Decision on merits; Subjects: ECONOMIC, SOCIAL AND CULTURAL RIGHTS, SPAIN; [CESCR: UNO-Pakt I, Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte; Pacte international relatif aux droits économiques, sociaux et culturels]
Volltext (verifizierbarer Originaltext)
GE.26-03810 (E) 100426 100426
Committee on Economic, Social and Cultural Rights
Views adopted by the Committee under the Optional
Protocol to the International Covenant on Economic, Social
and Cultural Rights, concerning communication
No. 330/2023*, **, ***
Communication submitted by:
J.H., M.H., Ma.H. and Ja.H. (represented by
Asociación Cometas y Sonrisas)
Alleged victims:
The authors
State Party:
Spain
Date of communication:
25 July 2023 (initial submission)
Date of adoption of Views:
20 February 2026
Subject matter:
Eviction of a family without alternative housing
Procedural issue:
Exhaustion of domestic remedies
Substantive issue:
Right to adequate housing
Article of the Covenant:
11
Articles of the Optional Protocol:
2 and 3 (1)
1.1
The authors of the communication are J.H., born on 3 January 1969, M.H., born on
22 May 1971, Ma.H., born on 25 August 1997, and Ja.H., born on 21 December 2004, all of
whom are nationals of Slovakia residing in the State Party. The authors claim that the eviction
order and the State Party’s failure to assign them alternative housing violates their rights
under article 11 of the Covenant. The Optional Protocol entered into force for the State Party
on 5 May 2013. The authors are represented by counsel.
1.2
On 28 July 2023, the Committee, acting through its Working Group on
Communications, registered the communication and, in accordance with article 5 of the
Optional Protocol, requested the State Party to take measures to avoid possible irreparable
harm to the author and her family by granting them alternative accommodation suited to their
needs, within the framework of genuine and effective consultation.
* Adopted by the Committee at its seventy-ninth session (9–25 February 2026).
** The following members of the Committee participated in the examination of the communication:
Aslan Abashidze, Nadir Adilov, Lazhari Bouzid, Asraf Ally Caunhye, Peijie Chen, Laura-Maria
Crăciunean-Tatu, Charafat El Yedri Afailal, Peters Sunday Omologbe Emuze, Santiago Manuel
Fiorio Vaesken, Ludovic Hennebel, Joo-Young Lee, Karla Vanessa Lemus de Vásquez, Seree
Nonthasoot, Giuseppe Palmisano, Laura Elisa Pérez, Julieta Rossi, Preeti Saran and Michael
Windfuhr.
*** Individual opinions by Committee members Giuseppe Palmisano (concurring) and Santiago Fiorio
Vaesken (concurring) are annexed to the present Views.
United Nations
E/C.12/79/D/330/2023
Economic and Social Council
Distr.: General
30 March 2026
English
Original: Spanish
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A.
Summary of the information and arguments submitted by the parties
Factual background1
2.1
The family is composed of J. H., who is a builder, his wife M. H., their daughter Ja.H.,
who, at the time of the initial submission, was completing secondary school, and their son
Ma.H., who had recently completed a degree in journalism. In 2016, J.H. lost his job and,
unable to find new employment or affordable housing, he decided to move into a property in
the city of Valencia with his family. The property belonged to a bank and, later, to a private
company. The authors submit that, after moving in, they carried out some renovation work
on the property and contacted the owner several times to offer to pay rent and regularize their
situation, but the owner refused the offer. The authors also applied for social housing through
the Valencia Housing and Land Company and have been on the waiting list since 2016. The
authors have reapplied four times.
2.2
On 12 November 2020, Court of First Instance No. 7 of Alicante ruled in favour of
the company that owned the property and ordered the authors to vacate the property.
Although the authors were notified of the proceedings, they did not attend court at any stage.
Consequently, they were declared to be in contempt of court.
