CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 février 2025

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padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sC2CA9D1A { width:8.58%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s40060CCF { width:23.12%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sC1A8DD1F { width:30.12%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s8089DF5 { width:20.5%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sCA509AAB { width:17.68%; border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top }   FIRST SECTION CASE OF CALDARAR AND OTHERS v. POLAND (Application no. 6142/16)     JUDGMENT   Art 8 • Private and family life • Enforcement of orders for the demolition of an unlawfully built encampment occupied by the applicants of Roma origin, without ensuring their participation in the proceedings leading to the issuance of the orders or examining the proportionality of those orders • Authorities’ failure to ensure the compliance of the decision-making process with the Convention standards • Lack of safeguards against disproportionate interference   Prepared by the Registry. Does not bind the Court.   STRASBOURG 6 February 2025   FINAL   06/05/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Caldarar and Others v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić , President ,   Alena Poláčková,   Krzysztof Wojtyczek,   Erik Wennerström,   Frédéric Krenc,   Alain Chablais,   Artūrs Kučs , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the application (no.   6142/16) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by sixteen Romanian nationals whose names are listed in the appendix (“the applicants”), on 22   January 2016; the decision to give notice of the application to the Polish Government (“the Government”); the decision that the Government of the applicants’ home State, Romania, be notified of the application under Article 36 § 1 of the Convention and Rule   44 § 1 of the Rules of the Court and the absence on their part of any indication that they wished to intervene; the observations submitted by the Government and the observations in reply submitted by the applicants; the comments submitted by European Roma Rights Centre, which was granted leave to intervene as a third party by the President of the Section; the Government’s objection to having the application examined by a Committee of three judges; Having deliberated in private on 12 November and 3 December 2024, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns the demolition of an unlawfully built encampment occupied by persons of Roma origin, without their being able to participate in the related administrative proceedings. It raises issues under Article 8 and 13 of the Convention. THE FACTS 2.     A list of the applicants is set out in the appendix. 3.     The applicants are Romanian nationals of Roma origin. They are five families comprising, at the material time, nine adults and seven children. They were 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. 4.     The Government were represented by their Agent, Mr J. Sobczak, subsequently replaced by Ms A. Kozińska-Makowska, of the Ministry of Foreign Affairs. 5 .     At the material time, one of the minor children of the first applicant – his daughter R. – was in the care of the State’s child welfare services. The custody proceedings were ongoing. It appears that the child’s parents had contact rights and that the child, with the acquiescence of the family court, visited her parents at Paprotna Street (see paragraph 42 below). No other details of those proceedings are known to the Court. 6.     On an unspecified date after the application to the Court, the eighth applicant died. THE APPLICANTS’ OCCUPATION OF THE SITE IN PAPROTNA STREET 7 .     On an unspecified date – in the applicants’ submission around 15   November 2009 and in the Government’s submission some time in 2013 – the applicants started occupying a plot of land at Paprotna Street in the city of Wrocław. No construction was permitted on that site. The land in question was owned at the material time by the Wrocław Municipality ( gmina ). 8 .     The Government submitted that the applicants had “from the very beginning” been informed that their stay on the land was illegal and they had been asked to leave. 9 .     On 7 May   2013 the municipal guards served formal administrative orders dated 23 April 2013 on thirteen people of Roma and Polish origin who were then living on the municipal land at Paprotna Street, requiring them to vacate and to clean up the property within fourteen days. Service of the order was acknowledged by the first, third, sixth, eighth, twelfth and fifteenth applicants, who signed a copy of it. Given the discrepancies in the personal data, it is not certain, but it can be presumed, that the thirteenth applicant was also served with the order. The order contained a notice that in the event of the irregular occupants not obeying the orders, they would face court proceedings and charges of a minor criminal offence. 10.     When served with the order in question, the above-mentioned applicants indicated various addresses in Romania as their places of permanent residence. 11 .     The applicants did not vacate the land. 12 .     The applicants submitted that, in 2009, they had erected five structures made of wood and various recycled plastic and textile materials. Four of the structures served as dwellings. The fifth was used for storing power generators and fuel. The Government submitted that it was between September 2013 and November 2014 that six such structures had been built by the applicants, without planning permission. 