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THE INTERNATIONAL COVENANT ON ECONOMIC,

SOCIAL AND CULTURAL RIGHTS

7023
Human Rights Law

Submitted by:

GROUP B
Eric R. Clamonte
Joseph D. Gepte
Leilani C. Jurado
Miame Luna L. Kilaton
Joshua Steven T. Pesiao
Miguel Louie M. Sarigumba III
Karl Benedict N. Sayson
Reyar P. Seno
Alyssa Chantelle Deb P. Soriano
Franklin Villacastin

Submitted to:
Atty. Mae Elaine T. Bathan

Submitted on:
October 26, 2020
THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
and CULTURAL RIGHTS
The International Covenant on Economic, Social and Cultural Rights is a
multilateral treaty entered into by United Nations Member States grounded on the
thought that, in order for human beings to fully enjoy freedom without the restrains of
fear, it is necessary to create a condition whereby everyone can enjoy his economic,
social and cultural rights, as well as his civil and political rights. 

Covenant will be exercised without discrimination of any kind as to race, colour,


sex, language, religion, political or other opinion, national or social origin, property,
birth or other status. 
The Covenant provides for the promotion and the protection of the following rights:
 Right to Work ------ Article 6, “The States Parties to the present Covenant
recognize the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and
will take appropriate steps to safeguard this right.”
 The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of just and favourable conditions of work  
 Right to Form/Join Union ------ Article 8, “The right of everyone to form trade
unions and join the trade union of his choice, subject only to the rules of the
organization concerned, for the promotion and protection of his economic and
social interests.”
 Right to Social Security ------ Article 9, “The States Parties to the present
Covenant recognize the right of everyone to social security, including
social insurance.”
 The States Parties to the present Covenant recognize the right of everyone to
an adequate standard of living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement of
living conditions. 
 Right to Physical/Mental Health ------ Article 12, “The States Parties to the
present Covenant recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.”
 Right to Education ------ Article 13, “The States Parties to the present
Covenant recognize the right of everyone to education. They agree that education
shall be directed to the full development of the human personality and the sense
of its dignity, and shall strengthen the respect for human rights and fundamental
freedoms.”

Reporting Protocol
Only State Parties and Specialized Agencies are provided the luxury to raise any
violations against the Covenant. 
State Parties ------ Article 16, “The States Parties to the present Covenant
undertake to submit in conformity with this part of the Covenant reports on the
measures which they have adopted and the progress made in achieving the observance
of the rights recognized herein.”
Specialized Agencies ------ Article 18, “Pursuant to its responsibilities under the
Charter of the United Nations in the field of human rights and fundamental freedoms,
the Economic and Social Council may make arrangements with the specialized
agencies in respect of their reporting to it on the progress made in achieving the
observance of the provisions of the present Covenant falling within the scope of their
activities. These reports may include particulars of decisions and recommendations on
such implementation adopted by their competent organs.”

Reporting Procedure 
Article 20, “The States Parties to the present Covenant and the specialized agencies
concerned may submit comments to the Economic and Social Council on any general
recommendation or reference to such general recommendation in any report of the
Commission on Human Rights or any documentation referred to therein.” 
 Derogation  ------ Article 5(2), “No restriction upon or derogation from any of the
fundamental human rights recognized or existing in any country in virtue of law,
conventions, regulations or custom shall be admitted on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a
lesser extent.” 
 Accession  ------ Article 26(3), “The present Covenant shall be open to accession
by any State Member of the United Nations or member of any of its specialized
agencies, by any State Party to the Statute of the International Court of Justice,
and by any other State which has been invited by the General Assembly of the
United Nations to become a party to the present Covenant.” 
 Amendment ------ Article 29(1), “Any State Party to the present Covenant may
propose an amendment and file it with the Secretary-General of the United
Nations.” 
 Ratification ------ Article 26(1). “The present Covenant is open for signature by
any State Member of the United Nations or member of any of its specialized
agencies, by any State Party to the Statute of the International Court of Justice,
and by any other State which has been invited by the General Assembly of the
United Nations to become a party to the present Covenant.” 

Reservation
Reservations made by a state upon signing or ratifying a treaty, reserving its right
not to abide by certain provisions of the ICESCR is allowed.
Among the Reservations to the ICESCR are:
Reserving State Reason for Reservation
Denmark The Government of Denmark cannot, for the time being,
undertake to comply entirely with the provisions of article 7 (d)
on remuneration for public holidays.

Iraq Iraq does not recognize Israel as a state.

Ireland In relation to par. 2 of Article 2, in the context of


Government policy to foster, promote and encourage the use of
the Irish language by all appropriate means, Ireland reserves the
right to require, or give favorable consideration to, a knowledge
of the Irish language for certain occupations.

In relation to Article 13, paragraph 2(a) of Art. 13, Ireland


reserves the right to allow parents to provide for the education
of their children in their homes provided that these minimum
standards are observed."

Kenya      While the Kenya Government recognizes and endorses the


principles laid down in paragraph 2 of article 10 of the
Covenant, the present circumstances obtaining in Kenya do not
render necessary or expedient the imposition of those principles
by legislation.

Japan In applying the provisions of paragraph (d) of article 7 of


the ICESCR, Japan reserves the right not be bound by
'remuneration for public holidays' referred to in the said
provisions.

Japan reserves the right not to be bound by the provisions


of sub-paragraph (d) of paragraph 1 of article 8, except in
relation to the sectors in which the right referred to in the said
provisions is accorded in accordance with the laws and
regulations of Japan at the time of ratification of the Covenant
by the Government of Japan.
  
Libya The Libyan Arab Republic shall in no way signify a
recognition of Israel or be conducive to entry by the Libyan
Arab Republic into such dealings with Israel.

Madagascar The State reserves the right to postpone the application of


article 13, paragraph 2, in so far as relates to primary education,
since there are problems of implementation, especially on the
matter of finance. As an effect, the full application of the
principles regarding primary education cannot be guaranteed for
now.

New Zealand The State reserves the right not to apply article 8 to the
extent that existing legislative measures, enacted to ensure
effective trade union representation and encourage orderly
industrial relations, may not be fully compatible with that
article.

Oman The state makes a reservation with respect to article 8,


paragraph 1, subparagraphs (a) and (d), regarding the right to
form trade unions and the right to strike, in so far as the
employees of government units are concerned.

Qatar The State does not consider itself bound by the provisions
of Article 3 for it contravenes the Islamic Sharia with regard to
questions of inheritance and birth.

Sweden Sweden enters a reservation in connection with article 7 (d)


of the Covenant in the matter of the right to remuneration for
public holidays.

Trinidad and In respect of article 8 (1) (d) and 8 (2), the State reserves
Tobago the right to impose lawful and or reasonable restrictions on the
exercise of the aforementioned rights by personnel engaged in
essential services under the Industrial Relations Act or under
any Statute replacing same which has been passed in
accordance with the provisions of the Trinidad and Tobago
Constitution.

Turkey The Republic of Turkey declares that it will implement the


provisions of this Covenant only to the States with which it has
diplomatic relations.

Zambia Reserves the right to postpone the application of article 13


(2) (a) of the Covenant, in so far as it relates to primary
education due to internal problems exist in relation its
implementation, and particularly the financial implications,
such that full application of the principles regarding education
cannot be guaranteed at this stage.

Limitations 1
As provided under Article 4 of the ICESCR: The States Parties to the present
Covenant recognize that, in the enjoyment of those rights provided by the State in
conformity with the present Covenant, the State may subject such rights only to such
1
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en
limitations as are determined by law only in so far as this may be compatible with the
nature of these rights and solely for the purpose of promoting the general welfare in a
democratic society.

The ICESCR’s general limitation clause provides that States may place
limitations on the rights to the extent allowed by law “only in so far as this may be
compatible with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society.” 

Example:

State X wants to forbid Doctor Y from treating Individual Z because State X believes
that Individual Z is strongly opposed to the government. Supposed that the reason of
State X for such act is on the basis of national security, then State X would have the
burden of justifying that its action was:

1. Performed in the interest of a legitimate aim;

2. In accordance with domestic law and international human rights standards;

3. Compatible with the nature of ESCR; and

4. It was strictly necessary to promote the general welfare in a democratic


society.

