ADDIS ABABA UNIVERSITY

COLLEGE OF LAW AND GOVERNANCE STUDIES

SCHOOL OF LAW

HUMAN RIGHTS LAW STREAM (LL.M.)

CASE COMMENT ON:

VIEWS ADOPTED BY THE COMMITTEE ON ICESCR ONMOHAMMAD BEN

DJAZIA AND NAOUEL BELLILI V SPAIN, ADOPTED ON JUNE 20, 2017

BY SINGITAN ADERE

SUBMITTED TO: Mesenbet Asefa (PH.D. Asss. Professor)

JAN. 27, 2020

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table of content
Summary of the facts of the communication and observations of the parties on procedural and
substantive issues ................................................................................................................................... 1
Claims of the authors .............................................................................................................................. 1
State party’s claim on admissibility .......................................................................................................... 2
Authors comments on the state party’s observation ............................................................................... 2
Third party’s observation......................................................................................................................... 2
Committee’s consideration of admissibility ............................................................................................. 2
Committee’s consideration of the merits ................................................................................................. 3
Issue .................................................................................................................................................... 3
conclusions and Recommendations ......................................................................................................... 4
Comments............................................................................................................................................... 4

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Subject-matter: eviction of the lessees, owing to the judicial proceeding initiated by the lessor

Summary of the facts of the communication and observations of the

parties on procedural and substantive issues
The major facts of the communication goes as follows;Mr. Mohammad Ben Djazia, hereafter
called ,”the author” who used to live in a rental house under the support of unemployment
scheme, had submitted an application for public housing numerous times but to no avail.
However, due to low family income, the applicant was unable to pay the rent payment upon the
expiry of the contractual terms, for which he refused to vacate the house.

The author had also made a fruitless effort by applying to public bodies and charities for housing
service. The lessor finally instituted a civil proceeding for forced eviction, due to which the
applicant pleaded for a legal aid which was rendered to be unsound by the legal aid commission
too.

The court that seized of the case finally ruled that the applicant should be removed from
the house, despite the applicant’s petition to the court for the suspension of the order, where hhe
argued that his eviction would violate his right to a decent and adequate housing and that the
court should instruct the Madrid social affairs and family and social service department to
provide him an alternative housing. Moreover, his application for the reconsideration of his
circumstance to the same court and his request for the nullification of the order until alternative
house is provided to him bore no fruit.

Even worse, the authors request for the suspension of the eviction to the constitutional court of
Spain and the European Court of Human Rights was also rejected.

Claims of the authors

The authors claimed that the order of the court violated their right to adequate housing under
article 11 of the ICESCR and exposed, their children, to extreme insecurity and vulnerability, to
which a special protection should be given. They also argued that Spanish law does not
guarantee protection from eviction in such situations as the termination of rental contract. Added
to this, relief measures to support persons with low income is also insufficient to guarantee the
right to adequate housing.

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State party’s claim on admissibility

The state party argued that the communication was inadmissible for it was manifestly ill-founded
and does not clearly show the disadvantage. Furthermore, the state party continued to argue that
the case does not amount to forced eviction as it resulted from the termination of a rental
contract. The state party also argued that the author was also receiving ongoing support in the
form of income allowance and he was reluctant to search for housing by himself.

Authors comments on the state party’s observation

The authors argued that eviction from rental accommodation arising from the legislation contrary
to the provisions of the ICESCR and the absence of legal remedies in this case amounts to the
violation of the author’s right under the covenant. The state party’s offer for the provision of
separate shelter would lead to the isolation of the family. The authorities in Madrid also sold the
public houses to investment companies, allegedly, as a response to financial crisis.

Though the state party opposed that the author’s case was not forced eviction as it was made
following the due process of law, the author reiterated that the act constitutes violation of his
rights under article 11 of the ICESCR.

Third party’s observation

The international network of ICESCR, the working group on the communication and the special
rapporteur concluded that the state party has an obligation to protect the right to housing of the
persons within their territory to which tenants under the private agreements were not an
exception and, this view was supported by the authors.

Committee’s consideration of admissibility

The committee found that the state party’s argument that the communication was manifestly ill-
founded, that the author has abused his right to communication and the communication does not
show that the author suffered a clear disadvantage is unacceptable. Because, the mere difference
between facts of the case does not render the communication inadmissible and, showing the
existence of clear disadvantage is not the admissibility requirement as it is the discretion of the
committee to use it in cases where the minimal severity is not proved.

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Committee’s consideration of the merits

Issue
The committee framed the issue that whether eviction of the authors from the rental
accommodation by the order of the court without the alternative housing being provided
constitutes the violation of the right to housing under article 11 of the covenant.

The committee started by stressing that the right to adequate housing is important not only to
other socioeconomic rights but also to the enjoyment of civil and political rights. Consequently,
state parties are required to fulfill their obligation to take measures to ensure this rights to all
persons within their jurisdiction irrespective of their income or resources.

Moreover, this right includes security of tenure,including those living in a rental accommodation
regardless of the termination of the lease contract. Even when the eviction is necessary, it must
be made reasonably and on the basis of the law compatible with the covenant and in a
consultation with the victim(s).