2.3
The authors appealed the decision, requesting that the proceedings be declared invalid
on account of the fact that they had been deprived of a defence owing to the failure to notify
them of the proceedings. On 25 January 2021, the Sixth Chamber of the Provincial Court of
Alicante dismissed the appeal, noting that, contrary to the authors’ claims that they were
prevented from defending their interests because they had not been notified of the
proceedings, the authors had been notified of the proceedings and been given an opportunity
to obtain legal assistance, including through a public defender. The Provincial Court added
that, since the authors had not demonstrated at the appropriate time of the proceedings that
they had been deprived of a defence and since, moreover, they had been declared to be in
contempt of court, they could not challenge the decision at that stage.
2.4
On 31 March 2021, Court of First Instance No. 7 of Alicante issued the first eviction
order. On 15 April 2021, and again on 10 May 2021, the authors, through their legal defence,
requested an extraordinary suspension of the eviction, claiming that the family was in a
situation of particular vulnerability. On 7 June 2021, the Court granted the suspension under
the special measures adopted in response to the coronavirus disease (COVID-19) pandemic.
2.5
On 29 November 2021, the authors filed an extraordinary plea for suspension of the
eviction, claiming that they were in a vulnerable situation. On 20 April 2022, the Court
dismissed the plea on the grounds that the authors had not provided sufficient documentation
attesting to the alleged condition of vulnerability. On 27 April 2022, the authors lodged an
appeal for reconsideration, noting that the documentation attesting to their economic situation
remained valid. On 13 June 2022, the Court upheld the decision and reiterated that the special
measures adopted during the COVID-19 pandemic required the fulfilment of formal criteria
demonstrating a situation of social exclusion, not only difficulties of an economic nature.
2.6
On 14 June 2022, the Court ordered the eviction. On 15 July 2022, the authors filed
another request for suspension, along with the missing documentation for the extension of
the special COVID-19 measures. On 20 July 2022, the Court granted the suspension and
postponed proceedings until 3 February 2023.
2.7
On 24 April 2023, a new eviction order was issued. On 27 April 2023, the authors
filed a suspension request, which was dismissed on 15 May 2023. On 24 May 2023, the
authors lodged an appeal for reconsideration, claiming that their previous requests had been
dismissed without sufficient reason. On 27 June 2023, the appeal was dismissed. Meanwhile,
in May 2023, the authors received retroactively the Valencia Social Inclusion Income in the
amount of 960 euros a month.
1 The background has been reconstructed on the basis of the individual communication and the
information subsequently provided by the parties. However, the parties did not provide all the
documents necessary for the Committee to have a clear timeline of the events.
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2.8
On 29 June 2023, the eviction was enforced. On 11 July 2023, the appeal for
reconsideration was dismissed on the grounds that it had become moot, as the eviction had
taken place. Since then, the authors have been living in a tent in Alicante.
2.9
On 27 July 2023, the Alicante City Council informed the authors that they had not
been selected for an emergency housing unit but that they could obtain other alternatives
through the municipal social services.
2.10
The authors maintain that they have exhausted all administrative and judicial remedies
at the domestic level without obtaining a favourable result.
Complaint
3.
The authors argue that the State Party violated article 11 of the Covenant, noting that
they have been applying to the competent authorities for social housing for over seven years
without obtaining a solution, despite being in a housing emergency. They submit that, in
response to the constant risk of losing their accommodation, the State Party should have taken
appropriate measures to guarantee their right to adequate housing. They also argue that there
are barriers to obtaining effective protection from the courts, which, in their view, constitutes
a violation of the right to housing, as the rules were applied without taking into account their
specific circumstances or the consequences of the judicial decisions for the family.
