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364
THE UN COMMITTEE ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS DECISION IN LÓPEZ ALBÁN V. SPAIN:
THE NEED FOR A PROPORTIONALITY ASSESSMENT IN
EVICTION PROCEDURES
LA DÉCISION DU COMITÉ DES DROITS ÉCONOMIQUES,
SOCIAUX ET CULTURELS DANS L’AFFAIRE LÓPEZ ALBÁN C.
ESPAGNE : LA NÉCESSITÉ D’UN CONTRÔLE DE
PROPORTIONNALITÉ DANS LES PROCÉDURES D’EXPULSION
LOCATIVE
JUAN CARLOS BENITO SÁNCHEZ
Researcher at F.R.S.-FNRS (FRESH)
Centre de philosophie du droit, UCLouvain (Belgium)
Artículo recibido el 14 de noviembre de 2019
Artículo aceptado el 28 de noviembre de 2019
SUMMARY
On 30 October 2019, the UN Committee on Economic, Social and Cultural Rights
made public its decision in the case of López Albán v. Spain. The case concerned a
single mother with six children occupying a vacant apartment owned by a financial
entity out of necessity, after being excluded from the possibility of obtaining public
housing. The family was eventually evicted without adequate alternative
accommodation. The Committee found that this eviction violated the right to
adequate housing enshrined in the International Covenant on Economic, Social and
Cultural Rights. This article summarises the case, provides a contextual analysis in
light of recent developments, makes a comparison with the case law of
the European Court of Human Rights, and notes some legal avenues the Committee
could explore in future decisions.
KEYWORDS: CESCR, right to housing, evictions, proportionality assessment,
Spain.
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365
RÉSUMÉ
Le Comité des droits économiques, sociaux et culturels a publié sa décision dans
l’affaire López Albán c. Espagne le 30 octobre 2019. Il s’agit d’une affaire où une
mère célibataire avec six enfants occupait un appartement vide propriété d’un
établissement financier par nécessité, après avoir été exclue de la possibilité
d’obtenir un logement public. La famille fût finalement expulsée, sans une
alternative de relogement adéquate. Le Comité a trouvé que cette expulsion a
constitué une violation du Pacte international relatif aux droits économiques,
sociaux et culturels. Cet article présente un sommaire de l’affaire, offre une analyse
contextuelle à la lumière de certains développements récents, fait une comparaison
avec la jurisprudence de la Cour européenne des droits de l’homme, et remarque
quelques avenues juridiques que le Comité pourrait explorer dans ses décisions à
venir.
MOTS-CLÉS: Comité DESC, droit au logement, expulsions locatives, contrôle de
proportionnalité, Espagne.
TABLE OF CONTENTS
1. Introduction.
2. The facts.
3. The CESCR decision.
4. Commentary.
4.1. A strong protection for tenants against eviction: The obligation for courts to
conduct a proportionality assessment.
4.2. The contrasting approach of the European Court of Human Rights.
4.3. What comes next? Two possible future legal avenues for the CESCR to explore.
5. Conclusion.
Bibliography.
1. Introduction.
On 30 October 2019, the UN Committee on Economic, Social and Cultural Rights
(CESCR) made public its decision in the case of López Albán v. Spain.
1
The case
concerned a single mother with six children occupying a vacant apartment owned by a
financial entity out of necessity, after being excluded from the possibility of obtaining
public housing. The family was eventually evicted without adequate alternative
accommodation. In one of the emergency shelters they stayed at, two of the minor
children were separated from their mother and siblings.
1
United Nations, Committee on Economic, Social and Cultural Rights, Communication no. 37/2018, López
Albán, E/C.12/66/D/37/2018 (11 October 2019). At the time of writing, the decision is only available in
Spanish. All translations in this article are the author’s and all errors remain my own. I would like to thank
Javier Rubio and the Asamblea de Vivienda de Carabanchel for their excellent work on this case.
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The CESCR found that Spain had violated the right to housing of the applicant and her
children, since their eviction had been carried out without ensuring adequate alternative
accommodation and without a prior proportionality assessment. Spain also violated their
right to housing insofar as the author was excluded from public housing on the grounds
that she had been occupying a dwelling without a legal title.
2. The facts.
Maribel Viviana López Albán lived with her six children in an apartment in Madrid. After
paying rent regularly for a year, she found out that the alleged landlord was a fraudster
and that he did not actually own the apartment, so she stopped making payments to him.
Later that year, the financial entity who actually owned the apartment reported her for
illegal occupation. Following criminal proceedings, the Madrid Criminal Court found her
guilty of a crime of trespassing (usurpación), finding a partial extenuating circumstance
since the family income at that time was very low and this did not allow them to subsist.
2
The Court ruled however that, although the family’s situation was one of severe necessity,
they were not destitute, nor was it impossible for the author to solve their situation by
other lawful means. A complete exonerating circumstance was thus not found in this case.
The author appealed this judgment, but the Court of Appeals confirmed the ruling of the
lower court. The author subsequently tried to negotiate with the financial entity to sign a
rental contract with them, to no avail.
While staying at this apartment, the author had applied for public housing to the
authorities of the Madrid Autonomous Community, but her application was rejected on
the basis that she was occupying a dwelling without a legal title. This constitutes grounds
for exclusion according to the applicable legal norm: applicants must not “be occupying
a property or dwelling without sufficient legal title and without the owner’s consent.”