Derogation
The ICESCR does not provide for derogations2, it limits restrictions to those
"determined by law" and "compatible with the nature of these rights."3
Article 2 of the ICESCR requires each State Party to plan their efforts "to the
maximum of its available resources, with a view to achieving progressively the full
realization of the rights", therefore a proper derogation clause in the ICESCR would
be inappropriate.
Social, economic, and cultural rights (in particular, obligations corresponding
to subsistence rights, such as food, housing, and clean water) cannot be limited
because these things are inherently related to the Right to Life, which is a non-
derogable right.
The absence of a clause allowing derogation in times of public emergency in
the ICESCR indicates that the Covenant generally continues to apply in the time of
armed conflict, war or other public emergency, and as a minimum, states cannot
derogate from the minimum core obligations of Economic, Social and Cultural rights.4
2
Derogation “refers to the legally mandated authority of states,” who are otherwise bound by the
obligations of treaties or constitutions, “to suspend certain civil and political liberties – in response to
crises” and “can be justified solely by the concern to return to normality.
3
https://www.asil.org/insights/volume/24/issue/5/human-rights-law-time-coronavirus
4
https://www.tandfonline.com/keyword/Non-derogable+Rights
5
International Covenant on Economic, Social and Cultural Rights was entered into
force on January 3, 1976 with seventy-one (71) signatories and one hundred seventy-
one (171) parties.
6
Protocol
7
  The Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, which entered into force on 5th May 2013 with 45 signatories and
parties, provides the Committee competence to receive and consider communications
from individuals claiming that their rights under the Covenant have been violated.
The Optional Protocol was adopted on 10 December 2008 during the sixty-third
session of the General Assembly. In accordance with article 17, the Optional Protocol
shall be open for signature by any State that has signed, ratified or acceded to the
International Covenant on Economic, Social and Cultural Rights. The opening for
signature was held on 24 September 2009 during the 2009 Treaty Event at the United
Nations Headquarters in New York.
8
Amendment
Under Article 29 of the Covenant, Any State Party to the present Covenant
may propose an amendment and file it with the Secretary-General of the United
Nations. The Secretary-General shall thereupon communicate any proposed
amendments to the States Parties to the present Covenant with a request that they
notify him whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposals. In the event that at least one third of the
States Parties favours such a conference, the Secretary-General shall convene the
conference under the auspices of the United Nations. Any amendment adopted by a
majority of the States Parties present and voting at the conference shall be submitted
to the General Assembly of the United Nations for approval. Amendments shall come
into force when they have been approved by the General Assembly of the United
Nations and accepted by a two-thirds majority of the States Parties to the present
Covenant in accordance with their respective constitutional processes and when
amendments come into force they shall be binding on those States Parties which have
accepted them, other States Parties still being bound by the provisions of the present
Covenant and any earlier amendment which they have accepted.
9
Treaty-based mechanisms embedded in the treaty
10
Pursuant to Articles 16 and 17, States parties undertake to submit periodic reports to
the ICESCR Committee on the programmes and laws they have adopted and the

5
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en
6
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en
7
https://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIntro.aspx
8
https://www.ohchr.org/en/professionalinterest/pages/opcescr.aspx
9
https://scpsassam.org/wp-content/uploads/2017/08/International-Covenant-on-Economic-Social-
and-Cultural-Rights.pdf

10
http://www.ohrc.on.ca/en/book/export/html/2903
progress made in protecting Covenant rights. The U.N. has promulgated guidelines
for the preparation of reports.
Here are the provisions under Article 16 and 17 of the International Covenant on
Economic, Social and Cultural Rights:
11
Article 16
1. The States Parties to the present Covenant undertake to submit in conformity with
this part of the Covenant reports on the measures which they have adopted and the
progress made in achieving the observance of the rights recognized herein.
2.
(a) All reports shall be submitted to the Secretary-General of the United Nations, who
shall transmit copies to the Economic and Social Council for consideration in
accordance with the provisions of the present Covenant;
(b) The Secretary-General of the United Nations shall also transmit to the specialized
agencies copies of the reports, or any relevant parts therefrom, from States Parties to
the present Covenant which are also members of these specialized agencies in so far
as these reports, or parts therefrom, relate to any matters which fall within the
responsibilities of the said agencies in accordance with their constitutional
instruments.
Article 17
1. The States Parties to the present Covenant shall furnish their reports in stages, in
accordance with a programme to be established by the Economic and Social Council
within one year of the entry into force of the present Covenant after consultation with
the States Parties and the specialized agencies concerned.
2. Reports may indicate factors and difficulties affecting the degree of fulfilment of
obligations under the present Covenant.
3. Where relevant information has previously been furnished to the United Nations or
to any specialized agency by any State Party to the present Covenant, it will not be
necessary to reproduce that information, but a precise reference to the information so
furnished will suffice.

Committee on Economic, Social and Cultural Rights (CESCR)


CESCR is the body of independent experts that monitors implementation of
ICESCR by States parties. All States parties are expected to submit regular reports to
the Committee on the implementation of ESC rights domestically. States must report
initially within two years of ratifying the Covenant and thereafter every five years.

11
https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
NOTE: please also check: https://www.ohchr.org/Documents/Publications/FactSheet16rev.1en.pdf
for more reference, https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-
rights-2/
The Committee examines the reports and addresses its concerns and recommendations
to the State party in the form of “concluding observations”.

Optional Protocol to the International Covenant on Economic, Social and


Cultural Rights (OP-ICESCR)
The OP-ICESCR entered into force on 5 May 2013. It allows the CESCR to
receive and consider communications from individuals or groups who are victims of
violations of any ESC rights of the ICESCR under the jurisdiction of a State party to
the Covenant. The Committee will only consider a communication after all available
domestic remedies have been exhausted, unless domestic remedies are unreasonably
prolonged.

Special Procedures
The Human Rights Council appoints Special Rapporteurs, or independent experts,
to address specific country situations or thematic 24 issues. There are several thematic
mandates which focus on ESC rights, such as the right to education, food, adequate
standard of living, non-discrimination, physical and mental health and access to safe
drinking water and sanitation. As of 23 February 2015, there are 39 thematic and 14
country mandates.

Civil Society Monitors Non-Governmental Organizations


(NGOs) and other civil society groups are often effective actors in holding states
accountable for human rights obligations. They put political pressure on States by
making them aware that their actions are being watched. Civil society organizations
can engage in this process by lobbying their government to ratify treaties, monitoring
States’ compliance to concluding observations and treaty obligations, submitting
written information to CESCR and participating in country review sessions as
observers and through oral submissions

International Covenant on Economic, Social and Cultural Rights: The


Counterpart
The International Covenant on Economic, Social and Cultural Rights’
counterpart with regards to the Three Regional Human Rights Systems namely the
Inter-American Human Rights System is the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights or
also known as “Protocol of San Salvador”.12 State parties within this treaty have the

12
ORGANIZATION OF AMERICAN STATES, INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights
“Protocol of San Salvador”, See http://www.cidh.oas.org/Basicos/English/basic5.Prot.Sn%20Salv.htm
(Oct. 22, 2020 1:36PM )
obligation to take steps or procedures, individual and through international assistance
and cooperation utilizing the available resources towards achieving progress in the
realization of the rights recognized in the ICESCR.13

Philippines as a signatory to
International Covenant on Economic,
Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
is a multilateral treaty absorbed by the United Nations General Assembly on 16
December 1966. It devote its parties to work on the granting or implementation of
economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust
Territories and individuals, including labor rights and the right to health, the right to
education, and the right to an adequate standard of living.14
The Philippines has been a signatory of the Covenant since December 19, 1966 and
has ratified the same on June 7, 1974.15

Philippine’s Compliance regarding


To International Covenant on Economic,
Social and Cultural Rights

As the Philippines, being one of the 164 nations that ratified the ICESCR, the UN
urged the Philippines as a requirement to undergo regular review by the Committee,
which is composed of 18 independent human rights experts that will discuss the range
issues relating to the Philippines’s implementation of the ICESCR, with a Philippine
delegation.16 The Philippines also has created and planned thematic objectives in
order to implement or abide the treaty and such as:17

- To mainstream the Human Rights-Based Approach in development,


planning and policy-formulation processes at all levels of government18
- To monitor and review existing legislations related to the promotion as
well as protection of economic, social and cultural rights19

13
INTERNATIONAL JUSTICE RESOURCE CENTER, Economic, Social and Cultural Rights
14
Christine P. Carpio-Aldeguer, The Covenant on Economic, Social &Cultural Rights- The Philippines’
Perspective, 2015
15
Id.
16
Nestor Corrales, UN Body to Review PH implementation of Rights Treaty, INQUIRER, Oct. 22, 2020
17
Ramon M Falcon, UGNAYANG BAYAN, SECOND Philippine Human Rights Plan (PHRO II) Accomplishment
Report: Thematic Chapter on the International Covenant on Economic, Social and Cultural Rights
(ICESCR), 2015
18
Presedential Human Rights- Secretariat,2nd Philippine Human Rights Plan (PHRP II): Chapter 3-
ICESCR Chapter, at pg 3, 7, 17 & 31
19
Id at pg 3, 8, 17 & 31
- To improve access to health care services, enhancing equity and quality of
health care and making health care services more affordable20
- To review all existing legislation that enforces health and safety at work to
ensure the right of workers to a safe and healthy work conditions and
social security benefits21
- To increase budget allocation in national and local budget for educational
services22
- To implement programs and projects targeting poverty stricken and armed
conflict areas23
- To enact a law making the Department of Agrarian Reform Adjudication
Board as an independent body24
- To monitor the wage boards and regulatory agencies25
- To harmonize areas of conflict in the implementation of the provisions of
the Mining Law & Indigenous Peoples’ Rights Act (IPRA)26

20
Id at pg 4, 10, 18 & 33
21
Id at pg 4, 11, 19 & 35
22
Id at pg 4, 12, 19 & 36
23
Id at pg 5, 12, 26 & 36
24
Id at pg 5, 13, 26 & 37
25
Id at pg 5, 14, 27 & 38
26
Id at pg 6, 15, 28 & 38
Cases:

I.D.G. (represented by counsel Fernando Ron and Fernando Morales) v. Spain

The author, Ms. I.D.G, id Spanish homeowner who lives in


Facts Madrid, Spain. She learned that her home was being auctioned after
she fell behind on payments due to the serious economic crisis in
Spain and her own personal circumstance. After her case was
dismissed by the Spanish Constitutional Court, she argued before the
UN Committee on Economic, Social and Cultural Rights that the
rights she enjoys under the Covenant mean that courts must ensure
that notice of mortgage foreclosure is effectively served.

