UN Committee on ESCR issues historic recommendations to Spain related to the right to housing

On September 17, 2015, the UN Committee on Economic, Social and Cultural Rights (CESCR) published its first recommendations in response to an individual complaint, regarding a violation of the right to housing, under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), taking into account an ESCR-Net intervention.

With its entry into force in May 2013, the OP-ICESCR gave the CESCR the ability to hear complaints from individuals or groups of individuals who have not been able to secure justice for violations of economic, social and cultural rights (ESCR) in their own country. This case sets an important precedent, representing a vital new opening for access to justice at the international level, following the advocacy of the NGO Coalition for the Ratification of the OP-ICESCR.

In I.D.G. v. Spain (Communication 2/2014), brought on behalf of the complainant by FR Abogados, the CESCR established that the State has the obligation to provide for effective remedies in foreclosure procedures related to defaulting on mortgage payments, to ensure that all appropriate measures are taken to guarantee personal notification in foreclosure procedures, and to guarantee that legislative measures are adopted to prevent repetition of similar violations in the future. 

The Committee ruling is in line with the third party intervention (in Spanish), presented by the International Network for Economic, Social and Cultural Rights (ESCR-Net) through members of its Strategic Litigation Working Group - the Center for Economic and Social Rights (CESR), the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), and the Socio-Economic Rights Institute of South Africa (SERI) - referencing established principles and relevant interpretation of such principles through international and comparative case law and other sources. It stressed that States parties must interpret and apply domestic law consistent with their obligations under the ICESCR and must ensure effective judicial protection for Covenant rights, including the right to adequate housing. The latter protection entails state obligations to consider all feasible alternatives to eviction, ensure the greatest possible security of tenure, provide for adequate and reasonable notice in cases of eviction, ensure that evictions do not render persons vulnerable to other human rights violations, and provide adequate compensation for violations. In accepting this intervention from ESCR-Net, the CESCR has followed the practice set by other international and regional decision-making bodies in allowing for third party interventions which present material relevant to the issues at stake.

This case arises in circumstances of widespread threats to the right to housing, impacting large numbers of people in Spain, who lost their homes after defaulting on mortgage payments in the context of the country’s economic recession and substantial unemployment. In this regard, an estimated 400,000 mortgage foreclosures took place in Spain between 2008 and 2012.[1] In 2014, six million people were unemployed in Spain. Moreover, between 2010 and 2014, the national budget for housing decreased by 47%, according to official figures.[2]

This case represents an important opening for justice for individuals and groups affected by ESCR violations; however, countries must first ratify the OP-ICESCR before their residents can access the CESCR using the mechanism of communications. Civil society, foremost via the NGO Coalition for the OP-ICESCR coordinated by ESCR-Net, was central to the drafting and adoption of the OP-ICESCR, and the Coalition continues an active campaign encouraging countries to ratify and reinforce their existing human rights obligations by ensuring access to effective remedy. As at today’s date, the following countries had ratified the OP-ICESCR: Argentina, Belgium, Bolivia, Bosnia and Herzegovina, Cabo Verde, Costa Rica, Ecuador, El Salvador, Finland, France, Gabon, Italy, Luxembourg, Mongolia, Montenegro, Niger, Portugal, San Marino, Slovakia, Spain and Uruguay.