Added to this, though the eviction resulted from the legal proceeding between two individuals,
the state party has an obligation to make sure that such situations of eviction by third party would
not result in the violation of rights of persons under article 11 of the covenant. Even in such
cases, the committee added, victims should have access to judicial remedy.

The state parties have an obligation to provide alternative housing, as articulated under article 2
of the covenant in which they are required to take necessary steps, to the maximum of their
available resources and, in such cases, particular attention should also be paid to evictions
affecting children and women.

The committee considered that the eviction of the authors from the rental accommodation
without first providing alternative housing and in the absence of the state’s taking necessary
steps, to the maximum of its available resources, amounts to the violation of the authors right to
adequate housing.

Furthermore, no law of the state party protects persons from forced eviction. Neither the existing
law also does authorize the courts to suspend the eviction until an alternative housing is provided
to the victim nor is there available judicial remedy for the victims of the eviction order in the
state party.

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The committee emphasized that though it is argued that it is the conduct of Mr. Ben Djazia that
hindered the improvement of the author’s financial situation, the state party should design the
criteria for applicants to get social service and, those criteria should be reasonable and does not
have to be discriminatory and be communicated to the applicants in a transparent manner.

Neither the state party sufficiently demonstrated that it has made all possible efforts, to the
maximum of its available resources, to satisfy the shortage of housing nor did it indicate that it
was putting its resources toward a general policy to permanently solve the problem of housing.
The committee then concluded that the state party did not sufficiently prove that it failed, to the
maximum of its available resources, to provide house to the authors.

conclusions and Recommendations

The committee concluded that the state party has not provided a reasonable argument to
demonstrate that maximum effort has been made to fulfill the right to housing of the authors and,
therefore, the eviction has violated the right to adequate housing of the authors

The committee also observed that the state party has an obligation to provide the authors with an
effective remedy in consultation with the victims, provide financial compensation and reimburse
the authors for the costs incurred during the communication. Finally the committee
recommended that the state party has an obligation to guarantee judicial remedy with a law
compatible with the covenant.

Comments
Though there is no universally agreed upon legal definition for “forced eviction”, general
comment No. 7 under para 3 of the CESCR provides more or less generally accepted definition.
Consequently, “forced eviction” is “the permanent or temporary removal of individuals, families
and/or communities against their will from the homes and/or land which they occupy, without
the provision of, and access to, appropriate forms of legal or other protection.”

The takeaway from this definition is that the eviction is considered to be forced eviction if and
when it is undertaken without facilitating the provision of alternative measures or ensuring other
legal protection, such as security of tenure to the victims.

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Therefore, does the eviction of the authors from the rental accommodation by the order of the
court without the alternative housing being provided constitute the violation of the right to
housing under article 11 of the ICESCR as per this definition and relevant human rights
instruments?

CESCR general comment No. three stresses that while the full realization of the rights
recognized in the covenant could be made progressively, the duty of the state party to take steps,
however, has to be made within a short period of time. This duty to “take steps” refers to the
state party’s obligation to adopt laws and take measures, as these measures do not relatively
require much resource of the state party.

Moreover, as elucidated in the Limburg Principles on the Implementation of the International

Covenant on Economic, Social and Cultural Rights, para 18, this duty of state parties to “take
steps” includes not only adopting legislative measures, but also extends to revising the existing
legislations which are incompatible with other obligations of the state parties assumed under the
International Covenant on Economic, Social and Cultural Rights.

When it comes to the communication summarized above, however, the state party (Spain) does
not have a law guaranteeing security of tenure in cases of the termination of lease contracts.
Moreover, the existing laws do not authorize the courts to suspend the eviction until an
alternative housing is provided to the victims for whatever reasons.

On the other hand, the duty to take steps, provided under article 2, para 1 of the CESCR amounts
to minimum core obligation of the state party, by which it is expected, to the maximum of its
available resources, to meet its obligations immediately. However, the state party under
consideration has failed to adopt laws to ensure security of tenure and guarantee judicial remedy.

What can be appreciated from this account is that the state party in this case has failed to comply
with its minimum core obligation, that is to say, to adopt laws that ensure judicial remedy and
security of tenure for tenants, due to which the authors suffered forced eviction.

Moreover, as it is noted under general comment 3, para 10, of the CESCR, “a State party in
which any significant number of individuals is deprived of essential foodstuffs, of essential
primary health care, of basic shelter and housing, or of the most basic forms of education
is,primafacie,failing to discharge its obligations under theCovenant.” The state party can only

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attribute its inability to meet its minimum core obligation to lack of resources,if it demonstrated
that maximum effort has been made to use all resources at its disposition and those which can be
achieved through international cooperation.

The state party in this case has argued that the Madrid City Council receives eight-thousand
applications for public house per annum and only two-hundred and sixty-six of these
applications are admitted due to lack of public houses. However, as it is stated under general
comment No. 3, para 12, of the CESCR, the state party, even in cases of resource constraint,
including economic recession, shall design a low-cost targeted programs to meet its obligations
toward persons with low income and vulnerable groups.