13 .     On 27 May 2013 an in-situ inspection was conducted by the District Inspector of Construction Supervision ( Powiatowy Inspektor Nadzoru Budowalnego – “the district inspector”). The inspector established that there were five cabins on the site that had been erected two years earlier and were occupied by Romanians of Roma origin and one cabin that had been erected twelve years earlier and was occupied by a Polish person. It was noted that during the visit, the inspector had obtained statements from a certain C. de A., who had come forward as a so-called “investor” (a person who had carried out the construction, see paragraph 61 below) and who said that he was in charge of the five cabins occupied by the applicants. He had stated that the cabins had been built approximately three years earlier and gave a Polish correspondence address. The applicants did not come into contact with the inspector. 14 .     The inspector established that the applicants’ five structures and the sixth, separate cabin were all unstable and had been built using inflammable scrap materials; they were essentially made of scrap wood or plastic boards of various sorts tied together and covered with rugs. The inspector considered that there was a real risk of fire breaking out on the site, given that some of the cabins were equipped with slow-burning stoves; they were cramped and badly ventilated. An ad hoc electric installation that had been put together by the site’s occupants did not comply with any safety standards. It was concluded that the six structures were uninhabitable as they posed risks of fire, asphyxiation, electrocution and collapse. 15 .     A separate set of administrative proceedings was instituted in respect of each cabin. Two “investors” were sent formal notifications about each procedural step, including the decisions to commence the proceedings and to have the structures demolished. 16 .     On 3, 10 and 11 September 2013 the district inspector issued separate decisions authorising the demolition of the applicants’ five cabins (and also the sixth one). The decisions stated that the applicants’ structures had been erected three years earlier and that they were inhabited by Romanians of Roma origin. The grounds given for the demolition were that the cabins had been built illegally and that they did not comply with any construction or safety standards. The decisions also stated that the cabins were a fire hazard; they were likely to collapse; they had no sewerage system; and they did not comply with the requirements as to the height of buildings. These decisions were addressed to the Wrocław Municipality as the owner of the land. The persons who had come forward as “investors” could not be considered parties to the proceedings as they had not had any legal title to the property. 17.     The Wrocław Municipality appealed against those decisions. The Court has not been provided with copies of the appeal. 18.     On 25 November 2013 the Regional Inspector of Construction Supervision ( Wojewódzki Inspektor Nadzoru Budowalnego – “the regional inspector”) confirmed the decisions of the district inspector. 19 .     The Government submitted that on unspecified dates in February and March 2014 the Wrocław Regional Administrative Court rejected appeals against the regional inspector’s decisions. It is unknown which entities lodged these appeals. 20 .     On 5 and on 21 August 2014 fires broke out at the applicants’ site, destroying four of their structures. Nobody was present on the site at that time. The Government submitted that after the fire the site had been unoccupied for some time. A criminal investigation into allegations of property damage was discontinued on 25 September 2014 on the grounds that no criminal offence had been committed. 21 .     On 17 November 2014 and on 27 February 2015 the district inspector carried out further visits to the site in Paprotna Street. It was concluded that one of the applicants’ original cabins had remained in place despite the fire and that three new structures had been erected. The inhabitants of the site were not present at the time of the inspections. The district inspector’s conclusions as to safety at the site were the same as those drawn after the first visit in May 2013 (see paragraph 14 above). 22 .     On 18 May 2015 the district inspector issued three administrative decisions ordering the Wrocław Municipality to demolish the applicants’ new cabins, given that they had been built without planning permission and so constituted unlawful constructions ( samowola budowlana ). The decisions stated that the site inspection of 27 February 2015 had revealed that the four structures – which were inhabited by persons of Roma origin and Romanian nationality – did not have any foundations; were not sturdy; were easily inflammable; and were not connected to the sewerage system. The decisions also stated that it had been impossible to find the “investor” responsible for the site. Lastly, they stated that no demolition order could be addressed to the residents because they were not the owners of the land in question, and they were therefore not a party to the administrative proceedings. 23.     The decisions were served on the Wrocław Municipality and other municipal entities. 24.     On 29 May 2015 the Wrocław Municipality appealed. No copies of the appeals were submitted to the Court. On 3 June 2015 a similar appeal was lodged by the Board of Municipal Green Spaces ( Zarząd Zieleni Miejskiej ), jointly with the manager of the land ( zarządca ). 