A Procedural Shield in the Fight against Homelessness: Guaranteeing Urgent Judicial Protection Following the Closure of a Municipal Shelter in Badalona

Summary

This article explores the legal response to the abrupt closure of a municipal shelter in Badalona, Spain, in April 2024, which led to the eviction of dozens of homeless people. Through the strategic use of summary court proceedings for the protection of fundamental rights, the legal team representing four affected individuals obtained injunctions requiring the municipality to provide alternative accommodation. This case highlights the creative legal use of the concept of "via de facto" and the special procedure for the protection of fundamental rights, showing how procedural guarantees allow for the protection of the minimum living standard of housing protection, as the enforceable core of Article 47 of the Spanish Constitution.

Following the incident in Can Bofí Vell, which is described in this piece, note that the Badalona City Council carried out another eviction on 17 December 2025. This eviction involved 400 migrants from an abandoned public school. Once again, no alternative accommodation or housing was provided. The city’s mayor has been the subject of a criminal complaint with the Prosecutor’s Office’s Unit for Hate Crimes and Discrimination regarding this case. The complaint is based on the grounds that the municipality had a legal and material obligation to provide a basic public service to people in situations of extreme vulnerability, and that failing to do so was discriminatory on the basis of origin and social condition. These actions are being investigated for potentially constituting offences including denial of a public service on discriminatory grounds, a hate crime due to tolerance of discourse linking a racialised group to serious criminality, administrative misconduct, and disobedience of a court order, as the eviction was carried out despite the court ruling that it was conditional upon the provision of alternative housing, which ultimately did not materialise.

Communication UN Special Rapporteur. Ref.: UA ESP 3/2025 (December 12, 2025)

A legal battle over the right to housing is unfolding in Badalona, with potential repercussions nationwide.

The facts

In April 2024, Badalona City Council verbally announced the immediate closure of the Can Bofí Vell municipal shelter, without any written resolution or formalities, forcing more than 40 residents to return to the streets without prior notice. The affected residents had signed stay agreements with the City Council, which granted them access to accommodation and individualised care plans within the municipal social services framework.

Faced with the lack of housing alternatives and a fair process, the Noves Vies Association provided support and legal representation to four of the evicted residents. The cases are characterised by extreme vulnerability, including disabilities, chronic illnesses, and social exclusion. A first round of administrative requests to access relevant files and corresponding explanations yielded only partial responses and no formal resolution or justification for the shelter's closure. When the City Council, in response to a second request, acknowledged and reiterated that no written action had been issued and admitted to having no housing resources, legal action was initiated.

Strategy and legal framework

Choosing the right legal path

Before initiating the judicial process, three legal pathways were carefully evaluated to determine the most appropriate strategy to defend the rights of the evicted residents from the shelter. Each option offered distinct advantages and limitations.

A first possibility was to file a lawsuit for administrative inaction, as a legally sound way to demand compliance with positive obligations already established in the legal code. Indeed, Article 47 of the Spanish Constitution, reinforced by Article 10.2 of the Spanish Constitution and the domestic adoption of international treaties (Article 11.1 of the ICESCR; Article 34 of the European Charter of Fundamental Rights (EUCFR); Article 31 of the European Social Charter (Revised), imposes on public authorities a duty to effectively provide access to dignified housing. This enforceability does not translate into a "right to a specific house," but rather into the right to have the policies and instruments provided by law to make such access a reality, activated and applied without unreasonable delay. However, the practical translation of this right has been and continues to be controversial—both regarding its subjective scope and the appropriate mechanisms for its protection. Nevertheless, there are formulas that have come close to formulating a kind of enforceability in access to housing as a right. In Catalonia, the regulatory framework[1] specifies enforceable operational obligations against administrative inaction; and in the Basque Country, Housing Law 3/2015 recognised, for the first time in Spain, specific enforcement mechanisms (a subjective right to housing or, alternatively, to rental support), which offer a useful comparative standard for guiding effective solutions.

Added to the above is the recent shift in jurisprudence, marked by STC 79/2024, by which Article 47 of the Spanish Constitution can no longer be interpreted as a mere programmatic ornament: the Constitutional Court has recognised the nature of a constitutional right with basic state conditions and positive obligations of effectiveness for the Administrations, which raises the bar for judicial oversight compared to passivity. All of this allows inaction to be considered not as a challenge to a discretionary policy, but as a failure to comply with specific obligations to activate access mechanisms, even with respect to the minimum expression of the right to housing (for example, shelters or any form of temporary and/or emergency accommodation).

