Views adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, concerning communication No. 188/20201*, 2**, 3***, 4****
- *Adopted by the Committee at its seventy-sixth session (9–27 September 2024). ↩
- **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, Lydia Carmelita Ravenberg, Julieta Rossi, Preeti Saran, Shen Yongxiang and Michael Windfuhr. Pursuant to rule 23 of the rules of procedure under the Optional Protocol, Mikel Mancisidor de la Fuente did not participate in the examination of the communication. ↩
- ***An individual opinion by Committee member Ludovic Hennebel (concurring) is annexed to the present Views. ↩
- ****The annex to the present document is being circulated in the language of submission only. ↩
State Party: Spain
Date of adoption of Views: 27 September 2024
1.1 The author of the communication is Rhimou El Korrichi, a Moroccan national born on 3 September 1978. She submits the communication on behalf of herself and her children, Y.Z. and M.Z., both Moroccan nationals and born in 2016 and 2018, respectively. The author claims that her eviction from the dwelling that she and her children were occupying violated her and her children’s rights under article 11 (1) of the Covenant. The Optional Protocol entered into force for the State Party on 5 May 2013. The author is represented by counsel.
1.2 On 2 July 2020, the Committee, acting through its Working Group on Communications, registered the communication and, in accordance with article 5 of the Optional Protocol, requested the State Party to take measures to avoid possible irreparable harm to the author and her children by suspending their eviction from the accommodation they were occupying while the communication was under consideration by the Committee or, alternatively, by granting them alternative accommodation, within the framework of genuine and effective consultation with the author.
A. Summary of the information and arguments submitted by the parties
Before registration of the communication
2.1 In December 2016,6 the author began living with her then-husband and their first child in accommodation owned by the Madrid Social Housing Agency, after paying €2,500 to the previous tenant without knowing that he had no legal title. On 10 February 2017, the author was given notice to voluntarily vacate the dwelling when its occupation was found to be illegal. The author claims that she signed the notice receipt with no knowledge of its contents or of the possibility of challenging it.
- The exact date has not been given by the parties. According to the Arroyomolinos social services’ report dated 24 July 2020, the author began to occupy the dwelling in December 2016. ↩
2.2 In April 2017, the author applied for social housing7 and, on 12 March 2018, applied for social housing on grounds of special need to the Ministry of Housing, Transport and Infrastructure of the Community of Madrid. On 11 April 2018, the author was asked to provide certain documents to enable her application to be processed.8
2.3 After her partner left her in March 2019, the author was left in charge of her two children who, at the time, were 1 and 4 years of age. Although the father was ordered to pay her alimony of €300, this amount was never paid. The author notes that, due to the young age of her youngest son, she was unable to enter the labour market and had to rely on neighbourhood assistance from the Caritas organization for food, as well as occasional assistance from the social services department of the municipality of Arroyomolinos.
2.4 On 19 February 2020, Madrid Administrative Court No. 23 issued an order authorizing entry to the dwelling occupied by the author in order to allow the Community of Madrid to repossess it.
2.5 On 18 May 2020, the author filed an appeal against the order, in which she alleged a violation of her right to adequate housing, her right to effective judicial protection, in that she was not notified of the proceedings or allowed to argue her case, the best interests of her children, given the failure to verify the family circumstances and the presence of two children aged 1 and 4 years at the time the order was issued, and the principle of proportionality with respect to the children’s vulnerable situation. This appeal was still pending when the communication was submitted to the Committee. The author notes that the appeal did not suspend the execution of the eviction order against her.
2.6 On 17 June 2020, the author was notified that the eviction order would be executed on 1 July 2020.
2.7 On 24 June 2020, the author filed a request to suspend the execution of the eviction order. Her request was accompanied by a report from the social services department of Arroyomolinos, Madrid, which noted the serious situation of social vulnerability of the author and her children, as she could not afford alternative housing. On 25 June 2020, Madrid Administrative Court No. 23 dismissed this request for a suspension, on the grounds that the presence of minors in the home did not affect the eviction decision itself, but rather the manner in which the eviction was to be executed.
After registration of the communication
2.8 On 1 July 2020, an attempt was made to evict the author and her children, but it was abandoned when access to the dwelling was blocked by neighbours and social activists. On 6 July 2020, the author again submitted a request for the suspension of the eviction order, in which she pointed to the interim measures requested by the Committee. On the same day, Madrid Administrative Court No. 23 rejected this request.
2.9 On 9 July 2020, the author and her children were evicted from the dwelling they were occupying9 and temporarily moved in with a relative in Móstoles, Madrid. In August 2020, the author rented a room in a shared apartment in Móstoles for a month. In September 2020, the author occupied another dwelling in Móstoles. Subsequently, social services arranged for her transfer to a boarding house for a few days. After referral to the Social Emergency Service of the Community of Madrid, on 2 February 2021, the author and her children were admitted to the Atocha Shelter, where they remained for a month. Since 1 March 2021, the author has been renting a room in a shared apartment in Móstoles for €350 a month.
- The author claims that about 50 riot police officers participated in the eviction. ↩
2.10 On 9 April 2021, the Administrative Chamber of the Madrid High Court of Justice upheld the appeal filed by the author (see para. 2.5), thereby revoking the order authorizing entry, notwithstanding the fact that it had already been executed.
Complaint
In her initial submission, the author claims that evicting her and her children would constitute a violation of article 11 (1) of the Covenant, as she did not have adequate alternative housing. The author states that her income was insufficient to find housing in the private market and that she did not have a social network that could provide her with alternative housing. The author claims that, despite her situation of particular vulnerability, she received no response to her applications for social housing.
