Decision adopted by the Committee under the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights, concerning
communication No. 214/20211**, 2***
- *Reissued for technical reasons on 27 July 2023. **Adopted by the Committee at its 73rd 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 Crăciunean Tatu, 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 author of the communication, dated 14 April 2021, is Jhon David Martínez Cortés, a national of Colombia born on 18 September 1988. The author claims that his eviction would amount to a violation by the State party of his rights under article 11 (1) of the Covenant. He is 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 author’s claim that he does not have alternative housing and that being evicted would therefore cause him irreparable harm, it 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 author, in genuine consultation with him. On 23 August 2021, the State party requested the Committee to consider the admissibility of the communication separately from the merits and to lift the request for interim measures. On 1 December 2021, the Committee, taking into account the information provided by the parties, decided to lift 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 and merits of the communication and, lastly, draw its conclusions.
A. Summary of the information and arguments submitted by the parties
Factual background
Before registration of the communication
2.1 On 25 February 2020, the author arrived in Spain from Colombia. On 17 May 2020, the author sought asylum in Spain. He was granted a provisional residence permit and permission to start working in Spain from 17 May 2021.
2.2 The author reports that in October 2020, he entered into a verbal contract with a private individual to rent an apartment. The parties agreed that the author would pay an annual rent of €3,000. The author states that in Spain, rental contracts can be verbal, although they are usually in writing.
2.3 On 21 January 2021, the author applied to register with the local authorities. Shortly thereafter, he entered into a water supply contract.
2.4 The author reports that on 22 March 2021, he received notice of an order dated 1 March 2021 enforcing a judgment issued on 19 October 2020, in which Barcelona Court of First Instance No. 9 ordered the previous occupants and other unknown occupants to vacate the property. In the same order, the Court set 26 April 2021 as the date for the eviction. The eviction date was subsequently changed to 23 April 2021 owing to an error pointed out by the owner’s attorney.
2.5 On 22 March 2021, the author applied to Barcelona Court of First Instance No. 9 for free legal aid in order to appeal against the eviction order. He also requested the suspension of the order.
2.6 At the time of submission of the complaint, the author maintains that he is waiting to be assigned a lawyer and solicitor and is unable to exhaust any other remedies.
After registration of the communication
2.7 On 27 April 2021, the author applied to the Barcelona municipal authorities for social housing.
Complaint
3.1 The author claims that his eviction would violate his right to decent housing and to an adequate standard of living, including basic services, access to the labour market and health benefits, in violation of article 11 (1) of the Covenant. He claims that he is in a vulnerable situation and has no viable alternatives because his residence permit does not allow him to work before 17 May 2021 and he has no support network that can provide him with accommodation. He also states that he does not have the economic means to subsist and that he cannot engage in informal employment because he has no experience or contacts in that work environment.
3.2 The author considers that an eviction could harm his physical and mental health, as he would be forced to live on the streets and would have more difficulty finding work in May. He would also be deprived of basic services and have difficulty using the health and social services systems.
State party’s observations on admissibility
4.1 In its observations of 23 August 2021, the State party considers that the communication is inadmissible on the grounds of failure to exhaust domestic remedies, abuse of the right to submit a communication and failure to sufficiently substantiate the complaint.
4.2 Firstly, the State party wishes to clarify certain facts. The State party stresses that the eviction order is the result of a claim filed by a natural person on 22 June 2020 against the occupants of a property owned by that person. A third person who was occupying the property at the time attended the court proceedings. On 19 October 2020, a judgment was issued ordering the then occupant and any other occupants of the property to vacate it or be subject to eviction. The known occupant was notified of the judgment, which also applied to any unknown occupants. The author received and signed for the notice on 29 October 2020. It was possible to appeal the judgment, but no appeal was filed. The author appeared at the proceedings on 9 April 2021, with a lawyer and solicitor provided through free legal aid. However, the author did not submit a request for suspension of the eviction prior to approaching the Committee.
4.3 The State party also provides information on events that took place after the registration of the communication. On 21 April 2021, the author requested the suspension of the eviction pursuant to the Committee’s request for interim measures. On 22 April 2021, the eviction scheduled for 23 April 2021 was suspended. A new eviction date was set for 12 July 2021, but the eviction was subsequently suspended.