In her case, after the failed attempts to serve notice in person at


her home, the Court proceeded directly to the posting of notice
without making use of other forms or methods of serving notice as
established in the Civil Procedure Act of Madrid. As a result of the
Court’s lack of diligence, she was not notified of the mortgage
enforcement proceedings brought by the lending institution or of the
decision to admit the proceedings, and received no other
communication prior to the auction order. She argued that in practice
the failure to notify her prevented her from mounting a legal response
to the suit and protecting her right to housing in court, since she
became aware of the existence of the proceedings only when the Court
ordered the auction of her home.

The Madrid Court attempted to notify the author of the application


and of the Court’s decision to admit the application, at the address of
the mortgaged property, as given by the author on the loan contract.
However, the server of notice could not find the author. The author
claims that she was not at home when notice was being served. The
Court decided to post the notification on the Court notice board, in
order to complete the process of notification of the application and the
decision to admit the application. The author claims that there was no
public announcement of the posting of notice, it was not announced in
any official organ, and it was not published in the Official Gazette

For its defense, the court argued that the legislation regulating
mortgage enforcement proceedings does not adequately protect
people’s right to mount a proper legal defense of their homes. People
affected by these proceedings are in many cases unaware that their
creditors have filed a lawsuit until they are dispossessed or evicted.
Moreover, the State party’s procedural law precludes the court in cases
of this kind from taking precautionary measures to ensure that its final
decision is fully effective, for example where the terms of the contract
are unfair.

In this regard, referring to Article 2, paragraph 1, of the Covenant,


Ms. I.D.G argued that the State party had not taken adequate
legislative measures to achieve the full realization of the right to
housing and to guarantee that right under Article 11, paragraph 1, of
the Covenant.

The author argues that the rights she enjoys under the Covenant
mean that courts must ensure that notice is effectively served. Yet in
her case, after the failed attempts to serve notice in person at her
home, the Court proceeded directly to the posting of notice without
making use of other forms or methods of serving notice as established
in the Civil Procedure Act. As a result of the Court’s lack of diligence,
she was not notified of the mortgage enforcement proceedings brought
by the lending institution or of the decision to admit the proceedings,
and received no other communication prior to the auction order. The
author argues that in practice the failure to notify her prevented her
from mounting a legal response to the suit and protecting her right to
housing in court, since she became aware of the existence of the
proceedings only when the Court ordered the auction of her home. As
a result of the lack of effective and timely judicial protection, the
author claims that she is now in a position of vulnerability, uncertainty
and anxiety, a situation that has seriously affected her health.

The author further argues that the legislation regulating mortgage


enforcement proceedings does not adequately protect people’s right to
mount a proper legal defense of their homes. People affected by these
proceedings are in many cases unaware that their creditors have filed a
lawsuit until they are dispossessed or evicted. What is more, the State
party’s procedural law precludes the court in cases of this kind from
taking precautionary measures to ensure that its final decision is fully
effective, for example where the terms of the contract are unfair. In
this regard, referring to article 2, paragraph 1, of the Covenant, the
author argues that the State party has not taken adequate legislative
measures to achieve the full realization of the right to housing and to
guarantee that right under article 11, paragraph 1, of the Covenant.

Adequate notice in a mortgage enforcement procedure that may


affect the right to housing

In the light of the Committee’s conclusion on the facts relevant to


Issue the case, the main legal problem posed by this communication is
whether or not the author’s right to housing, established in Article 11,
paragraph 1, of the Covenant, was violated by the State party as a
consequence of a mortgage enforcement process in which, according
to the author, she was not properly notified of the application, thus
preventing her from defending her rights under the Covenant.

To answer that question, the Committee will first recall certain


Decision important components of the right to housing, in particular those
(General relating to the legal protection of that right, and then go on to consider
Comment) the facts of the case.

The right to housing and legal protection of that right.

The human right to adequate housing is a fundamental right


central to the enjoyment of all economic, social and cultural rights and
is inextricably linked to other human rights, including those set forth
in the International Covenant on Civil and Political Rights. The right
to housing should be ensured to all persons irrespective of income or
access to economic resources, and States parties shall take whatever
measures are necessary to achieve the full realization of this right.
Many component elements of the right to adequate housing are closely
bound up with the provision of domestic legal remedies to ensure the
effective enjoyment of the right.

The Committee recalls that all persons should possess a degree of


security of tenure which guarantees legal protection against forced
eviction, harassment and other threats and that instances of forced
eviction are prima facie incompatible with the requirements of the
International Covenant on Economic, Social and Cultural Rights and
can only be justified in the most exceptional circumstances, and in
accordance with the relevant principles of international law. The
Committee considers that States parties should ensure that procedures
in the context of forced evictions, or that might affect security of
tenure and possibly result in eviction, apply the procedural protections
that will guarantee, among other things, a real opportunity for
consultation with those affected and adequate and reasonable notice
for all affected persons prior to the scheduled date of eviction.

In addition, the Committee recalls that Article 2 of the Covenant


imposes various obligations which are of immediate effect. Therefore,
in accordance with Article 2, paragraph 1, of the Covenant, States
parties must take measures to ensure the enjoyment of the rights
established in the Covenant “by all appropriate means, including
particularly the adoption of legislative measures”. This requirement
includes the adoption of measures that ensure access to effective
judicial remedies for the protection of the rights recognized in the
Covenant, since, as the Committee notes that there cannot be a right
without a remedy to protect it.

Therefore, by virtue of the obligation contained in Article 2,


paragraph 1, of the Covenant, States parties must ensure that the
persons whose right to adequate housing may be affected by, say,
forced evictions or mortgage enforcements have access to an effective
and appropriate judicial remedy.

In the Committee’s view such protection is equally applicable and


appropriate in other similar situations, such as mortgage foreclosure
proceedings, which can seriously affect the right to housing. The
Committee considers that, in compliance with the aforementioned
obligations, the authorities should take all reasonable measures and
make every effort to ensure that the serving of notice of the most
important acts and orders in an administrative or judicial procedure is
conducted properly and effectively so that the persons affected have
the opportunity to participate in the proceedings in defense of their
rights.

Notification by public posting of notice can be an appropriate


means of serving judicial notice consistent with the right to effective
judicial protection. However, the Committee considers that its use in
cases that might involve a violation of human rights such as the right
to adequate housing, which require judicial oversight, should be a
measure of last resort, particularly when applied to acts that set a
procedure in motion. Its use must be strictly limited to situations in
which all means of serving notice in person have been exhausted; and
must ensure sufficient exposure and long enough notice that the
affected person has the opportunity to take full cognizance of the start
of the proceedings and can be a party to them.

Thus, insufficient notice of an application for mortgage


enforcement, such as to prevent the person defending their rights in
that procedure, represents a violation of the right to housing, and the
Committee will now discuss whether the notice given in the present
case was inadequate or not.

Analysis of the case.

The Committee’s task in considering a communication is not to


verify whether or not the domestic judicial and administrative
procedures were carried out in accordance with domestic law. Its task
is simply to consider whether the facts of the communication
constitute a violation by the State party of the economic, social and
cultural rights contained in the Covenant.

According to the documentation from the procedure, on 21 June


2012 the Court admitted the application for a procedure to enforce the
mortgage on the author’s residence. However, the author only took
cognizance of this procedure on 4 April 2013, when she received
notification of the order to auction her home, having been unable to
defend herself during the enforcement procedure. In September and
October 2012 four attempts were made to serve the Court’s decision to
admit the application, but to no avail as the author was not at her home
— the address of which had been given by her for the purpose of
notification. The notifying agent confirmed that the building had a
letter box bearing her name; and on at least two occasions the
caretaker was in the building. On 30 October 2012, to complete the
process of notification of the decision to admit the application, the
Court decided to publicly post the notification on the Court notice
board, but this did not come to the author’s attention in time.

