El Ayoubi and El Azouan Azouz v. Spain, Views adopted by the Committee on Economic, Social and Cultural Rights, No. 54/2018

Fátima El Ayoubi and Mohamed El Azouan Azouz (the authors) presented this communication to the Committee on their behalf and on behalf of their young son, Haron El Azouan El Ayoubi, claiming that Spain violated their right to adequate housing under Article 11(1) of the ICESCR by seeking and upholding their eviction when they did not have alternative accommodation. 

The authors were unable to rent a home due to their lack of income. Mr. El Azouan Azouz obtained temporary employment during 2017, but this was unstable income due to the temporary nature of the construction project. Despite multiple efforts to obtain gainful employment, he remained unemployed due to the economic crisis in Spain. Ms. El Ayoubi was unable to work as she was a full-time caregiver for their son, who has a disability. 

Due to economic precariety, the authors lived with Mr. El Azouan Azouz’s parents in social housing. However, the entire family was evicted after the government sold the apartment they were living in to an investment fund. As the Committee notes, faced with the “impossibility of obtaining housing on the open market due to high rental prices and the health problems of their son,” the authors saw themselves forced to move into a unit which had been vacant for over ten years. The unit, owned by a bank, was dilapidated, but with the help of family and friends, the authors were able to make it habitable. They moved into the property in 2016. 

That same year, the bank filed with the court of first instance an eviction proceeding on the grounds of illegal occupancy, which the court granted, rejecting their financial precariety and the health of their son as valid reasons for occupying the apartment, in March 2017. In October 2017 the appellate court upheld the eviction in its entirety. The eviction date was set for March 2018. For three months, the authors pleaded for stays of the eviction due to their continued unemployment and financial hardship. The authors even reached out to the bank directly to try to negotiate a social rental agreement. In September 2018, the Committee registered the authors’ communication and requested Spain stay the eviction to prevent possible irreparable harm to the authors and their child while it considered their case. While the dates for the eviction continued to be scheduled, they were eventually stayed until January 2021. 

The State argued that the motive behind the authors’ communication to the Committee was to stay in the bank-owned property, given that they had allegedly not acted towards obtaining social housing. Additionally, the State argued that the authors did not exhaust the resources available to them, instead opting “straightaway for squatting” of the empty bank-owned apartment. The State further argued that “no one has the right to occupy another’s home and that the right to own property is also a fundamental right, enshrined in article 17 of the Universal Declaration of Human Rights and article 33 of the [Spanish] Constitution.” 

In its consideration of the merits, the Committee examined three specific areas: 1) protection against forced eviction; 2) the duty of States to provide alternative housing to persons in need; and 3) the requirements for access to alternative housing and illegal occupation pursuant to the Covenant and Optional Protocol. For the latter two, the Committee reaffirmed the State’s obligation to provide alternative housing to persons in need to the maximum of their available resources in a deliberate, concrete and targeted manner. Additionally, the Committee highlighted that the State party has an obligation to resolve structural problems that are the root cause of housing crises.

The Committee relied on a proportionality analysis to evaluate the eviction. Evictions must legally be: 1) determined by law; 2) promote the common good in a democratic society; 3) be suited to the legitimate purpose cited; 4) must, as a limitation, be necessary, in the sense that the least restrictive measure must be chosen; and 5) benefit the common good outweighing the impacts on the enjoyment of the right being limited (emphasis added). At its core, the proportionality assessment requires that the independent local body take into consideration the impact that eviction might have on this particular individual; the “more serious the impact on the authors’ Covenant rights, the greater the scrutiny that must be given to the grounds invoked for such a limitation.”

The Committee noted that no proportionality assessment was conducted by the local authorities [Navalcarnero Examining Court of First Instance No. 3], and the particular facts that made the authors’ situation tenuous were not taken into consideration: their historical financial situation, employment opportunities, and their child’s disability. Because there was no proportionality assessment conducted by local, independent authorities, the Committee found that the State party was in breach of its obligations under Article 11(1) of the Covenant. 

The Committee considered that the State’s housing insecurity crisis was due to structural issues plaguing Spanish society, “rooted in growing inequality and housing market speculation” which States “have an obligation to resolve…through appropriate, timely and coordinated responses, to the maximum of their available resources.” 

The Committee gave specific recommendations in respect of the authors and their children, and held that the State party is under an obligation to provide the authors and their children with the following remedies: (a) if they are not currently in adequate housing, reassessing their state of necessity and their level of priority on the waiting list; (b) provide the authors and their children with financial compensation for the violations suffered; and (c) reimburse the authors for the legal costs reasonably incurred in this communication, at both the domestic and international levels.

The Committee also gave general recommendations pursuant to the State’s obligation to prevent similar violations in the future. The State must ensure that, when an eviction order is issued that might be at risk of violation of a person’s Covenant rights, such persons have the opportunity to challenge the decision before a judicial or other impartial and independent authority to stay the violation, and to provide an effective remedy under the rights enshrined in the Covenant under the terms of article 4. In addition, the State must adopt measures necessary to end the practice of automatically excluding social housing applicants who find themselves occupying a property illegally due to necessity, instead ensuring equal access to social housing.

The Committee also required the State to take measures to ensure that evictions involving persons like the authors are carried out only following actual, genuine consultation with the persons concerned, and only once the State has taken all steps to ensure access to alternative housing. This is particularly important in cases involving families, older persons, children or other persons in vulnerable situations. Additionally, the State must develop and implement a comprehensive plan to guarantee the right to adequate housing for low-income persons, pursuant to general comment No. 4 and the Committee’s concluding observations on the sixth periodic report of Spain.