State Party’s observations on admissibility and the merits
4.1 On 2 July 2020, the State Party submitted its observations on admissibility and the merits of the communication.
4.2 On admissibility, the State Party submits that there is no record that the author lodged a challenge or submitted documentation during the 10-day hearing period granted in the voluntary eviction notice of 10 February 2017. The State Party further notes that the author applied for social housing in April 2017, that is, almost a year after she started occupying a dwelling without legal title, and that the author’s last application for social housing on grounds of special need was set aside in August 2020 for failure to comply with the request to submit the necessary documentation. In addition, the author submitted her communication to the Committee on the same day that the first eviction was scheduled to take place, alleging that the national institutions offered no housing solution for her. However, just a few days later, she turned down the chance to stay in a shelter. The State Party concludes that both the failure to provide the documentation required for access to social housing and the rejection of the housing solution offered constitute an abuse of the right to submit a communication.
4.3 The State Party argues that the author has not exhausted all available domestic remedies because she failed to file an administrative appeal or an appeal before the administrative courts within the legally prescribed time limit to challenge the repossession order, as she herself acknowledges. According to the State Party, the failure to exhaust those remedies cannot be justified on grounds of urgency, given that the author occupied the dwelling without legal title for four years. Likewise, the alleged ineffectiveness of the appeal is based on mere conjecture.
4.4 On the merits, the State Party points out that the right to own property is also a human right, as recognized by article 17 of the Universal Declaration of Human Rights and article 33 of the Spanish Constitution, and that article 11 (1) of the Covenant cannot be used to support acts of occupation of another person’s property. The Committee has recognized that evictions are appropriate in certain cases, such as occupation, provided that they are carried out in accordance with the law, that those affected have access to adequate legal remedies and that they are carried out in a timely manner in the presence of competent officials. There is, therefore, neither an absolute right to specific housing nor an obligation on public authorities to provide housing to everyone if public resources are insufficient to do so.
4.5 The State Party points out that the right to housing recognized in the Covenant is not an enforceable right but a mandate that requires States to take appropriate measures to promote public policies whose aim is to improve access to decent housing. This mandate is reflected in article 47 of the Spanish Constitution and in the Statutes of Autonomy, in accordance with article 11 of the Covenant, constituting a right that is to be progressively realized and a guiding principle of social and economic policy. The State Party argues that the parameters for determining the fulfilment by the State of its obligations under article 11 of the Covenant are: the minimum level of resources needed to gain access to the free housing market; the number of persons below that level; and the availability of public funds to meet those needs. Thus, it must be determined: whether the State contributes all the resources it can reasonably dispose of to the financing of those needs, taking into account the state of public finances; and when such resources are not sufficient to cover all the needs, whether the allocation is made according to objective criteria, based on the principle of equality, in order of need. The authors of communications must prove: (a) that they are in a situation of need, calculated on the basis of the minimum wage (currently €950 a month in 14 payments a year); (b) that the competent authorities – at the local, regional and/or State level – have not devoted resources to the extent possible to alleviate the housing needs of families in situations of real social exclusion, including measures to facilitate access to and prevent withdrawal from the private housing market, emergency measures where necessary, such as a move into the social housing system, and sufficient investment in social housing; (c) if the available public resources are insufficient, that they were not distributed according to rational and objective criteria; and (d) that the authors have not deliberately committed acts or been responsible for omissions that have prevented them from receiving the public assistance available to them. According to the State Party, a violation of article 11 (1) of the Covenant would only occur if these conditions were met cumulatively. The State Party draws attention to several measures it has taken in response to the economic crisis. Firstly, measures to facilitate access to the private housing market for owners, including tax breaks, agreed loans and assistance to young people, and for renters, including public aid to improve access to private rentals for families on low incomes. Secondly, measures to prevent withdrawal from the private housing market: a moratorium on evictions for non-payment of mortgage loans and the adoption of a code of good banking practices to try to avoid defaults by offering private rentals under acceptable conditions. Thirdly, measures to address urgent needs until legitimate access to private or public housing becomes available again: establishment of coordination protocols with municipal social services prior to eviction to assess the emergency housing stock available, which have acquired legal status pursuant to Royal Decree-Law No. 7/2019 of 1 March 2019, on urgent housing and rental measures. Likewise, municipal social services are responsible for monitoring family needs, in coordination with the corresponding Autonomous Community.
4.6 In the present case, the State Party stresses that the public authorities provide for the basic needs of the author and her children, to the extent of available resources. This coverage includes access to the following services: (a) free public healthcare and education; (b) the justice system, also free of charge; (c) basic services; and (d) social measures to address the emergency caused by coronavirus disease (COVID-19), including the option of applying for the minimum living income. In particular, the municipality of Arroyomolinos has assisted the family since 2017 by providing free legal assistance, support in enrolling the children in school, and, through Caritas, emergency financial aid, food and clothing. Also, in July 2020, the author was offered a place in a shelter, which she declined. The author was also granted minimum income support of €287.78 a month and €300 in alimony. The municipality of Móstoles, for its part, assisted the family after the family moved there, including by putting it on the social housing list and providing it with immediate financial assistance for food and an emergency payment for rent, educational and paediatric attention for the children and advice on literacy and Spanish language classes for the author. The State Party emphasizes, with regard to the author’s actions, that she has occupied a social housing unit for four years, at the expense not only of the public authorities, as the owner of the unit, but also of the individuals who have gone through the legally established channels to be added to the waiting list for the allocation of social housing. Moreover, after her eviction in July 2020, the author rejected various housing solutions, including one that had a place for her at no cost to her. Far from accepting it, the author opted to again occupy a dwelling in September 2020. Also, the last social housing application submitted by the author in 2018 was set aside because she did not provide all the requested documentation. All the above demonstrates, according to the State Party, that the authorities have made every effort to assist the author and her children both socially and in the search for adequate alternative housing, with the result that there has been no violation of the Covenant.