In the present case, the Committee acknowledges the repeated


efforts of the Court to personally notify the author of the decision to
admit the procedure to enforce the mortgage on her home. However,
the Committee considers that the State party has not shown that the
Court exhausted all available means to serve notice in person — it
does not, for example, explain why the Court did not notify the author
by means of a note or advice left in her letter box or any of the other
means of notification provided for in the Civil Procedure Act, such as
leaving the notice with the caretaker or the nearest neighbor — merely
stating that after its attempts had failed it ordered notification by
public posting of notice in accordance with the law. Nor has the State
adduced any solid support for its assertion that on one occasion the
author hid so as to avoid receiving the notification. Thus the
Committee considers that, even if it were to find that the notification
by public posting of notice had been carried out in accordance with the
Civil Procedure Act, the fact remains that such notice in respect of a
foreclosure application needs to be adequate, in accordance with the
standards of the Covenant applicable to the right to housing, and that
those standards were not met in the present case, which means the
notice was inadequate.

The Committee therefore considers that the inadequate notice


constituted at that moment a violation of the right to housing, one that
was not subsequently remedied by the State party as the author was
denied both reconsideration of the decision to order an auction and
amparo as sought in the Constitutional Court.

Taking into consideration all the information provided, the


Committee considers that the facts before it reveal that the Court did
not take all reasonable measures to adequately notify the author of the
lending institution’s application for mortgage enforcement, in order to
ensure that the author was informed of the start of the procedure; and,
as a consequence, the Court prevented the author from mounting a
proper defense, in court, of her right to housing.

The Committee, acting pursuant to Article 9, paragraph 1, of the


Optional Protocol to the Covenant, is of the view that, by failing to
fulfil its obligation to provide the author with an effective remedy, the
State party violated her rights under Article 11, paragraph 1, of the
Covenant, read in conjunction with Article 2, paragraph 1. In the light
of the Views in the present communication, the Committee makes the
following recommendations to the State party.

Recommendations.

The State party has an obligation to provide the author with an


effective remedy, in particular: (a) to ensure that the auction of the
author’s property does not proceed unless she has due procedural
protection and due process, in accordance with the provisions of the
Covenant and taking into account the Committee’s general comments
Nos. 4 and 7; and (b) to reimburse the author for the legal costs
incurred in the processing of this communication.
Maria Cecilia Trujillo Calero vs. ECUADOR
The author claims that, owing to the Ecuadorian Social
Facts Security Institute’s lack of diligence, she was in practice deprived of a
special pension, despite having made 305 contributions over a period
of 29 years, and that the State party violated her right to social security
because her request for special retirement was denied by the Institute
after it had concluded that she had credited only 238 contributions,
and not the 300 or more required by law. However, she considers that
the authorities took no account of the fact that the Institute failed to
inform her in a timely manner that the contributions made by her
between August 1989 and February 1995 were not valid, that it was
only in 2003 that the Institute ruled that her contributions were invalid,
and that she did not learn of the decision until May 2007. Furthermore,
the administrative and judicial proceedings relating to her retirement
request lasted some 14 years and the Regional 1 Commission’s
decision of 20 June 2003 denying her retirement request was not
communicated to her until May 2007. The author further alleges that
the Institute’s decisions constitute, in practice, discriminatory
treatment on grounds of gender; and that she was also unable to obtain
a minimum old-age pension, since the State party has not implemented
a non-contributory pension scheme.

Whether the denial of the author’s request for special retirement


Issue constitutes a violation of the right to social security under article 9 of
the Covenant
To answer these questions, the Committee will recall certain elements
Decision of the right to social security, particularly in respect of access to
(General retirement benefits for unpaid female domestic workers, before
Comment) moving on to analyse the central question raised by the
communication.
The right to social security and to a retirement pension
1.1 The Committee recalls that the right to social security is of central
importance in guaranteeing human dignity.
1.2 The right to social security carries significant financial
implications for States, but the latter have an obligation to ensure the
satisfaction of, at the very least, minimum essential levels of this right.
Among other things, they are required to ensure access to a social
security scheme that provides a minimum essential level of benefits,
without discrimination of any kind.
1.3 The Committee recalls that article 9 of the Covenant implicitly
recognizes the right to old-age benefits. States are obligated to pay
particular attention to promoting and protecting the economic, social,
and cultural rights of older persons, to which end they must take
appropriate measures to establish general regimes of compulsory old-
age insurance.
Rosario Gomez Limon-Pardo vs.
Spain

The Committee has considered the present communication in the light


Facts of all the information made available to it, as required under article 8
of the Optional Protocol.

The owner of the property filed a claim with a view to having the
author evicted. Madrid Court of First Instance decided that the rental
contract should be deemed to have been terminated. This decision was
upheld on appeal by the Provincial High Court of Madrid, and was
upheld on further appeal by the Supreme Court. The eviction was
suspended twice, the first because of an administrative error and the
second because a number of individuals staged a protest in support of
the author in front of the property. Each time she was notified of an
eviction order, the author requested a suspension, claiming that she
had no alternative housing. The author claims that her eviction, in the
absence of adequate alternative housing, constituted a violation by the
State party as to her rights under article 11 (1) of the Covenant, and
requests right to housing and reparation for the damage caused.
The State party claims that the author has not been left without
housing at any time and that the competent court did everything it
could to address the author’s situation, including suspending two
eviction orders, but that it was also bound to address the needs of the
property owner, who is a natural person. The State party also alleges
that the author has rejected the alternative housing options presented
to her. The author reports that she did so because those options were
unsuitable.

(a) Whether the eviction of the author constituted a violation of the


Issue right to adequate housing under article 11 (1) of the Covenant; and
(b) Whether there was a violation of article 5 of the Optional Protocol
in this case, since the State evicted the author despite the Committee’s
request for interim measures.

The human right to adequate housing is a fundamental right that is of


Decision central importance for the enjoyment of all economic, social and
(General cultural rights, and is integrally linked to other human rights; including
Comment) those set forth in the International Covenant on Civil and Political
Rights. The right to housing should be ensured to all persons
irrespective of income or access to economic resources, and States
parties are required to take whatever steps are necessary to achieve the
full realization of this right, to the maximum of their available
resources.
Forced evictions are prima facie incompatible with the Covenant and
can be justified only in the most exceptional circumstances. Where
there is a risk that an eviction might affect the evicted person’s right
to housing, the relevant authorities must ensure that it is carried out
in accordance with legislation that is compatible with the Covenant
and in compliance with the principle of proportionality between the
legitimate objective of the eviction and its consequences for the
evicted person.
Committee Analysis
1. The author does not allege that her procedural rights were
disregarded in the proceedings through which the judicial
authorities ordered the termination of the rental contract. The
Committee therefore finds that there were legitimate reasons
potentially justifying her eviction.

As the author did not vacate the property and continued to live in it,
Madrid Court of First Instance No. 86 ordered her eviction. The
Committee notes the State party’s claim that it was also bound to
address the needs of the property owner, who is a natural person. The
Committee notes that the right to private property is not a Covenant
right, but recognizes that the State party has a legitimate interest in
ensuring the protection of all rights established in its legal system, so
long as this does not conflict with the rights set forth in the Covenant.

2. When an eviction might result in a person’s being deprived of


access to adequate housing and exposed to a risk of destitution
or some other violation of his or her Covenant rights, an
obligation to analyse the proportionality of the measure arises.

The Committee notes that the Court rejected the author’s applications
for suspension of the eviction, in which she explained her particularly
vulnerable financial situation and the fact that she did not have
alternative housing. When it rejected the application for suspension,
Madrid Court of First Instance No. 86 did not conduct an analysis of
the proportionality of the legitimate objective of the eviction to its
consequences for the evicted person. Furthermore, the State party’s
legislation did not provide the author with any other mechanism
through which to challenge the eviction order, which was to have been
executed almost immediately, that would have given another authority
the opportunity to analyse the proportionality of the eviction and the
conditions in which it was to be carried out.

This obligation flows from the interpretation of the State party’s


obligations under article 2 (1) of the Covenant, read in conjunction
with article 11, and in accordance with the requirements of article 4.
The Committee notes that the author claimed that the eviction would
constitute interference with her right to adequate housing.

The Committee further notes that article 4 of the Covenant stipulates


the conditions under which such limitations on the enjoyment of
Covenant rights are permitted.

a. Firstly, the limitation must be determined by law.


b. Secondly, it must promote the general welfare in a democratic
society.
c. Thirdly, it must be suited to the legitimate purpose cited.
d. Fourthly, the limitation must be necessary, in the sense that if
there is more than one measure that could reasonably be
expected to serve the purpose of the limitation, the least
restrictive measure must be chosen.
e. Lastly, the benefits of the limitation in promoting the general
welfare must outweigh the impacts on the enjoyment of the
right being limited.

