Relevance of the Right to Housing in Europe and Poland

The problem of "financialization" is a threat awaiting the largest Polish cities, both due to the accumulation of apartments as capital investment, and for the needs of tourism. In the near future, this threat could become as serious a problem as the infamous re-privatization, warn Maria J. Aldanas and Jakub Wilczek of FEANTSA.

Homelessness as a violation of human rights

FEANTSA understands homelessness as a situation that deprives individuals of fundamental rights, particularly the right to housing. This understanding of housing as a human right implies a shift from political choice to legal obligation. This moves the focus in supporting homeless people from a charity approach of providing emergency shelter and other services, towards a rights approach, namely the need for States to respect, fulfil, and protect the rights to which they have agreed under international human rights law. Such an understanding also helps shift the view of homeless people from beneficiaries of public and charitable services to rights holders, whose situation is evidence of the shortcomings of their government in achieving the full realisation of their citizens’ social rights.

The COVID-19 pandemic has demonstrated that access to adequate housing is necessary for the prevention of the disease and its spread. The pandemic has also caused housing insecurity for many households and may be contributing to their homelessness.

EU Member States have made the commitment to ensure the right to adequate housing for all as part of both the 2030 Sustainable Development Goals and the New Urban Agenda. In March 2021, the European Commission announced the establishment of a European Platform on Combating Homelessness, within the European Pillar of Social Rights Action Plan.[1] Members of the already operating platform (including Poland) have committed in the so-called Lisbon Declaration to work together towards ending  homelessness by 2030.

Existing legal provisions for the right to housing

The right to housing is defined in international law as the right to live in a home in peace, security, and dignity, and includes security of tenure, availability of services, affordability, adequate physical living conditions, appropriate location, and cultural adequacy.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) ratified by Poland in 1977 is the most important instrument at UN level that enshrines the right to housing as part of the right to an adequate standard of living. Article 11(1) stipulates: “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing”.

Each Member state commits to the progressive realisation of the rights recognised by the Covenant to the maximum of its available resources and by all appropriate means.

In the system of the Council of Europe, there are two different conventions: the European Social Charter (ESC) and the European Convention on Human Rights. Although the right to housing has not been explicitly included in the European Convention on Human Rights (ECHR), concrete legal norms included in the ECHR are relevant in the fight against homelessness and housing exclusion such as, for instance, the right to life (Article 2), the prohibition of torture or inhuman or degrading treatment (Article 3), or the right to respect for private and family life (Article 8).

The European Social Charter (ESC) complements the previous convention in the area of economic and social rights. Article 31 of the revised social charter (1996) of the ESC has been vital for FEANTSA as it includes the prevention and reduction of homelessness. Art 31 reads: “With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed:

• to promote access to housing of an adequate standard.
• to prevent and reduce homelessness with a view to its gradual elimination.
• to make the price of housing accessible to those without adequate resources.”

Furthermore, article 16 of the ESC (the right of families to social, legal and economic protection) also includes the right to housing (for families). The notions of adequate housing and forced eviction are identical under Articles 16 and 31 and were established by the European Committee of Social Rights.[2]

Poland ratified the 1961 European Social Charter (1997) accepting 58 of the Charter’s 72 paragraphs. It has signed, but not yet ratified the Revised European Social Charter (2005).[3]

The EU Charter of Fundamental Rights (2009) codified some housing rights into EU law. However, the provisions of the Charter are applicable to the institutions of the Union and to the Member States only when they are implementing EU law. It is also worth noting that when signing the Lisbon Treaty and, thus adopting the Charter of Fundamental Rights, Poland acceded to the so-called British Protocol, which states, that "nothing in Title IV of the Charter creates rights that can be enforced in court". Title IV of the Charter, and more specifically Article 34(3), enshrines the right to housing assistance for those without sufficient resources.

In parallel to the recognition of these rights, the United Nations, the Council of Europe, and the European Union systems have several mechanisms in place to bring cases that can help advance the right to adequate housing. We would like to highlight two of the avenues to advance housing rights:

The first is the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) which has allowed victims of violations of economic, social, or cultural rights to present complaints at international level, alone or as groups of individuals, since 2013. Unfortunately, Poland has not ratified the Optional protocol to the International Covenant on Economic, Social and Cultural Rights that would make it possible to file individual complaints.

