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


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

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

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

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

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

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

[1] Observatori DESC
and Plataforma de los afectados por la hipoteca.
emergency in Spain. The crisis of foreclosures and evictions from a human
rights perspective (2013). Available at: http://observatoridesc.org/sites/default/files/2013-housing-emergency-spain-observatory-desc.pdf

[2] CESCR.
Visualizing Rights Fact Sheet No. 14 – Spain (2014), available at: http://cesr.org/downloads/FACTSHEET_Spain_2015_web.pdf