Analysing the proportionality of an eviction entails examining not


only the consequences of the measure for the evicted person, but also,
inter alia, the interests at stake for the person or party with the right
to seek the eviction. The availability of suitable alternative housing,
the personal circumstances of the occupants and their dependants and
whether they have cooperated with the authorities in seeking suitable
solutions are crucial factors in such an analysis. This inevitably
involves making a distinction between properties belonging to
individuals who need them as a home or to provide vital income and
properties belonging to financial institutions or other entities. The
State party will therefore be committing a violation of the right to
adequate housing if it stipulates that a person whose rental contract is
terminated must be evicted immediately, without regard to the
circumstances in which the eviction order would be carried out.

3. Although the State party claims that the author did not act
reasonably in such negotiations, the fact remains that no examination
of the proportionality of the eviction was conducted before the
decision to evict her was taken
The Committee notes that the State party thus claims to have made
every effort, to the maximum of its available resources, to provide
alternative housing. However, the principle of proportionality may
require the suspension or postponement of the eviction order so as to
avoid exposing the evicted persons to situations of destitution or
violations of other Covenant rights. The Committee considers,
therefore, on the basis of all the documentation made available to it,
that in the circumstances of the present case the author did not have
the opportunity to have the proportionality of her eviction assessed by
a judicial or other impartial and independent authority with the power
to order the cessation of the violation and to provide an effective
remedy. The Committee finds, therefore, that the absence of such an
assessment constituted a violation by the State party of the author’s
right to housing under article 11 of the Covenant, read in conjunction
with article 2 (1).

Conclusion and recommendations


1. On the basis of all the information provided and in the
particular circumstances of this case, the Committee finds that
the eviction of the author without an assessment of
proportionality by the authorities constituted a violation of her
right to adequate housing.
2. The Committee, acting under article 9 (1) of the Optional
Protocol, is of the view that the State party violated the
author’s right to an effective remedy under article 11 (1) of the
Covenant, read in conjunction with article 2 (1), and in
accordance with the requirements of article 4. The Committee
also finds that the State party has violated article 5 of the
Optional Protocol.
Recommendations in respect of the author
13. The State party is under an obligation to provide the author with an
effective remedy. In these circumstances, the Committee considers
that the State party should, in particular: (a) undertake genuine
consultation with the author to examine her needs in terms of suitable
alternative housing and, if necessary, provide her with such housing;
and (b) reimburse the author for the legal costs reasonably incurred in
the processing of the present communication.

General recommendations
1. The State party should ensure that its legislation and the
enforcement thereof are consistent with the obligations established in
the Covenant. In particular, the State party has an obligation to:
(a) Ensure that the normative framework allows persons in
respect of whom an eviction order is issued and who might
consequently be at risk of destitution or of violation of their
Covenant rights to challenge the decision before a judicial or
other impartial and independent authority with the power to
order the cessation of the violation and to provide an effective
remedy so that such authorities can examine the
proportionality of the measure in the light of the criteria for
limiting the rights enshrined in the Covenant under the terms
of article 4;

(b) Establish a protocol for complying with requests for interim


measures issued by the Committee and inform all relevant
authorities of the need to respect such requests in order to
ensure the integrity of the procedure.

3. In accordance with article 9 (2) of the Optional Protocol and


rule 18 (1) of the provisional rules of procedure under the
Optional Protocol, the State party is requested to submit to the
Committee, within a period of six months, a written response,
including information on the measures taken in follow-up to
the Views and recommendations of the Committee. The State
party is also requested to publish the Views of the Committee
and to distribute them widely, in an accessible format, so that
they reach all sectors of the population.
Joaquim Pinheiro Martins Coelho vs. PORTUGAL
Joaquim Pinheiro Martins Coelho, a Portuguese national of legal age,
Facts a lawyer, claims that the State party violated his rights under article 7
(c) of the International Covenant on Economic, Social and Cultural
Rights.
On February 20, 2017, the Working Group on Communications,
acting on behalf of the Committee, decided that observations from the
State party were not needed to ascertain the admissibility of the
present communication. Accordingly, the present communication was
not transmitted to the State party, in accordance with article 6 (1) of
the Optional Protocol.
The author worked as a superior technical career adviser at the
Institute of Social Security, a governmental institution, for several
years. He claims that from 2003 he was interested in seeking a
promotion.
According to article 4 (1) of Decree-Law No. 404-A/98/18/12,
promotion was conditional upon a “key performance” rating of “very
good” for three consecutive years. However, that provision was
amended by article 15.4 of Law No. 10/2004/22/03, reducing the
requirement of three consecutive years to two years (provided that the
other promotion requirements were met). The author submits that he
received a performance rating of “very good” in 2003. He also submits
that he should have obtained the same rating in 2004. However, the
Chair of the Governing Board of the Institute of Social Security did
not approve his 2004 performance assessment, despite the three
requests that he submitted in 2005. The author claims that this was the
Chair’s “act of revenge” and that as a result of not receiving the 2004
performance assessment in a timely manner, he was prevented from
applying for promotion to the position of senior adviser in 2005 and
2006.
The author claims that since he was informed that he would be subject
to mandatory retirement from 17 January 2007, he voluntarily
submitted a retirement request on 29 December 2005. His 2005
performance assessment should have been provided to the author by
15 March 2006. However, he only received it in June 2006. The author
claims that he then became aware of a new legal provision by which
the 2004 performance assessment of those who had not received it,
owing to administrative problems, was to be considered equal to the
one accredited for 2005.
After his voluntary retirement process was suspended at the author’s
request, he took part in three applications for promotion. Two of them
were not concluded and the results of the third one were only
published on 1 March 2007 after the author had entered mandatory
retirement.
On 11 December 2007, the author lodged a request for civil liability
before the Lisbon Administrative Court (Tribunal Administrativo de
Círculo de Lisboa) against the Chair of the Governing Board of the
Institute of Social Security for a “special ordinary administrative
action based on extra contractual civil liability on the grounds of
unlawful acts”, requesting, inter alia, a lifetime monthly compensation
of 1,256 euros, with retroactive effect from 15 March 2005.
On 15 May 2008, the court dismissed the author’s request. The
decision stated that the author’s claim of civil liability was based on
the failure to provide him with a performance assessment and that this
failure prevented him from applying for a higher category placement
in the Institute of Social Security. However, the court considered that
there were legal means to overcome that omission. Furthermore, the
author did not meet the legal requirement of receiving good
performance reports for three consecutive years in order to apply for a
promotion and he was unable to prove that he had applied to a post
unsuccessfully, owing to the lack of a performance assessment. The
court thus concluded that neither the allegedly unlawful conduct
attributable to the Chair of the Governing Board of the Institute nor
the alleged damage had been established.
On 6 October 2008, the author appealed against the decision before
the Central Administrative Southern Court (Tributário Central
Administrativo Sul). On 11 January 2013, the court dismissed the
author’s application. The decision stated that the author had not
received the 2004 performance assessment in a timely manner; that
this had prevented him from applying for a promotion in 2005,
provided that he received a “very good” final assessment grade; and
that it constituted an unlawful and wilful act by the administration.
However, the court stated that the author had requested voluntary
retirement on 19 December 2005, which prevented him from applying
to a higher category, even though he was in possession of all the
necessary performance assessments, including the 2004 performance
assessment. Moreover, the author had failed to prove that the Chair of
the Governing Board of the Institute of Social Security had exceeded
the limits of his duties or acted intentionally. Therefore, according to
the court, there was no causal link between the wilful or unlawful act
and the damage that the author had allegedly suffered.
On 24 January 2013, the author requested the court to review its
judgment. The author claimed that he had submitted evidence of the
suspension of his retirement process in June 2006 and that at the time
he had asked for voluntary retirement, he still had not received the
2005 performance assessment. He added that because of the delay in
obtaining that assessment, he was only able to seek promotion starting
from June 2006. The author further claimed that the Chair of the
Governing Board of the Institute of Social Security had delayed his
evaluation in bad faith, since he knew that the author would soon turn
70 and the promotion selection process usually lasted 10 months. On
12 April 2013, the court dismissed the author’s application.
On 27 September 2013, the author lodged an application for special
review before the Supreme Administrative Court (Supremo Tribunal
Administrativo). On 18 February 2014, the court considered the
author’s application to be inadmissible, stating that an application for
special review was of an extraordinary nature and that the author’s
application did not disclose matters of fundamental or social
relevance, or a clear need for a review of the application of the law.
On 10 April 2014, the author submitted an application to the
Constitutional Court and alleged, inter alia, that the decision of the
Supreme Administrative Court violated his constitutional rights,
owing to the fact that it had interpreted article 150 of the
Administrative Procedural Code in a way that restricted access to a
fair trial, preventing individuals from defending their rights, and that
as a result his rights under article 7 (c) of the Covenant had been
violated. On 27 June 2014, the Constitutional Court found that the
author’s application did not meet the admissibility requirements since
it did not raise a question of constitutionality. The author claims to
have exhausted all available domestic remedies.
The author submits that although the facts of his case occurred before
5 May 2013, the date when the Optional Protocol entered into force
for Portugal, the violations of his rights are ongoing and that the
decisions of the Supreme Administrative Court and Constitutional
Court occurred after that date.
The author claims that the State party violated his rights under article
Issue 7 (c) of the Covenant. By failing to provide him with his 2004
performance assessment with a positive evaluation in a timely manner,
the authorities of the Institute of Social Security prevented him from
applying for a promotion. Despite acknowledging the failure by the
Institute, the State party’s courts arbitrarily dismissed his applications
and did not remedy the violation of his rights under the Covenant.
The author requests as reparation to be compensated by the State party
for the material damage that he suffered, as well as the losses arising
out of the legal proceedings, in the sum of 377,244 euros and added
interest at a rate of 12 per cent. The State party should pay the author’s
pension for his lifetime, in the sum of 1,236 euros per month, effective
from 15 March 2005, plus default interest at a rate of 12 per cent.
Committee’s consideration of admissibility
Decision
(General Before considering any claim contained in a communication, the
Comment) Committee on Economic, Social and Cultural Rights must decide, in
accordance with rule 9 of its provisional rules of procedure under the
Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, whether the communication is admissible or not
under the Optional Protocol.
Under article 3, paragraph 2 (b), of the Optional Protocol, the
Committee shall declare a communication inadmissible when the facts
that are the subject of the communication occurred prior to the entry
into force of the Optional Protocol for the State party concerned,
unless those facts continued after that date. In the present case, the
Committee notes that the relevant facts that gave rise to the violations
alleged by the author took place before 5 May 2013, the date of entry
into force of the Protocol for the State party. However, the decisions
of the Supreme Administrative Court and the Constitutional Court
denying the author’s applications were taken on 18 February 2014 and
27 June 2014, respectively. Those applications provided an
opportunity for the Supreme Administrative Court and the
Constitutional Court to consider the substance of the violations under
the Covenant alleged by the author. The Committee therefore
considers that it is competent ratione temporis to consider the present
communication.
The Committee takes note of the author’s allegations that by failing to
provide him with the 2004 performance assessment with a positive
evaluation in a timely manner, the authorities of the Institute of Social
Security prevented him from applying for a promotion in violation of
his rights under article 7 (c) of the Covenant. The Committee has
thoroughly examined the author’s allegations and the information
raised in his communication, including the documentation attached to
it in support of his claims, and observes that the author’s allegations
rely on the fact that the failure of the Institute to provide him with the
2004 performance assessment would in itself constitute a violation of
the Covenant. However, the Committee notes that the author has not
identified a specific post or a selection process in which he could not
participate, or from which he was disqualified due to the lack of the
2004 performance assessment, either in his communication before the
Committee or in his applications before national authorities.
Furthermore, after suspending his voluntary retirement process, the
author took part in three applications for promotion, which were not
concluded when he entered mandatory retirement. Accordingly, the
Committee considers that the communication is inadmissible as the
factual allegations made are insufficiently substantiated. At the very
least, the facts adduced in the communication should allow the
Committee to assess whether or not they reveal a violation of the
Covenant.

