Communicated on 31 August 2016

THIRD SECTION

Application no. 36366/14 Abdelilah GHAILAN and others against Spain lodged on 3 May 2014

STATEMENT OF FACTS

The applicants Mr Abdelilah Ghailan and Ms Fatima Zahra Alami Wahabi are a married couple (the first and the second applicants) and their two sons Anas et Khalid Ghailan , aged twelve and nine respectively (the third and the fourth applicants). The four applicants have Moroccan nationality. They are represented before the Court by Mr. F.J. Rubio Gil, a lawyer practising in Madrid.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants lived since 2004 in Plot no. 40-A of the Cañada Real Galiana (Madrid). This was their only home. They were registered at their domicile at the Madrid city council registry. The first and second applicants are 39 and 32 years old, respectively. The first applicant worked in the construction field during the Spanish massive property boom. At the time of introduction of their application before the Court, both spouses were unemployed. They did not receive unemployment benefits. Their children were enrolled in a school in the area.

1. Historical background: the Cañada Real Galiana

The Cañada Real Galiana was an ancient and historical livestock trail that crossed Spain from North to South, including Madrid. From the 1960 ’ s people have been building houses on it as the trail had fallen into disuse during the late 19 th century and the population of Madrid was increasing due to migration movements towards the capital. The area gradually developed into a big settlement with the acquiescence of all public authorities. Current estimations are that population in the area reaches 10,000 people and that more than 2,000 houses have been built on it without any sort of licence. Many of these houses are substandard houses or shelters.

For almost fifty years no administration had made any effort to stop or reverse the situation. In fact, the administrations had carried out different actions that could be understood as implying acceptance and tolerance of the settlement. They registered in the land registry some of the plots on the area and collected from their occupants local taxes on real estate. They also awarded compensation to occupants affected by infrastructure works and registered occupants in the local population registry as residents in their addresses in the Cañada Real Galiana .

The settlement has developed its characteristic social and community dynamics. There are currently in the area seven registered neighbours ’ associations, five neighbours ’ meeting centres, one Catholic church, one Evangelic church, two Mosques, a playground, many shops and several hotels and restaurants, workshops, factories and warehouses.

As from 2005 the Madrid local administration started to institute proceedings against hundreds of occupants in order to restore urban legality in the area.

On 7 July 2009 a political agreement was reached between the administrations concerned, namely the national government, the regional government and the local administrations of Madrid City, Coslada and Rivas Vaciamadrid in order to find a global solution to the complex situation of the Cañada Real Galiana . This agreement stipulated that the legal status and classification of the area should be changed from regional public domain to regional property, so the land could then be sold, ceded, permuted or subject to any other business deal. However, the agreement made any eventual business on that area conditional on the conclusion by the administrations concerned of a social agreement and a land planning.

On 15 March 2011 regional Law 2/2011 on the Cañada Real Galiana (also referred to hereafter as regional Law 2/2011) was approved. The law provided for ( i ) the declassification of the area as public domain; (ii) the attribution of ownership on the area to the Region of Madrid; (iii) the possibility for the regional government to cede parts or the area to the municipalities affected, namely Madrid City, Coslada and Rivas Vaciamadrid ; (iv) the possibility for these municipalities to cede or sell parts of the area to the people already residing in it; (v) a negotiation process between stakeholders in order to find a global solution to the social and urban problem. The law further provided for consultation with the persons affected duly represented through neighbours ’ associations. The law entered into force on 30 March 2011.

2. Domestic proceedings brought against the applicants

On 23 June 2005 the Madrid city council approved a decision of eviction and demolition of the applicants ’ home, ordering them to vacate and demolish the house. The applicants did not appeal against that order.

Given that the applicants did not voluntarily vacate the house, by a decision of 29 November 2006 the Director General of Execution and Supervision of Building Policies ordered the initiation of the demolition works in order to restore urban legality ( orden de ejecución sustitutoria ) .

On 18 October 2007 the applicants ’ home was demolished by the Madrid city council.

