March 21, 2025
by Lize R. Glas
On 6 February 2025, the Court delivered the judgment Caldarar and Others v. Poland, concerning the demolition of a Roma encampment. The Polish Nomada Association for Multicultural Integration (‘Nomada’) welcomed the judgment as a ‘landmark ruling from Strasbourg’. The European Roma Rights Centre (‘ERRC’) issued a press release entitled ‘European Court Victory for Roma Evicted from Wrocław Camp in 2015’. Understandably, the two organisations welcomed the judgment in these terms, despite the fact that it was handed down almost ten years after the demolition. Indeed, the Court emphasised the importance of the participation of those affected by a demolition order in the procedure leading up to the demolition, and of the authorities analysing the proportionality of the order, as it has previously done under Article 8. In Caldarar and Others, the Court further emphasised that participation and proportionality are important, irrespective of whether those affected by a demolition order were parties to the procedure.
Nevertheless, I will make two somewhat critical observations about the Court’s reasoning on the merits: one about its approach to the applicants’ conduct under Article 8, and one about its lack of engagement with Article 14. The Court’s approach to the admissibility of the case also warrants two observations, given that it did not require a preventive remedy and due to its surprising approach to the requirement of exhaustion of domestic remedies.
The applicants are five Romanian families of Roma origin who occupied makeshift dwellings in Wrocław (Poland). On 7 May 2013, they were served with administrative orders requiring them to vacate and clear the property within two weeks. They failed to do so. Twenty days later, the District Inspector of Construction Supervision (‘district inspector’) conducted a site visit and concluded that the dwellings were uninhabitable. Separate administrative proceedings were then initiated for each dwelling and so-called investors (those who had carried out the construction) received formal notices of each procedural step. In September, the district inspector issued separate decisions authorising the demolition of the dwellings on the grounds that they had been built illegally and in contravention of construction and safety standards. The Regional Inspector of Construction Supervision (‘regional inspector’) confirmed these decisions, which were addressed to the Municipality of Wrocław as owner of the land. On two dates in August 2014, fires destroyed four dwellings. The district inspector visited the site on two subsequent dates and found that one dwelling had survived the fires, that three new dwellings had been built and that the dwellings were uninhabitable.
In May 2015, the same inspector issued three administrative decisions ordering the municipality to demolish the dwellings. Although the municipality initially appealed these and the previous decisions, it demolished the dwellings on 22 July 2015. The applicants stated that they were unaware of the demolition plans and were not present during the demolition. They retrieved very few of their personal belongings and their animals had been taken to animal shelters. Later that month, the regional inspector, acting as appellate authority, ruled that the decisions of May 2015 were not unlawful or against the public interest. This decision was served on the municipality, a municipal board and the district inspector.
The Court dealt with three admissibility issues. First, as regards its jurisdiction ratione materiae, it concluded that the site was not a ‘home’ within the meaning of Article 8. However, taking into account the applicants’ community lifestyle, the demolition had ‘serious repercussions on their lifestyle and social and family ties’ (para 116) and thus on their private and family life under Article 8, which also makes Article 14 applicable. Second, the Court ruled that the applicants had victim status under Article 34 even though they had no legal title to the land or property, based both on the fact that the concept of ‘victim’ has an autonomous meaning and on its reasoning in relation to its jurisdiction ratione materiae.
The third admissibility issue, concerning the requirement to exhaust domestic remedies, became an issue because the applicants had not been a party to the proceedings leading up to the demolition and had not been formally informed of them. The main point of contention was whether the applicants should have exhausted certain compensatory remedies. The Code of Administrative Procedures (CAP) provides for the possibility of reopening administrative proceedings ‘where a person with an interest in the proceedings has not participated in them through no fault of their own ’ (para 137). The reopening of the procedure can lead to a declaration that the decision was unlawful. The CAP also allows an administrative decision to be annulled, for example, because it was taken in flagrant breach of the law. When one obtains one of these declarations, one can claim compensation under the Civil Code. The Court rejected these remedies mainly because the Government had not provided ‘any case-law confirming the availability of the reopening of administrative proceedings’ or, and more importantly, ‘any case-law confirming that the applicants could have invoked the direct applicability of the [ECHR] in the domestic legal order and obtain the effective protection of their interests recognised under the Convention’ (para 138).