S.C. and G.P. (represented by counsel, Cesare Romano) vs. ITALY


The authors in this case were of an Italian nationality and they
Facts submitted against the State party alleging a violation of their rights
under the Covenant. In 2008, the authors visited a private clinic in
Italy specializing in assisted reproductive technology to seek
assistance to conceive a child. The authors requested to the clinic that
at least six embryos be produced through the in vitro fertilization
procedure, that those embryos be subject to pre-implantation genetic
diagnosis to identify possible “genetic disorders” and that the embryos
with such disorder not be transferred into the uterus of S.C.
The clinic then replied that such request was not authorized under
Law 40/2004 and could therefore not be accepted. The authors then
filed a lawsuit against the clinic before the Court of Florence. While
waiting for the decision on the constitutionality of Law 40/2004, only
three (3) embryos were produced. Pre-implantation genetic revealed
that all the three (3) embryos were affected by hereditary multiple
osteochondromas and thus, they were not transferred into S.C.’s uterus
In October 2009, the authors then tried a second in vitro
fertilization cycle at the same clinic. However, the authors submitted
that the personnel of the clinic threatened S.C. with a lawsuit if she
insisted on not having the embryo transferred. Because of the threat,
S.C. agreed to have the embryo transferred into her but eventually
suffered a miscarriage. The authors then requested that the clinic
surrender the cryopreserved embryo that were affected by hereditary
multiple osteochondromas or had been untestable, in order to donate
them to be used in scientific research. However, the clinic refused
holding that the article 13 of Law 40/2004 prohibited research on
embryos. Hence, the lawsuit against the clinic and the State party.

Whether or not the State is responsible for violating its own


Issue constitution and their right to enjoy the benefits of scientific progress
and its applications by prohibiting research on embryos.
The Committee notes that the authors have exhausted remedies in
Decision
(General accordance with article 3 (1) of the Optional Protocol and also noted
Comment) that all claims raised by the authors are related to two facts: first, the
transfer of the author’s embryo into S.C.’s uterus without her consent;
and second, the refusal by the clinic to surrender the embryos so that
they could be donated for use in scientific research.
The Committee notes that regarding the refusal to accept S.C.’s
withdrawal of her consent to having the embryo transferred to her
uterus and the fact that the author continues to suffer the consequences
of the transfer and of the miscarriage, the claims are admissible as
ratione temporis. The Committee also notes that the two claims of the
author as the right to health was agreed to be violated because the
woman was compelled to have an embryo with low possibilities of
nesting transferred into her uterus, against her will, and thus she
suffered miscarriage.
The Committee takes note of the authors’ allegation that Law
40/2004 violates their rights under articles 12 (2) (c) and (d) and 15 of
the Covenant because, by preventing them from donating their
embryos to science, it “slows down” the research on hereditary
multiple osteochondromas, an illness of which S.C. is an
asymptomatic carrier. The authors also argue that some members of
their family suffer this illness and might benefit from the research
carried out on these embryos. Thus, the authors’ argument is that the
donation of these specific embryos would benefit them directly, as it
would have a clear impact on the research on hereditary multiple
osteochondromas which would allow a cure or a better to be found for
this disease.
The second argument proposed by the authors to support their
claim is in fact a recognition that they want to donate the embryos to
scientific research in general, even if that research does not have any
meaningful possibility of benefiting them directly. Thus, they argue
that the restriction on the possibility of their donating their embryos,
imposed by Law 40/2004, violates their right to participate in
scientific research, which they consider to be part of the Covenant. It
is not necessary for the Committee to analyze on this occasion whether
or to what extent the Covenant incorporates a right for every person to
take part in scientific research; in any case, the burden is on the
authors to show that they really intended to take part in a scientific
endeavor. However, the authors have not substantiated this claim, as
they simply argue that they wanted to donate their embryos to science,
so that others would be able to perform scientific research.
SKENDER vs THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

Facts
The applicant is a national of the Former Yugoslav Republic of
Macedonia, of Turkish origin. He has two daughters whom he wished
to send to a Turkish-speaking school situated in another district than
the one where they lived, as the school of their own district did not
provide teaching in Turkish. According to the Primary Education Act,
pupils should attend the State primary school of their place of
residence.
In February 1997, the applicant asked the Turkish-speaking school to
admit his elder daughter. He received no answer and complained,
allegedly on two successive occasions, to the competent authority. He
started proceedings before the Supreme Court. The school, at this
stage, refused to enrol his elder daughter, as they did not live in the
district of the school. The Supreme Court refused, on procedural
grounds, to examine the applicant’s complaint in respect of the
school’s refusal. The Constitutional Court did not quash the Supreme
Court’s decision. The Supreme Court refused to examine the
applicant’s request for having the proceedings reopened as the
applicant had not provided fresh evidence as required by law.