4.4 In addition, the State party reports that the author has contacted social services only by telephone, on 14 and 21 April 2021. On the latter date, social services telephoned the author and spoke to his lawyer, who stated that the eviction had been postponed and that the author would contact social services again if necessary. No other applications for assistance have been submitted since then.
4.5 The State party stresses that the author was aware of the order to vacate the property as early as the month in which he began to occupy it, but failed to submit this information to the Committee. In addition, he did not take any action after receiving notice of the judgment, nor did he request free legal aid at that time with a view to halting the eviction; rather, he waited until he received the enforcement order, when the judicial enforcement process was already under way, before requesting such aid. Even after the author had received the eviction order and been assigned a solicitor and lawyer, he did not apply to the competent court to suspend the eviction before he approached the Committee with that request. It was only after submitting the communication, on 14 April 2021, that he went to court and claimed to be in a vulnerable situation, without providing a minimum level of evidence to substantiate his claim.
4.6 With regard to the remedies available at the national level, the State party explains that it has established a number of remedies through which persons at risk of homelessness in the event of eviction can apply for a suspension and seek alternative housing prior to eviction, with the assistance of social services. These remedies were established by Royal Decree-Law No. 11/2020, on urgent supplementary social and economic measures to address the coronavirus disease (COVID-19) pandemic; Royal Decree-Law No. 37/2020, on urgent measures to address social and economic vulnerability in the areas of housing and transport; Royal Decree-Law No. 8/2021, on urgent health, social and judicial measures to be applied after the end of the state of alert; and Royal Decree-Law No. 16/2021, on social protection measures to address social and economic vulnerability. In addition, the State party notes that the High Court of Justice of Catalonia, together with the competent regional and local authorities, has adopted a protocol establishing a channel to examine the situation of particularly vulnerable families who face eviction. In addition, Barcelona City Council has created an Anti-Eviction Unit with the aim of mediating with homeowners to prevent the loss of family homes. The Unit offers different types of assistance ranging from the payment of rent and accumulated debts to the registration of persons affected by eviction on the city’s roster for rented social housing.
4.7 In the light of the foregoing and taking into account that the author did not appeal the judgment despite having been notified of it, that he did not take any legal action in relation to the eviction before submitting the communication to the Committee, and that he has not sought any assistance from social services, the State party considers that the communication is inadmissible owing to non-exhaustion of domestic remedies.
4.8 The State party further considers that the communication is inadmissible as it constitutes an abuse of the right of submission. The State party cites the jurisprudence of the Human Rights Committee, which states that inadmissibility on that ground includes situations in which the upholding of a complaint would lead to a result that is incompatible with the Covenant itself.3 In the present case, firstly, the author has presented the facts incorrectly and even untruthfully, for example by stating that he became aware of the eviction order in March 2021 and not in October 2020. The notice of the judgment received by the author was of particular relevance as it allowed him to appeal the judgment and appear at the proceedings. In addition, the State party considers that if he had in fact been in a vulnerable situation, the author would have requested the assistance of social services; however, the author merely made two telephone calls and did not submit a request for assistance. The State party considers that, due to the relevance of these facts, their omission cannot be considered a mere oversight and touches on issues that need to be clarified in order to examine the communication. The State party concludes that making untruthful statements is contrary to the Covenant itself and the Optional Protocol thereto, since the application of these treaties would be affected if trust in the good faith of authors is called into question by conduct such as that described above.
- K.V. and C.V. v. Germany (CCPR/C/50/D/568/1993). ↩
4.9 Lastly, the State party maintains that the communication should be considered inadmissible owing to lack of substantiation. The State party recalls the Committee’s jurisprudence, according to which failure to request assistance from the domestic authorities without justification may indicate a manifest lack of substantiation.4 In this regard, the State party reiterates that the author has not proved that he has applied for social housing or other assistance, despite having been aware of the judgment since October 2020 and despite the offers made over the telephone by social services. The State party indicates that, pursuant to Act No. 13/2006 on economic social benefits, a range of emergency assistance options would have been available to the author in the autonomous community in which he resides, had he requested them. However, the author has not complied with his obligation of due diligence in seeking assistance. The State party also notes that the author has failed to provide documentary evidence of his socioeconomic vulnerability either to the Court or to the Committee.