Author’s comments on the State Party’s observations on admissibility and the merits
5.1 On 26 September 2022, the author submitted her comments on the admissibility and merits of the communication.
5.2 Firstly, the author points out that she currently receives only €287.78 a month, since the father of her children has never paid the agreed alimony. She adds that the alternative housing she was offered consisted of an emergency place in a facility for women victims of gender-based violence. She points out that the eviction was carried out by up to 50 riot police officers, without taking into account the presence of minors or complying with the interim measures requested by the Committee. After the eviction, they were left completely unprotected, with no alternative accommodation. She adds that the house she occupied with her children is currently boarded up, which shows that there was no one in greater need than her family waiting to live in it and that the Administration could have kept them in the house until alternative housing was found, in accordance with the Covenant, or until her appeal was heard.
5.3 The author claims that, in addition to the violation of article 11 (1) of the Covenant, the State Party has violated her children’s rights under articles 3, 27, 29 and 30 of the Convention on the Rights of the Child.
B. Committee’s consideration of admissibility
6.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol, whether the communication is admissible.
6.2 The Committee notes the author’s claims based on provisions of the Convention on the Rights of the Child. Bearing in mind that the Committee is competent only to determine violations of the provisions of the Covenant, the Committee considers that these claims are incompatible ratione materiae with the Covenant and declares them inadmissible under article 3 (2) (d) of the Optional Protocol.
6.3 The Committee notes the State Party’s argument that the communication constitutes an abuse of the right to submit a communication because, on the one hand, the author did not lodge any challenge or provide any documentation during the 10-day hearing period granted in the voluntary eviction notice of 10 February 2017 and, on the other hand, the author was late with her application for social housing and rejected the proposed housing solution. The Committee notes that both the failure to use the procedure for lodging a challenge and the alleged late application for social housing point to a lack of due diligence on the part of the author. In this regard, the Committee notes that the lack of due diligence cannot, in itself, constitute an abuse of the right to submit a communication for the purposes of article 3 (2) (f) of the Optional Protocol.10 As for the failure to use the hearing procedure, the Committee considers that, taking into account the author’s living situation, she would not have been able, in practice, to lodge a challenge or provide any documentation that could have demonstrated the legality of her occupancy for the purpose of reversing the voluntary eviction notice, meaning that this procedure would have had no chance of success in her case.
- See, mutatis mutandis, Vázquez Guerreiro et al. v. Spain (E/C.12/74/D/70/2018), para. 6.2; and Taghzouti Ezqouihel v. Spain (E/C.12/69/D/56/2018), para. 6.3. ↩
6.4 With regard to the author’s alleged lack of due diligence in applying for social housing, the Committee recalls that each State Party has an 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 its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means. However, States Parties may adopt a range of possible policy measures to implement 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 take certain administrative steps to notify the authorities of their need for assistance in respect of their right to housing. These formalities should not impose an excessive or unnecessary burden on individuals and should not have a discriminatory effect.11 In the present case, the Committee notes that the author first applied for social housing in April 2017. Although the parties did not indicate the exact date on which the author began to illegally occupy the dwelling, it appears from the file that it would have been in December 2016, that is, four months earlier. The Committee also notes the author’s claim, which has not been refuted by the State Party, that she received no response to her application for social housing. It also notes that this application was filed two months after the voluntary eviction notice was served and more than three years before the notice of repossession was served. Regarding the request for emergency housing of 12 March 2018, the Committee notes that there is no indication in the file of the content of the Administration’s response requesting the provision of additional documentation. However, the Committee is aware that one of the requirements for access to social housing in the Community of Madrid is that the applicant must not be occupying a property without legal title or the owner’s consent. Since the author was squatting the property, her application was bound to be unsuccessful. In the light of the circumstances of the case, the Committee cannot conclude that the author did not exercise due diligence when applying for social housing.
- Taghzouti Ezqouihel v. Spain, paras. 6.3 and 6.4; Loor Chila et al. v. Spain (E/C.12/70/D/102/2019), paras. 6.3 and 6.4; Sariego Rodríguez and Dincă v. Spain (E/C.12/70/D/92/2019), paras. 7.2 and 7.4; and Martínez Cortés v. Spain (E/C.12/73/D/214/2021), para. 6.3. ↩
6.5 With regard to the housing solution proposed to the author, the Committee notes the author’s argument that the only solution was an emergency place in a facility for women victims of gender-based violence. Taking into account that such a solution would have entailed the separation of the family unit, the Committee considers that it would not have represented an adequate alternative to meet the housing needs of the author and her children.12
- El Mourabit Ouazizi et al. v. Spain (E/C.12/72/D/133/2019), para. 10.3. ↩
6.6 In the light of the foregoing (see paras. 6.3–6.5), the Committee considers that the information before it does not enable it to conclude that the author’s actions constitute an abuse of rights and that, accordingly, article 3 (2) (f) of the Optional Protocol does not constitute an obstacle to the admissibility of the present communication.