Whether or not refusal to access a Turkish-speaking school on the


Issue basis of applicant’s father’s residence a violation of the Convention
under Article 14 and Article 2 of Protocol No. I

No.
Decision
(General Article 14 complements the other substantive provisions of the
Comment) Convention and the Protocols. It has no independent existence since it
has effect solely in relation to “the enjoyment of the rights and
freedoms” safeguarded by those provisions. Although the application
of Article  did not necessarily presuppose a breach of those
provisions – and to this extent it was autonomous –, there can be no
room for its application unless the facts at issue fall within the ambit
of one or more of the latter.
The applicant failed to make proper use of the opportunities to
challenge the refusal of the school to enrol his elder daughter or to
complain to the Constitutional Court that his elder daughter was
discriminated against.
It followed that the complaint must be rejected for non-exhaustion of
domestic remedies.
However, the Court did not need to examine whether the applicant’s
claim fell within the ambit of Article 2 of Protocol No. I since, in any
event, the complaint was inadmissible.
It followed that the complaint must be rejected for non-exhaustion of
domestic remedies.
A right to education in a particular language or a right to obtain from
the State the creation of a particular kind of educational establishment
could not be derived from Article 2 of Protocol No. I. This provision
did not require of States that they should, in the sphere of education or
teaching, respect parents’ linguistic preferences, but only their
religious and philosophical convictions. To interpret the terms
“religious” and “philosophical” as covering linguistic preferences
would amount to a distortion of their ordinary and usual meaning and
to read into the Convention something which was not there. Moreover,
the Court recalled that the “drafting history of that Article” confirmed
that the object of the second sentence of Article 2 was in no way to
secure respect by the State of a right for parents to have education
conducted in a language other than that of the country in question;
indeed in 1951 the Committee which drafted Protocol No. I to the
Convention set aside a proposal put forward in this sense, several of its
members having believed that it concerned an aspect of the problem of
ethnic minorities and that it thus fell out- side the scope of the
Convention.
It followed that this complaint was incompatible ratione materiae with
the pro- visions of the Convention and must be rejected.

Maribel Viviana López Albán vs. SPAIN


Facts Maribel Alban is a national of Spain and acting on her own behalf and
on behalf of her five of her six children, all minors and Spanish
nationals. She contends that they are victims of violation of Article 11
(1) of the Covenant by the State party. The facts of the case states that
she entered into a rental agreement on March 1, 2013 with a monthly
rent of 850 Euro where she would be living with her six children, one
is of legal age. After a year of paying her rent on a monthly basis, she
discovered that the lessor neither owned the apartment not had any
legal title to it and then she stopped paying rent. On December 15,
2014, that bank that owns that apartment filed a complaint against the
author for occupying the property illegally. Maribel Alban was then
convicted of a minor offense of unlawful appropriation and ordered
and to surrender the possession of the apartment to its owner. The
Court held that the rental agreement provided by the author was
invalid and inauthentic since she had failed to provide any proof of the
rental payments that she had allegedly made to the lessor. Having
ruled that the facts as established constituted a minor offence of
unlawful appropriation, the Court found that a partial exemption on
grounds of necessity should be applied in the author’s case and that
her unlawful action could be justified to an extent given that,
according to the documents provided,2 she had only a very limited
income, with which it was almost impossible to support her family. In
its judgment, the Court held that, while it had been proven that the
author was in a situation of actual and serious necessity, it had not
been proven that she was entirely destitute and that it would have been
impossible for her to resolve the situation by other lawful means. It
therefore concluded that a partial exemption on grounds of necessity
should be applied. She then filed an appeal requesting either that the
court consider acquitting her of the charge on the grounds that she did
have a legal title to the property, namely, the rental agreement
legitimizing her occupation, or, alternatively, that her situation of
necessity be considered grounds for a full rather than partial
exemption. The Allocation Department of the Subdirectorate General
for Allocations and Citizen Support and Community of Madrid
rejected the housing application made by the author to the Madrid
Social Housing Agency. Their contention was that it was evident that
the author had been occupying her residence without sufficient title to
do so, and this disqualified her application for housing
Issue Whether or not the state party were in violation to the right to adequate
housing of the people under Article 11 of the Covenant
Decision In the case it was rules that the eviction of the author and her children
(General without an assessment of proportionality by the authorities constituted
Comment) a violation of their right to have adequate housing. The committee also
considers that the refusal of the application made by the author
without taking into account her situation and on the basis of her
having no legal title would amount to a violation of this right. The
right to adequate housing is one of the fundamental rights in the
enjoyment of all economic, social and cultural rights and is also linked
to other human rights in the International Covenant on Civil and
Political Rights. This right should be ensured to all persons without
prejudice to their income or access of economic resources. The state
should also take measures to achieve a full realization of this right to
the maximum of the availability of their resources. Evictions should
not result in individuals becoming homeless or vulnerable to further
human rights violations. 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, resettlement or access to productive land, as the
case may be, is available. The obligation to provide alternative
housing to evicted persons who need it implies that, under article 2 (1)
of the Covenant, States parties must take all necessary steps, to the
maximum of their available resources, to uphold this right. States
parties may choose a variety of policies to achieve this purpose. Under
article 2(1) of the Covenant, the state must provide an alternative
housing to those evicted persons and that they must maximize their
resources to uphold this right. The State is under an obligation to
provide the author and her children a remedy that would entail them to
have adequate housing. They should be provided they must be
reassessed to their necessity regarding their situation and their level of
priority on the waiting list. They should also be provided with
financial compensation of the violations they have suffered and
reimbursement for legal cost.
Baltasar Salvador Martínez Fernández vs. SPAIN
Facts G.G. took out a mortgage with a private bank (Banco Popular
Español SA) to purchase a property. On 8 October 2007, real estate
company Proyectos de Desarrollos Activos SL, which had merged
with the bank, initiated foreclosure proceedings before Court of First
Instance No. 43 of Barcelona.

On 11 October 2007, the Court admitted the application for


foreclosure and the procedures for the order for payment were carried
out.

On 1 October 2013, the Court granted ownership of the


property to the company Proyectos de Desarrollos Activos SL for the
price of 178,500 euros.

On 1 July 2014, following a failed attempt to evict the


occupants of the property, Court No. 43 ordered that steps again be
taken to evict the persons occupying the property. On 24 July 2014,
following another two failed attempts, security forces evicted G.G.
and her daughter.

On 1 August 2014, the author, without legal title or


authorization, occupied the dwelling from which his former mother-
in-law, G.G., had been evicted for defaulting on her mortgage
payments.

On 19 April 2016, the Court of First Instance No. 20 of


Barcelona imposed a three-month fine on the author for the
misdemeanor of unlawful appropriation and ordered him to leave the
dwelling within not more than 15 days, otherwise he would be evicted
by the security forces. The author appealed this decision before the
Barcelona Provincial High Court, but rejected on 11 July 2016. Once
the decision was final, the real estate company Proyectos de
Desarrollos Activos, S.L, which owned the property, asked Court No.
20 to order the eviction of the author. In reply to the Court’s request,
the police reported that the property was being occupied at that time
by G.G.

On 24 October 2016, Proyectos de Desarrollos Activos, S.L.


requested that the eviction of the author and G.G. take place without
further delay with the assistance of the Catalan autonomous police
force riot squad. In its request, the company contended that the authors
were flouting Court No. 20’s ruling by taking it in turns to occupy the
dwelling.

On 7 November 2016, Court No. 20 granted the company’s request on


the basis of the finding that, although there was initially not enough
evidence to charge G.G. with the misdemeanor of unlawful
appropriation, she and the author were taking it in turns to occupy the
dwelling. The Court therefore ordered that the persons occupying the
dwelling be evicted unless they could produce due legal title to the
property.

On 13 January 2017, Court No. 20 granted the application for


reconsideration and amended the order of 7 November 2016 on the
grounds that it could not order G.G.’s eviction if she was not a party to
the proceedings. The author maintains that he has exhausted all
available domestic remedies.
Issue Violation by the State party of article 11 of the Covenant.

Decision Inadmissible. The Committee finds that the author has not
(General sufficiently substantiated his claims under article 11 of the Covenant
Comment) and that they are inadmissible under article 3 (2) (e) of the Optional
Protocol.
Indigenous Community Members of the Lhaka Honhat (Our Land) Association

