and economic measures to address the COVID19 pandemic; Royal Decree-Law No. 37/2020 on urgent measures to address situations of social and economic vulnerability in the housing and transport sectors; Royal Decree-Law No. 8/2021 on urgent public health, social and judicial measures to be applied once the state of alert has ended; and Royal Decree-Law No. 16/2021 on social protection measures to address situations of social and economic vulnerability. The State party submits that the authors’ claim that they were unable to request a stay of eviction because they were not a party to the proceedings that resulted in the judgment of 2017 is untrue; subsequent events showed that there was an effective remedy for suspending the eviction, which the authors successfully used. Indeed, two weeks before submitting the communication, they requested a stay of eviction under Royal Decree-Law No. 37/2020, and that request was granted after the communication was registered. The State party adds that the authors could have filed an appeal against the judgment of 13 June 2017, but failed to do so.
4.4 The State party also points out that the High Court of Justice of Catalonia has adopted a protocol, developed with the competent regional and local authorities, to ensure that the particular vulnerability of families facing eviction is taken into account. Moreover, Barcelona City Council has established an Anti-Eviction Unit for the purpose of mediating with property owners to prevent families from losing their homes. The Unit provides different types of assistance, ranging from the payment of rent and arrears to the inclusion of those affected in the city’s social rental housing exchange.
4.5 The State party also asserts that the communication is inadmissible because it constitutes an abuse of the right to submit a communication and because the authors have presented materially false information on several issues. For example, they claim that they began to occupy the apartment when the author’s sister was still living there and that she moved out of the apartment upon being ordered to vacate it, after which they decided to remain in the property. They fail to mention that the author’s sister had been ordered to vacate the property in 2017 but had continued to live there for at least two more years. Moreover, the authors have given different accounts to other authorities. For example, they informed Social Services that they had paid €1,200 to a man whom they believed to be the owner when they moved into the property (undertaking to pay €450 in monthly rent) but later realized that this person did not have title to the property.
4.6 According to the State party, the authors’ account contains inconsistencies regarding certain aspects that are essential for deciding upon the merits of the communication. The information they provide on how they came to occupy the property is incoherent and does not make clear the timeline of events. The State party submits that this prevents it from effectively arguing its case. Moreover, making false representations to the Committee and the domestic authorities is contrary to the Covenant and the Optional Protocol, whose implementation would be seriously undermined should there be any doubt about the authors’ good faith. The State party argues that the foregoing amounts to an abuse of the right to submit a communication.
Authors’ comments on the State party’s observations on admissibility
5.1 On 27 December 2021, the authors submitted comments on the State party’s observations.
5.2 The authors report that the owner of the apartment has not yet requested the resumption of enforcement proceedings and is negotiating a decent housing alternative with them.
5.3 The authors also report that they are still receiving State support, as well as food assistance from Social Services. Ms. Acosta Martínez receives an unemployment benefit of €230 and Mr. Amaghnouge now earns a monthly salary of €1,261.15, with the result that the benefits previously received by Ms. Acosta Martínez have been withdrawn.
5.4 The authors claim that the cost of housing is rising steadily. In Catalonia, rents have been capped pursuant to Act No. 11/2020 of the Autonomous Community of Catalonia on urgent measures to contain the rents charged on the housing market; however, rental costs have not fallen significantly and in some cases have even increased.5
- The authors do not provide any documentation in this regard. ↩
5.5 The authors state that their economic and social situation, as foreign nationals who lack a stable and sufficient income, represents an insurmountable obstacle to their finding a home to rent or buy.
5.6 The authors point out that the Constitutional Court, in its judgment No. 16/2021, recently annulled Decree-Law No. 17/2019 of the Autonomous Community of Catalonia, which obliged large-scale property owners to offer occupants a social rental contract before commencing legal proceedings for eviction. Under the Decree-Law, the protection that Act No. 24/2015 of the Autonomous Community of Catalonia on urgent measures to address the emergency in the housing sector and energy poverty had provided in cases of foreclosure and expiry of rental contracts or non-payment of rent had been extended to include cases of occupation without legal title. The annulment of the Decree-Law has therefore had a negative impact on the authors, since they occupy housing without legal title.
B. Committee’s consideration of admissibility
6.1 On 13 July 2022, the Committee, taking into account the information provided by the parties, decided to consider the admissibility of the communication separately from the merits under rule 6 of its rules of procedure under the Optional Protocol to the Covenant. Accordingly, the Committee must decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol, whether the communication is admissible or inadmissible.
6.2 The Committee takes note of the State party’s contention that the communication is inadmissible because the authors have abused the right to submit a communication by providing “materially false” information on several issues. The Committee notes that the authors have not responded to the State party’s claim that their account of the facts contains inconsistencies, nor have they clarified it as requested by the State party, merely referring to the family’s current income and housing situation. The Committee recalls that, under article 3 (2) (e) of the Optional Protocol, it will declare inadmissible any communication that is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media. The Committee recalls that authors have a duty first to substantiate their claims and provide the relevant documentation.6 The Committee understands that communications are sometimes submitted by persons who are not represented by lawyers or jurists trained in international human rights law. The Committee must therefore, in accordance with the victim-centred approach, refrain from imposing any unnecessary formalities in order to avoid creating obstacles to the submission of communications for its consideration. At the same time, legal representatives have a procedural due diligence obligation in the submission and processing of communications before the Committee. However, for the Committee to enter into the merits of a communication, the facts of the case and the claims presented must show, at least prima facie, that the authors may be actual or potential victims of a violation of a right enshrined in the Covenant.7
- A.M.O. and J.M.U. v. Spain (E/C.12/68/D/45/2018), para. 10.3; Arellano Medina v. Ecuador (E/C.12/63/D/7/2015), para. 8.10; and Martínez Fernández v. Spain (E/C.12/64/D/19/2016), paras. 6.4 and 6.5. ↩
- S.C. and G.P. v. Italy (E/C.12/65/D/22/2017), para. 6.15; and S.S.R. v. Spain (E/C.12/66/D/51/2018), para. 6.4. ↩
6.3 In the present case, the Committee notes the contradiction between the different facts presented, which the authors have not explained. Consequently, in the absence of a reliable account of the facts, the Committee considers that it does not have sufficient evidence before it to examine the merits of the communication and finds that, in respect of the claim of a violation of article 11 (1) of the Covenant, the communication is insufficiently substantiated for purposes of admissibility and is inadmissible pursuant to article 3 (2) (e) of the Optional Protocol.
C. Conclusion
The Committee therefore decides:
(a) That the communication is inadmissible under article 3 (2) (e) of the Optional Protocol;
(b) That the present decision shall be transmitted to the authors of the communication and to the State party.