Regarding the necessity of the interference with Article 8, the Court concluded that, since the applicants were not notified of the demolition, they could not participate in the proceedings in order to seek a proportionality assessment by the (judicial) authorities. As regards the possibility of mitigating the effects of the demolition order, the Court noted that the applicants had not received any formal notification of the demolition order. Consequently, the demolition came as a surprise and caused anxiety. Moreover, the manner in which the demolition was carried out meant that the applicants could not save their personal belongings. Regarding the possibility of relocating the applicants, the Court found that they had received both timely offers of alternative and adequate accommodation and general assistance. Overall, the decision-making process violated Article 8 and no separate issues arose under Article 14.
The third admissibility issue was probably the most controversial among the judges, as the joint dissenting opinion of Judges Wojtyczek and Poláčková is entirely devoted to the requirement to exhaust domestic remedies. While the Court focuses on the relatively narrow point of the Government’s failure to present relevant case-law, the dissenters make a more abstract point: the subsidiarity principle required the applicants to seek redress at the domestic level first. Moreover, and in contrast to the government, the dissenters attempted to provide a ‘reasonable explanation for the absence of case-law’, pointing out that situations similar to those of the applicants ‘do not occur frequently and most probably have not yet been brought to the attention of the courts’ (para 2). In so doing, they downplay the importance of the well-known distribution of the burden of proof under Article 35 (1), which, as the Court has explained, places on the Government claiming non-exhaustion the burden of satisfying ‘the Court that the remedy was an effective one, available in theory and in practice at the relevant time’. I will now make two more specific observations on the Court’s approach to the exhaustion of domestic remedies.
In the context of certain rights, a remedy is effective only if it has a suspensive effect, for example, where the removal of the applicant allegedly exposes them to a risk of treatment contrary to Article 3. As the Court seriously considered whether an effective compensatory remedy was available in Caldarar and Others, it did not accept the applicants’ argument that the remedy had to be suspensive rather than compensatory in nature. The ERRC, as a third-party intervener, provided the Court with reasons for this argument of the applicant. One reason is the vulnerability of the applicants. Other possible reasons, based on the Court’s own case-law, as the ERRC pointed out, are that the demolition was not foreseeable and that there was not proper judicial review of demolition order. Although some judicial review took place, the domestic courts did not ‘properly’ engage with any Convention complaint, as the applicants were not a parties to the proceedings. Moreover, the Court was unable to determine the extent of the judicial review due to a lack of documentation. It did not receive copies of the appeals against the district inspector’s 2013 decisions authorising the demolition of the dwellings, and the entity that appealed against the regional inspector’s decision upholding these decisions remained unknown.
The Court observed that ‘the Government failed to present any case-law confirming that the applicants could have invoked the direct applicability of the [ECHR] in the domestic legal order’ and that they could have obtained a ‘declaration that the administrative decision was null and void because it was not Convention-compliant’ (para 138). This line of reasoning is noteworthy, because it implies that a remedy is effective only if the applicants can raise their Convention complaints as Convention complaints,and not just in substance. It also implies that a remedy is effective only if the domestic courts can find that the relevant decision is invalid because it is not Convention-compliant, not just that it is invalid because it is contrary to domestic (fundamental rights) law. In most other cases, the Court requires the applicants to raise a Convention complaint ‘at least in substance’, meaning that they do not have to rely on Convention rights when exhausting domestic remedies, but must raise ‘arguments to the same or like effect on the basis of domestic law’.
The Court explained that, in dealing with an Article 8 demolition case, it must answer the question ‘whether the authorities mitigated the effects’ of the demolition, including by possibly relocating the applicants beforehand’ (para 154). The Court’s answer to this question was that the applicants ‘received timely offers of alternative and apparently adequate accommodation’. It added that ‘the applicants’ reluctance to take advantage of those offers contributed to their homelessness immediately after the demolition’ (para 156). This observation about the applicants’ conduct is noteworthy because the Court also found that the inaction and nature of the authorities’ warnings ‘could have been expected to result, as indeed it did, in the applicants disregarding those warnings as not serious’, making the demolition ‘something of a surprise’ (para 155). The written statements submitted to the Court by a Nomada worker who witnessed the demolition confirm that the applicants did not expect the demolition to take place. It is not logical to attribute the applicants’ homelessness (in part) to their own behaviour while at the same time finding that they could not have foreseen the demolition and thus their homelessness. The emphasis on the applicants’ conduct may have had a negative impact on the amount of just satisfaction ordered for each affected household under Article 41 (5000 euros), although this cannot be established with certainty.