6.7 The Committee also notes the State Party’s argument that the author did not exhaust all available domestic remedies because she did not wait for the outcome of the appeal against the repossession order. The Committee is of the view that, for the purposes of article 3 (1) of the Optional Protocol, “domestic remedies” are all remedies available in direct relation to the events that initially gave rise to the alleged violation and that, prima facie, may be reasonably considered effective means of remedying the alleged violations of the Covenant.13 The Committee notes that the principal complaint put forward by the author in her communication is that evicting her was a violation of the Covenant because she had no alternative housing. Therefore, the remedies that must be exhausted are, first and foremost, those directly related to the eviction, such as remedies aimed at preventing or delaying the eviction or serving to notify the courts of the lack of alternative housing.14 In this regard, the Committee notes that the author exhausted all the available remedies intended to prevent or postpone the eviction, as she challenged the repossession order and requested the suspension of the eviction order on two occasions, informing the competent judicial authorities that she did not have alternative housing. The Committee notes that, according to the author, the appeal did not have suspensive effect on the execution of the eviction order and could not, therefore, prevent irreparable harm to the author and her children, which is why the communication was registered despite the fact that the appeal, which was indeed effective in resolving the substantive issues before the Committee, was at that time pending. The Committee also notes that this appeal was finally decided on 9 April 2021, and that, despite the successful outcome of the appeal, it could not take effect since the author and her children had already been evicted on 9 July 2020. In the light of the foregoing, the Committee considers that article 3 (1) of the Optional Protocol does not constitute an obstacle to the admissibility of the present communication.
6.8 The Committee notes that the communication meets the other admissibility requirements under articles 2 and 3 of the Optional Protocol and, accordingly, declares the communication admissible and proceeds to its consideration on the merits.
C. Committee’s consideration of the merits
Facts and legal issues
7.1 The Committee has considered the present communication taking into account all the information provided to it in accordance with the provisions of article 8 of the Optional Protocol.
7.2 The Committee will proceed to consider which facts it deems established and relevant to the complaint.
7.3 Since December 2016, the author had been occupying without legal title accommodation owned by the Madrid Social Housing Agency. On 10 February 2017, she was served with a voluntary eviction notice. In April 2017, the author applied for social housing; there is no record of her receiving a response. On 12 March 2018, the author submitted an application for social housing on grounds of special need, which was set aside because she did not satisfy the condition of not occupying housing without legal title.
7.4 On 19 February 2020, an order was issued for the eviction. On 18 May 2020, the author filed an appeal against this order. On 17 June 2020, the author was notified that the eviction order would be executed on 1 July 2020. On 24 June 2020, the author submitted a request for the suspension of the eviction order. Her request was accompanied by a report from the social services department of Arroyomolinos, Madrid, which noted the serious situation of social vulnerability of the author and her children, as she could not afford alternative housing. On 25 June 2020, Madrid Administrative Court No. 23 dismissed this request for a suspension, on the grounds that the presence of minors in the home did not affect the eviction decision itself, but rather the manner in which the eviction was to be executed. On 1 July 2020, an attempt was made to evict the author and her children, but it was abandoned when access to the house was blocked by neighbours and activists. On 6 July 2020, the author again requested the suspension of the eviction order, a request that was rejected that same day by Madrid Administrative Court No. 23.
7.5 On 9 July 2020, the author and her children were evicted from the dwelling they were occupying, after which they found two temporary solutions until they began to occupy another dwelling in Móstoles in September 2020 and were subsequently moved to boarding houses and shelters for short periods until they were able to rent a room in a shared apartment.
7.6 On 9 April 2021, the Administrative Chamber of the Madrid High Court of Justice upheld the appeal filed by the author, thereby revoking the order authorizing entry, notwithstanding the fact that it had already been executed. Since June 2020, the author had been receiving a minimum living income of €287.78 per month.
7.7 The author claims that her eviction amounted to a violation of her right to adequate housing under article 11 (1) of the Covenant. The State Party argues that due process was followed, and that assistance has been provided to the family to the maximum of the available resources. The State Party also submits that the occupation of the social housing in question affects persons who are on the waiting list and whose vulnerability may be equal to or greater than that of the author.
7.8 In the light of the Committee’s determination of the relevant facts and the parties’ submissions, the issue raised by the communication is the following: whether or not the decision to evict, and the eviction of, the author and her children without making provision for consultation or a review of housing alternatives or having offered them alternative accommodation, constituted a violation of the right to adequate housing enshrined in article 11 (1) of the Covenant. The Committee must also determine whether, bearing in mind the principle of the best interests of the child, the failure to ensure that the children could exercise their right to be heard and to take into account the disproportionate impact of eviction on a single mother and her children in the eviction process constitutes a violation of the right to adequate housing under article 11 (1) of the Covenant, read alone and in conjunction with article 3 and article 10 (3) of the Covenant.15 To make this determination, the Committee will begin by returning to its jurisprudence on protection against forced eviction. It will then consider the eviction of the author and her children and address the issues raised in the communication.