The second is the System of Collective Complaints which aims to improve the effective enforcement of social rights guaranteed by the European Social Charter. It allows NGOs such as FEANTSA to lodge Collective Complaints against a State for non-compliance of the State’s law or practice with one of the provisions of the Charter. Importantly, complaints may be submitted without exhaustion of domestic remedies and without the claimant necessarily being a victim of the relevant violation. However, Poland has not signed the Additional Protocol to the European Social Charter, nor the Additional Protocol providing for a system of collective complaints, so the citizens of Poland cannot use these instruments.

In conclusion, the standards of the right to housing in Europe are high, and housing rights advocates should be ambitious in making it a reality at the local level. However, when it comes to the applicability of international and European instruments for lodging complaints against violations, the position of Polish citizens is very weak and they have to rely exclusively on domestic tools, which are unfortunately poor. In particular, Article 75 of the Polish Constitution, included in the section entitled "Economic, social and cultural freedoms and rights", in practice defines only the principles of the state's housing policy, speaking vaguely about "pursuing a policy conducive to satisfying the housing needs of citizens, preventing homelessness and supporting the development of social housing." Thus, the Constitution of the Republic of Poland does not recognise the right to housing, nor does it provide any tools to enforce this right. It is therefore desirable that the non-governmental circles dealing with the housing problems of Polish people clearly and openly demand from the governing authorities the signing and ratification of the above-described conventions of international law as soon as possible.

The financialisation of housing: an obstacle to the effectiveness to guarantee a right to housing

More people are denouncing the "financialisation" of housing as an obstacle to the realisation of the right to housing. "Financialisation of housing" refers to the domination of financial markets and corporations in the housing sector. This manifests itself in large corporations treating the housing stock as a capital investment, which results in elevated prices and the unavailability of housing for the lowest income citizens and, in extreme cases, even for the middle class.

Central to the debate is the contribution of short-term rental platforms such as Airbnb to increased rental prices, particularly in large cities. The increased supply of holiday rentals results in fewer homes being available on the long-term rental market, which makes the latter unaffordable to local residents. The best illustration of these extreme cases are the protests of Barcelona residents against the impact of short-term rental platforms such as Airbnb on the availability and affordability of housing.

Also recently, a referendum took place in Berlin, in which the city's residents voted for the expropriation of about 200,000 to 250,000 flats from corporations. It is worth noting here that the largest corporation operating flats in Berlin (Deutsche Wohnen) had as many as 113,000 flats in its hands. The expropriation initiative aimed to bring buildings owned by large property owners back under public control. It is an attempt to reverse the privatisation of public housing in Berlin over the last 20 years, which is supposed to be responsible for both the surge in large private developers and the increase in rents.

The problem of “financialisation” is, of course, also lurking in the largest Polish cities, both because of the accumulation of flats as capital investments and for reasons of tourism. In the not-too-distant future, it may become as serious as the infamous “reprivatisation,”[4]  the reversal of the nationalisation of real estate after the collapse of the communist regime, resulting in the harassment and eviction of tenants, particularly evident in Warsaw, but also in other major cities, like Krakow or Lodz.

In a 2017 report, the former UN Special Rapporteur Leilani Farha called for structural changes in housing and financial markets and global investment that treat housing as a commodity. One of the key proposals in the report is that states must “reclaim the governance of housing systems from global credit markets”.[5] The disturbing conclusions of the report and the visits of the UN Special Rapporteur on the right to adequate housing were presented in the 2019 film "PUSH", which unfortunately passed without much notice in Poland.[6]

To conclude, it is worth emphasising that, in the absence of a regulatory framework or enforcement mechanisms at the interface between financial markets and housing stock, all financial actors must nevertheless comply with applicable human rights standards.[7] Additionally, the international laws described above can be an effective weapon against “financialisation.” This makes it the fight for their full ratification in Poland all the more worthwhile.

Related articles:

Piotr Olech: Housing as the basic right of a person in homelessness  

Living a law, not a commodity. The importance of the right to live in Europe and Poland