Translation © European Roma Rights Centre. www.errc.org - Permission to re-publish this translation has been granted for the sole purpose of its inclusion in the Court ’ s database HUDOC.

THIRD SECTION

DE CISION

Application no. 77842/12 A.M.B. and OTHERS against SPAIN ( see list in annex )

The European Court of Human Rights (Third Section), sitting on 28 January 2014 in a Chamber composed of:

Josep Casadevall, President ,

Alvina Gyulumyan,

Ján Šikuta,

Luis López Guerra,

Nona Tsotsoria,

Johannes Silvis,

Valeriu Griţco, Judges ,

and Santiago Quesada, Section Registrar ,

Having regard to the above-mentioned application lodged on 6 December 2012,

Having regard to the provisional measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the decision to give priority to the application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and those submitted in response by the applicant,

Having deliberated , makes the following decision:

THE FACTS

1. Mrs A.M.B, is a Spanish national who was born in 1988 and lives in Madrid. She is represented before the Court by C. Pinto Cañón, a lawyer practicing in Madrid. The Spanish Government ("the Government") is represented by its agent, F. de Sanz Gandasegui, State Attorney, Head of the Legal Department of Human Rights at the Ministry of Justice.

A. The c ircumstances of the case

2. The applicant, a Spanish national, and her two minor children, have been living since July 2009 in a dwelling belonging to the Madrid Housing Institute (hereinafter IVIMA), an organization of the Autonomous Community of Madrid. She is unemployed (without benefits) and receives the minimum integration income of about 500 euros (EUR) monthly, plus 30 EUR per child as alimony. This financial allocation is granted by the Madrid region to meet the basic needs of families who may be at risk of social exclusion.

3. The applicant claims to have asked the Administration several times since 2007 to obtain accommodation for herself and for her children, without ever getting a response. The disputed flat being uninhabited, they settled there irregularly, the office of the census of the municipality of Madrid having officially registered them at this address since July 2009.

4. By a decision on 22 February 2011, the director of IVIMA discovered the illegal occupation of the building and ordered the building to be returned to the Administration within ten days, without offering alternative housing to the applicant.

5. For their failing to vacate the home within the prescribed time, on 25 May 2012, the legal services of the Autonomous Community of Madrid applied to the Madrid Administrative Disputes Judge for authorization to proceed with the expulsion.

6. On 3 October 2012, the applicant, represented by a public defender, objected to the measure by pointing out her and her children ’ s precarious situation of social exc lusion, as well as their Roma ethnicity.

7. By a decision on 16 October 2012, the Administrative Disputes Judge No. 24 of Madrid ordered the expulsion, all while indicating that it would be appropriate to “adopt the necessary measures for the best protection of minors who would be found in the building” without specifying what these measures would be. Regarding the particular situation of the applicant, the judge noted that their situation was not distinguishable or distinct from that of many other families waiting for housing and that the illegal occupation could not find a justification.

8. The applicant appealed and requested the suspension of the expulsion order until the appeal was decided, the Spanish law finding that the appeal is not suspensive to this effect . The judge found that the appeal was filed but did not rule on the application for suspension.

9. On 20 November 2012, the IVIMA Housing Inspectorate notified the applicant that the execution of the expulsion was scheduled for 13 December 2012 at 10.00.

10. On 6 December 2012, the applicant lodged an application for interim measures on the basis of Article 39 of the Rules of the Court.

11. On 11 December 2012, the examination of the request of the application of Article 39 of the Rules of Court was postponed until the reception of certain information from the Government concerning the treatment of fundamental rights of the applicant and her kids. In particular, the Government was asked to specify what alternative accommodation solutions the applicant and her children would be offered in case of expulsion to prevent the alleged violation of Article 3 of the Convention and within what time frame.

12. In light of the received information, on 12 December 2012, the functioning president of the Section to which the request was assigned decided to inform the Spanish government, pursuant to the previously cited provision , not to continue with the expulsion of the applicant and her children from the home that they occupied. He decided in addition to communicate the request to the Government.

13. Furthermore, the president in office decided that the identity of the applicant would not be disclosed (Article 47 § 3 of the Rules of Court).