25 .     On 16 July 2015 those institutions withdrew their appeals. 26 .     Meanwhile, on 18 March 2015 the district inspector fined the Wrocław Municipality 20,000 Polish zlotys (PLN – approximately 5,000   euros (EUR)) for failure to enforce the outstanding demolition order concerning the applicants’ one original structure that was still standing after the 2014 fire. 27 .     On 22 July 2015, at an unspecified time, the Wrocław Municipality demolished all four structures used by the applicants. 28.     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. According to the Government, the persons occupying the site had not been present during the demolition, but several of them had appeared at the end of this process. The applicants also claimed that belongings of theirs which had been 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 taken away to a nearby waste site. The applicants had not been told where their goods were being taken to and had been able to retrieve very little. They also submitted that their animals (these were not specified) had been taken to animal shelters. 29 .     In the proceedings before the Court, two written statements were submitted, dated 24 and 25 February 2018. They had been made by a worker from a non-governmental organisation (NGO), the Nomada Association for Multicultural Integration (“Nomada”), who had witnessed the demolition. The NGO worker stated that the applicants had clearly felt distress, hysteria and helplessness when they were ignored by those carrying out the demolition and had not been allowed to retrieve their belongings, which, at that point, still remained on the site. The worker also observed that a social worker from the municipal Support Centre had arrived at the scene and had scribbled on a slip of paper the Support Centre’s address where the applicants could seek help. In the Nomada worker’s view, the heightened tension at the scene and the distrust that had built up between the applicants and the local authorities had not allowed for efficient communication or decision-making. The Nomada worker had then called the police, to whom the applicants had reported the removal of their belongings. The police officers, who knew the applicants, had reassured them that their goods had surely been secured and could be claimed back on the following day. Several Roma residents of the site had then been picked up by journalists and followed a truck loaded with their remaining belongings, only to discover that those belongings were broken and dumped in a landfill. 30.     On 29 July 2015 the regional inspector, acting as the appellate authority, issued three decisions, discontinuing the appeals against the district inspector’s decisions of 18   May 2015 (see paragraph 22 above), given their withdrawal by the Wrocław Municipality and by the Board of Municipal Green Spaces (see paragraph 25 above). 31.     The regional inspector noted that, pursuant to Article 137 of the Code of Administrative Procedure ( Kodeks postępowania administracyjneo – “the CAP”), having taken note of the fact that the two appellants had withdrawn their appeals (see paragraph 25 above), he had to first examine whether or not the contested decisions were in breach of the law or against the public interest. If that had been the case, the withdrawal of the appeals would not be considered valid. It was also noted that the aim of the above ‑ mentioned provisions was the protection of the legal order ( porządek prawny ). 32.     The regional inspector held that the disputed decisions were not in breach of the law or against the public interest. He observed that a construction that had been erected without a building permit did not have to be demolished if it complied with the local development plan and the construction regulations. In such a case, structures could be legalised by a separate procedure under sections 48 and 49 of the Building Act (see   paragraphs 52 and 53 below). In the circumstances of the case, the authority established that, given the local development plan and the technical specifications of the cabins, there had been no possibility of the unauthorised structures in question being legalised. In particular, the local development plan had designated the area for the future development of an open-air market, an airport, a park or a road. The plan did not feature any residential buildings or any constructions with a roof. Moreover, the structures in question had been built of inflammable materials. They also had no foundations, did not meet the height requirements and were not connected to the energy or water supply or the sewerage system. The structures therefore did not comply with the basic construction regulations. The regional inspector concluded that the three demolition orders were lawful and that the appeals had validly been withdrawn. 33.     The regional inspector explained that the duty to carry out the orders at its own expense was on the Wrocław Municipality as the land’s owner. Such a duty would have primarily burdened an “investor” in an unlawful site, but only if the “investor” had had title to the land. 34.     The decisions were served on the Wrocław Municipality, the Board of Municipal Green Spaces and the district inspector. The parties had a right to appeal to the Regional Administrative Court ( Sąd Okręgowy ) within thirty days. It appears that no appeal was pursued. CRIMINAL INVESTIGATION INTO THE DEMOLITION OF THE SITE AT PAPROTNA STREET 35 .     