On 5 July 2017, the decision of the UN Committee on Economic, Social and Cultural Rights in the case of M.B.D. et al. v. Spain(Communication No. 5/2015) was made available. This is the third decision on the merits (adoption of views) that the Committee has taken in the framework of the individual complaints mechanism established by the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; and the second one that concerns the right to adequate housing.¹
The Committee found that Spain had violated the right to housing of the authors, in particular by not taking all appropriate measures to the maximum of its available resources to guarantee a suitable alternative accommodation in the context of their eviction.
This blog post provides a short summary of the case and the Committee’s decision, which at the time of writing is only available in Spanish. It then highlights some important lessons that can be drawn from M.B.D. et al. v. Spain, and offers some concluding thoughts.
Mohamed Ben Djazia and Naouel Bellili lived with their two young children in a rented room in an apartment in Madrid. Mr. Ben Djazia had been applying for social housing to the competent authorities for the past thirteen years. In 2012, after losing his job and once he was no longer entitled to unemployment benefits, the authors fell into arrears. Two months later, their fixed term tenancy expired. However, the authors decided to stay in the room with their children, since they did not have any income or alternative housing to move into.
The owner of the property brought judicial proceedings, and in May 2013 a court ordered that they be evicted from the room they were illegally occupying. The court enjoined in its judgment the regional and local social services to take all appropriate measures to prevent the authors’ destitution. Following various judicial postponements, the authors and their children (who were at the time one and three years old!) were evicted in October 2013, without any suitable alternative accommodation being available. The family was thus rendered homeless: they spent ten days in temporary accommodation, followed by four days where they were forced to sleep in the family’s car.
After unsuccessfully petitioning the Spanish Constitutional Court for provisional measures and for the judicial protection of their fundamental rights (through a recurso de amparo), the authors brought a communication before the Committee on Economic, Social and Cultural Rights. They argued that Spain had violated their right to adequate housing, as part of their right to an adequate standard of living enshrined in Article 11(1) ICESCR. They further claimed that the authorities did not take sufficiently into account the special protection that should have been afforded to their minor children, who were particularly young at the time. They contended that, as a consequence of the eviction, the whole family experienced a situation of extreme incertitude, destitution, precariousness, and vulnerability.
It is noteworthy that the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Leilani Farha, intervened as a third-party in this case. In her submission, the Special Rapporteur emphasised the role played by the structural causes of homelessness, such as systemic patterns of social exclusion, stigmatisation, and discrimination; and therefore the need for developing strategic and coordinated responses to this phenomenon. She noted the importance of access to justice by individuals and families at risk of losing their homes, and the responsibility of States to ensure that regional and local governments comply with their obligations under international human rights law.
The Committee’s decision
The Committee’s decision first recalls the legal obligations imposed by the ICESCR on States parties with regard to the right to housing. Citing its General Comments No. 4 and No. 7, it reiterates that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment, and other threats. This legal protection applies to persons living in rental (public or private) accommodation, whose right to housing must be secured even after the tenancy expires. Procedural safeguards, in particular the availability of effective and appropriate remedies and the possibility of genuine consultation with the affected persons and groups, will be decisive in determining compliance with the principles of reasonableness and proportionality that should govern all evictions.
The Committee emphasised that evictions should not render individuals or families homeless. The obligation of States to provide suitable alternative accommodation requires them to take all necessary measures in this regard, to the maximum of their available resources. Any such measures must be deliberate, concrete, and targeted as clearly as possible towards fulfilling the right to adequate housing; and should be adapted to the urgency of the situation and the particular needs of those affected. This will be especially important when the persons at risk of losing their homes are in a situation of vulnerability (e.g. when children are involved) or may suffer systemic discrimination. Moreover, States parties must take coherent and coordinated measures to tackle the structural causes of homelessness and housing vulnerability.
After examining the circumstances of the case, the Committee concluded that the eviction of the authors and their two minor children in the absence of suitable alternative accommodation constituted a violation of their right to adequate housing. The burden thus shifted to the State to prove that it had considered all relevant circumstances and taken all reasonable measures to the maximum of its available resources to prevent this. A heightened burden, the Committee noted, would be required in this case since the best interests of two minor children were engaged.