3
Even though she was placed in an emergency housing programme, these units are
allocated as a matter of priority, and she was still on the waiting list at the time that a
court order was made for her eviction.
After a first eviction attempt halted by housing activists and civil society organisations, a
second attempt was carried out, and the family then decided to voluntarily leave the
apartment. Social services offered them a stay at a hostel in an industrial area for a few
nights, after which the family had to move to a different hostel where they shared bunk
beds with another family. The family was then placed in a third hostel in two separate
2
The crime of usurpación takes places when someone occupies a property, dwelling, or building without
due authorisation or when they remain there against the will of its owner. See Spain, Ley Orgánica 10/1995,
de 23 de noviembre, del Código Penal (BOE núm. 281, de 24 de noviembre de 1995), art. 245.2.
3
See Spain, Autonomous Community of Madrid, Decreto 52/2016, de 31 de mayo, del Consejo de
Gobierno, por el que se crea el Parque de Viviendas de Emergencia Social y se regula el proceso de
adjudicación de viviendas de la Agencia de Vivienda Social de la Comunidad de Madrid (BOCM núm.
261, de 31 de octubre de 2016), art. 14.1.f.
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rooms segregated by sex, with the consequence that the two male seven-year old twins
had to sleep on their own, separated from their mother and sisters.
The author brought a complaint before the CESCR claiming that her eviction violated her
right to housing and that of her children under Article 11 ICESCR, since it was carried
out without securing adequate alternative accommodation for them. She also argued that
the relevant authorities did not provide her with public housing because she was
occupying an apartment without a legal title at the time, requirement which puts her in an
impossible situation and breaches her right to housing.
Since the eviction had already taken place at that time, the CESCR requested Spain to
adopt interim measures consisting on immediately providing the family with adequate
and stable alternative accommodation, in the framework of a genuine and effective
consultation with the author to prevent eventual irreparable risks to her and her children.
The author claimed that Spain had not complied with this request and had thus breached
the Optional Protocol to the ICESCR, which refers to the CESCR’s power to request, at
any time after the receipt of a communication and before a determination on the merits
has been reached, “that the State Party take such interim measures as may be necessary
in exceptional circumstances to avoid possible irreparable damage to the victim or victims
of the alleged violations.”
4
3. The CESCR decision.
The Committee started by recalling the duty of the state to provide adequate alternative
accommodation in cases of need and the safeguards afforded by the ICESCR against
forced evictions, building on its General Comment No. 4,
5
its General Comment No. 7,
6
and its decision in the case of Ben Djazia and Bellili.
7
These considerations apply as well
to occupations without a legal title, since “this occupation can become, for certain people,
a form of housing, so this could come within the scope of protection of the right to
housing.”
8
Even when evictions are justified, for instance in the case of a persistent nonpayment of
rent or in the case of damages to the rented property without a reasonable cause, the
procedures conducive to an eviction and the eviction itself must be compatible with the
ICESCR and must guarantee that all appropriate legal remedies are available to the
persons affected.
9
Authorities must ensure that forced evictions are carried out according
4
United Nations, General Assembly, Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, A/RES/63/117 (10 December 2008), art. 5.
5
United Nations, Committee on Economic, Social and Cultural Rights, General Comment no. 4: The right
to adequate housing (art. 11 (1) of the Covenant), E/1992/23 (1 January 1992).
6
United Nations, Committee on Economic, Social and Cultural Rights, General Comment no. 7: The right
to adequate housing (art. 11 (1) of the Covenant): Forced evictions, E/1998/22 (20 May 1997).
7
United Nations, Committee on Economic, Social and Cultural Rights, Communication no. 5/2015, Ben
Djazia and Bellili, E/C.12/61/D/5/2015 (21 July 2017).
8
Committee on Economic, Social and Cultural Rights, López Albán, para. 6.2.
9
Committee on Economic, Social and Cultural Rights, General Comment no. 7, para. 11.
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to legislation which conforms to ICESCR standards and observing the principles of
reasonableness and proportionality between the legitimate aim of evicting and the
consequences thereof on the persons affected.
10
It recalled its decision in the Ben Djazia and Bellili case, where the Committee found
that:
In some circumstances, the eviction of people living in rental accommodation
may be compatible with the Covenant, as long as the eviction is provided for
by law and is carried out as a last resort, and that the persons concerned have
had prior access to an effective judicial remedy, in order to ascertain that the
measure in question is duly justified, for example, in the case of persistent
non-payment of rent or of damage to rented property without just cause. In
addition, there must be a real opportunity for genuine prior consultation
between the authorities and the persons concerned, there must be no less
onerous alternative means or measures available and the persons concerned
must not remain in or be exposed to a situation constituting a violation of
other Covenant or human rights.
11
The Committee then emphasised the importance of ensuring the right of family members
not to be separated from each other, and the distinction between emergency shelter and
housing. In certain circumstances, states can show that, despite making all efforts to the
maximum of their available resources, it was impossible to offer alternative permanent
housing to an evicted person in need of alternative accommodation. In these cases, it is
possible to resort to temporary emergency shelter, which needs not fulfil all requirements
of adequate housing. Nonetheless, states must ensure that temporary shelter is compatible
with the protection of human dignity, that it fulfils all safety requirements, and that it does
not become a permanent solution but rather a temporary step towards stable and adequate
housing.