After the demolition, the applicants, helped by their neighbours, rebuilt the house and continued living there. On 12 November 2007 the applicants approached the Madrid Housing Institute ( Instituto de la Vivienda de la Comunidad de Madrid , IVIMA) for the purpose of being provided alternative housing.

After verifying that the house had been rebuilt, by a decision of 14 April 2008, the Director General of Execution and Supervision of Building Policies issued a new orden de ejecución sustitutoria . The order was issued on the basis of the above-mentioned eviction and demolition decision of 23 June 2005. The Director General of Execution expressly stated that the order was not subject to appeal. According to the applicant, he was served with the order on 28 November 2009.

On 29 October 2010 the Madrid city council requested a judicial authorisation from the Madrid administrative judge no. 30 to enter into the applicants ’ home so as to enforce the demolition order.

On 14 January 2011 the Madrid administrative judge no. 30 served on the second applicant the Madrid city council request for authorisation to enter into the applicants ’ home.

On 24 January 2011 the first applicant presented allegations before the administrative judge. He argued that the second orden de ejecución sustitutoria had no legal basis, insofar as the Madrid city council had failed to previously approve a decision of eviction and demolition of the house. The demolition decision of 23 June 2005 only had regarded the first demolition proceedings, which had already been executed. He further stated that in 2009 a political agreement had been reached between the Madrid city council and the rest of administrations concerned in order to find a global solution to the situation of the Cañada Real Galiana . As a result of that agreement, a regional law on the Cañada Real Galiana was being prepared. The first applicant also contended that, by enforcing an eviction and demolition order, the authorities must satisfy the warranties under the Universal Declaration of Human Rights, the International Covenant on Economic , Social and Cultural Rights, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. Lastly, the first applicant argued that the enforcement of the eviction and demolition would jeopardise his children ’ s right to education and would negatively affect their psychological development.

On 8 April 2011 the first applicant presented additional allegations, stating that on 30 March 2011 regional Law 2/2011 had entered into force. He contended that the law had set out a specific procedure with a view to providing a global solution to all issues related to land occupation in the area. The exclusion from that procedure of occupants through the demolition of their houses would constitute a discriminatory and disproportionate measure.

On 20 April 2011 the Madrid administrative judge no. 30 issued a decision ( auto ), authorising the entry into the applicants ’ house. The judge first stated that her only role in these proceedings was restricted to determining whether the local administration had complied with the formal requirements imposed by the administrative legislation and whether the entry into the applicants ’ house was a proportionate measure to enforce the administrative decision. The judge noted that the first applicant had not made use of his right to present allegations in the administrative proceedings and, therefore, the eviction and demolition order had become final; that the first applicant had disregarded the request made by the administration in the eviction and demolition order; in this regard, he had not only failed to voluntarily comply with the eviction and demolition, but he had even rebuilt the house after its demolition; consequently, the administration had sought judicial authorisation to enter into the applicants ’ house to forcedly proceed to the application. The judge further pointed out that the applicants ’ house was an illegal construction and that such status had not been modified by regional Law 2/2011. Lastly, as regards the merits of the administrative decisions, the judge, having regard to the fact that the demolition and eviction order had been duly served and that the applicants had refused to voluntarily comply with it, concluded that the entry into the applicants ’ house was the only available mean of enforcement. In the operative part of her decision, the judge warned the authorities that the applicants ’ eviction should take place only after the scholar year had finished.

On 20 May 2011 the applicants requested for clarification of the decision of 20 April 2011. On 14 June 2011 the Madrid administrative judge no. 30 rejected the applicants ’ request.

On an unspecified date in the summer of 2011 the applicants were registered in the registry of the Madrid Housing Local Office ( Empresa Municipal de la Vivienda y el Suelo de Madrid , EMVS) as residents in their address in the Cañada Real Galiana .