In the Committee’s view, Spain failed to discharge this burden. The following extract of its decision is of particular interest:
For instance, the State party has not proven that the refusal to allocate social housing to the authors was necessary because its available resources were being directed towards a general policy or emergency plan implemented by the authorities in order to progressively secure the right to housing, in particular for those who are in a situation of vulnerability. Furthermore, the State party has not explained to the Committee why the Madrid regional authorities […] sold part of the public housing stock to investment funds, thus reducing housing availability, even though the public housing stock annually available in Madrid was considerably inferior to the housing demand; nor how this measure was properly justified or was the most adequate to guarantee the full effectiveness of the rights recognised in the Covenant.²
The Committee thus concluded that Spain had violated the right to adequate housing of the authors and their two minor children, read alone and in conjunction with the obligation to take steps to the maximum of its available resources and with the obligation to provide the widest possible protection and assistance to families. It formulated several recommendations for the State party, including that it should design and implement a comprehensive plan to guarantee the right to housing of low-income groups.
The CESCR decision in M.B.D. et al. v. Spain raises several key issues for the understanding of the right to adequate housing in international human rights law.
Overall, the Committee’s decision in this case should be read as reinforcing the now well-established legal requirement that makes the lawfulness of evictions dependent on the availability of suitable alternative accommodation, to the maximum of a State’s available resources. The CESCR itself had already established this requirement in its General Comment No. 7. For their part, a number of national jurisdictions, most notably India and South Africa, had pioneered its application in domestic cases.³ M.B.D. et al. v. Spain provides further clarification as to how this requirement is to be applied in practice, and which elements ought to be taken into account in order to determine the extent of the State’s compliance with the obligation to provide alternative accommodation.
With its decision, the Committee also reaffirms that the legal guarantees surrounding the right to housing do not only concern homeowners, but also people living in rented accommodation. In a housing paradigm that privileges owner-occupation, it is useful to recall that these guarantees extend beyond homeownership and cover situations arising from tenancy agreements, such as rental arrears and tenancy expiry. Although the housing rights of tenants will often enjoy a weaker statutory protection in national legislation when compared to homeowners, it becomes clear that the right to adequate housing contained in the ICESCR sets a minimum set of safeguards applicable notwithstanding the type of tenure.
Turning our attention to the Committee’s examination of the obligation to take steps to the maximum of a State’s available resources, three main points of analysis can be made:
- The Committee remains careful in its appraisal of the conditions that States parties can set for the receipt of social assistance and benefits; or, in this case, for the allocation of social housing. These conditions must be reasonable and carefully designed to avoid any possible stigmatisation. In its observations, Spain had criticised the authors’ behaviour, claiming that they had not actively looked for housing but they had merely waited for social services to provide them with it. Importantly, in the Committee’s view, when a person needs alternative accommodation, their conduct cannot in itself be a justification for the State to deny social housing;
- The Committee emphasises, as the UN Special Rapporteur did in her amicus brief, that homelessness and housing vulnerability are often linked to structural problems, such as a high unemployment rate or systemic patterns of social exclusion. The focus on structural issues besides the particular circumstances of the case should be welcomed, as comprehensive and coordinated measures will generally be necessary to tackle these systemic concerns;
- The Committee qualifies the selling of part of the public housing stock by the Madrid regional authorities as a retrogressive measure. It recalls that any such measures must be based on the most careful consideration and must be justified by reference to the totality of the rights provided for in the Covenant and the fact that full use was made of available resources. Citing its recent statement regarding public debt and austerity measures, the Committee further affirms that, in a period of severe economic and financial crisis, all policy modifications or adjustments should only remain in place insofar as they are necessary and non-discriminatory. They should mitigate inequalities, and ensure that the rights of disadvantaged and marginalised individuals and groups are not disproportionately affected. Finally, they should not affect the minimum core content of the rights protected under the Covenant.
M.B.D. et al. v. Spain accurately reflects the situation of the many families evicted in the aftermath of the housing crisis in Spain. It censures some policy decisions taken by the Spanish authorities to respond to this crisis from the standpoint of the right to adequate housing contained in the ICESCR. The case gives important guidance on how the legal requirements stemming from the right to housing, in particular in the context of evictions, should be interpreted and applied. It also touches upon the obligation of States parties to take steps to the maximum of their available resources, and how this obligation operates specifically in the context of housing.
. On 13 October 2015, the Committee delivered its decision in the case of I.D.G. v. Spain (Communication No. 2/2014). The case concerned the right to judicial protection in the context of mortgage foreclosure proceedings. An analysis can be found here.
. See paragraph 17.5. The translation is mine.
. It is interesting to note that, just several weeks before the Committee’s decision, the Constitutional Court of South Africa delivered its judgment in Occupiers of Erven 87 & 88 Berea v De Wet NO and Another, recalling its previous case law in this regard and reaffirming that judges have the obligation to ensure that evictions do not result in homelessness.