12
The CESCR acknowledged that states can take measures to protect private property and
to avoid the illegal, mala fide occupation of buildings. They can also legitimately establish
certain conditions that applicants must fulfil in order to obtain social benefits, including
housing. However, these conditions must be reasonable and must be carefully designed
to avoid stigmatisation: a person’s behaviour cannot in itself become a justification for
the state’s refusal to provide public or social housing.
13
Judicial and administrative
authorities must not perpetuate systemic discrimination against persons living in poverty
who occupy a dwelling without an appropriate legal title, both when they are bona fide
occupants and when they occupy out of necessity. Moreover, since growing inequality
10
Committee on Economic, Social and Cultural Rights, López Albán, para. 8.2.
11
Committee on Economic, Social and Cultural Rights, Ben Djazia and Bellili, para. 15.1; Committee on
Economic, Social and Cultural Rights, López Albán, para. 8.3.
12
López Albán, para. 9.4.
13
López Albán, para. 10.1.
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and speculation in housing markets are at the root of the lack of sufficient affordable
housing, states must address these structural causes by means of an adequate and
coordinated approach, to the maximum of their available resources.
14
The Committee noted that the author was found guilty of trespassing and that this is a
legitimate ground that can in principle justify the author’s eviction. However, the court
ordering the eviction did not carry out a proportionality assessment between the legitimate
aim of evicting a person guilty of trespassing and the consequences of this eviction for
those involved. Whereas the legitimate interest of the owner in recovering possession of
their property must be considered:
It is inevitable to make a distinction between individuals who require their
property to use it as housing or to secure a vital income, on the one hand, and
financial entities who own property, on the other hand, as in the current case.
A finding that an eviction is not a reasonable measure in a particular moment
does not necessarily mean that an eviction order cannot be made against the
occupants at all. Nonetheless, the principles of reasonability and
proportionality may require that this order be suspended or postponed to
avoid the possibility that the evicted persons become destitute or that other
Covenant rights are violated. An eviction order can also be made dependent
on other factors, such as requiring public authorities to intervene and assist
occupants in order to mitigate the consequences of an eviction.
15
The Committee then went on to affirm that:
The state party must develop a normative framework regulating evictions of
persons occupying property without a legal title, when this property
constitutes their home. This framework must stipulate the criteria that judicial
authorities must consider when evaluating whether to make an eviction order
under those circumstances: for instance, whether the person occupied the
dwelling bona fide or not, the personal circumstances of the occupants and
their dependants, and whether they cooperated with the authorities in the
search for solutions adapted to them. Nevertheless, a state party will violate
the right to adequate housing if it stipulates that a person occupying a dwelling
without a legal title must be immediately evicted, regardless of the
circumstances under which the eviction order would be executed.
16
The Committee thus found a violation of the author’s (and her children’s) right to housing
on this count.
14
López Albán, para. 10.2.
15
López Albán, para. 11.5.
16
López Albán, para. 11.7.
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The Committee subsequently noted that the author had tried to remedy her situation by
applying for public housing, but her application was rejected due to the requirement that
applicants do not occupy a dwelling without an appropriate legal title or without the
owner’s consent. For the Committee, this requirement put the author in an impossible
situation, forcing her to either live with her children in temporary shared accommodation
or to live in destitution before she could apply for public housing. This entailed a second
violation of the author’s (and her children’s) right to adequate housing, since that
requirement perpetuated her irregular situation and led her to an eviction, without regard
to her situation of necessity.
17
Finally, the Committee found a third violation, this time of the Optional Protocol to the
ICESCR, due to the fact that Spain had not complied with the interim measures requested
by the Committee during its examination of the case. Although the state had provided the
author with temporary emergency shelter, this did not constitute adequate alternative
accommodation.
18
In light of these violations, the Committee made a series of individual and general
recommendations. With regard to the author and her children, Spain must provide them
with an effective reparation, which includes a series of elements. If they do not yet have
adequate housing, their needs and their priority in the waiting list must be reevaluated
with the aim to provide them with public housing or to take other measures to secure
adequate housing for them. Spain must also compensate them economically for the
human right violations they suffered, and carry with all legal costs for the procedure
before the CESCR.
Regarding the general recommendations, Spain must develop a normative framework
regulating evictions which allows judicial authorities to carry out a proportionality
assessment having regard to the aim pursued by the eviction measure and its
consequences on the evicted persons, as well as the compatibility of that measure with
the ICESCR. This should apply to all eviction cases, including those of occupation
without a legal title. Spain should also ensure that appropriate and effective remedies are
available in this context. Access to public or social housing must not be made conditional
on any unreasonable requirements excluding persons at risk of destitution, including the
requirement in question that applicants not occupy a dwelling without a legal title.
In addition, Spain must adopt the necessary measures to ensure that evictions affecting
persons without sufficient resources to find alternative housing for themselves are only
carried out after a genuine and effective consultation with them. The state must take all
necessary steps to the maximum of its available resources to provide evicted persons with
alternative housing, in particular where families, elderly people, children, or other persons
in a vulnerable situation are involved. Finally, Spain must elaborate and implement a
17
López Albán, para. 12.1–12.2.
18
López Albán, para. 13.1–13.3.
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comprehensive and integral plan to guarantee the right to housing of low-income persons,
and must establish a protocol to ensure that the interim measures requested by the CESCR
in the framework of the individual complaints mechanism are effectively implemented.
4. Commentary.
4.1. A strong protection for tenants against eviction: The obligation for courts to
conduct a proportionality assessment.
