CESCR confirms right to housing applies to private tenancy arrangements
Mohamed Ben Djazia and Naouel Bellili v. Spain, CESCR, Communication No. 5/2015, UN Doc. E/C.12/61/D/5/2015 (20 June 2017)
In October 2013, Mohamed Ben Djazia, Naouel Bellili and their two minor children were evicted from the home they had rented in Madrid, Spain, after their private rental contract expired. The family situation of extreme insecurity and vulnerability was aggravated by the fact that their children (approximately one and three years old at the time) were left without shelter.
The Ben Djazia-Bellili family (Authors), argued before the UN Committee on Economic, Social and Cultural Rights (CESCR) that the state had violated their right to adequate housing under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (Covenant), since they were evicted despite not having alternative accommodation and without consideration of the impact of the eviction order on their children.
On 20 June 2017, the Committee found a violation of Article 11(1) read separately and in conjunction with Article 2(1) (obligation to adopt measures to the maximum of available resources towards progressive realization of rights) and 10(1) of the Covenant (obligation to provide the family with the widest possible protection).
CESCR issued individual recommendations requiring the state to ensure that the family has access to adequate housing, as well as financial compensation and legal costs. CESCR also issued general recommendations to Spain with regard to: (a) the adoption of legislative and/or administrative measures to ensure that tenants have access to judicial proceedings where the “judge might consider the consequences of eviction…”; (b) the adoption of measures to resolve the “lack of coordination between court decisions and the actions of social services”; (c) the adoption of measures to guarantee that evictions of those without the means to obtain alternative housing involve
“genuine consultation” and essential steps regarding alternative housing; (d) special protection for those who are in a situation of vulnerability; and (e) the development and implementation of a plan to “guarantee the right to adequate housing for low-income persons.”
This is the third decision on the merits under the Optional Protocol to the Covenant, and the second one on the right to adequate housing (following IDG v. Spain, CESCR, 2015). This case confirms that the right to adequate housing vests in all persons, including persons living in rental accommodation, whether public or private, and highlights the importance of special protection for vulnerable groups. It also reaffirms the need for states to justify the reasonableness of relevant measures, pursuant to Article 8(4) of the Optional Protocol and CESCR 2007 Statement on Maximum Availability of Resources.
In addition, this case highlights systemic issues regarding the right to adequate housing in Spain, exacerbated by the economic crisis and related austerity measures. As housing problems in most EU countries reach crisis point, this decision is a strong and timely reminder that states have a clear obligation to justify any sale of public housing stock to investment companies, as well as the use of tax revenue in light of Covenant obligations. It also highlights the need
for comprehensive plans related to housing, which should provide for necessary resources, indicators, time frames and evaluation criteria.
The Spanish government is required to submit to the Committee, within a period of six months, a written response outlining implementation measures. In accordance with CESCR’s guidance on follow-up to Views, the Authors and civil society organizations/National Human Rights Institutions may then also submit information related to implementation to the Committee. Observatori DESC, a ESCR-Net Strategic Litigation Working Group (SLWG) member based in Spain, the lawyer
on the case- Javier Rubio (CAES) and one of the main housing rights movements in Spain, [Plataforma de los Afectados por Hipotecas (PAH)], alongside other allies, are currently leading collaborative efforts to monitor and advance implementation of the case.
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