A.M.B. AND OTHERS v. SPAIN - [English Translation] by European Roma Rights Centre "ERRC"
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
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. 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 exclusion, 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. 17. The relevant provisions of the Constitution are as follows: « Everyone has the right to life and to physical and moral integrity (...) » « The home is inviolable. (...) »