The CESCR decision in López Albán follows the doctrinal line established in the Ben
Djazia and Bellili case and in previous CESCR General Comments. It confirms that the
protection afforded by the ICESCR against forced evictions also applies to persons
occupying dwellings without a legal title, be they bona fide or out-of-necessity occupants.
While the private property interests of owners (in particular their right to recover
possession) must be taken into account during an eviction procedure, courts must also
carefully assess the specific situation of the persons affected before making an eviction
order. The granularity in which the Committee spells out the factors that courts ought to
take into account in this context is particularly noteworthy. As mentioned above, this
includes the presence or not of bona fide, the personal circumstances of the occupants and
their dependants, and their cooperation with the authorities in the search for adapted
solutions.
Crucially, the state must develop a normative framework regulating evictions that takes
account of these factors and allows courts to make proportionality assessments on this
basis in all evictions cases—not just those of occupation without a legal title. It is now
clear that the immediate eviction of a person occupying a dwelling, with or without a
legal title, regardless of their circumstances breaches the ICESCR. This finding casts
serious doubts about the compatibility with international human rights law of the existing
Spanish legal framework, where a 2018 Act allowing for the immediate eviction of
squatters through a summary procedure with no safeguards for the persons involved was
recently declared constitutional by the Constitutional Court.
19
In light of the CESCR
decision in López Albán, Spain ought to repeal or amend this particular Act, as well as a
sizeable part of the domestic framework governing evictions as a whole.
Furthermore, the decision in López Albán clarifies that the domestic judicial ruling need
not be a binary one of evicting or not evicting, but rather courts should consider the
possibility of suspending or postponing the eviction or of making it conditional on the
effective intervention of social services. A postponement, along with the intervention of
social services or help with negotiations with the landlord, could contribute to a solution
in some cases. Of course, this requires a strong and active role for social services, notably
19
Spain, Ley 5/2018, de 11 de junio, de modificación de la Ley 1/2000, de 7 de enero, de Enjuiciamiento
Civil, en relación a la ocupación ilegal de viviendas (BOE núm. 142, de 12 de junio de 2018); Spain,
Tribunal Constitucional (Pleno), Sentencia 32/2019, de 28 de febrero de 2019 (BOE núm. 73, de 26 de
marzo de 2019). See further Juan Carlos Benito Sánchez, “Los pronunciamientos del Comité DESC sobre
derecho a la vivienda relativos a España. Respuestas jurisprudenciales y legislativas,” Lex Social, Revista
de Derechos Sociales 9, no. 2 (2019): 579–603.
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by improving their ability to act and, importantly, by enlarging the stock of public housing
units available as alternative accommodation for individuals and families at risk of
eviction.
The Committee also makes a distinction between small and large owners, distinguishing
the situation where an individual depends on the rental income of a second property to
subsist, on the one hand, from the situation of rentier landlords, investors, and financial
entities, on the other hand. The question whether this distinction is relevant or useful in
this context is an important one. Although this is clearly an element that should bear some
weight, it should not be used to downgrade the protection afforded to tenants renting from
small owners, as this comprises the majority of cases in most countries including Spain.
20
In line with the previous remark, it seems that this factor could be more relevant at the
stage of determining whether—and if so, for how long—the eviction could be suspended
or postponed, rather than at the stage of determining whether to make an eviction order
as a matter of principle, where the circumstances of the individuals and families affected
should prevail.
Another significant point is the distinction made by the CESCR between emergency
shelter and adequate housing. Emergency shelter must be temporary, must respect the
dignity and safety of its occupants, and must constitute a temporary step towards stable
and adequate housing. This undermines the argument often made by states that relocating
evicted families into hostels exhausts their obligations as to the provision of adequate
alternative accommodation. This case showed how this is problematic in many ways. The
family went to three hostels: a first one for a few days, a second one were they had to
share a room with another family and where one of the children was attacked, and a third
one where the seven-year old male twins were separated from their mother and sisters. It
is now clear that the obligation to provide adequate alternative accommodation is not
discharged simply by making such provisional arrangements. Moreover, even provisional
arrangements must fully respect ICESCR standards of dignity and safety.
The Committee treads carefully when qualifying the author’s situation. While some might
frame it as a case of “illegal occupation” or of squatting, this case is ultimately about a
single mother with six children who was initially deceived into renting an apartment from
a person who was not the real owner, who then stayed in the apartment out of necessity
and who diligently (albeit unsuccessfully) applied for public housing in the meantime.
The draconian condition established by the Madrid regional authorities to the effect of
rejecting all applicants who were occupying without a legal title put her in an
unconscionable situation, where her choices were either squatting or homelessness. It is
now also clear that such a requirement is not compliant with international human rights
law.
20
It is estimated that 95% of landlords in the private rental sector in Spain are small owners. See Spain, La
vivienda protegida y el alquiler social en España (Madrid: Defensor del Pueblo, 2019), 16,
https://www.defensordelpueblo.es/wp-content/uploads/2019/07/Separata_vivienda_protegida.pdf.
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Finally, the violation of the Optional Protocol as a consequence of the non-compliance
with the interim measures requested by the Committee comes in the midst of a legal
debate in Spain regarding the binding character of decisions taken by human rights treaty-
monitoring bodies and whether interim measures requested by these bodies are
compulsory or not under the domestic legal order.