State Party’s observations on admissibility and the merits
4.1
On 16 November 2023, the State Party submitted its observations on admissibility and
the merits. The State Party argues that the communication is inadmissible because the authors
did not exhaust available domestic remedies. The State Party notes that, on 26 July 2023,
through an administrative decision of the Valencia Housing and Land Company, the authors
were informed that only 6 of the 43 cases put forward for emergency housing could be
addressed and that the authors had not been selected as beneficiaries of any of those public
housing units. Given the urgency of the situation, the Valencia Housing and Land Company
recommended that the municipal social services provide an alternative housing solution. The
State Party points out that the authors did not appeal this administrative decision and therefore
have not exhausted available domestic administrative and judicial remedies. Subsequently,
on 31 July, social services offered accommodation and meals at a hotel. However, J.H. turned
down the offer and did not inform the Committee.
4.2
The State Party submits that the authors are in an open intervention process following
the last eviction procedure, which consists mainly of: the issuance of a vulnerability report;
the proposal of emergency financial assistance to put towards rent in the event that a lease is
signed; the processing of an application for the Valencia Social Inclusion Income; and the
issuance of a housing emergency report for the purposes of urgent allocation.
4.3
The State Party notes that it has taken a number of steps to meet the authors’ basic
needs. These steps include the provision of access to free legal assistance, financial assistance
to pay for electricity and water and the minimum living income, the establishment of limits
on annual fluctuations of the income and multiple postponements of the eviction under the
special measures taken during the COVID-19 pandemic for persons who could demonstrate
their economic vulnerability and difficulty in finding alternative housing.
4.4
The State Party underscores that the right to housing is not absolute and that the
authorities are not obliged to provide housing when available public resources are insufficient,
and submits that, in assessing the State’s compliance with its obligations, the Committee
must take into account, on the one hand, the identification of a minimum level of resources,
which includes the lack of personal resources, the number of people who are below this
threshold and budgetary availability and, on the other hand, the provision by the State of
reasonable funding and the allocation of resources in accordance with objective criteria.
4.5
In the light of the foregoing, the State Party notes that it was for the authors to
demonstrate that they met these criteria and that they had not, voluntarily or involuntarily,
engaged in acts or omissions preventing them from obtaining the assistance offered. It
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submits that the lack of access to a housing solution was not the result of inaction by the
authorities, stressing that appropriate attention was paid to the case but that the authors did
not meet the requirements.
Authors’ comments on the State Party’s observations on admissibility and the merits
5.1
In their comments of 26 April 2024, the authors submit that, with regard to the eviction,
they exhausted all available remedies to have the eviction suspended and completed all the
procedures to be granted an emergency housing decree but that the judicial system dismissed
their appeals even though they had submitted reports attesting to their situation of
vulnerability.
5.2
With regard to access to alternative housing, the authors claim that, on 8 March 2023,
the Valencia Housing and Land Company opened a case for emergency housing but that,
owing to a shortage of units, the authors were not selected. The authors also claim that, at the
end of August 2023, at a meeting with social services, they were informed that they could
not be provided with sheltered housing because animals are not permitted in these units and
were offered financial support – the minimum living income – for the payment of rent but
were told that they were responsible for finding housing. The authors claim that this option
was not viable because landlords do not accept the minimum living income as a guarantee.
Lastly, the authors claim that the State Party has not been in contact with the family since
September 2023.
B.
Committee’s consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol,
whether or not the communication is admissible.
6.2
The Committee recalls that article 3 (1) of the Optional Protocol precludes it from
considering a communication unless it has ascertained that all available domestic remedies
have been exhausted. The Committee takes note of the State Party’s argument that the authors
have not exhausted domestic remedies because they did not appeal the administrative
decision of 26 July 2023, issued by the Valencia Housing and Land Company, by which it
denied them public housing. However, the Committee takes note of the authors’ claims that,
on 8 March 2023, the Valencia Housing and Land Company opened a case for emergency
housing and that, when the authors were not selected, it requested the support of social
services in providing alternatives, although no tangible sustainable proposal has been made
thus far. The Committee recalls that, for the purposes of article 3 (1) of the Optional Protocol,
“available domestic remedies” are all remedies available to the authors in direct relation with
the initial events that gave rise to the alleged violation and that, prima facie, may be
reasonably considered as effective for remedying the alleged violations of the Covenant.2
The Committee notes that, in the present case, the State Party has not explained how
appealing the administrative decision denying social housing, which was based on the
shortage of available units, would have had a chance of success. In this connection, the State
Party has not provided any information on possible irregularities in the allocation process
that might have warranted an administrative appeal and, subsequently, a judicial appeal.
