THIRD SECTION

Application no. 3537/13 Mohamed RAJI and others against Spain lodged on 15 January 2013

STATEMENT OF FACTS

The applicants Mr Mohamed Raji , Mrs Zaidi Bouchra and Ms Sara Raji are a married couple of Moroccan nationals (the first and second applicants) and their eight-year-old daughter, who has Spanish nationality (the third applicant).

A. The circumstances of the case

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

The applicants live in 118-F Sector 4 of the Cañada Real Galiana (Madrid) since late 2009. This is their only home. The first and second applicants are 46 and 36 years old, respectively. The first applicant receives insertion benefits (in his capacity as a long-term unemployed person without entitlement to receive further unemployment benefits) to the amount of EUR 426.00 per month and the second applicant receives unemployment benefits to the amount of EUR 426.00 per month. She has also a degree of disability of 10 per cent. Their child is enrolled in a school in the area. They argue that they have repeatedly sought social housing from the regional administration since 2006. Their last request to the Madrid Housing Institute (IVIMA) is dated 17 May 2012. On 5 March 2012 they requested social housing on lease from the Madrid Housing and Land Agency (EMVS).

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 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 30 March 2009 the Director General of Execution and Supervision of Building Policies ordered the occupant of the house where the applicants currently live to vacate and demolish it within a period of a month from the serving of the order.

The former occupant of the house did not abide by the order.

On 20 November 2009 the Director General of Execution and Supervision of Building Policies ordered the initiation of demolition works on the house in order to restore urban legality. The decision stated that the house had been set up on non-buildable land. An amount of EUR 9,491.55 was provisionally requested from the occupant as charges for the demolition.

During late 2009 the applicants moved into the house. They were not informed by the former occupant that an eviction and demolition order was pending on the house.

On 4 January 2010 the applicants were officially registered by the local administration in the population registry of Madrid City as residents in 118 ‑ F Sector 4 of the Cañada Real Galiana .

On 13 May 2010 the eviction and demolition order was advertised on the regional official journal of Madrid. The advertisement was directed against the former occupant of the applicant ’ s house. The administration apparently had tried to serve the order on her but to no avail. The advertisement stated that the order could be appealed against within two months before the administrative courts or within a month before the General Coordinator of Urban Policies. The order was not appealed against.

The applicants were unaware of this order and of its publication in the official journal.

On 27 December 2010 the applicants received an order dated 14 December 2010 whereby they were invited to immediately vacate their home. The order expressly stated that it could not be appealed against insofar as it was a mere notification which reproduced a final decision.

On 30 March 2011 regional Law 2/2011 of 15 March 2011 on the Cañada Real Galiana entered into force (see above).

On 13 January 2012 the Madrid local administration sought judicial authorisation from the Madrid administrative judge no. 10 to enter into the applicants ’ home so as to enforce the decisions of 30 March 2009 and 20 November 2009, which had become final. The local administration cited in its request a notification of the demolition order that had been apparently served on the first applicant on 17 November 2010.

On 23 February 2012 the Madrid administrative judge no. 10 served on the first applicant the city council ’ s request for authorisation to enter into his home. The first applicant was then in a position to oppose the said request.

On 21 May 2012 the first applicant argued before the judge that the massive occupation of the Cañada Real Galiana had been tolerated by the administration for decades; that regional Law 2/2011 had set out a specific procedure with a view to providing a global solution to all issues related to land occupation in the area; that the exclusion from that procedure of occupants through the demolition of their houses would constitute a discrimination prohibited by Article 14 of the Spanish Constitution, and that the European Court of Human Rights had concluded in a similar case to theirs, namely Yordanova and Others v. Bulgaria (no. 25446/06, 24 April 2012 ), that Article 8 of the Convention prevented forced evictions in settlements tolerated for decades, without a prior examination by the domestic authorities of alternative measures. He further argued that he had insistently sought social housing for his family, but to no avail, that he had a minor daugther who was attending school in a nearby school with satisfactory results, that the family ’ s monthly income was EUR 826 and that he had been served with an order to vacate the house on 17 November 2010, when it was already too late to challenge the eviction and demolition order.

On 1 June 2012 the judge ordered the local administration to supply him with the entire background of the decision of 30 March 2009.

On 19 July 2012 the first applicant further argued that there had been a lack of diligence on the part of the administration in the identification of the house to be demolished and reiterated his arguments of 21 May 2012.

On 27 July 2012 the Madrid administrative judge no. 10 authorised the entry into the applicants ’ home. The judge first stated that his 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 ’ home was an adequate and proportionate measure to enforce the administrative decision. The judge noted that the first applicant had been served with the decision of 20 November 2009 on 17 November 2010, that he had failed to appeal against it, that he had been given thirty days to comply voluntarily with the eviction and demolition order and that subsequently the administration had sought judicial authorisation to enter into the applicants ’ house to forcedly proceed to the demolition. The judge held that the fact that the administrative proceedings had been initially brought against the former occupant of the house had no influence in the present proceedings, the first applicant being a surrogate in the rights and duties of the former occupant. 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 a proportionate means of enforcement. In the operative part of his decision, the judge warned the authorities that the applicants ’ eviction should be conducted in such a way that the occupants ’ reputation was not compromised and in any case with due respect to their privacy. The decision was served on 4 September 2012.

On 5 October 2012 the first applicant sought leave to appeal before the Madrid High Court of Justice from the administrative judge no. 10. He argued that despite the references to proportionality in the judge ’ s decision, the judge had failed to carry out any assessment of this kind. He further requested that the authorisation to enter into his home should be suspended until a decision on appeal was delivered in so far as its immediate enforcement would provoke irreparable harm for him and his family, that house being their only shelter and they having had requested unsuccessfully social housing from the regional administration since 2006.

On 5 November 2012, the administrative judge no. 10 declared the appeal admissible but rejected the suspension of the authorisation to enter into the applicants ’ home.

B. Relevant domestic law

The relevant provisions of the Spanish Constitution read as follows:

Article 15

“Everyone has the right to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment. ... ”

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 3 of the Convention that the enforcement of the eviction and demolition order of their only home would constitute degrading treatment insofar as it would put them at a great risk of homelessness and social exclusion, particularly having regard to the fact that they are long-term unemployed and receive low subsidies. They emphasise that this would constitute a violent and traumatic experience for the child who might risk being separated from her parents.

The applicants complain under Article 8 of the Convention that the administrative decision to evict and demolish their home constitutes a violation of their rights to private and family life and to respect for their home. They refer to Bensaid v. the United Kingdom (no. 44599/98, § 46, ECHR 2001 ‑ I) and Yordanova and Others, cited above . The applicants argue that they were not duly informed of the eviction and demolition proceedings and that, therefore, they were prevented from properly defending their interests.

The applicants complain under Article 13 of the Convention in conjunction with Articles 3 and 8 that there is no effective remedy in domestic law to prevent the entry into one ’ s home within the framework of eviction and demolition proceedings insofar as the appeal does not have suspensive effect.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Would the enforcement of the eviction and demolition order against the applicants constitute treatment in breach of Article 3 of the Convention?

3. Would 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?

4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?

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

The parties are requested to inform the Court of any further development in the domestic proceedings.