21
Spain has not complied with interim
measures in other cases pending before the CESCR. Since there is now an explicit
recommendation for Spain to create a protocol ensuring this compliance, it remains to be
seen whether the state will change its stance on this question and will begin to
systematically implement all interim measures requested by the CESCR. A currently
pending case before the Committee involving Belgium, where an interim measure was
similarly not implemented, is likely to shine more light in this regard.
22
4.2. The contrasting approach of the European Court of Human Rights.
The CESCR interpretation of Article 11 ICESCR set out above stands in stark contrast
with the far more restrictive position taken by the European Court of Human Rights
(ECtHR) with regard to Article 8 of the European Convention of Human Rights (ECHR),
which protects the right to private and family life and the right to home. Although the
material scope of these two articles is certainly very different, it is important to raise
attention as to how these divergent interpretations may pose problems for Council of
Europe states.
23
Notably, the ECtHR has recently ruled that, in the private rental sector, states can legislate
to preemptively determine the balance between the right to property of owners and the
right to housing of occupants, without their being required to allow courts to conduct a
proportionality assessment in particular cases before making an eviction order. The
ECtHR case law in this regard can be briefly summarised as follows.
24
21
See Alberto Macho Carro, “La naturaleza jurídica del Comité de derechos económicos, sociales y
culturales de Naciones Unidas y de sus pronunciamientos. Especial atención al caso español,” Papeles El
tiempo de los derechos (HURIAGE – Red Tiempo de los derechos, 2019),
https://redtiempodelosderechos.files.wordpress.com/2019/01/desc-12-19.pdf.
22
See Tom Denis, “La Ligue des droits de l’Homme s’indigne contre l’expulsion d’un locataire à
Etterbeek,” RTBF, October 19, 2018, https://www.rtbf.be/info/regions/detail_la-ligue-des-droits-de-l-
homme-s-indigne-contre-l-expulsion-d-un-locataire-a-etterbeek?id=10051153.
23
See further Jessie Hohmann, The Right to Housing: Law, Concepts, Possibilities (Oxford: Hart
Publishing, 2013). For an overview of the protection against evictions in human rights law, including at the
ECHR level, see Padraic Kenna, “Introduction,” in Loss of Homes and Evictions across Europe: A
Comparative Legal and Policy Examination, ed. Padraic Kenna et al., Elgar Land and Housing Law and
Policy (Cheltenham: Edward Elgar, 2018), 1–65.
24
I have selected the most relevant cases for this section. For a more complete picture, see European Court
of Human Rights, Guide on Article 8 of the European Convention on Human Rights: Right to respect for
private and family life, home and correspondence,
https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf, p. 78–80. See also Sarah Fick and Michel
Vols, “Best Protection Against Eviction? A Comparative Analysis of Protection Against Evictions in the
European Convention on Human Rights and the South African Constitution,” European Journal of
Comparative Law and Governance 3 (2016): 40–69; Nicolas Bernard, “La protection conventionnelle du
domicile tombe-t-elle lorsqu’on l’invoque contre un particulier ? La longue quête de l’horizontalisation des
droits de l’homme (obs. sous Cour eur. dr. h., décision F.J.M. c. Royaume-Uni, 6 novembre 2018),” Revue
trimestrielle des droits de l’homme 2019, no. 120 (2019): 891–923.
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374
In the 2004 case of Connors,
25
the Court initially ruled that a notice of eviction issued by
a local authority in the case of Travellers halting at a public residential site must be
necessary and comply with all procedural guarantees as part of a fair decision-making
process before an independent court. This concerned, however, a site owned and managed
by a public local authority.
26
Later on, in the 2008 case of McCann,
27
concerning the eviction of a woman victim of
gender-based violence residing in public housing, the Court resoundingly stated that “the
loss of one’s home is a most extreme form of interference with the right to respect for the
home. Any person at risk of an interference of this magnitude should in principle be able
to have the proportionality of the measure determined by an independent tribunal in the
light of the relevant principles under Article 8 of the Convention, notwithstanding that,
under domestic law, his right of occupation has come to an end.”
28
At the same time, the
Court conceded that this principle would only apply in exceptional cases, and rejected the
argument that a proportionality assessment would have serious consequences for the
functioning of the system: “in the great majority of cases, an order for possession could
continue to be made in summary proceedings.”
29
It is important to highlight that the
landlord in this case was again a public local authority.
In the 2012 case of Yordanova,
30
the Court then considered that several Roma families
which had been living for decades on publicly owned land without a legal title and were
threatened with eviction had the right to have the proportionality of this measure
examined by an independent court before the eviction was carried out. The state had de
facto tolerated the settlement over a long period of time, and the residents had at that point
developed strong and long-standing links with one another. For the Court, this situation
was to be treated “as being entirely different from routine cases of removal of an
25
European Court of Human Rights, First Section, Connors v. the United Kingdom, Application no.
66746/01 (27 May 2004).
26
The term “Travellers” refers to a broad segment of the population characterised by a cultural connection
to a nomadic or a semi-nomadic lifestyle. They usually live in mobile homes rather than “bricks and mortar”
housing, and they require residential or transit sites with appropriate amenities to be made available in order
to secure their right to adequate housing. The Traveller population is numerically significant in countries
like Belgium, France, the United Kingdom, or Ireland, but not that much in countries like Spain. See further
Elena Marushiakova and Vesselin Popov, “Who Are Roma?,” in Roma Culture: Myths and Realities, ed.