It is true that the inactivity route generally offers less precautionary flexibility than the fundamental rights procedure, which is why this ordinary procedural avenue was ruled out. The reason is clear: what was at stake was not only the Administration's inaction, but also the immediate violation of fundamental rights due to the eviction from the residential resource without alternative housing, all without following a procedure with the proper guarantees.

A second option was to challenge the administration's actions under the legal concept of "via de facto," which allows the courts to review de facto administrative acts carried out without legal basis or formal procedure. This doctrine was particularly pertinent in this case: the municipal body had evicted people from a shelter without issuing any formal resolution, leaving them in a situation of legal defencelessness. Spanish jurisprudence recognises this concept precisely to protect people against arbitrary action by the state. The strength of this approach lies in its clarity: the absence of an act constitutes a violation of the law in itself. However, the difficulty of framing this claim around the violation of fundamental rights or the procurement of urgent precautionary measures was a weakness. It would likely be perceived as a technical administrative challenge, lacking the regulatory depth necessary to generate solid precautionary protection.

The third way, and ultimately chosen, was the summary proceedings for the protection of fundamental rights, provided for in Articles 114 et seq. of the Law on Contentious-Administrative Jurisdiction (LJCA). This channel allowed us to denounce that the actions and omissions of the Badalona City Council had violated fundamental rights protected by the Constitution, particularly dignity (Article 10 of the Spanish Constitution), physical and moral integrity (Article 15 of the Spanish Constitution), and, most notably, effective judicial protection (Article 24 of the Spanish Constitution). The approach was clear: rather than discussing the lack of accommodation as a service, the aim was to demonstrate that the absence of a procedure and formal resolution deprived them of procedural guarantees and prevented a swift defence of their rights.

This summary proceeding thus became a specific tool for responding to a “de facto” administrative procedure, the ultimate core of which was the demand that the Administration must act to guarantee the minimum rights of citizens, which can increasingly include the right to housing. Thus, the fundamental rights procedure made it possible to focus on the urgency and dignity of the affected person, as well as the lack of guarantees in administrative action, while the action for inactivity remains a complementary channel intended to reinforce the idea that there is a minimum procedural and performance requirement that must be met and cannot be left unfulfilled by the Administration's failure to act.

Of particular relevance, this approach made it possible to request urgent precautionary measures and integrate European and international standards[2] that, pursuant to arts. 10.2 and 96 of the Spanish Constitution, inform domestic interpretation. This multi-level approach elevates the administrative duty of due diligence towards vulnerable groups. Essentially, by affirming that the Administration's failure to act had violated rights recognised both nationally and supranationally, the strategy acquired legal solidity and a cross-cutting regulatory basis. In this way, precautionary protection not only protects procedural guarantees (art. 24 of the Spanish Constitution) but also operates as a lever to prevent the frustration of the minimum content of the right to dignified housing: that is, the availability of effective measures (alternative accommodation, referral to emergency assistance centres, assistance) while the merits are decided.

Ultimately, this strategy offered two key advantages. Firstly, it allowed for urgent precautionary measures to be requested without having to wait for a final judgment. Secondly, it is a rights-based approach that prevents the minimum living standards of housing protection from being stripped of their meaning during the process.

The strategic line was decided upon, considering that it offered the greatest likelihood of immediate guarantees and an effective outcome. However, this does not exhaust the debate: further exploration is needed and, above all, creativity at the legal and judicial levels to find formulas that allow us to demand the effectiveness—or at least the basic threshold—of the right to housing. As long as public authorities fail to reach clear consensus to define this right in a way that guarantees it, and as long as ambitious and responsible public policies for social housing or sufficient aid are not implemented, strategic litigation becomes an essential tool. Not only to protect specific individuals facing residential exclusion, but also to reclaim the justiciable dimension of the right to housing and pave the way for its full recognition as a truly enforceable right in practice. In this sense, legal and procedural creativity not only serves to seek immediate solutions, but also to progressively broaden the horizons of those who administer justice. Through specific cases, the courts are confronted with the need to critically examine the actions (or inaction) of public authorities, even when there remains reluctance to judicially recognise certain obligations to provide services. Each step in this area contributes to consolidate the idea that the right to housing is not merely an inspiring principle, but a right with enforceable content.