Therefore, the Committee concludes that the State Party has not demonstrated how the
aforementioned remedy would have been effective in the specific circumstances of the
present case3 or that other available domestic remedies could have been effective in resolving
the authors’ situation.4 Furthermore, given that the authors have lacked housing since early
July 2023, the Committee considers that they should not be required to exhaust other
domestic remedies that may be available, as this would only prolong the deprivation of their
right to adequate housing under article 11 (1) of the Covenant. Accordingly, the Committee
2 Moreno Romero v. Spain (E/C.12/69/D/48/2018), para. 8.2.
3 See, mutatis mutandis, Hernández Cortés and Rodríguez Bermúdez v. Spain (E/C.12/72/D/26/2018),
para. 6.2.
4 Ziablitsev v. France (E/C.12/71/D/176/2020), para. 6.6.
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is of the view that the authors have exhausted all available domestic remedies and that their
communication is admissible under article 3 (1) of the Optional Protocol.
6.3
The Committee notes that the remainder of the communication meets the other
admissibility requirements under articles 2 and 3 of the Optional Protocol and, accordingly,
declares the communication admissible and proceeds to its consideration on the merits.
C.
Committee’s consideration of the merits
Facts and legal issues
7.1
The Committee has considered the present communication taking into account all the
information provided to it in accordance with the provisions of article 8 of the Optional
Protocol.
7.2
The Committee will proceed to consider which facts it deems established and relevant
to the complaint.
7.3
In 2016, the authors moved into an empty property in the city of Valencia and, in
parallel, applied to the Valencia Housing and Land Company for social housing. On
12 November 2020, the Court of First Instance ordered the authors to vacate the property.
Although they were notified of the eviction procedure, the authors did not come to court at
any stage of the proceedings and were therefore declared to be in contempt of court (see
para. 2.2). Between 31 March 2021 (first eviction decree) and 29 June 2023 (enforcement of
the eviction), the eviction was suspended three times. On 8 March 2023, the Valencia
Housing and Land Company opened a case for the urgent allocation of social housing to the
authors. On 29 June 2023, the eviction was enforced. On 26 July 2023, the authors were not
selected for social housing owing to a shortage of available units. On 31 July 2023, the State
Party offered the authors a temporary alternative, which they refused on the grounds that it
was neither adapted to their needs nor reasonable.
7.4
In the light of the Committee’s determination of the relevant facts and the parties’
submissions, the issue raised by the communication is whether the eviction of the authors,
without providing for a process of consultation and review of housing alternatives or ensuring
that they had alternative accommodation when the eviction was ordered and subsequently
carried out, constituted a violation of the right to adequate housing enshrined in article 11 (1)
of the Covenant.5
Analysis of the proportionality and enforcement of the authors’ eviction
8.1
In order to answer this question, the Committee will first refer to the standards relating
to protection against forced evictions in the context of the right to adequate housing, as
consolidated in its Views in the case of El Korrichi et al. v. Spain,6 including the requirement
for an eviction to respect the principles of legality, necessity and proportionality, and the duty
of the judge to weigh up the relevant rights in reviewing any eviction decision. In these Views,
the Committee also sets out a number of procedural safeguards that should be afforded in
eviction procedures, including the provision of an opportunity for genuine consultation on
alternative accommodation with affected persons and, if a lack of resources means that there
are no viable alternatives, requiring the administrative authorities to present the available
options with a view to ensuring that the eviction will not leave anyone homeless.7
8.2
The Committee will proceed to determine whether the authorities considered the
proportionality of the objective of the eviction to its consequences for the persons evicted,
including weighing the benefits of the measure – in this case, protecting the right to property
of the owner of the dwelling – against its possible consequences for the rights of the evicted
persons8 in the specific circumstances of the case.