- Taghzouti Ezqouihel v. Spain (E/C.12/69/D/56/2018), paras. 6.4–6.6. ↩
Author’s comments on the State party’s observations on admissibility
5.1 In comments dated 18 November 2021, the author maintains that he does not have access to alternative housing. Although the eviction was initially suspended following the Committee’s request for interim measures, the author asserts that in October 2021, a new eviction date was set. The author claims that this indicates that the State party has not complied with the Committee’s request for interim measures. He states that he is considering filing a criminal complaint against the judge responsible for the eviction order, on grounds of perverting the course of justice.
5.2 The author provides a document showing that he applied for social housing in Barcelona on 27 April 2021. He reports that he has obtained a temporary work permit in Spain and currently has an insecure job in the home food delivery sector. His income is very low, and he must contribute a portion of his earnings to social security. According to the author, the housing market is becoming less and less affordable. The author reports that he has requested an appointment to meet with social services, although he does not indicate when he made this request.
B. Committee’s consideration of admissibility
6.1 On 1 December 2021, the Committee, taking into account the information provided by the parties, decided to consider the admissibility of the communication separately from the merits, under article 6 of its rules of procedure under the Optional Protocol to the Covenant. The Committee must decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol, whether or not the communication is admissible.
6.2 The Committee notes that the State party claims that the communication is insufficiently substantiated as the author has not requested assistance from social services, has not provided documentation of his socioeconomic vulnerability to the domestic authorities or to the Committee, and has not applied for social housing. The Committee notes that the author responds to this last point by submitting proof of his application for social housing, but that he has not provided any clarification of the discrepancies noted by the State party in his account of the facts, nor has he provided any documentation to substantiate his claims of socioeconomic vulnerability or his reported request for assistance from social services.
6.3 The Committee notes that States parties have a positive obligation under article 2 (1) of the Covenant to take steps, individually and through international assistance and cooperation, especially economic and technical, 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. The Committee recalls, however, that States parties may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant, as provided for in article 8 (4) of the Optional Protocol. The Committee therefore recognizes that States parties may establish administrative channels to facilitate the protection of the right to housing, including by requiring individuals to undertake certain administrative procedures to notify the authorities of their need for assistance in that regard. These formalities should not impose an excessive or unnecessary burden on individuals and should not have a discriminatory effect.5
- Taghzouti Ezqouihel v. Spain, paras. 6.3–6.4; Loor Chila et al. 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. ↩
6.4 In the present case, the Committee notes that it has not been alleged that the procedures proposed by the State party, namely applying for housing or for assistance from social services, would have placed an excessive or unnecessary burden on the author or would have had a discriminatory effect. However, it is clear from the file that the only measure that the author took, namely the placing of a telephone call from his lawyer to social services after receiving the eviction order, never resulted in a formal request for assistance. The Committee notes that the author only requested assistance through his counsel after receiving the eviction order on 14 April 2021 and after he had submitted his communication to the Committee, and not when he received the judgment in October 2020. The Committee notes that the author admits that he has not gone to social services in person to submit a formal request for assistance and that, although he claims to have made an appointment for this purpose, he does not provide any documentation or details in this regard. The Committee is of the view that the lateness of the author’s request for assistance and his failure to make use of the administrative channels established by the State party constitute a lack of due diligence in this case. Consequently, and in the absence of any justification to explain the author’s failure to act with due diligence by making use of the established administrative channels, the Committee considers that the author has not sufficiently substantiated his claim that the State party failed in its obligations under the Covenant, and finds that the communication is therefore inadmissible under article 3 (2) (e) of the Optional Protocol.
C. Conclusion
Accordingly, the Committee decides that:
(a) The communication is inadmissible under article 3 (2) (e) of the Optional Protocol;
(b) The present decision shall be communicated to the author and to the State party.