What does Maricarmen's eviction reveal about the protection of the right to housing in Spain?
On the one hand, it has shown that there is a well-organized associative movement in favor of the right to housing. On the other hand, it has shown that there are many shortcomings in the compatibility of Spanish regulations with international human rights law regarding the right to housing. For example, in Spain for months there has been no protection for vulnerable people at risk of eviction. In eviction procedures there is no mandatory proportionality analysis, so there are judges who apply the law in one way and others in another. There are also many differences between autonomous communities and city councils when it comes to ensuring that, after an eviction, no one is left homeless, which is an obligation under international law and was not met in the case of Maricarmen. By evicting her, the judge put Spain in an impossible position to comply with the ICESCR, because there were precautionary measures.
Is the suspension of evictions of vulnerable people approved by the Government after the Maricarmen case sufficient?
The decree is important to protect vulnerable people who are at risk of being evicted, but it does not resolve any of the other issues that I mentioned: it does not change the proportionality analysis, nor does it resolve the different practices of communities and city councils to ensure that no one is left homeless nor does it guarantee that all judges respect the resolutions of the United Nations committees, because for that to happen the Organic Law of the Judiciary must be modified. Much stricter regulations are also needed to regulate large landlords and companies that invest in the rental market, so that they cannot change the conditions of tenants unilaterally. These four things are important for Spain to live up to international human rights law.
The suspension of evictions approved by the Government is until 2030. How do you see that this time limit has been set?
As I said, I believe that it is important that there are emergency measures for situations of vulnerability, but more general measures are needed. And there are more things that need to be done in terms of housing: we need to build much more public housing, ensure that this housing is built without expiration...
I said at the beginning that the eviction of Maricarmen violated the International Covenant on Economic, Social and Cultural Rights. Does this have any consequences for Spain?
This is a violation of an international treaty that Spain has ratified and, therefore, it is a legal obligation of good faith that Spain has at the international level. But it is also an obligation of domestic law, because the Spanish Constitution, in its article 96, says that international treaties validly concluded and ratified by Spain and published in the BOE are part of the Spanish legal system.
And does that have any legal or political consequences?
At an internal level, unfortunately, as there is a mismatch between this treaty and Spanish legislation, there are some judges who only apply Spanish legislation, but I think that is a mistake. At the international level, Spain is going to be condemned by the CESCR Committee for breach of the treaty, not just for the substance of the matter, because I don't know what the Committee is going to do, in fact I don't know if the case will continue once Maricarmen has died; but for the mere fact of having failed to comply with the precautionary measure, Spain will be condemned. And what will that translate into? Well, the implementation of this type of resolution usually leaves a lot to be desired, because it depends a lot on the good will of the States. But Spain will have violated international law due to a judge's decision in this case.
Is it common for cases like Maricarmen's to reach the UN Committee on Economic, Social and Cultural Rights?
Spain is the country in the world that receives the most complaints. This is due to two reasons. On the one hand, because the number of countries that have accepted the jurisdiction of this committee is not very large, there are around 30 countries. Spain was one of the first to do so, it was the first in Europe and the third in the world. And the second reason is that there is an activist community of lawyers and associations who know this mechanism very well and have done a lot of advocacy to ensure that strategic cases are presented before the ESCR Committee. So, yes, there are many cases, but that does not mean that Spain is the biggest violator of the right to housing. There are countries in the world that have not accepted this mechanism and therefore, complaints cannot be filed, but their situation is worse than that of Spain.
He said that we must build more public housing. Is there any model that Spain should look to or any standard that it should comply with?
There are several models. In Europe there are many countries that have more protected housing. In fact, Spain is well below average. There are neighboring countries such as France or the United Kingdom with 17% or Austria with 23%, the Netherlands with more than 30%... In Spain the stock of subsidized housing is around 1.5%-3%. In terms of standards, Spain has the obligation to progressively fulfill the right to housing and that means that it has the responsibility to demonstrate that the enjoyment of this right improves over time. I think it is clear that this is not the case, at a time when not enough subsidized housing is being built and in some cases it has been sold to investment funds. Public housing should be public housing forever.
Is a periodic evaluation carried out to check whether Spain complies with this obligation to improve the guarantee of the right to housing?
Yes, the same CESCR Committee evaluates the compliance of all States that have accepted monitoring every five or six years. I myself, as a special rapporteur of the United Nations, carry out periodic evaluations; the thing is that unfortunately I do not have enough resources to evaluate all the countries. In the last two weeks I've been doing it in Ghana, for example. Also, within the framework of the Council of Europe, the European Committee of Social Rights carries out an evaluation of compliance with the right to housing and other social rights approximately every four years.
Building public housing takes time. What can be done more immediately to act on the rental market?
Spain has made an interesting conceptual contribution with the distinction between large and small holders. It is something that began with an Andalusian decree in 2013 and was then copied by other autonomous communities and was included in the state law of 2023. A landlord who is a large company that can have 100 apartments is not the same as a small landlord who is perhaps a pensioner and needs that additional income to have an adequate life. These two cases must be treated differently. This is a principle that the DESC Committee has recognized and that is in Spanish regulations. It is in line with the principle of the social function of property. It is necessary to regulate private property to satisfy general interests.
Are you in favor of restricting the intervention of companies and large holders in the rental market?
I do not believe that a corporate rental model is necessarily contrary to international human rights law. There are many European countries whose rental market has been occupied by corporate landlords. It was the rule in Denmark or Austria for a long time. In itself it is not problematic as long as there is democratic control and the role of tenants in negotiating conditions is respected. In that area, I believe that there is a lot of work to do, because Spain has historically had a very small private rental park and that has changed a lot in a very short time. It is necessary that the regulations adapt.
When you talk about control, do you also mean limiting the price of rents?
Yes. Price control is not anathema. It is not a magic wand, but it is something perfectly valid and admissible. We will have to see in what contexts it can contribute or not, but, normatively speaking, as a matter of standard, it is an acceptable policy and if a State does not want to implement it, it has to explain why it considers that it is not useful. Then you have to analyze the specific case, if yes in Barcelona and not in Madrid... you will have to evaluate case by case.
Can't this control reduce the supply of apartments for rent, which is something the real estate sector warns about a lot?
Three things to say about this. First, as I said, it is not a magic wand. You have to look at it case by case. Second: we have already had these types of calls for attention. When labor law began, they could have said, and surely it was said, that protecting workers' rights was going to cause many companies to go bankrupt, that it was impossible for an entrepreneur to keep the company alive if labor rights were created. Well, they were created and some companies may have gone bankrupt, but others sought their business. The same with the protection of the environment, of consumers... Companies that know how to adapt to a new regulatory framework that respects the rights of tenants will fail and those that do not will fail, but it will be because their business model does not adjust to democratic norms.
The housing problem is not exclusive to Spain. What role does an international organization like the UN play in a context like the current global housing crisis?
Where the battle for the defense of human rights is really fought is in the streets and in the squares, but international mechanisms have an important function of monitoring compliance with international standards by States. I think it is useful to have international human rights law as a frame of reference, as a kind of horizon towards which to walk, and that it serves as a tool for us to evaluate whether States are moving fast enough or if they are moving away from those standards. Mechanisms like the one I hold as special rapporteur serve to help States design this channel.