Elena Marushiakova and Vesselin Popov, Roma Series, Vol. 3 (Munich: Lincom Academic Publisher,
2016); Céline Romainville and Nicolas Bernard, “Le droit à l’habitat des gens du voyage,” in Le droit et la
diversité culturelle, ed. Julie Ringelheim, Collection du Centre des droits de l’homme de l’Université
catholique de Louvain (Brussels: Bruylant, 2011), 745–818.
27
European Court of Human Rights, Fourth Section, McCann v. the United Kingdom, Application no.
19009/04 (13 May 2008).
28
European Court of Human Rights, McCann v. the United Kingdom, para. 50.
29
European Court of Human Rights, McCann v. the United Kingdom, para. 54.
30
European Court of Human Rights, Fourth Section, Yordanova and Others v. Bulgaria, Application no.
25446/06 (24 April 2012).
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375
individual from unlawfully occupied property.”
31
In this case, the land once again
belonged to a public authority.
32
In the 2013 case of Winterstein,
33
concerning Travellers in a similar situation to the
applicants in Yordanova, the Court followed the same reasoning, even though the land in
this case was private—some residents were owners, while other were tenants. The court
highlighted that the state had de facto tolerated over decades this long-standing
community, whose members had developed strong ties with one another, and found that
an eviction according to legislation which did not allow for a prior proportionality
assessment by a court would breach Art. 8 ECHR.
34
It is thus clear that, under the ECtHR’s interpretation of Article 8 ECHR, an eviction
procedure which does not foresee the possibility to have the proportionality of the eviction
examined by an independent court breaches this article where: (a) public or social housing
is concerned; or (b) where the state has de facto tolerated residents over a long period of
time and these residents have formed strong, long-standing bonds with one another,
regardless of whether the land they are occupying is public or private.
The situation drastically changes, however, with regard to the private rented sector. In the
2016 case of Vrzić,
35
the Court ruled that where the landlord is a private individual or
body the aforementioned principle does not apply automatically. In previous cases, “the
applicants were living in State-owned or socially-owned flats and an important aspect of
finding a violation was the fact that there was no other private interest at stake.”
36
This trend was confirmed in the 2018 case of F.J.M.,
37
where the Court confirmed that
the UK could legitimately adopt legislation determining the balance between the rights
of private landlords and the rights of tenants, so that a procedure for eviction which does
not foresee the possibility for courts to carry out a proportionality assessment before
making an eviction order does not breach Article 8 ECHR. Since, in this case, the tenant
had agreed to the terms of the contract, requiring courts to conduct a proportionality
31
European Court of Human Rights, Yordanova and Others v. Bulgaria, para. 121.
32
Another important factor for the ECtHR in this case was the Roma ethnicity of the applicants. For the
Court, “the applicants’ situation as an outcast community and one of the socially disadvantaged groups”
must be acknowledged, as “such social groups, regardless of the ethnic origin of their members, may need
assistance in order to be able effectively to enjoy the same rights as the majority population.” (European
Court of Human Rights, Yordanova and Others v. Bulgaria, para. 129).
33
European Court of Human Rights, Fifth Section, Winterstein and Others v. France, Application no.
27013/07 (17 October 2013).
34
See also European Court of Human Rights, Third Section, Bagdonavicius and Others v. Russia,
Application no. 19841/06 (11 October 2016).
35
European Court of Human Rights, Second Section, Vrzić v. Croatia, Application no. 43777/13 (12 July
2016).
36
European Court of Human Rights, Vrzić v. Croatia, para. 66.
37
European Court of Human Rights, First Section, F.J.M. v. the United Kingdom, Application no. 76202/16
(6 November 2018).
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376
assessment before making an eviction order would lead to a “wholly unpredictable and
potentially very damaging” impact on the private rented sector.
38
This means that, under the ECtHR’s interpretation of Article 8 ECHR, an eviction
procedure which does not foresee the possibility to have the proportionality of the eviction
examined by an independent court does not breach this article when private rental housing
is concerned, unless the state has de facto tolerated residents over a long period of time
and these residents have formed strong, long-standing bonds with one another.
39
By contrast to this, the CESCR’s position in López Albán and in Ben Djazia and Bellili
confirms that, under international human rights law, courts ought to be able to consider
the proportionality of evictions in the private rented sector, even in cases of occupation
without a legal title.
40
Moreover, the state should incorporate this into its domestic
legislation, specifying the factors that courts ought to take into account when considering
the proportionality of the eviction, such as personal circumstances, the existence or not
of bona fide, and the extent of their cooperation with the authorities.
This fragmentation and lack of consistency are likely to weaken legal claims put before
courts by persons at risk of being evicted. This may ultimately allow states to disregard
the full extent of their human rights obligations by shielding themselves behind concepts
like bindingness, enforceability, and hierarchy between different human rights
instruments. This can be currently seen in Spain, where the response to the Ben Djazia
and Bellili case has been lukewarm and where requests for interim measures made by the
CESCR are not always complied with by domestic courts.
41
At the same time, the
expansive interpretation developed by the CESCR is likely to open up new possibilities
in the realm of social and political contestation, pushing for legislative change that brings
the protection afforded to the right to housing in Spain within these parameters.
42
38
European Court of Human Rights, F.J.M. v. the United Kingdom, para. 43.