- Vázquez Guerreiro et al. v. Spain, para. 7.13. ↩
Protection against forced eviction
8.1 The human right to adequate housing is a fundamental right of central importance for the enjoyment of all economic, social and cultural rights and of other civil and political rights.16 The right to housing should be ensured to all persons irrespective of income or access to economic resources,17 and States Parties must take whatever steps are necessary for that purpose, to the maximum of their available resources.18
8.2 Forced evictions are prima facie incompatible with the Covenant and can be justified only in the most exceptional circumstances.19 The relevant authorities must ensure that they are carried out in accordance with legislation that is compatible with the Covenant, in pursuit of a legitimate objective, in accordance with the general principles of necessity and proportionality, and ensuring a proper balance between the legitimate objective of the eviction and its consequences for the evicted persons.20 This obligation flows from the interpretation of the State Party’s obligations under article 2 (1) of the Covenant, read in conjunction with article 11, and in accordance with the requirements of article 4, which stipulates the conditions under which such limitations on the enjoyment of the rights under the Covenant are permitted.21
8.3 In view of the foregoing, for an eviction to be appropriate, it must meet the following requirements: it must be determined by law and must be necessary and proportional to the legitimate purpose, such as the protection of private property or social welfare through the allocation of social housing to the most socially vulnerable persons. Lastly, the benefits of the eviction in promoting general welfare must outweigh the impacts on the enjoyment of the right to decent housing. The more serious the impact on the rights enshrined in the Covenant, the greater the scrutiny that must be paid to the grounds invoked for the eviction. The availability of adequate alternative housing, the personal circumstances of the occupants and their dependants and their cooperation with the authorities in seeking suitable solutions are crucial factors in such an analysis. Moreover, a distinction inevitably needs to be made between an eviction from properties belonging to individuals who need them as a home or to provide vital income and properties belonging to financial institutions or other entities.22
- López Albán et al. v. Spain (E/C.12/66/D/37/2018), para. 11.5, El Ayoubi et al. v. Spain (E/C.12/69/D/54/2018), para. 11.3; and Vázquez Guerreiro et al. v. Spain, para. 8.3. ↩
8.4 The assessment of the balance, necessity and proportionality of the measure must be carried out by a judicial or other impartial and independent authority with the power to order the cessation of the violation and to provide an effective remedy. Finding an eviction to be an unreasonable measure at a specific moment in time does not necessarily mean that an eviction order cannot be issued against the occupants. However, the principles of reasonableness and proportionality might make it necessary to stay or postpone the eviction order so as to avoid subjecting the evicted persons to destitution or violations of other rights enshrined in the Covenant. An eviction order may also depend on other factors, such as an obligation for the administrative authorities to step in to help the occupants with a view to mitigating the consequences of the eviction.23
- López Albán et al. v. Spain, para. 11.5. ↩
8.5 In addition, there must be no alternative measures available, or measures that would impinge less on the right to housing, and the persons concerned must not remain in or be exposed to a situation constituting a violation of other Covenant or human rights.24
- Ben Djazia et al. v. Spain, para. 15.1. ↩
8.6 The procedural protections that should be afforded in relation to eviction include: (a) an opportunity for genuine consultation on alternative accommodation with those affected, and, if a lack of resources means that there are no viable alternatives, requiring the administrative authorities to present the available options with a view to ensuring that the eviction will not leave anyone homeless; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) provision, in reasonable time, of information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to all affected persons; (d) especially where groups of people are involved, the presence of government officials or their representatives during an eviction; (e) proper identification of all persons carrying out the eviction; (f) no execution of eviction orders in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies to challenge the eviction; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.25
- General comment No. 7 (1997), para. 15. ↩
8.8 Forced eviction as a punitive measure is also inconsistent with the norms of the Covenant.27 In this regard, the Committee notes that public policies or legislative measures that criminalize individuals or groups of individuals on the basis of their housing situation may be discriminatory and contrary to the right to adequate housing and to other obligations of States Parties to the Covenant, in particular when they affect groups in vulnerable situations.28 The criminalization of a social issue, such as homelessness, is a disproportionate response by the State and does not serve the intended purpose. Criminal law has to be a tool of last resort. The State must seek to respond in other, less harmful ways to the housing shortage and the limited opportunities afforded low-income people to gain access to decent housing, which is often the underlying reason for the offence of squatting. The Committee is of the view that States Parties should ensure that they make available effective and adequate means of challenging forced evictions and the criminalization of persons without access to adequate housing or living in illegal settlements.29
8.9 The Committee also wishes to point out that women, children, youth, older persons, Indigenous Peoples, ethnic and other minorities and other individuals and groups all suffer disproportionately from the practice of forced eviction. Women in all these groups are especially vulnerable given the extent of statutory and other forms of discrimination that often exist in relation to access to property or accommodation, and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless.30 Many women experience intersectional forms of discrimination due to the combination of gender and such factors as race, colour, language, religion, political and other opinion, national or social origin, property, birth, or other status, such as age, ethnicity, disability and marital, refugee or migrant status, resulting in compounded disadvantage.31
8.10 The Committee has taken special note of the factors that have a negative impact on the equal enjoyment by women and men of economic, social and cultural rights in many of its general comments, including those relating to the right to adequate housing.32 The Committee reiterates that it is incumbent upon States Parties to take into account the manner in which the application of apparently gender-neutral legal norms and principles may have a negative and more burdensome effect on the ability of women to enjoy their human rights without discrimination.33 They must also take steps to ensure that, in practice, men and women enjoy their economic, social and cultural rights on a basis of equality; consequently, their public policies and legislation must take account of the economic, social and cultural inequalities experienced in practice by women.34
Duty of States to provide alternative housing to persons in need or to take all measures to the maximum of available resources
9.1 Where those affected by an eviction are unable to provide for themselves, the State Party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.35 The State Party has a duty to take reasonable measures to provide alternative housing to persons who are left homeless as a result of eviction, irrespective of whether the eviction is initiated by its authorities or by private individuals such as the owner of the property.36 In the event that a person is evicted from his or her home without the State Party’s granting or guaranteeing of alternative accommodation, the State Party must demonstrate that it has considered the specific circumstances of the case and that, despite having taken all reasonable measures, to the maximum of its available resources, it has been unable to uphold the right to housing of the person concerned.37 The information provided by the State Party should enable the Committee to consider the reasonableness of the measures taken in accordance with article 8 (4) of the Optional Protocol.38
9.3 Alternative housing must be adequate. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any given context.41 They include legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; a location in a wholesome and healthy setting that allows access to public and social services (education, employment, healthcare and transport) and cultural adequacy, to ensure that expressions of cultural identity and diversity are respected.42
9.4 In certain circumstances, States Parties may be able to demonstrate that, despite having made every effort, to the maximum of available resources, it has been impossible to offer a permanent, alternative residence to an evicted person who needs alternative accommodation. In such circumstances, temporary accommodation that does not meet all the requirements of an adequate alternative dwelling may be used. However, States must endeavour to ensure that the temporary accommodation protects the human dignity of the persons evicted, meets all safety and security requirements and does not become a permanent solution but is a step towards obtaining adequate housing.43 It must also take account of the right of members of a family not to be separated44 and to enjoy a reasonable level of privacy.45 Likewise, States can demonstrate that, despite not having been able to directly provide alternative housing to evicted persons, they have taken measures, to the maximum of their available resources, to provide social assistance to such persons in order to promote their social reintegration and facilitate their access to adequate housing.
