E/C.12/74/D/70/2018 their needs, in genuine consultation with the author, in a bid to avoid causing irreparable harm to her and her children. A. Summary of the information and arguments submitted by the parties Factual background1 Before registration of the communication 2.1 The author claims that in 2014 she entered into a verbal agreement to rent an apartment from an individual and duly paid the monthly rent. 2.2 On 15 October 2015, the author applied to the Madrid social welfare services for low-cost housing and was put on a waiting list. 2.3 In July 2017, the author discovered that the individual to whom she had been paying rent neither owned the apartment nor had legal title to it and that the apartment in fact belonged to the Madrid Social Housing Institute, currently known as the Madrid Social Housing Agency. 2.4 On 21 December 2017, the Madrid Trial Court No. 1 convicted the author on one count of encroachment, a minor offence, fined her €180 and ordered her to give possession of the property back to its owner.2 The Court held that the author had admitted that she knew that the house belonged to the Madrid Social Housing Institute and that she had moved into it without the Institute’s permission. The Court also held that the author could not claim that she was in a state of necessity, since she had family members with whom she could live and savings that she had put into renovating the apartment. 2.5 The author, represented by a public defender, appealed against the verdict of 21 December 2017, contending that there had been an error in the assessment of the evidence, a failure to presume her innocent or give her the benefit of the doubt, a violation of her right to effective judicial protection and a wrongful failure to apply article 20 (5) of the Criminal Code, which states as follows: Anyone who, to avoid causing harm to him- or herself or another person, has no choice other than to interfere with the legal interests of another person or act in breach of duty is not held criminally responsible, provided that: first, the harm caused is not greater than the harm to be avoided; second, the individual in question has not deliberately brought about the state of necessity; third, the individual in a state of necessity is not required, in view of his or her trade or position, to accept the consequences of the harm. On 25 May 2018, the Provincial High Court of Madrid dismissed the appeal, finding that (a) the failure of the social welfare services to reply to the author’s application for low-cost housing could not justify her commission of the offence of encroachment and that (b) the author could not reasonably claim a state of necessity, as her economic resources, in the form of the savings that she had used to renovate the apartment, and the unexhausted personal, family and social resources available to her meant that there was no situation of imminence or absolute urgency, issues about which the Court provides no specific information. 2.6 On 6 June 2018, the author asked, to no avail, whether it would be possible to negotiate an affordable rent for the apartment. On several occasions, she also asked the Madrid social welfare services to provide her with adequate alternative housing in the event that she was evicted. 1 2 2 These facts have been reconstructed on the basis of the individual communication and the information subsequently provided by the parties in their observations and comments on the merits of the communication. In connection with the offence of encroachment, article 245 (2) of the Criminal Code states as follows: “Any person who, without due authorization, occupies another person’s property, home or other building used other than as a place of residence or remains in it against the owner’s wishes will be subject to a fine to be paid at an individualized periodic rate for three to six months.” GE.23-20361