5 Vázquez Guerreiro et al. v. Spain (E/C.12/74/D/70/2018), para. 7.13.
6 El Korrichi et al. v. Spain (E/C.12/76/D/188/2020), paras. 8.1–8.10.
7 Ibid., para. 8.6.
8 López Albán et al. v. Spain (E/C.12/66/D/37/2018), para. 11.5.
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8.3
The Committee refers again to its Views in the case of El Korrichi et al. v. Spain, in
which it set out a series of elements that must be assessed when analysing the proportionality
of an eviction, including: (a) the availability of adequate alternative housing; (b) the personal
circumstances of the occupants and their dependants and how these circumstances may lead
to one or several situations of vulnerability; (c) the cooperation of the occupants with the
authorities in seeking suitable solutions; and (d) the distinction between properties belonging
to individuals who need them as a home or source of income and properties belonging to
banks, financial institutions or other entities.9
8.4
In the present case, the Committee notes that, while the authors were declared to be
in contempt of court by the Court of First Instance, their subsequent repeated requests for the
eviction to be suspended were dismissed without taking into account their vulnerable
situation or conducting a proportionality review, even though they had provided the requisite
information. The Committee takes note of the authors’ claims that the suspension of the
eviction was not the result of an individualized assessment of their situation but, rather, of a
blanket application of provisions adopted in the context of the COVID-19 pandemic for
persons who could demonstrate being in a situation of economic vulnerability.
8.5
The Committee notes that the State Party has not provided information illustrating
that the authors’ eviction was carried out following a proper individualized assessment of
their situation, including a proportionality review in keeping with the requirements of
article 11 of the Covenant. The Committee notes in particular that the State Party has not
demonstrated having assessed the impact that eviction would have on the family.
Duty of States to provide alternative housing to persons in need or to take all
measures to the maximum of available resources
9.1
In the cases of El Korrichi et al. v. Spain10 and Hernández Cortés and Rodríguez
Bermúdez v. Spain,11 the Committee refers to the duty of States to provide alternative housing
to persons subject to eviction who are unable to provide for themselves. The State Party must
take all appropriate measures, to the maximum of its available resources, to ensure that
adequate alternative housing, resettlement or access to productive land, as the case may be,
is available.12 The State Party has a duty to take reasonable measures to provide alternative
housing to persons who are left homeless as a result of eviction, irrespective of whether the
eviction is initiated by its authorities or by private individuals such as the owner of the
property.13 In the event that a person is evicted from his or her home without the State Party’s
granting or guaranteeing of alternative accommodation, the State Party must demonstrate that
it has considered the specific circumstances of the case and that, despite having taken all
reasonable measures, to the maximum of its available resources, it has been unable to uphold
the right to housing of the person concerned.14 The information provided by the State Party
should enable the Committee to consider the reasonableness of the measures taken in
accordance with article 8 (4) of the Optional Protocol.15
9.2
States Parties may choose a variety of policies for this purpose.16 Any steps taken,
however, should be deliberate, concrete and targeted as clearly as possible towards meeting
the obligations recognized in the Covenant 17 and should be applied in a manner that
effectively prevents evictions from resulting in homelessness.18
9 El Korrichi et al. v. Spain, para. 10.2.
10 Ibid., paras. 8.1–8.10.
11 Hernández Cortés and Rodríguez Bermúdez v. Spain, paras. 9.1–9.4.
12 General comment No. 7 (1997), para. 16.
13 Ben Djazia et al. v. Spain (E/C.12/61/D/5/2015), para. 15.2.
14 Ibid., para. 15.5.
15 Ibid. See also E/C.12/2007/1.
16 E/C.12/2007/1, paras. 2 and 3.
17 General comment No. 3 (1990), para. 2.
18 General comment No. 7, para. 16.
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Analysis of compliance with the obligation to provide alternative housing for the
author and his family and to take all measures to the maximum of available resources
to ensure their right to adequate housing
10.1
The Committee notes that, according to the authors, they filed three requests with the
competent judicial authorities for suspension of the eviction, in which they claimed to be in
a situation of particular vulnerability, appending a copy of the social services report in that
regard. The Committee also notes that, since May 2023, J.H. has been receiving a monthly
economic benefit of €960, in the form of the Valencia Social Inclusion Income, but the
authors submit that this makes it difficult to secure housing, as real estate companies require
a deposit and this type of benefit cannot be seized.