Analysis of the proportionality and execution of the eviction of the author and her children
10.1 The Committee notes that the point of contention is, first, whether the authorities considered the proportionality of the objective of the eviction to its consequences for the persons evicted, including weighing the benefits of the measure – in this case, protecting the right to property of the State agency that owns the social housing – against its possible consequences for the rights of the evicted persons46 in the specific circumstances of the case.
- López Albán et al. v. Spain, para. 11.5. ↩
10.2 As mentioned in paragraph 8.3, the Committee has drawn up a series of circumstances that must be assessed when analysing the proportionality of an eviction: (a) the availability of adequate alternative housing; (b) the personal circumstances of the occupants and their dependants; (c) the occupants’ cooperation with the authorities in seeking suitable solutions; and (d) the distinction between properties belonging to individuals who need them as a home or source of income and properties belonging to banks, financial institutions or other entities.47
- El Mourabit Ouazizi et al. v. Spain. ↩
10.3 In the present case, the Committee notes that, as stated in the judgment of 9 April 2021 upholding the author’s appeal, the eviction order was issued without an analysis of the impact of the eviction on the author and her children in the light of the family’s extremely vulnerable circumstances and the absence of alternative housing, as reflected in the social services’ report made available to the competent judicial authorities, and without considering the presence of children in the dwelling. In the light of the specific circumstances of the present case, the Committee considers that proper consideration of the proportionality of the eviction would have taken into account the socioeconomic vulnerability of the author and her children, their status as migrants and the best interests of the children; the particular effects of the eviction on the author as a woman head of household with responsibility for two minor children without the wherewithal for adequate housing or other viable alternatives; the social utility of the property where the author and their children lived, given that it belonged to the Social Housing Agency; the author’s applications for social housing; the availability of social housing provided by the administrative authorities responsible; and the existence of alternative means of resolving the problem. To assess the author’s situation, the courts should have made arrangements for genuine and effective consultation with her and requested the administrative authorities to provide information on any social housing available and on the author’s socioeconomic situation. The courts should also have respected the children’s right to be heard.48
- B.J. and P.J. v. Czechia (CRC/C/93/D/139/2021), paras. 8.13 and 8.14. ↩
10.4 As for the execution of the eviction order, the Committee notes the author’s allegations, which have not been refuted by the State Party, that up to 50 riot police officers took part in the eviction, while the State Party has failed to substantiate to what extent the presence of young children in the home and the impact that such an operation might have had on them were taken into account. The Committee therefore considers that this measure was disproportionate.
Consultation with the author, the right to be heard, the best interests of the children and disproportionate impacts
11.1 The Committee notes that the author filed two applications for suspension of the eviction order before the competent judicial authorities, in which she alleged a situation of particular vulnerability, provided a copy of the social services report and drew attention to the presence of young children in the home. However, the Committee notes that, in its decision of 25 June 2020 rejecting the author’s request for a stay of eviction, Madrid Administrative Court No. 23 considered that the presence of children in the home did not affect the eviction decision but only the manner in which it was to be carried out. In this regard, despite the various requests for a stay of eviction and the appeals filed by the author, the Committee considers that there has been no evidence of a genuine and effective judicial consultation mechanism to study alternatives to eviction.
11.2 The Committee also notes that, at the time of the eviction, the author’s children were 4 and 6 years of age. In this respect, the Committee recalls that, pursuant to the principle of the best interests of the child, whenever a decision is to be taken that affects a child or adolescent, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or adolescent concerned.49 Accordingly, the justification of a decision must show that this right has been explicitly taken into account.50 States must ensure that, in all decisions affecting the interests of children and adolescents, their best interests are adequately and systematically assessed.51 This obligation is especially important in the face of enforcement measures, such as forced evictions, that cause children disproportionate suffering.52
11.3 Accordingly, and taking into account the children’s health and schooling, the Committee notes that it does not appear from the judgments of Madrid Administrative Court No. 23 that the best interests of the author’s children were taken into account when ordering the eviction, especially bearing in mind the context of the COVID-19 pandemic, in which the judgments were handed down. The arguments made in those rulings do not show that the courts in question undertook a specific analysis of how an eviction could affect the author’s children or what the best decision would be, considering that, pursuant to article 10 (3) of the Covenant, special measures of protection and assistance should be taken on their behalf.
11.4 The Committee also notes that, according to the principle of progressive autonomy, the children should have been heard during the proceedings, directly or indirectly, but were not. The courts also failed to take into account the author’s situation as a single mother of two children who was on a precarious economic footing and the disproportionate impact that the eviction would have on her and her children as a result of the discrimination faced by women, the lack of equal opportunities for access to adequate housing and to employment and the share, larger than that of men, of the caregiving burden that they bear.53
- Vázquez Guerreiro et al. v. Spain, para. 12.3. ↩
Analysis of compliance with the obligation to provide alternative housing for the author and her children or to take all measures to the maximum of available resources to ensure their right to adequate housing
12.1 In the present case, the Committee notes that the only alternative housing option offered to the author consisted of an emergency place in a facility for women victims of gender-based violence, a temporary option aimed at offering protection to this group of women that would have entailed the separation of the family unit, and therefore could not be considered an option that could satisfy the author’s and her children’s right to adequate housing (see para. 6.5).