On 23 July 2015 the first applicant filed a criminal complaint because he had lost two power generators, PLN 2,000 (EUR 500) in cash, two television sets, two television decoders and clothes as a result of the demolition of the site at Paprotna Street. He calculated his material loss at PLN   3,260 (EUR 815). The first applicant explained to the police that he did not know whether the property had been taken away together with the debris from the demolished structures or had been stolen by third parties. 36.     A criminal investigation was opened. The first applicant was granted the status of an injured party and was represented by an NGO. 37.     The police obtained witness testimony from employees of the Municipal Green Spaces, city gendarmes, social workers who had been on the site during the demolition, and an employee of the demolition company. All the witnesses testified that they had not noticed any valuable objects during the demolition. 38.     On 20 October 2015 the police discontinued the investigation because no perpetrator had been found. 39 .     The first applicant received instructions on how to appeal against the prosecutor’s decision. He did not pursue any such appeal. SOCIAL ASSISTANCE OFFERED PRIOR TO THE DEMOLITION OF THE SITE AT PAPROTNA STREET 40 .     The Government submitted that the applicants’ situation had been monitored throughout their time in Paprotna Street by local authorities and the social services, in particular the Municipal Social Aid Centre ( Miejski Ośrodek Pomocy Społecznej ), whose staff had visited the applicants on the site up to twice daily. The applicants had been offered substitute accommodation, namely places in night shelters for the homeless or in municipal hostels. In May   2015 the Caldarar family were offered monitoring and aid by the newly set up municipal Support Centre ( Ośrodek Wsparcia ) for the homeless, for people in crisis situations and for single mothers. Despite being warned by the centre’s social workers about the forthcoming demolition of their site, the applicants had repeatedly – including on the day of the final demolition of the site – refused to move into the Support Centre. 41 .     The Government also submitted that municipal social workers had made attempts to help the applicants register with the labour exchange as unemployed and to enrol them, free of charge, in a Polish language course. Without providing further details, the Government stated that the applicants had rejected all those forms of help and had only accepted financial aid. 42 .     In this connection, the Government submitted a document dated 23   October 2017 and signed by a certain I.T., a coordinator from the municipal Support Centre. The document describes welfare support provided in respect of the Caldarar family and the monitoring of their situation. The document contains the following information, in so far as relevant. The first site visit was carried out on 7 May 2015; nobody was present on the site. During a visit on 25 May 2015 the Caldarars were offered welfare accommodation at the Support Centre; they said that they would come to an information meeting the following day. On 26   May   2015 the family were reminded about the meeting (over the telephone and in person, during a visit). They told the coordinator that they would not be able to attend the meeting because they had to take their youngest child to hospital, and the first applicant’s daughter R. (the sixth applicant – see paragraph 5 above) was visiting her family. During a further site visit on 27   May 2015 the first applicant was again offered subsidised accommodation at the Support Centre and invited to come and see it; he was also warned that the site could, at any moment, be demolished. The first applicant declined the offer, explaining that the mayor and the police had assured him that the family could stay at Paprotna Street for another three years; he also stated that if the site was demolished, the family would go back to Romania. On 28 May 2015 the Caldarars visited the Support Centre and inspected the room which had been designated for them; they were again warned about the possible demolition of the site that they were occupying. The Caldarars did not want to accept the offer, stating that as soon as they retrieved custody of their daughter R., they would be moving back to Romania. During a visit on 3   June 2015 the first applicant categorically refused to move with his family to the Support Centre. On 3   July a visit was carried out at a similar site at Kamieńskiego Street, approximately two kilometres from Paprotna Street. The first applicant (who for unknown reasons was present at the site at Kamieńskiego Street) “informed the social worker that, together with his family, they were living very well, they were not suffering any shortages and they did not expect any help”. During a visit carried out at Paprotna Street at 11 a.m. on 22 July (the day the site was demolished – see paragraph 27 above), the first applicant was again invited to accept the subsidised accommodation offered by the city; he categorically declined. After the demolition of the site at Paprotna Street, the first applicant and his family moved to the site at Kamieńskiego Street. 43 .     