10.2
The Committee notes that the only alternative housing option offered to the authors
was temporary and that the offer was made a month after the eviction had been carried out.
It further notes that no other measures were taken prior to the eviction to ensure adequate
housing for the authors, who were in a situation of vulnerability and had limited means.
10.3
In the light of the foregoing, the Committee considers the State Party’s arguments
insufficient to demonstrate that it made all possible efforts, using all available resources, to
ensure, prior to the enforcement of the eviction, that the authors would not be rendered
homeless. Notwithstanding the offers made after the eviction, the information before the
Committee does not enable it to assess the reasonableness of the steps taken prior to and at
the time of enforcement. In addition, the Committee takes the view that making access to a
housing solution contingent on finding a rental property on the private market is a
disproportionate burden to bear for persons in a vulnerable situation, particularly those who
lack the necessary resources to secure adequate housing.
10.4
While the State Party argues that its resources are limited owing to the housing crisis,
this does not in itself demonstrate that all reasonable measures were taken in the specific
circumstances of the case.19
D.
Conclusion
11.1
On the basis of all the information provided and in the particular circumstances of the
case, the Committee finds that the eviction of the authors, without a proper assessment of
proportionality by the judicial authorities or guarantee that alternative accommodation was
available at the time of enforcement and in the absence of evidence that the State Party took
all appropriate measures within the maximum of its available resources to prevent the authors
from being rendered homeless, constitutes a violation of their right to adequate housing.
11.2
The Committee, acting under article 9 (1) of the Optional Protocol, is of the view that
the State Party violated the authors’ right under article 11 (1) of the Covenant. In the light of
the Views contained in the present communication, the Committee makes the following
recommendations to the State Party.
12.
The State Party is under an obligation to provide the authors with an effective remedy,
in particular by: (a) reassessing, if they are not currently in adequate housing, their state of
necessity and their place on the waiting list, taking into account the length of time that their
application for housing has been on file with the Community of Valencia, starting from the
date on which the authors applied, with a view to providing them with social housing or
taking some other measure that would enable them to live in adequate housing, bearing in
mind the criteria set out in the present Views; (b) providing the authors with financial
compensation for the violations of their rights, including the material and non-material
damages suffered by the family; and (c) reimbursing the authors for the legal costs reasonably
incurred in submitting this communication, at both the domestic and international levels.
19 Ben Djazia et al. v. Spain, para. 17.5.
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13.
The Committee recalls that, in accordance with its international obligations, the State
Party must take all necessary measures to ensure that similar violations do not occur in the
future. In this regard, the State Party is obliged to ensure that its legislation and the application
thereof comply with international standards established in the Covenant. In particular, the
State Party has an obligation to:
(a)
Ensure that its normative framework allows persons in respect of whom an
eviction order is issued and who might consequently be at risk of destitution or of violation
of their Covenant rights, including persons who are occupying a dwelling without legal title,
to challenge the decision before a judicial or other impartial and independent authority with
the power to order the cessation of the violation and to provide an effective remedy so that
such authorities can examine the proportionality of the measure in the light of the criteria for
limiting the rights enshrined in the Covenant under the terms of article 4; consider, where
appropriate, the best interests of the child and the disproportionate impact of evictions on
women, especially those who are single mothers of minor children and on a precarious
economic footing; and revise current regulations to introduce reasonable notice periods and
mandatory consultations with the persons affected by an eviction;
(b)
Take the necessary measures to ensure that evictions affecting persons who
lack the wherewithal to obtain alternative housing take place only within the framework of
proceedings involving genuine and effective consultation with the persons concerned in
which all available alternative housing (whether belonging to such persons or made available
by the relevant State agencies) is assessed and only after the State has taken all essential steps,
to the maximum of its available resources, to ensure that evicted persons have alternative
housing, especially in cases involving families, households headed by single parents –
women in particular – older persons, children and/or other persons in vulnerable situations.