My second observation is prompted by a recent Strasbourg Observers blog post by Alan Greene on, what he calls, ‘allegation-picking’ by the Court. Greene defines this phenomenon as deciding ‘to adjudicate upon one or some of the alleged violations of the Convention and, having decided on these grounds, refuses to adjudicate upon other allegations raised’. As he explains, allegation picking is ‘particularly common’ in Article 14 cases because the right not to be discriminated against only comes into play when an allegation falls within the ambit of another right. If the Court concludes that this other right has been violated, it may declare that it does not need to deal with the Article 14 aspect of the case. This is what happened in Caldarar and Others: according to the Court, no separate issues arose under Article 14 because it gave ‘consideration to the applicants’ status as members of a vulnerable minority in the context of proportionality under Article 8’ (para 159).
I doubt whether the Court has really considered this. Consequently, the reason given for not assessing the case under Article 14 is not convincing. Before assessing the proportionality of the demolition, the Court noted that it ‘has recognised that the vulnerable position of Roma people as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases’. The reiteration of these general considerations (see also, for example, here and here) does not amount to considering the applicants’ status as members of a vulnerable minority in casu. In assessing the proportionality of the demolition, the only part of the Court’s reasoning that possibly hints at the vulnerable position of the applicants are the words in bold: ‘As a result, the demolition came as something of a surprise to the applicants, causing them anxiety and a further feeling of marginalisation’ (para 155, italics LRG). However, these words do not indicate that the applicants’ vulnerability was taken into account or that special consideration was given to their needs and lifestyle. The Court does not assess whether the authorities took account of their vulnerability in the process leading up to the demolition, nor whether the alternative accommodation that was offered was suitable for their lifestyle. Instead, the Court merely stated that this accommodation was ‘apparently adequate’ (para 156), referring only to the Government’s submissions.
Irrespective of whether the Court paid sufficient attention to the vulnerability of the applicants in its proportionality analysis under Article 8, it could be argued that the Court should have addressed the issue of discrimination, as this is a separate issue from the violation of the right to private and family life. This is what the ERRC argued in its third-party intervention when it stated that forced evictions of Roma ‘are “particularly destructive of fundamental rights” […] and must take into account the broader situation of Romani people in the country where they occur and in Europe in general’. In Poland, according to the Committee on the Elimination of Racial Discrimination, this broader situation is that of ‘continuing negative stereotypes and discrimination’ against the Roma community. The ERRC noted that ‘[f]orcibly evicting Roma from their homes taps into deep-rooted, long-standing, vicious racist stereotypes about Roma’. More generally, the OHCHR and UN-Habitat stated that those ‘at heightened risk of forced eviction are often placed in such situations on account of discrimination’. By not addressing Article 14, the Court largely ignores this context. The Court’s allegation-picking can probably be explained by reasons of ‘the economy of the judgment’ (see also here), in particular because proving indirect discrimination is a complex factual issue. The ERRC suggested that this issue could be addressed by accepting that, if ‘a particular eviction only affects Roma, the notion of indirect discrimination is automatically applicable and the burden of proof shifts to the State’. This proposal is based on the Court’s findings in Oršuš and Others v. Croatia, in which it accepted that indirect discrimination does not have to be proved by statistical evidence, but can be presumed if a particular measure is applied only to Roma.
The judgment in Caldarar and Others v. Poland can be seen as a win for Roma rights, as the Court underscored the importance of participation and proportionality in Article 8 demolition cases, even when those who are affected are not parties to the domestic proceedings. However, this is not a win in every respect. In the specific context of this case, it is regrettable that the Court attributed the homelessness of the applicants to their own behaviour, even though they could not have foreseen that they would be made homeless. According to the Court itself, the demolition must have come as a surprise. It is also questionable whether the Court took into account the applicants’ status as members of a vulnerable minority, as it claims to have done. More generally, the Court did not go so far as to require that the remedy in a demolition case brought by Roma must be suspensive in nature. In addition, by not dealing with the case under Article 14, the Court ignored the broader societal context of discrimination against the Roma.
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