According to two written statements made on 24 and 25 February 2018 by a Nomada worker (see paragraph 29 above), on 22 July 2015 the worker had telephoned the Caldarar family to inform them that their encampment was being demolished. The Nomada worker had learned about the situation from journalists. In her statement, she said that the applicants appeared to have no knowledge of the unfolding situation and not to have prepared for it. The worker explained that the applicants had been warned of the imminent demolition of their encampment many times throughout the six years during which they had lived at Paprotna Street. No such demolition had ever materialised in the past. The applicants therefore had not attached any importance to the warnings received shortly before the actual demolition. They had also considered that the offer of alterative accommodation made by the municipal welfare office had not been at all serious. THE APPLICANTS’ LIVING SITUATION AFTER THE FINAL DEMOLITION OF THE SITE AT PAPROTNA STREET 44 .     The applicants submitted that following the final demolition of their encampment, they had lived on the streets. They had later erected several structures on another site at Kamieńskiego Street, without planning permission. They claimed that they had been living there at the time when notice of the present application was given, in conditions which did not ensure their safety. 45.     According to I.T. in the document of 23 October 2017 (see   paragraph   42 above), after the demolition of the site at Paprotna Street the first applicant and his family settled on the site at Kamieńskiego Street. They did not communicate any need for welfare assistance. Two of the first applicant’s children were enrolled in school; one child, who had special needs, attended individual classes in the first year. The children received school materials and clothes. The first and second applicants were helped with making an online registration with the unemployment centre. They later completed the procedure on their own. The first and second applicants were seen by a social worker who repeatedly invited them to move to the Support Centre, explaining that that would open up the possibility of enrolling them into the Individual Integration Programme, which aimed to regularise the immigration status of foreigners living in Poland and offered aid in gaining professional qualifications and financial independence, and educational assistance for children. The first and second applicants declared in writing that they would attend Polish language classes offered free of charge. They ultimately did not follow that programme. On 21 March 2017 the Caldarar family received a one-time payment of a total of PLN 300 (EUR 75). 46 .     The Government submitted that one applicant (presumably with her family) continued living in the settlement at Kamieńskiego Street, while two other applicants – together with other family members (twenty persons in total) – had moved into a home run by a not-for-profit foundation called the House of Peace Foundation ( Fundacja Dom Pokoju ). 47 .     The applicants’ lawyers confirmed that the applicants were living in accommodation provided by the House of Peace Foundation. They also submitted that, given their precarious situation, the applicants received regular welfare and child benefits, as well as assistance from the Social Welfare Office. 48.     As reported in the Polish media, in 2018 the House of Peace Foundation facilitated the relocation of 180 Roma from the site at Kamieńskiego Street to twenty apartments located throughout the city of Wrocław. The relocation was a part of a two-year integration programme co ‑ financed by the municipality, the House of Peace Foundation and the Roma families. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICE Regulations regarding the demolition and the ex post facto legalisation of illegal buildings and other structures Building Act 49 .     In Poland, construction is regulated by the 1994 Building Act ( Prawo budowlane ), which has been the subject of numerous amendments. This law applies to buildings ( budynki , structures that are permanently connected to the ground) and also to constructions ( obiekty budowlane ). The latter category included, at the material time, structures without foundations that formed “a technical and functional whole” (section 3 of the Building Act). 50 .     Under section 48 of the Building Act as in force at the material time, a designated authority had the power to order the demolition of any building structure or part of one that had been erected without a building permit. 51.     Under the current version of section 48 of the Building Act, prior to making a demolition order, the authority must first order the cessation of any continuing unlawful construction process and inform the parties of the procedure allowing for ex post facto legalisation. 52 .     Ex post facto legalisation of an unlawful structure was and is possible under the applicable law. The conditions and procedure were set out in section   48(2) and 49 of the Building Act as in force at the material time, and are now in sections 48(a)-49(i) of the current version of the Act. Under these provisions, an application for ex post facto legalisation can be made by an “investor” in or owner or manager of the structure in question. The legalisation requires compliance with a series of conditions, such as that the building structure must be in line with the local development plan and the building regulations ( przepisy techniczno-budowlane ), and that all applications and documentation must be filed within certain statutory deadlines. 53 .     Under the law in force at the material time and currently, demolition can be ordered where the unlawful structure does not meet the statutory conditions for ex post facto legalisation (see the following Regional Administrative Court judgments: Poznan, 28 January 2011, case no. II SA/Po 571/10; and Cracow, 8 May 2017, case no.   