If the group to be evicted includes children, the proceedings must guarantee their right to be
heard;
(c)
Adopt the measures necessary to put an end to the practice of automatically
excluding from lists of applicants for housing all persons who find themselves occupying a
dwelling without legal title because they are in a situation of necessity, so that all such persons
have equal access to the social housing stock, removing any unreasonable condition that
might exclude persons at risk of destitution;
(d)
Take the measures necessary to ensure proper coordination between the
judicial authorities and social services to prevent an evicted person from being left without
adequate accommodation;
(e)
Develop and implement, in coordination with the Autonomous Communities
and to the maximum of its available resources, a comprehensive plan to guarantee the right
to adequate housing for low-income persons, in keeping with general comment No. 4 (1991).
This plan should provide for the necessary resources, indicators, time frames and evaluation
criteria to guarantee these individuals’ right to housing in a reasonable, timely and
measurable manner;
(f)
Establish a protocol for complying with requests for interim measures made
by the Committee and inform all relevant authorities of the need to grant such requests in
order to ensure the integrity of the procedure;
(g)
Establish follow-up mechanisms to assess the effectiveness of reparation
measures and to prevent the recurrence of similar situations.
14.
In accordance with article 9 (2) of the Optional Protocol and rule 21 (1) of the rules
of procedure under the Optional Protocol, the State Party is requested to submit to the
Committee, within a period of six months, a written response, including information on
measures taken in follow-up to the Views and recommendations of the Committee. The State
Party is also requested to publish the Views of the Committee and to distribute them widely,
in an accessible format, so that they reach all sectors of the population.
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Annex I
Individual opinion of Committee member Giuseppe Palmisano
(concurring)
1.
While concurring with the Committee’s assessment of the core merits of the case,
which identifies a violation of the authors’ right under article 11 (1) of the Covenant, it is my
opinion that the Committee’s conclusions fall short of fully addressing the extent of the
violation committed by the State Party.
2.
According to the Committee’s findings (paras. 10.2, 10.3 and 11.1), the State Party’s
violation consisted solely of failing to provide the evicted family, who were in a vulnerable
situation with limited resources, with an alternative housing option prior to and at the time of
eviction.
3.
While I agree that this was in clear violation of the requirements concerning the
implementation of the right to adequate housing in cases of eviction, particularly for
vulnerable and low-income individuals, the Committee’s findings are limited in that they do
not consider the ongoing inadequacy of the State Party’s conduct after the eviction, which
left the authors homeless.
4.
In this regard, it should be noted that the authorities of the State Party offered the
homeless family temporary housing only one month after the eviction, with no indication that
this was a first step towards a more permanent and adequate solution. Furthermore, there is
no indication that the State Party took the specific situation of the evicted family into
consideration when proposing temporary measures, nor that such measures were indeed
viable and sustainable for the family.
5.
For the above reasons, the Committee’s conclusion should have clarified that the State
Party’s violation of the right to adequate housing under the Covenant consisted not only of
failing to ensure that alternative accommodation was available to the authors at the time of
the enforcement of the eviction, but also of failing to take all appropriate measures within the
maximum of its available resources to guarantee the evicted and homeless family adequate
housing after the eviction.
6.
This would have been consistent with the right to protection against forced evictions
in the context of the right to adequate housing under article 11 (1) of the Covenant, and in
accordance with the standards set out by the Committee in its jurisprudence on the duty of
the State to take all measures to the maximum of available resources to provide adequate
alternative housing in cases of forced eviction.