39
Some doubts remain as to whether the key factor here is the ownership of the dwelling in question (public,
social, or private) or the fact that the applicant entered into a contractual relationship with the owner. In
Vrzić, the Court noted that “the applicants had not signed any form of agreement whereby they risked losing
their home” (European Court of Human Rights, Vrzić v. Croatia, para. 66). In F.J.M., it found that “what
sets claims for possession by private sector owners against residential occupiers apart is that the two private
individuals or entities have entered voluntarily into a contractual relationship in respect of which the
legislature has prescribed how their respective Convention rights are to be respected” (European Court of
Human Rights, F.J.M. v. the United Kingdom, para. 42). More clarity from the Court in this sense would
be welcome in future judgments; however, the outcome does not seem to differ much in substance
40
Even though the ECtHR required a proportionality assessment in a case of occupation without legal title,
it later clarified that this finding was made in the specific context of the former Yugoslavia, where a publicly
owned hotel group paid obligatory monthly contributions into a housing fund and was later privatised. See
European Court of Human Rights, F.J.M. v. the United Kingdom, para. 38; European Court of Human
Rights, First Section, Brežec v. Croatia, Application no. 7177/10 (18 July 2013).
41
See further Benito Sánchez, “Los pronunciamientos del Comité DESC sobre derecho a la vivienda
relativos a España.”
42
These guarantees against forced eviction become crucial in today’s phase of late capitalism, where public
and social housing systems across the world are being eroded in favour of the private rented sector and of
a homeownership model combined with a value extraction, buy-to-let logic. See David Madden and Peter
Marcuse, In Defense of Housing: The Politics of Crisis (London: Verso, 2016); Josh Ryan-Collins et al.,
Rethinking the Economics of Land and Housing (London: Zed, 2017).
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377
4.3. What comes next? Two possible future legal avenues for the CESCR to explore.
Before concluding this article, I would like to briefly set out some ideas as to what to
expect next, and to highlight two legal avenues which could benefit from further
development by the CESCR. Since the vast majority of pending cases before the
Committee concern the right to housing in Spain, my suggestions here focus on the
Spanish context, although many of them can be easily extrapolated to other national
contexts.
Firstly, according to the CESCR website, there are currently more than a hundred pending
cases against Spain concerning the right to housing.
43
This reveals a structural problem
which should be addressed in a structural manner. Whereas the individual complaints
mechanism is highly effective in dealing with more or less isolated human rights
violations, it is not well suited to this type of structural, widespread violations. The
CESCR could emphasise this structural dimension by conducting a “pilot” procedure,
inspiring itself from other international and regional instances such as the ECtHR. In this
manner, and taking into account the difference in nature between institutions:
Besides finding an individual violation . . . a “full” pilot judgment consists of
the following steps: first, identifying a systematic malfunctioning of domestic
legislation or administrative practice; second, concluding that this systematic
problem may give rise to numerous subsequent well‐founded applications;
third, recognizing that general measures are called for and suggesting the
form such general measures may take in order to remedy the systematic
defect; and fourth, adjourning all other pending individual applications
deriving from the same systematic defect.
44
It is true that the individual complaint procedure already allows for the Committee to
make recommendations with a general scope, and that the Committee has not shied away
from doing so, often in very straightforward terms. However, the individual manner in
which complaints are currently approached by the Committee places a natural limit on
the recognition of structural problems, which end up being reduced to and coached in the
narrower terms of specific individual complaints.
Although the Optional Protocol providing for this system of individual complaints does
not explicitly foresee the possibility of a pilot procedure, it does not seem to preclude it
either, as long as the Committee ultimately adopts views on communications “submitted
by or on behalf of individuals or groups of individuals, under the jurisdiction of a State
43
The list of pending cases is available at:
https://www.ohchr.org/EN/HRBodies/CESCR/Pages/PendingCases.aspx.
44
Markus Fyrnys, “Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the
European Court of Human Rights,” German Law Journal 12, no. 5 (2011): 1232–33; Luzius Wildhaber,
“Pilot Judgments in Cases of Structural or Systemic Problems on the National Level,” in The European
Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions, ed. Ulrike
Deutsch and Rüdiger Wolfrum, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 205
(Berlin: Springer, 2009), 71.
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378
Party, claiming to be victims of a violation of any of the economic, social and cultural
rights set forth in the Covenant by that State Party.”
45
This would allow the CESCR to focus more effectively on structural and systemic failures
breaching human rights, notably with regard to the right to adequate housing in Spain and
the domestic legal framework governing evictions. Dealing with a few dozen of very
similar cases as a whole would send a very powerful message to Spain and the
international community as to the extent of these human rights violations and their
collective dimension, going beyond the force of CESCR concluding observations in the
framework of the periodic reporting procedure while remaining at the same time within
the bounds of the individual complaint mechanism.
Secondly, the Committee made a strong statement in López Albán regarding the role of
growing inequality and housing market speculation in the housing affordability crisis,
linking this to stigmatisation and systemic discrimination on the basis of socioeconomic
disadvantage. This is of particular relevance, as it links to broader trends in international
human rights and antidiscrimination law recognising the centrality of socioeconomic
disadvantage and of intersectional discrimination within many human rights violations.
The draft guidelines for the implementation of the right to adequate housing recently
elaborated by 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,
Ms. Leilani Farha, notably emphasise this dimension.
46
In this sense, one of the key issues that has not explicitly emerged in the cases decided
until now is the equality and nondiscrimination dimension of most of these violations,
including from a socioeconomic perspective.
47
It can be recalled that in 2018, in its
Concluding observations on the sixth periodic report of Spain, the CESCR urged Spain
to:
45
United Nations, Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, art. 2.