II   SA/Kr 155/17). 54.     The relevant authority is under an obligation to order demolition where the interested party fails to meet the conditions for ex post facto legalisation of an unlawful building structure within the prescribed period. That obligation is absolute. In particular, the authority has no discretion to revoke a demolition order on the basis of, for example, principles of social coexistence. 55 .     The relevant authority must also order demolition where an “investor” cannot objectively meet the statutory conditions for ex post facto legalisation because he or she is not the owner of the land on which the unlawful structure is situated. Rulings of the Constitutional Court regarding section 48 of the Building Act 56.     On two occasions the Polish Constitutional Court declared section   48 of the Building Act to be in compliance with the principle of proportionality, that is to say, with the prohibition of excessive interference in the sphere of the rights and freedoms of the individual (Article 31 § 3 of the Constitution), when examined in the context of the right to property. The Constitutional Court made the following observations in so far as relevant (see the reasoning of the judgment of 12 January 1999, case no.   P   2/98 and of the judgment of 26   March 2002, case no. SK 2/01). 57.     Section 48 of the Building Act required conditions to be met to ensure the appropriate development of land and the high quality of construction work, taking into account considerations of spatial development, architectural and aesthetic conditions, durability, and safety. Those were in the general interest of, for example, inhabitants of and visitors to neighbouring areas. Unlawful construction was a wrongful action that called for the effective restoration of the plot to the state it had been in prior to the breach of the law. The legal framework that had existed prior to the 1994 Building Act had contained various discretionary clauses ( pojęcia ocenne ) and had, in effect, encouraged unlawful construction. A more radical and rigorous approach had been taken by the legislature in drafting the 1994 Building Act in order to eradicate that effect, because it had become quite common in practice for unlawful construction to be legalised later. The new law had significantly curbed the amount of unlawful construction. 58 .     The Constitutional Court took note of the criticism that section 48, by providing for a strictly formalistic and automatic assessment, firstly ran counter to the rule of law, and secondly put an excessive burden on individuals in the enjoyment of their fundamental rights. The Constitutional Court disagreed with these arguments, stressing that section 48 was to be interpreted strictly and could only be relied on where numerous statutory conditions were all met, based on the evidence and circumstances in each case. Concluding that section 48 was not used automatically or formalistically, the Constitutional Court stressed the deterrent and restorative, rather than punitive, nature of that provision. 59.     The Constitutional Court also considered whether section 48 was necessary in a democratic society within the meaning of Article 31 of the Polish Constitution regarding the right of ownership and other property rights. The court focused its examination on the following issues: (i)   whether the disputed regulation was capable of achieving its aims; (ii)   whether the regulation was required for the protection of the general interest; and (iii) whether the consequences of the disputed regulation were proportionate to the burden they placed on the individual. In this context, the Constitutional Court observed that the aim of the disputed provision was to ensure that construction “investors” complied with construction law. That, in turn, would ensure respect for general interests, such as public safety, protection of the environment and cultural heritage, or protection of the rights and freedoms of others. The disputed regulation also ensured the equal treatment of everyone who had carried out unlawful construction, since it was applied strictly in all cases. A demolition order did not affect the essence of property rights, in that the owner remained free to use the property within the limits of the law and to apply for a building permit. The Constitutional Court considered that while the legislature had discretion in the choice of policies and actions, the legal framework had to be continuously tested against the dynamics of the economy and of society. In the event that the disputed regulation succeeded in achieving its goals, it should be possible to replace its highly restrictive provisions with ones that would be less burdensome. Having said that, people who had construction works carried out in breach of the law should be aware of the possibility that they might be required to have the previous, lawful, situation restored. Put differently, the principle of proportionality could not protect interests that had resulted from a breach of the law ( nemo audiatur propriam turpitudinem allegans ). 60.     The two judgments of the Constitutional Court are referred to further in the Court’s inadmissibility decision in Szczypiński v. Poland ((dec.), no.   67607/17, §§ 43-44, 18 January 2022). Parties and participants in administrative proceedings Investor 61 .     