vs. Argentina
Facts
Indigenous community members from the Lhaka
Honhat Association sued Argentina on behalf of 132 Indigenous
communities belonging to the Wichí (Mataco), Iyjwaja (Chorote),
Komlek (Toba), Niwackle (Chulupí), and Tapy'y (Tapiete) peoples
who live on lots with the cadastral registrations 175 and 5557 in the
Province of Salta (previously known as and referred to in the case as
lots 14 and 55). The Indigenous communities sued Argentina for
violating their right to communal property by failing to provide legal
security to their territory and allowing Creole settlers to reside on their
lands; they also sued to protect their rights to a healthy environment,
adequate food, participation in cultural life, and judicial protection.
After residing on the land for centuries the Indigenous claims
to the land were first formalized in 1991 through Decree No. 2609/91,
which required Salta to unify the lots and allocate a part of the
property to them as communal property (title as a single deed of
communal ownership as opposed to individual deeds). In 1992, Lhaka
Honhat formed to obtain the title they still had not received. In 1993,
the State created an Advisory Commission, and in 1995 they
recommended assigning two thirds of the land of the lots to the
Indigenous communities, which they accepted. However, in 1995,
without consulting the Indigenous communities, the State built an
international bridge on the Indigenous peoples’ land. In 1999, Salta,
through Decree 461 made allotments of parts of lot 55 to a few
individual Indigenous communities settled there. In 2000, the Province
presented a proposal for awarding lot 55, but the Lhaka Honhat
rejected the offer because it did not include lot 14, and it did not
include communal title. In response to an amparo action filed by
Lhaka Honhat in 1999 against Decree 461, the Court of Salta in 2007
annulled Decree 461 because the Indigenous peoples did not have an
adequate opportunity to make their opinions known. Lhaka Honhat
then reduced their claim from 643,000 ha to 400,000 and give 243,000
ha to the Creole families of lots 14 and 55, and Salta adopted Decree
2786/07 to endorse the revised claim. Following the Decree, a Salta
team held meetings aimed at reaching agreements between the Creole
and Indigenous communities. In 2012, Salta issued Decree 2398/12 to
assign 243,000 ha of lots 14 and 55 to Creole communities and
400,000 ha for Indigenous communities. Then in 2014, through
Decree 1498/14, Salta transferred the property as a shared property
between 71 Indigenous communities and the Creole families. To date,
the State has not provided a communal title for all of the communities
that form Lhaka Honhat, which now are 132.  In the meantime, Creole
settlers’ activities, such as illegal logging, raising livestock, and
fencing installations, have taken place on the Indigenous communities’
lands. These activities have led to loss of forest resources and
biodiversity and have grossly impacted the traditional ways in which
Indigenous communities access food and water.

Issue Whether or not there was a violation on (1) the right to community
property, (2) the rights to a healthy environment, adequate food, water,
and cultural identity, and (3) the right to judicial guarantees.

Decision The Court stated that Article 21 of the American Convention


(General includes Indigenous peoples’ right to their communal property. The
Comment) State must give legal certainty to this by providing a legal title that the
Indigenous communities can enforce against the government and third
parties. Though Decrees 2786/07 and 1498/14 constituted acts of
recognition of communal ownership, due to inadequate title, the
process to finalize the ownership was incomplete. The Court stated
that Argentina’s current regulations to guarantee the community
property right are inadequate and therefore they violated Article 21 of
the Convention and related Articles 1.1, 2, 8, and 25. The Court also
noted that, despite the relevance and importance of the international
bridge that Argentina built, the State had violated the property rights
by not consulting the Indigenous communities and therefore breaching
Articles 21 and 23 of the Convention.
For the first time, the Court analyzed the rights to a healthy
environment, adequate food, water, and cultural identity under Article
26 of the Convention. The Court found that activities like illegal
logging carried out by the Creole settlers detrimentally affected the
Indigenous communities’ way of life and access to water, food, and a
healthy environment. The detrimental effect on the communities’
traditional diet and lifestyle impacted the cultural way of life and the
Indigenous communities’ cultural identities. The State was aware of
these harmful activities and their impact on Indigenous way of life and
did not effectively stop them. Because the detrimental activities were
not consensual, as the Indigenous communities did not permit them,
Argentina failed to guarantee the Indigenous communities the right to
determine activities done on their property and violated Article 26 and
1.1 in connection with the rights to a healthy environment, adequate
food, water, and cultural identity.
Regarding the right to judicial guarantees, the Court found that
Argentina violated Article 8.1 and 1.1 by not providing judicial
guarantees to the Indigenous communities. Specifically, the Argentine
Supreme Court ordered the Court of Salta to issue a decision regarding
Decree 461/99 in 2004, but the Salta Court did not issue a decision for
another three years and provided no justification for the delay.
The Inter-American Court ordered Argentina, within the next
six years at most, to complete all necessary actions to grant title to the
132 Indigenous communities and resettle the Creole populations,
along with their fences and livestock, away from the Indigenous lands.
Furthermore, the Court ordered that the State (1) refrain from doing
anything on Indigenous property that might affect the property’s value
or use without prior consultation; (2) submit a study to the Court
identifying critical instances of lack of access to drinking water or
food, and create an action plan to address the situations and start
implementation; (3) prepare, within a year, a study on actions to take
for water conservation and to remedy contamination, and to avoid loss
of forest resources and recover lost food sources; (4) create a fund for
community development and implement its execution within four
years; (5) within six months, publicize the Court’s decision and
summary including its translation in Indigenous languages; (6) adopt
legislative measures or take other actions to ensure legal certainty to
the rights of Indigenous communal property; and (7) pay a sum for
reimbursement of expenses and costs.

Mohamed Ben Djazia and Naouel Bellili vs. SPAIN


Facts In October 2013, Mohamed Ben Djazia, Naouel Bellili and their two
minor children were evicted from the home they had rented in Madrid,
Spain, after their private rental contract expired. Spain was then
experiencing a devastating economic crisis with high levels of
unemployment, and this had affected the Ben Djazia-Bellili family,
leaving them unable to pay rent for some time. Mr. Ben Djazia had
repeatedly applied for social housing for well over a decade and was
denied each time. The family situation of uncertainty, extreme
insecurity and vulnerability was aggravated by the fact that their
children (approximately one and three years old at the time) were left
without shelter.
After exhausting domestic remedies (i.e. pursuing all reasonable legal
remedies at the national level), the Ben Djazia-Bellili family,
represented by Javier Rubio [Centro de Asesoría y Estudios
Sociales(link is external) (CAES)] (Authors), argued before the UN
Committee on Economic, Social and Cultural Rights (CESCR) that the
state had violated their right to adequate housing under Article 11(1)
of the International Covenant on Economic, Social and Cultural Rights
(Covenant), since they were evicted despite not having alternative
accommodation and without consideration of the impact of the
eviction order on their children. The Authors further alleged that the
court proceedings that concluded with their eviction did not observe
judicial guarantees, for example, courts do not assess the effect of
forced evictions on lessees or the particular circumstances of each
case. In addition, the Authors contended that relief measures for
persons on very low or no income are insufficient to protect the right
to adequate housing, given the repeated state denial of social housing
support over the long-term and a lack of emergency support in the
short term despite knowledge by the authorities of the particular
situation.

Issue Whether the eviction constitutes a violation of right to adequate


housing.

Decision The Committee held that, “in the absence of reasonable arguments on
(General the part of the State party regarding all the measures taken to the
Comment) maximum of its available resources, the authors’ eviction, without a
guarantee of alternative housing by the authorities of the State party as
a whole, […] constituted a violation of their right to adequate
housing." The Committee found a violation of Article 11(1) read
separately and in conjunction with Article 2(1) (obligation to adopt
measures to the maximum of available resources towards progressive
realization of rights) and 10(1) of the Covenant (obligation to provide
the family with the widest possible protection). In doing so, it
referenced its existing guidance to states, including General Comment
No. 7(link is external) (on forced evictions) and General Comment
No. 4(link is external) (on the right to adequate housing).
CESCR highlighted positive obligations of the state to protect the right
to housing even where the eviction is justified (for example, in the
case of “persistent non-payment of rent” or “damage to rented
property”). In such cases, certain conditions need to be observed,
which include access to effective judicial remedies, genuine prior
consultation with affected individuals, consideration of alternative
options, assurance that no other rights will be violated as a result of
the eviction, special protection to vulnerable groups and reasonable
measures to provide alternative housing.
In considering the respondent state’s justifications regarding the lack
of access to alternative housing, the Committee noted that, in this case,
the state had an even greater duty to justify the outcome since minor
children were negatively impacted. In addition, CESCR underscored
that that the “lack of housing is often the result of structural problems,
such as high unemployment or systemic patterns of social exclusion”,
which the authorities must resolve through an appropriate, timely and
coordinated response. Referencing its 2016 statement(link is
external) regarding public debt and austerity measures, CESCR
condemned the sale of public housing stock to private investment
funds by regional authorities at a time when there was increased need
for social housing, stating that “in times of severe economic and
financial crisis, all budgetary changes or adjustments affecting policies
must be temporary, necessary, proportional and non-discriminatory.”
Finally, while the family had been offered a couple of alternative
housing options, the Committee recognized that these offers would
have split up the family, in violation of Article 10.
CESCR issued individual recommendations requiring the state to
ensure that the family has access to adequate housing, as well as
financial compensation and legal costs. CESCR also issued general
recommendations to Spain with regard to: (a) the adoption of
legislative and/or administrative measures to ensure that tenants have
access to judicial proceedings where the “judge might consider the
consequences of eviction…”; (b) the adoption of measures to resolve
the “lack of coordination between court decisions and the actions of
social services”; (c) the adoption of measures to guarantee that
evictions of those without the means to obtain alternative housing
involve “genuine consultation” and essential steps regarding
alternative housing; (d) special protection for those who are in a
situation of vulnerability; and (e) the development and implementation
of a plan to “guarantee the right to adequate housing for low-income
persons”.