12.2 The Committee notes the measures taken by the social services of Arroyomolinos and Móstoles in favour of the author and her children, in particular the allocation since June 2020 of a minimum living income of €287.78 a month and the emergency assistance allocated after her eviction. The Committee also notes that, as pointed out by the State Party (see para. 4.6), the occupation of social housing is detrimental not only to the public authorities, as the owner, but also to persons on the waiting list whose vulnerability may be as great as or greater than that of the author. However, the Committee notes that, following the eviction of the author and her children, the house in question was boarded up and thus left uninhabited, without any justification for this action being provided by the State Party.
12.3 In the light of the foregoing, the Committee considers the State Party’s arguments insufficient to demonstrate that it has made all possible efforts, using all available resources, to realize, as a matter of urgency, the right to housing of the author and her children, who were in a situation of dire need. For example, the State Party did not explain that denying the author social housing was necessary because it was putting its resources towards a general policy or an emergency plan to be implemented by the authorities with a view to progressively realizing the right to housing, especially for persons in a particularly vulnerable situation.54 The State Party has also failed to explain, in particular, why the house occupied by the author and her children was boarded up after their eviction, making it unavailable to anyone, or how this measure could be justified as being the most appropriate way to ensure the full realization of the rights recognized in the Covenant.
- Ben Djazia et al. v. Spain, para. 17.5. ↩
Interim measures and eviction of the author and her children
13.1 On 2 July 2020, the Working Group on Communications, acting on behalf of the Committee, requested the State Party to suspend the eviction of the author and her children while the communication was being considered or, alternatively, to grant them adequate housing in genuine and effective consultation with the author.
13.2 The Committee recalls that, according to its jurisprudence,55 the adoption of interim measures pursuant to article 5 of the Optional Protocol is vital to the Committee’s fulfilment of the responsibility entrusted to it under the Optional Protocol,56 as the reason for the existence of interim measures is, inter alia, to preserve the integrity of the process, thereby ensuring the effectiveness of the mechanism for protecting Covenant rights when there is a risk of irreparable damage.57 It also recalls that, as established in its guidelines on interim measures, any State that does not respect the interim measures requested by the Committee is in breach of its obligation to respect in good faith the individual communications procedure established in the Optional Protocol, since failure to respect the interim measures makes it difficult for any future Views to reverse the harm caused to the victims.58
- S.S.R. v. Spain (E/C.12/66/D/51/2018), paras. 7.6 and 7.7. ↩
- Committee against Torture, Thirugnanasampanthar v. Australia (CAT/C/61/D/614/2014), para. 6.1. ↩
- See, mutatis mutandis, European Court of Human Rights (Grand Chamber), Mamatkulov and Askarov v. Turkey (applications No. 46827/99 and No. 46951/99), judgment of 4 February 2005, para. 128; and Thirugnanasampanthar v. Australia, para. 6.1. ↩
- See https://www.ohchr.org/es/treaty-bodies/cescr/inquiry-procedure. ↩
13.3 The Committee notes that, on 9 July 2020, the author and her children were evicted despite the Committee’s having requested the State Party to adopt interim measures and without her having been granted adequate alternative housing following genuine consultation with her.
13.4 In the absence of an explanation by the State Party of the reasons for which the interim measures could not be taken, the Committee is of the view that the State Party violated, in the circumstances of the case, article 5 of the Optional Protocol.
D. Conclusions and recommendations
14.1 On the basis of all the information provided and in the particular circumstances of the case, the Committee finds that the eviction of the author and her children without a proper assessment of proportionality by the judicial authorities, including consideration of the disproportionate impact that the eviction could have on the author and her children and the principle of the best interests of the child, and without a guarantee, as part of the procedure, of genuine and adequate consultation or the right of the children to be heard, together with the lack of alternative housing and the State Party’s failure to provide evidence that it had taken all appropriate measures to the maximum of its resources, constitutes a violation of their right to adequate housing.
14.2 The Committee, acting under article 9 (1) of the Optional Protocol, is of the view that the State Party violated the right of the author and her children under article 11 (1) of the Covenant, read alone and in conjunction with articles 3 and 10 (3). The Committee is also of the view that the State Party violated article 5 of the Optional Protocol. In the light of the Views contained in the present communication, the Committee makes the following recommendations to the State Party.
Recommendations in respect of the author and her children
The State Party is under an obligation to provide the author and her children with an effective remedy, in particular by: (a) reassessing, if they are not currently in adequate housing, their state of necessity and their place on the waiting list, taking into account the length of time that their application for housing has been on file with the Community of Madrid, starting from the date on which the author applied, with a view to providing them with social housing or taking some other measure that would enable them to live in adequate housing, bearing in mind the criteria set out in the present Views; (b) providing the author and her children with financial compensation for the violations of their rights, including the material and non-material damages suffered by the family; and (c) reimbursing the author for the legal costs reasonably incurred in submitting this communication, at both the domestic and international levels.
