Communicated on 8 September 2017
FIRST SECTION
Application no. 6142/16
Traian CALDARAR and Others
against Poland
lodged on 22 January 2016
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are Romanian nationals of Roma origin. They are five families comprising nine adults and seven children. They are represented before the Court by Ms S. Gregorczyk-Abram, a lawyer practising in Warsaw, and by Ms D. Pudzianowska from the Helsinki Foundation for Human Rights.
On an unspecified date, presumably in 2009, the applicants started living on land where no construction was permitted, in the city of Wrocław. The land in question is owned by Wrocław Commune (gmina).
At some time, presumably between September 2013 and November 2014, the applicants built, without planning permission, five structures made of wood and various recycled plastic and fabric materials. Four of the structures served as houses. The fifth was used for storing power generators and fuel.
On 18 May 2015 the District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowalnego) issued three administrative decisions ordering Wrocław Commune to demolish the structures on the grounds that they had been built without planning permission. The decisions in question stated that an inspection of the site in question had been carried out by the administrative authority on 27 February 2015. The inspection had revealed that the four structures with no foundations, which were not sturdy and were easily inflammable, and which posed security risks and were not connected to the sewage system, were inhabited by persons of Roma origin and Romanian nationality. It was also noted that none of the residents had been present at the site during the inspection and that it had been impossible to find the investor responsible for the site. Lastly, it was noted that the demolition order could not be addressed to the residents, because they were not the owners of the land in question, and hence not a party to the administrative proceedings.
The parties could appeal against these decisions within 14 days.
On 29 May 2015, Wrocław Commune appealed. On 3 June 2015 a similar appeal was lodged by the Board of Municipal Greenland (Zarząd Zieleni Miejskiej) and by the land’s manager (zarządca). On 16 July 2015 both institutions withdrew their appeals.
On 22 July 2015 Wrocław Commune demolished the applicants’ dwellings.
The applicants submitted that they had not been aware of the demolition plans and that they had not been at the site when the demolition had taken place. The applicants’ belongings stored on the site, such as household appliances, electricity generators, heaters, furniture, rugs, kitchen utensils, bicycles, spare parts for cars, clothes, toys, documents, medicines and personal items had been either destroyed or thrown away at a nearby dump. The applicants had not been informed of the whereabouts of their movable property and had been able to retrieve hardly anything.
On 29 July 2015 the Regional Inspector of Construction Supervision (Okręgowy Inspektor Nadzoru Budowalnego) issued three decisions, discontinuing the appellate proceedings. The authority concurred with the findings of fact and law made by the first-instance authority and, additionally, observed that in view of the local development plan and the technical details of the sheds, there had been no possibility to have the unauthorised constructions in question legalised.
The possibility of appeal to the Regional Administrative Court (Sąd Okręgowy) was available to the parties, within 30 days.
Immediately after the demolition in question, the applicants lived on the street. They later erected a number of structures on another site in the city, without planning permission, and they are currently living there in conditions which, as they submit, do not ensure their safety.
COMPLAINTS
The applicants complain that the demolition of their homes was in breach of Article 8 of the Convention alone and in conjunction with Article 14 of the Convention.
To this end, they argue that the demolition was unlawful, firstly, in that they had not been given standing in the administrative proceedings leading to it and, secondly, because the valid demolition order had been issued only by the second-instance authority on 29 July 2015. The applicants also claim that the interference was unjustified and disproportionate. The families belong to a vulnerable group which is marginalised and excluded from society, even though they are EU citizens. Living in extreme poverty makes it impossible for the Romanian Roma people to comply with the Polish income requirement for residence and social security. They are discriminated against on the job and housing markets. In spite of this, the Polish authorities had not considered the risk that, as a result of the demolition, the applicants would become homeless, and they had not offered the applicants any opportunity to seek social housing. The applicants also submit that tolerating their current residence on a similar site in Wrocław shows that the real goal of the demolition was not to ensure their safety. They also stress that they had never been served with a demolition order so could not prepare for their eviction.
The applicants also complain that, in view of the above elements, the unannounced demolition of their homes and the destruction of their movable property was discriminatory and constituted a form of persecution. To this end, the applicants stress that the site’s residents included young children, elderly people and persons with disabilities. They received no medical attention, care or accommodation following the destruction of their homes.
The applicants also complain of a breach of Article 13 of the Convention in that the applicable law, even in the event that the applicants had been granted the status of a party to the administrative proceedings, does not oblige the authorities to carry out a proportionality analysis when deciding on the demolition of illegally-erected houses.
Lastly, the applicants complain that the demolition and the manner in which it was carried out caused them suffering which amounted to degrading and inhuman treatment in breach of Article 3 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints below, as required by Article 13 of the Convention?
3. Was there a breach of Article 3 and/or Article 8 of the Convention on account of the demolition of the structures inhabited by the applicants?
4. In particular, as regards Article 8, was the demolition of the structures in question in accordance with the law and necessary in terms of Article 8 § 2 of the Convention, and were the applicants able to have the proportionality of the measure reviewed by an independent tribunal in the light of the relevant principles under Article 8 of the Convention?
5. As regards the demolition of the applicants’ dwellings and the disposal of their movable property, was there a violation of Article 1 of Protocol No. 1?
6. Were the applicants discriminated against on account of their Roma ethnicity in breach of Article 14 of the Convention, read in conjunction with Article 3 and/or 8 of the Convention and Article 1 of Protocol No. 1 to the Convention?
7. The parties are invited to make their comments with reference to, among others, the cases of McCann v. the United Kingdom, no.19009/04, ECHR 2008; Ćosić v. Croatia, no. 28261/06, 15 January 2009; and Brežec v. Croatia, no. 7177/10, 18 July 2013; Yordanova and Others v. Bulgaria, no. 25446/06, 24 April 2012; Bagdonavicius and Others v. Russia, no. 19841/06, 11 October 2016; Ivanova and Cherkezov v. Bulgaria, no. 46577/15, 21 April 2016; Winterstein and Others v. France, no. 27013/07, 17 October 2013 and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 108-114, ECHR 2005‑VII (extracts)).
Appendix
No.
Firstname LASTNAME
Birth date
Traian CALDARAR
20/06/1966
Darius CALDARAR
01/10/2008
Maria CALDARAR
24/07/1970
Princu CALDARAR
15/10/2010
Robert CALDARAR
05/06/1993
Rusalina CALDARAR
10/10/1995
Teresa CALDARAR
08/08/2000
Traian CALDARAR
26/09/1963
Traian-Nicolae CALDARAR
14/08/1990
Armando-Versatu LACATUS
26/10/2012
Gabriel LACATUS
20/04/2011
Joanna LACATUS
23/07/1993
Marcela LACATUS
01/09/1965
Tomasz LACATUS
22/09/2013
Zoltan LACATUS
21/05/1994
Sabrina STOICA
11/01/2001
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