7.
Such standards, clarified in the Committee’s general comment No. 4 (1991)1 and in
López Albán et al. v. Spain and El Goumari et al. v. Spain,2 require the State to ensure the
provision of adequate temporary accommodation for evicted persons who need alternative
housing, when it was not possible to offer permanent alternative residence at the time of
eviction. In particular, temporary accommodation should protect the human dignity of
evicted persons, meet all safety and security requirements, and not become a permanent
solution, but rather be a step towards obtaining adequate housing. It should also respect the
right of family members not to be separated and to enjoy a reasonable level of privacy.
8.
However, it is evident from the documentation of the case that the State Party did not
endeavour to ensure that the temporary accommodation offered to the evicted family, more
than a month after the eviction, met these requirements.
1 See para. 8.
2 E/C.12/66/D/37/2018, paras. 9.1–9.4, and E/C.12/69/D/85/2018, para. 9.4, respectively.
E/C.12/79/D/330/2023
10
GE.26-03810
Annex II
[Original: Spanish]
Individual opinion of Committee member Santiago Manuel Fiorio
Vaesken (concurring)
1.
With regard to the housing alternatives in the present case, the authors noted that some
of the housing options offered by social services were not viable because pets were not
allowed there, an element that was emphasized in the file as a prime consideration in
assessing the authorities' proposals (see para. 5.2 above). In this connection, while the
Committee’s mandate is limited to examining compliance with State obligations regarding
human rights and human dignity, it is worth noting that the solutions proposed by the State
Party in the context of its obligations under the Covenant must also be consistent with its
own domestic legal system. In particular, the Civil Code of Spain, enacted by the Royal
Decree of 24 July 1889, specifically article 333 bis on the legal regime governing animals,
which was introduced and developed through Act No. 17/2021 of 15 December 2021
amending the Civil Code, the Mortgage Act and the Code of Civil Procedure, establishes that
animals are sentient beings and that the owner, possessor or holder of any right over an animal
must exercise his or her rights and duty of care in a manner befitting this sentience. The goal
of this amendment was precisely to align the legal system with the nature of animals and the
relationship that develops between them and humans and thereby strengthen the requirement
that public decisions that may affect this bond take into account the animal’s well-being and
the impact that a forced separation could have on both the animal and the people with whom
it lives. This provision establishes a positive legal duty of care towards the animal, the
fulfilment of which is the responsibility of the owner and which, by its very nature, should
not be restricted or impeded by the State, either de jure or de facto, through measures or
policies that prevent or hinder the effective discharge of these obligations.
2.
In this regard, when State authorities design or implement housing alternatives to
prevent or mitigate homelessness, these must be assessed for their reasonableness,
proportionality and suitability in relation to the specific circumstances of the individuals
concerned, as shown in the analysis regarding the need to assess personal circumstances and
the availability of appropriate housing alternatives (see paras. 8.3–8.5 above), and it must be
ensured that the solutions offered respect the dignity of the individuals concerned and are an
effective step towards a sustainable housing solution (see paras. 10.2 and 10.3 above).
Consequently, the formulation or implementation of measures that are incompatible with the
State Party’s own law – for example, those involving the forced severance of the bond
between a family and an animal whose protection is recognized by law – could not only
render unreasonable the alternatives offered within the framework of the right to adequate
housing, but could also give rise to additional liability for the State vis-à-vis the holders of
rights relating to the animal, including liability for non-pecuniary damage caused by an
unjustified such severance. In this context, a State measure that disregards this legal
framework could be not only incompatible with domestic law but also unreasonable in the
light of the standards of dignity and appropriateness applicable to housing measures, and
could have additional implications for the human rights of an animal's rights holders or
owners. Furthermore, the adoption of measures that violate a State’s own internal regulations
may also give rise to legal liability or even contribute to human rights violations when such
measures undermine the dignity, moral integrity or family life of the individuals concerned.