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Spain violated the rights of a woman whose house risks being auctioned – UN Committee

GENEVA (18 September 2015) – Today, the Committee on Economic, Social and Cultural Rights made public a decision* (Views) in which it found that Spain violated the right to housing of an individual identified as Ms. I.D.G., whose house was subjected to a special mortgage enforcement procedure due to her failure to submit several mortgage repayments to a bank.

This decision is the first Views adopted by the Committee in an individual case submitted under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which entered into force on 5 May 2013.

In its Views, the Committee requests Spain to provide Ms. I.D.G. with an effective remedy and to ensure that its legislation that regulates foreclosure mortgage proceedings and its application comply with the obligations set forth in the Covenant.

In particular, Spain must adopt legislative measures to ensure that the rules concerning mortgage enforcement proceedings contain appropriate requirements and procedures to be followed before going ahead with the auctioning of a dwelling, or with an eviction, in accordance with the rights enshrined in the Covenant.

The Committee concluded that Spain violated article 11.1, read in conjunction with article 2.1, of the International Covenant on Economic, Social and Cultural Rights because its courts failed to take all reasonable measures to adequately notify Ms. I.D.G. that the lending institution had filed a mortgage foreclosure claim against her. As a consequence, she was deprived of the possibility to adequately defend her right to housing in judicial proceedings.

According to the Committee’s Views, in mortgage foreclosure proceedings, serving process through public notice must be strictly limited to situations in which all means of serving process in person have been exhausted, and its exposure must be sufficiently visible and prolonged so that the affected person has the opportunity to become fully aware of the initiation of the proceedings and can attend them.

The case

Ms. I.D.G. purchased a house taking a mortgage loan from a bank in 2007. Due to her failure to make several payments, the lending institution called in the full amount of the loan and initiated a special mortgage enforcement procedure in a trial court in Madrid. Yet Ms I.D.G. became aware of the existence of the proceedings several months later, when the court’s agent, who served notice of the auction of her property, left a notice at her home inviting her to collect the auction notice.

According to the information provided by the parties to the Committee, a court’s agent went to Ms. I.D.G.’s house four times to personally notify her of the bank’s application and the starting of the procedure, but was not successful because she was not at home. The court then decided to post the notification on the court notice board and to consider that the process of notification had been completed.

Several months later, the court ordered the auction of the mortgaged property, but Ms. I.D.G. was not personally notified of this order either, as she was not at home when the court’s agent arrived to serve process. However, during this second attempt, the court’s agent left a notice at her home inviting her to collect the auction notice, and she did so on 4 April 2013. Before the Committee, Ms. I.D.G. alleged that it was only on this date that she was apprised of the mortgage enforcement proceedings and that in the absence of an effective notification of the bank’s claim and the start of the proceedings, she was not given the opportunity to defend her rights.

(*) Check the Committee’s decision in Spanish – English and French versions will be available shortly (E/C.12/55/D/2/2014):   http://www.ohchr.org/EN/HRBodies/CESCR/Pages/TableJurisprudence.aspx

The Committee on Economic, Social and Cultural rights is composed of 18 independent experts, who are in charge of monitoring the implementation and compliance of the International Covenant on Economic, Social and Cultural Rights. It can also examine individual complaints or communications from persons that allege a violation of their rights set forth in the Covenant by States parties to the Optional Protocol. The Committee can only examine the merits of an individual case if it meets the admissibility requirements established in the Optional Protocol.

International Covenant on Economic, Social and Cultural Rights:  http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCESCR.aspx

UN Human Rights, country page – Spain: http://www.ohchr.org/EN/countries/ENACARegion/Pages/ESIndex.aspx

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