Added to this, as underscored under CESCR general comment No. 7, para 2,forced eviction
being a gross violation of human rights, state parties, in cases where the eviction is necessary,
should provide an alternative solution to the victims. In the communication under consideration,
however, the authors were removed from the rental house without being provided alternative
accommodation, which gives the impression that the state party has violated the right to adequate
housing of the authors.

According to article 17/1 of the ICCPR as well, a state party has a duty to protect persons within
their jurisdiction, from fforced eviction both by the state agents and third parties. Moreover,
CESCR general comment No. 7 para 9 reiterates that state parties are required to adopt
legislations which offer the greatest protection of security of tenure to the occupiers of home and
land and should conform to the rights recognized under the covenant. This same paragraph,
recognizing the current reduction of state responsibility in the housing sector, obliges state
parties to “ensure that legislative and other measures are adequate to prevent and, if appropriate,
punish forced evictions carried out, without appropriate safeguards, by private persons or
bodies.”

Moreover, the right to adequate housing, as appreciated by the committee on ICESCR In its
general comment No. 4, para 8, requires the legal security of tenure including, rental
accommodation, whether public or private, lease, emergency housing and informal settlement.
This conveys the message that the state parties shall take immediate actions to protect all persons
from forced eviction, regardless of the kind of the tenure. Seen from this line of argument, the
state party in the communication being considered, should have guaranteed the authors from

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being illegally evicted from the house notwithstanding that they were living in a rental
accommodation.

In light of this views, it is my proposition that the state party under consideration, (Spain), failed
to meet its obligation to ensure the right to adequate housing of the authors by not adopting laws
that guarantee security of tenure and protection against forced eviction by private persons.
General comment No. 7, para 13 of the same covenant also added that the eviction should be
made in consultation with the victims, in order to find alternative solution and without resorting
to the use of force.

In the case being considered, however, unlike the above preconditions for eviction, the present
authors with their two children were removed from the rental accommodation by Madrid City
police, contrary to the right to due process of the victims.

In addition, I also share the view of the committee that the eviction must go in compliance with
the provisions of international human rights law and general principles of reasonableness and
proportionality and, can only be justified if it follows a law, the aim, provisions and objectives of
which is in line with the international human rights instruments adopted by the state party
concerned.

The committee on CESCR, on its general comment No. 7, para 16, stressed that the Eviction
should not also render individuals homeless or expose them to the violation of other human
rights. Moreover, where those affected 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, as the case may be, is provided. This being the case, the state party under
consideration almost remained silent when the authors were removed from their rental house and
were rendered homeless and exposed to extreme insecurity.

However, a given state party to the international human rights law must, unlike the above
situation, be accountable for its actions or inactions. Because, considering the extreme situation
to which the authors and their children were exposed, the state party must have provided a short-
term solutions and, by not so doing, it has violated, not only the right to adequate housing of the
authors, but also the right to be free from torture, cruel, inhuman and degrading treatment.

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This can be deduced from the fact that the authors, without first being provided alternative
accommodation, yet as an interim measure, were removed from the house and rendered homeless
and, this is I argue, is equal to subjecting the authors and their children to degrading
psychological treatment.

The CESCR committee, in its general comment NO. 7, para 15, (H) indicated that a legal aid
should be given to those who need it in case of eviction. However, as the legal aid commission,
desisting from this principle rejected the author’s request for legal service, due to which the
authors were deprived of their right, constitutes procedural anomaly of the judicial process.

On the other hand, Committee on the CESCR, in its general comment no. 9, para 2, clarifies that
the domestic application of the covenant requires recognition of the covenant in the state party’s
domestic laws and, the state party has an obligation to give effect to the rights recognized therein
by facilitating ways of redress or remedy to the aggrieved persons.

This obligation of a state party, according to the same general comment, para 3, requires a given
state, not to invoke its domestic laws as a justification for its failure to meet its obligation under
international law and, to ensure the right of everyone to effective remedy by a competent tribunal
in case of violation of the fundamental rights recognized under national or international human
rights law.

Moreover, when state parties are involved in a judicial proceedings, they should promote the
interpretation of domestic laws in compliance with their covenant obligations. Seen from this
perspective, it can be concluded that as the present authors were not given effective legal remedy
locally, the state party (Spain) has failed to meet its obligations to give effect to the rights
recognized under the covenant domestically.

Therefore, as the view of the committee in the communication being considered remarked, the
state party has failed both to guarantee security of tenure in relation to evictions which may arise
from private rental contracts and ensure effective judicial remedy to the affected individuals
either by adopting laws or providing legal aid to the victims.

In conclusion, the state party obligation to protect and ensure security of tenure remains intact,
even when persons under its jurisdiction are susceptible to forced eviction, due to the expiration
of rental agreements between private persons.

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This line of reasoning, I pronounce, above and beyond concluding and recommending that the
obligation of state party to protect persons from forced eviction extends to protecting them from
forced eviction by private persons, will add value to the international jurisprudence on ESC
rights signaling their appreciation in the aforesaid fashion.