On 15 July 2011 the first applicant lodged an appeal against the decision authorising the entry into his home. He reiterated his complaint of existence of shortcomings in the administrative demolition proceedings. He further argued that, in view of the global urban and social problematic of the Cañada Real Galiana , where a whole community was concerned and the authorities had de facto tolerated the unlawful settlement for a long period, his case could not be treated as a routine case of removal of an individual from unlawful occupied property. According to the case-file, the first applicant did not request for a stay of the authorisation until a decision on appeal was delivered.

On 6 September 2011 at 4:00 the applicants ’ home was demolished.

On 8 March 2012 the Madrid high court of justice dismissed the first applicant ’ s appeal against the judicial decision authorising the entry into his home of 20 April 2011. It upheld the Madrid administrative judge no. 30 ’ s finding that the administration had satisfied all the formal requirements imposed by the administrative legislation. As to regional Law 2/2011, the court found that that law had not restored the urban legality of the plot where the applicants had built the house.

On 20 March 2012 the Madrid city council requested the applicants 10,767.12 euros as charges for the demolition. The first applicant challenged the Madrid city request before the Madrid administrative judge no. 4.

On 20 June 2012 the first applicant lodged an amparo appeal with the Constitutional Court. He claimed that the judicial decisions authorising the entry and demolition of the house were contrary to Article 18 (2) (private life and guarantee of the inviolability of the home ) of the Spanish Constitution.

On 19 April 2013 the public prosecutor ( fiscal ) before the Constitutional Court presented his allegations as to the applicants ’ case, stating that the entry and demolition of the applicants ’ home had infringed their fundamental rights under Article 18 (2) of the Spanish Constitution. He alleged that the administration could have approached their legitimate aim to restore urban legality by using other means, which would have not compromised the applicant ’ s fundamental rights. In this regard, regional Law 2/2011 provided for alternative solutions, including the possibility for the regional government to legalise the illegal houses built in the Cañada Real Galiana .

The first applicant ’ s amparo appeal was dismissed by a judgment issued on 4 November 2013. The Constitutional Court found by three votes to two that the entry and demolition in the applicants ’ home had not been contrary to their rights to private life and inviolability of home. Two judges expressed a dissenting opinion.

On the one hand, the majority of the Constitutional Court found that the administrative judge authorising the entry into the applicants ’ house had struck a fair balance between the rights at stake and had taken into consideration all the relevant circumstances present at the moment the administrative orders had been issued, which did not include the eventual and future alternative solutions that could provide the Regional Law 2/2011, which was not in force at the moment the administrative orders had been issued. The Court ’ s findings in the case of Yordanova and others , above cited, were not applicable to the applicant ’ s case, since in the Yordanova judgment the Court had found that the authorities ’ attitude had amounted to ethnic discrimination.

On the other side, the two dissenting judges were of the opinion that the majority of the Constitutional Court had failed to take due account of the background, against which the proceedings concerning the applicant had been initiated. They relied on the Court ’ s findings in the case of Winterstein and Others v. France , no. 27013/07 , § 150, 17 October 2013, to declare that such situations as of the applicants ’ , where a whole community and a long period were concerned, should be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.

As regards the Madrid city council ’ s request that the applicants pay the charges for the demolition, that request was upheld on 28 February 2014 by the Madrid administrative judge no. 4. According to the case-file, the applicant did not appeal against that judgment.

B. Relevant domestic law

The relevant provision of the Spanish Constitution reads as follows:

Article 18

“1. The right to honour , to personal and family privacy and to the own image is guaranteed.

2. The home is inviolable. No entry or search may be made without the consent of the occupant or a legal warrant, except in case the commission of a crime is taking place in that very moment .

...”

COMPLAINTS

The applicants complain under Article 8 of the Convention that the administrative decision to evict and demolish their home constituted a violation of their rights to private life and to respect for their home. [A1]

QUESTION S TO THE PARTIES

1. Did the enforcement of the eviction and demolition order against the applicants constitute a violation of their right to respect for their family life and/or their home, contrary to Article 8 of the Convention (see Raji and others v. Spain ( dec. ), no. 3537/13, 10 December 2014)?

2. The Government are requested to supply the Court with the entire domestic file of the applicants ’ case.

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