46
In their draft version of November 2019, these guidelines state that : “Refugees, migrants, persons with
disabilities, children and youth, indigenous peoples, women, LGBT and racial and ethnic minorities are
disproportionately represented among those living in homelessness, informality and inadequate housing,
and often relegated to the most marginal and unsafe areas to live. Discrimination against these groups is
compounded by intersectional discrimination linked to their housing status: being homeless, living in
informality or in neighbourhoods with a high percentage of inadequate or dilapidated housing.
Discriminatory exclusion from housing greatly exacerbates and reinforces socio-economic inequality for
these groups.”
See further at: https://www.ohchr.org/EN/Issues/Housing/Pages/GuidelinesImplementation.aspx.
47
See, on the issue of socioeconomic disadvantage in the context of housing, Juan Carlos Benito Sánchez,
“Towering Grenfell: Reflections around Socioeconomic Disadvantage in Antidiscrimination Law,” Queen
Mary Human Rights Law Review 5, no. 2 (2019). See also more generally Diane Roman, “La discrimination
fondée sur la condition sociale, une catégorie manquante du droit français,” Recueil Dalloz, no. 28 (2013):
1911–1918; Ioannis Rodopoulos, “L’absence de la précarité sociale parmi les motifs de discrimination
reconnus par le droit français : un frein normatif à l’effectivité de la lutte contre les discriminations ?,” La
Revue des droits de l’homme 9 (2016); Margaret Thornton, “Social Status: The Last Bastion of
Discrimination,” Anti-Discrimination Law Review 2018, no. 1 (2018): 5–26.
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379
Adopt a comprehensive law on non-discrimination that guarantees adequate
protection and explicitly includes all the prohibited grounds for
discrimination referred to in article 2 (2) of the Covenant; defines multiple
discrimination, as well as direct and indirect discrimination, in accordance
with the State party’s obligations under the Covenant; prohibits
discrimination in both the public and the private spheres; and incorporates
provisions under which redress can be obtained in cases of discrimination,
including by judicial and administrative means. It also recommends that the
State party redouble its efforts to prevent and combat persistent
discrimination, in particular against Gitanos and Roma, persons with
disabilities, migrants, refugees and asylum seekers, including by conducting
awareness-raising campaigns, in order to guarantee full exercise of the rights
recognized in the Covenant by such persons.
48
In future decisions on individual complaints, the Committee should more clearly
acknowledge how the existing framework governing evictions in Spain
disproportionately impacts on certain vulnerable groups, and may create indirect
discrimination on the basis of racial or ethnic origin, gender, disability, age, migrant
status, and economic and social situation. In many cases, most of these factors interact
with each other to create intersectional discrimination, notion which should also bear
some weight in future CESCR decisions.
49
Although discrimination issues have perhaps
not been yet sufficiently raised in individual complaints, possibly owing to the weak
antidiscrimination law framework existing in Spain and to a domestic judicial praxis
where arguments based on antidiscrimination law have a narrow chance of succeeding,
this is a crucial dimension that needs to be highlighted from a human rights standpoint.
Once again, taking a step from a more general statement in concluding observations to a
more localised and contextual finding in the framework of an individual complaint would
make these underpinning issues more visible and enhance the relevance of the equality
and nondiscrimination dimension of economic, social, and cultural rights. It can be
recalled in this sense that the CESCR noted in its General Comment No. 20 that
“individuals and groups of individuals must not be arbitrarily treated on account of
belonging to a certain economic or social group or strata within society. A person’s social
and economic situation when living in poverty or being homeless may result in pervasive
discrimination, stigmatization and negative stereotyping.”
50
While the Committee has
hinted towards this aspect in López Albán, a more robust approach would be welcome,
especially in light of such structural threats to the right to adequate housing in Spain.
48
United Nations, Committee on Economic, Social and Cultural Rights, Concluding observations on the
sixth periodic report of Spain, E/C.12/ESP/CO/6 (25 April 2018), para. 18.
49
See, on the issue of discrimination in the field of housing, Ringelheim, Julie, and Nicolas Bernard.
Discrimination in Housing. Luxembourg: European Network of Legal Experts in the Non-Discrimination
Field, 2013. https://www.equalitylaw.eu/downloads/1337-discrimination-in-housing-en.
50
United Nations, Committee on Economic, Social and Cultural Rights, General Comment no. 20: Non-
discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on
Economic, Social and Cultural Rights), E/C.12/GC/20 (2 July 2009), para. 35.
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5. Conclusion.
The CESCR decision in López Albán follows the doctrinal line established in the Ben
Djazia and Bellili case and in previous CESCR General Comments. It confirms that the
protection afforded by the ICESCR against forced evictions also applies to persons
occupying dwellings without a legal title, be they bona fide or out-of-necessity occupants.
At the same time, it provides a number of new and important legal insights and
clarifications, such as the difference between emergency shelter and adequate housing,
the fact that the state cannot allow for the immediate eviction of a person regardless of
the circumstances, or examples of the factors that courts ought to take into account when
conducting a proportionality assessment. This expansive interpretation of the safeguards
surrounding the right to housing stands in stark contrast with the increasingly more
restrictive case law of the European Court of Human Rights. Two possible legal avenues
for the CESCR to explore in future decisions could be resorting to a “pilot” procedure
that reflects the structural and systemic character of the violations of the right to housing
taking place in Spain, on the one hand, and acknowledging the discriminatory impact of
the domestic legal framework governing evictions, on the other hand.
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