14. On 30 April 2013, IVIMA informed the applicant that, unless the home was vacated, her illegal occupation would result in the rejection of any application for housing on her part for two years from the date of the removal.

15. In a judgment of 26 April 2013, the Higher Court of Justice of Madrid dismissed the applicant ’ s appeal against the decision of 16 October 2012. The Tribunal noted that none of the constitutional rights relied upon by the applicant authorized the illegal occupation of the apartment , even if they were in a situation of need. In fact, it was up to them to apply to the official bodies responsible for social protection .

16. Relying on Articles 15 (prohibition of degrading treatment) and 18 (right to private and family life), the applicant lodged an amparo appeal with the Constitutional Court, which is to date.

B. Relevant domestic law

17. The relevant provisions of the Constitution are as follows :

Article 15

« Everyone has the right to life and to physical and moral integrity ( ... ) »

Article 18 § 2

« The home is inviolable. (...) »

GRIEVANCES

18. Relying on Articles 3 and 8 of the Convention, the applicant complains of the expulsion decision. She indicates that the apartment is in any case uninhabited and that she has reside d "legally" since July 2009, the census of the Administration having created a presumption of legality around this occupation.

19. Moreover, the applicant complains of the absence of a proposal for alternative housing and considers that the guarantee "to adopt the necessary measures for the best protection of the minors who would be found in the building " is not sufficiently specific and leave s her children without concrete protection. She says she has nowhere to go.

20. Finally, the applicant complains that the appeal has no suspensive effect.

THE LAW

A. On the request of the Government to lift the provisional measure

21. The Government points out that, before settling illegally in the flat at issue, the applicant lived with her parents, who live in the building directly opposite, in an apartment belonging to IVIMA.

22. In the event of expulsion, and in the event that the applicant does not wish to return to her parents ’ home, the Government states that she will be able to make use of the possibilities offered by the Administration to avoid finding herself in a situatio n that could undermine her integrity and that of her children. The Government points out that, apart from the minimum income from which she benefits, the applicant has not applied for any of the aid or other services to which she is entitled. For example, she may seek the assistance of the Madrilenian Institute of Family and Minors, which will intervene in the event the minors would be abandoned. In addition, social services may also help the applicant to obtain emergency housing temporarily, until a permanent solution is found. These same services can guide the applicant on the procedure to request housing within the framework of the programs existing to date, such as the "Social Housing Fund" and "Solidarity Housing".

23. The Government insists on the fact that in case of expulsion, and even without explicit request on its part, social services will automatically take action to prevent the applicant or her children from finding themselves in a situation of abandon, occupying themselves especially with the children.

24. For her part, the complainant considers that it is not normal for the services mentioned to intervene only after expulsion and requires the Government to provide alternative accommodation in advance. Moreover, she notes that the fact that her parents are able to relocate he r is irrelevant in this case. She calls into question the general system of allocation of social housing and draws attention to the large number of empty dwellings in Spain.

25. In view of the observations submitted by the Government, the Court considers that the maintenance of the provisional measure provided for in Rule 39 of the Rules of Court is no longer justified. As a result, the measure is lifted.

B. On the Government ’ s non-exhaustion exception

26. With regard to the remainder of the application, the Government observe s that the proceedings initiated by the Applicant have not been completed. It notes that the amparo appeal lodged by the applicant against the judgment of 26 April 2013 delivered by the High Court of Justice is still pending.

27. The applicant does not respond to this argument and limits herself to confirming the introduction of the amparo appeal before the Constitutional Court.

28. The Court reiterates that, under Article 35 of the Convention, it may not be seized of an application until the all domestic remedies have been exhaus ted. An applicant must avail her self of the remedies normally available and sufficient to enable her to obtain compensation for the violations s he alleges (see, among other references, Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 IV).

29. The Court notes that the amparo appeal lodged by the applicant is pending before the Constitutional Court. The High Court could possibly uphold the applicant ’ s claims raised on the basis of Articles 15 (prohibition of degrading treatment) and 18 (right to private and family life) of the Constitution.

30. In these circumstances, the Court considers that the application is premature within the meaning of Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the complaint inadmissible .

             Santiago Quesada Josep Casadevall Registrar Pre sident

Annex

LIST OF APPLICANTS

Application 77842/12