Precautionary measures granted

In an order issued at the end of 2024, the court granted the requested precautionary measures, obliging the Badalona City Council to immediately provide an alternative accommodation solution to the four plaintiffs. The court argued that the applicants had been deprived of a municipal shelter without a formal resolution, and considered that, indicatively, this action constituted a violation of their right to dignity and physical integrity (arts. 10 and 15 CE). Additionally, the court recognised that the Administration had assumed responsibility for their care by virtue of prior agreements and individualised care plans and highlighted the appearance of good law (fumus boni iuris), supported both by the binding nature of these agreements as well as by the administration's own inaction. Similarly, it considered that the urgency (periculum in mora) in adopting the precautionary measures was evident, given the immediate risk to the applicants' health and their exposure to winter conditions.

It is worth highlighting the fundamental role played by public institutions in recognising the seriousness of the situation. The Prosecutor's Office supported the request for precautionary measures for the plaintiffs, emphasising the violation of procedural guarantees and the real risk of irreparable harm. Furthermore, the references in the proceedings to the reports of the Catalan Ombudsman (Síndic de Greuges) further reinforced this argument. These reports had previously warned of the legal loophole and lack of safeguards in the closure of municipal shelters, especially when they affected vulnerable populations. By invoking the Ombudsman's findings, the legal team managed to link individual harm to a broader pattern of administrative opacity and institutional negligence, thus underscoring the systemic relevance of the case. All of this also exposes the importance of having specialised public institutions sensitive to current social needs, as well as organisations with independent control, impartiality, and sufficiently responsive oversight bodies. Although their recommendations lack binding force, they are essential to strengthen citizens' demands, giving them legitimacy and weight in front of the Administration. In a context in which the latter acts as an apparatus with enormous decision-making power, institutional counterweights capable of challenging its actions and ensuring that people's rights are not left without effective protection are essential.

Greater legal and social transcendence

The injunction not only resolved a specific situation of residential exclusion but also opened a space for reflection with greater legal and social transcendence. This case demonstrates that, even in contexts where the right to housing is configured programmatically or with little regulatory depth, procedural law can become a lever for generating enforceable obligations and offering effective protection. The procedural strategy adopted highlighted that the debate may rest not only on the right of material access to housing, but also on guaranteeing the right to effective judicial protection against administrative actions that, due to their arbitrariness and lack of formalisation, leave people defenceless. The "de facto" approach, understood as the possibility of impugning arbitrary actions by the Administration even if they do not materialise in a formal act, can be a useful tool to explore in litigation regarding homelessness.

Finally, the case underscores the importance of invoking fundamental rights in the housing sector, where dignity, physical and moral integrity, and effective judicial protection converge. In this regard, the contribution of social and medical reports documenting vulnerability proves decisive: not only does it reinforce the urgency of the precautionary measure, but it also places the judicial debate in its true dimension: that of guaranteeing a minimum living standard of housing protection against exclusion.

Conclusion: Shelter as a procedure

Experience shows that there is a core requirement: the duty of public authorities to activate, without delay and as a priority, the legal instruments that can give effect to art. 47 of the Spanish Constitution. The protection of fundamental rights offers swift precautionary measures: the action for inactivity, judicial oversight of omissions, and the international and statutory framework, regulatory density, and guaranteed horizon.

The creative use of the “de facto” approach, the affirmation of municipal obligations arising from social services regulations, and the successful invocation of fundamental rights, made urgent judicial intervention possible. This experience demonstrates that strategic litigation not only protects specific individuals but also paves the way for broadening judicial interpretation and consolidating the idea that the right to housing contains an enforceable minimum. At a minimum, the legality of administrative action must be guaranteed, to the extent that it complies with the assumed obligations and respects established procedures, which are the first guarantee of citizens against public authorities. It is in this sense that the contentious-administrative jurisdiction can and must guarantee this vital minimum, while we remain vigilant that public policy makes the qualitative leap of placing housing at the centre of priorities and providing it with sufficient resources.