E/C.12/75/D/226/2021
E/C.12/75/D/227/2021
should enable the Committee to consider the reasonableness of the measures taken in
accordance with article 8 (4) of the Optional Protocol.29
9.2
States parties may choose a variety of policies for this purpose.30 Any steps taken,
however, should be deliberate, concrete and targeted as clearly as possible towards meeting
the obligations recognized in the Covenant.31
9.3
Alternative housing must be adequate. While adequacy is determined in part by social,
economic, cultural, climatic, ecological and other factors, the Committee believes that it is
nevertheless possible to identify certain aspects of the right that must be taken into account
for that purpose in any particular context.32 They include the following: legal security of
tenure; availability of services, materials, facilities and infrastructure; affordability;
habitability; accessibility; a location in a healthy environment that allows access to public
and social services (education, employment and health care); and cultural adequacy, to ensure
that expressions of cultural identity and diversity are respected. 33
9.4
In certain circumstances, States parties may be able to demonstrate that, despite
having made every effort, to the maximum of available resources, it has been impossible to
offer a permanent, alternative place of residence to an evicted person who needs alternative
accommodation. In such circumstances, temporary accommodation that does not meet all the
requirements of an adequate alternative dwelling may be used. However, States must
endeavour to ensure that the temporary accommodation protects the human dignity of the
persons evicted, meets all safety and security requirements and does not become a permanent
solution but is a step towards obtaining adequate housing. It must also take account of the
right of members of a family not to be separated34 and to enjoy a reasonable level of privacy.35
Analysis of the proportionality of the authors’ eviction
10.1 The Committee notes that the authors did not have any legal title to regularize their
occupancy of the houses. What must be ascertained is whether the eviction of the authors and
their families was necessary and proportionate to the objective pursued and whether the State
party took the consequences of evicting them into account.
10.2 As mentioned in paragraph 8.3 above, the Committee has drawn up a series of
circumstances that must be assessed when analysing the proportionality of an eviction. It has
also considered factors relevant to a consideration of proportionality: (a) the availability of
adequate alternative housing; (b) the personal circumstances of the occupants and their
dependants, including whether there are any vulnerability factors, such as age and disabilities,
among others, that would cause them to suffer disproportionately from the eviction; 36 (c) the
cooperation of the occupants with the authorities in seeking suitable solutions; and (d) the
difference between properties belonging to individuals who need them as a home or to
provide vital income and properties belonging to banks, financial institutions or other
entities.37
10.3 The Committee observes that, according to the information on file, it does not appear
that the judicial authorities took into account any of the factors mentioned in paragraph 10.2
in its decision related to the eviction of the authors. The Committee notes that, despite the
authors’ various requests for social housing and despite social services having been aware of
their need for such housing since 2011, the authors were never offered any adequate
alternative housing that would have allowed each family to remain together. The Committee
observes that the authors requested meetings with the competent authorities and gave the
railway company the opportunity to regularize their situation as tenants. Those attempts at
29
30
31
32
33
34
35
36
37
GE.24-03814
Ibid. See also Vázquez Guerreiro et al. v. Spain, para. 9.1.
Ben Djazia et al. v. Spain, para. 15.3.
Committee on Economic, Social and Cultural Rights, general comment No. 3 (1990), para. 2.
Committee on Economic, Social and Cultural Rights, general comment No. 4 (1991), para. 8.
Ibid., para. 8.
For example, López Albán et al. v. Spain, para. 9.3.
For example, Hernández Cortés et al. v. Spain (E/C.12/72/D/26/2018), para. 9.4.
Vázquez Guerreiro et al. v. Spain, para. 8.9.
Ibid., para. 10.2. See also El Mourabit Ouazizi et al. v. Spain (E/C.12/72/D/133/2019).
11