General recommendations
The Committee considers that the remedies recommended in the context of individual communications may include guarantees of non-repetition and recalls that the State Party has an obligation to prevent similar violations in the future. The State Party should ensure that its legislation and the enforcement thereof are consistent with the obligations established under the Covenant. In particular, the State Party has an obligation to:
(a) Ensure that its normative framework allows persons in respect of whom an eviction order is issued and who might consequently be at risk of destitution or of violation of their Covenant rights, including persons who are occupying a dwelling without legal title, to challenge the decision before a judicial or other impartial and independent authority with the power to order the cessation of the violation and to provide an effective remedy so that such authorities can examine the proportionality of the measure in the light of the criteria for limiting the rights enshrined in the Covenant under the terms of article 4; consider, where appropriate, the best interests of the child and the disproportionate impact of evictions on women, especially those who are single mothers of minor children and on a precarious economic footing; and revise current regulations to introduce reasonable notice periods and mandatory consultations with the persons affected by an eviction;
(b) Take the necessary measures to ensure that evictions affecting persons who lack the wherewithal to obtain alternative housing take place only within the framework of proceedings involving genuine and effective consultation with the persons concerned in which all available alternative housing (whether belonging to such persons or made available by the relevant State agencies) is assessed and only after the State has taken all essential steps, to the maximum of its available resources, to ensure that evicted persons have alternative housing, especially in cases involving families, households headed by single parents – women in particular – older persons, children and/or other persons in vulnerable situations. If the group to be evicted includes children, the proceedings must guarantee their right to be heard;
(c) Adopt the measures necessary to put an end to the practice of automatically excluding from lists of applicants for housing all persons who find themselves occupying a dwelling without legal title because they are in a situation of necessity, so that all such persons have equal access to the social housing stock, removing any unreasonable condition that might exclude persons at risk of destitution;
(d) Take the measures necessary to ensure proper coordination between the judicial authorities and social services to prevent an evicted person from being left without adequate accommodation;
(e) Develop 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 for low-income persons, in keeping with general comment No. 4 (1991). This plan should provide for the necessary resources, indicators, time frames and evaluation criteria to guarantee these individuals’ right to housing in a reasonable, timely and measurable manner;
(f) Establish a protocol for complying with requests for interim measures made by the Committee and inform all relevant authorities of the need to grant such requests in order to ensure the integrity of the procedure;
(g) Establish follow-up mechanisms to assess the effectiveness of reparation measures and to prevent the recurrence of similar situations.
In accordance with article 9 (2) of the Optional Protocol and rule 21 (1) of the rules of procedure under the Optional Protocol, the State Party is requested to submit to the Committee, within a period of six months, a written response, including information on measures taken in follow-up to the Views and recommendations of the Committee. The State Party is also requested to publish the Views of the Committee and to distribute them widely, in an accessible format, so that they reach all sectors of the population.
Annex
[English only]
Individual opinion of Committee member Ludovic Hennebel (concurring)
I fully concur with the Committee’s decision in this case. However, I wish to issue this concurring opinion to highlight the importance of streamlining repetitive communications related to the right to housing, in particular in the context of evictions in Spain. Since the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Committee has been presented with a significant number of individual communications concerning the right to housing, notably in relation to Spain. These communications share common characteristics, with similar facts, often linked to the eviction of vulnerable families for the illegal occupation of housing. Alleged violations of article 11 of the Covenant – which guarantees the right to adequate housing – are consistently invoked.
It is therefore evident that these communications raise a recurring issue that requires a harmonized approach from the Committee to ensure coherence and efficiency in addressing these cases.
Aware of the importance of handling these cases efficiently and in accordance with the principles of legal certainty, the Committee has undertaken a rationalized management of communications presenting fundamentally identical facts and legal issues to those already decided. Under rule 19 of its rules of procedure under the Optional Protocol, the Committee is empowered to adopt a simplified procedure for cases that, due to their similarity, do not require a thorough re-examination.
It is in this context that the present decision was rendered. It is designed to serve as a reference decision, akin to a “pilot decision”, thereby allowing the Committee to address future cases involving the same factual and legal issues efficiently. This decision thus marks an important step in consolidating the Committee’s jurisprudence on the right to housing and streamlining the handling of these complaints. As a result, repetitive communications will be dealt with collectively, without detailed reasoning, relying on and referring to the reference decision, and accompanied by adjusted recommendations. This streamlining is aimed at delivering justice more swiftly and efficiently, while preserving the rigour and coherence of the Committee’s jurisprudence.
Furthermore, the present decision reiterates the essential principles developed by the Committee regarding the protection of the right to adequate housing (article 11 of the Covenant). These principles include, notably:
(a) The right to adequate housing. The Committee has consistently reiterated that this right is fundamental and must be effectively guaranteed, regardless of the economic precariousness of the individuals concerned. Housing must not be merely a shelter but a place that respects human dignity, with access to basic services and situated in a healthy and safe environment;
(b) The prohibition of forced evictions without adequate procedural guarantees. Any eviction must be preceded by an assessment of the proportionality of the measure with respect to the rights at stake and an active search for relocation solutions. The Committee has consistently condemned evictions carried out without respecting these guarantees, in particular when the evicted families are left homeless;
(c) The importance of consultation and the consideration of vulnerability and the best interests of the child. The Committee emphasizes that, in cases of eviction affecting vulnerable families, States must consult with the persons concerned and rigorously assess the impact on children. The best interests of the child must be systematically taken into account, considering their vulnerability, physical and psychological well-being, and schooling. Children must benefit from special protection measures, and the specific circumstances of vulnerable families, such as situations of precariousness or discrimination, must be fully integrated into decisions to avoid disproportionate effects;
(d) The State’s positive obligation to provide adequate relocation solutions. In accordance with their obligations under article 2 (1) of the Covenant, States must, to the maximum of their available resources, adopt appropriate measures to ensure alternative housing for vulnerable individuals threatened with eviction. This means that the State must demonstrate that it has taken all reasonable measures to provide a relocation solution, in particular to prevent families from becoming homeless;
(e) The role of provisional measures and the obligation to comply with procedural obligations. The Committee recalls that, in line with its jurisprudence, provisional measures requested under article 5 of the Optional Protocol are essential to ensure the integrity of the procedure and to prevent irreparable harm. The State must suspend any action, such as an eviction, while the communication is under review. Failure to comply with these measures, as in this case where the eviction was carried out without providing adequate relocation, constitutes a violation of article 5 of the Protocol, undermining good faith in the review of individual communications.
Through this decision, the Committee reaffirms the obligations of Spain with respect to the right to housing, thereby consolidating its jurisprudence in the field of economic, social and cultural rights. It serves as a crucial reminder to all States Parties to the Covenant to implement public policies that respect the human rights guaranteed by the Covenant.