The term “investor” is not defined in the Building Act. The jurisprudence has established that the term means: a natural or legal person making investments, that is to say, financial inputs aimed at creating new assets or expanding existing ones (see the judgment of the Supreme Administrative Court of 8 November 2017, case no. II OSK 2870/16) or, essentially, the person who has erected an unlawful structure (see the judgment of the Supreme Administrative Court of 23 July 2009, case no.   II   OSK 1234/08). The “investor” should in principle be the owner of the land on which the structure has been erected. Exceptionally, the “investor” may also be a long-term lease holder ( dzierżawca ) or a person with use rights ( użytkownik ), whether or not he or she is in good or bad faith (see the judgment of the Supreme Administrative Court of 12 June 2002, case no.   II   SA/Gd 1862/01). 62.     Under section 28(2) of the Building Act, an “investor” should be made a party to any proceedings regarding a construction permit, along with the owner, anyone with perpetual use rights ( użytkownik wieczysty ), and any manager of immovable property which may be affected by the construction. This provision constitutes lex specialis to Article 28 of the Code of Administrative Procedure ( Kodeks postępowania administracyjnego – “the CAP”), under which the parties to administrative proceedings are anyone who has a legal interest or legal obligation that is the subject of the proceedings (see also section 32 of the 2002 Administrative Courts Act, Prawo o postępowaniu przed sądami administracyjnymi ). 63.     The Building Act as applicable at the material time provided that an “investor”, owner or manager could be ordered to dismantle an unlawful structure at his or her own expense (section 52, in force until 2020). In the wording of the current version of section 52 of the Building Act, the obligation to comply with a demolition order is imposed on the “investor” unless the construction works have been completed or it is impossible for the “investor” to implement the order, in which case the obligation falls on the owner or manager of the unlawful structure. 64.     In the light of the well-established case-law of the administrative courts, a demolition order must first be notified to the “investor” as the entity that commissioned the unlawful structure (see, for example, the judgments of the Supreme Administrative Court of 23 July 2009, case no.   II   OSK 1234/08 and of 11 April 2000, case no. II SA/Ka 2059/98). 65.     If the “investor” is not the owner of the land on which the unlawful structure has been erected, the “investor” must be notified of the demolition order and must comply with it if the owner of the land had not been aware of or had not agreed to the unlawful construction or where there is doubt as to who the owner is (see the judgments of the Supreme Administrative Court of: 21   November 2001, case no. SA/Rz 597/00 and of 23 July 2009, case no.   II   OSK 1234/03; and the following Regional Administrative Court judgments: Olsztyn, of 21 October 2008, case no. II SA/Ol 583/08; Gdańsk, of 9 November 2010, case no. II SA/Gd 468/10; and Cracow, of 30 May 2017, case no. II SA/Kr 368/17 and of 21 November 2017, case   no.   II   SA/Kr 921/17). The above-mentioned principle is based on the premise that the imposition of a demolition order on the property owner would be an unjustified burden on him or her, as it would expose him or her to a cumbersome process and would entail expense, and it would also constitute an unjustified release of the “investor” from the adverse consequences of the demolition of his unlawful structure (see the judgment of the Supreme Administrative Court of 23 July 2009, case no. II OSK 1234/03). 66.     At the same time, however, a demolition order can only be addressed to an “investor” who, at the time when the demolition is ordered, is legally in a position to perform all the actions necessary to carry out the order, that is to say, the “investor” must own the land or be lawfully in possession of it (see judgments of the Supreme Administrative Court of 21   February 2002, case no. II SA/Gd 1705/99 and of 23 July 2009, case   no.   II   OSK 1234/08; and the following Regional Administrative Court judgments: Gdańsk, of 24   July 2008, case no. II SA/Gd 425/08 and of 9 May 2010, case   no.   II   SA/Gd 468/10; Kielce, of 15   December 2010, case no. II SA/Ke 667/10; and Rzeszow, of 11   May 2011, case no. II SA/Rz 51/11). An “investor” who is the lawful user of the land ( użytkownik ) but not its owner or co ‑ owner does not receive notification of the demolition order or information regarding ex post facto legalisation (see judgments of the Rzeszow Regional Administrative Court of 13 June 2017, case no.   II SA/Rz 292/17; and of the Cracow Regional Administrative Court of 8   November 2017, case no. II   SA/Kr 1034/17). Participant 67 .     The status of a “participant” in administrative proceedings can be granted by the administrative court to anyone who has a legal interest that will be affected by the outcome of those proceedings and who has not previously taken part in them (section 33(2) of the 2002 Administrative Courts Act). Under the well-established case-law of the Polish courts, a “legal interest” requires a substantive relationship between the relevant regulation and the legal situation of a specific entity. Having a legal interest means the same as establishing a provision of the general law, on the basis of which one can ask an authority to take actions to satisfy some need, or to abandon or restrict its actions where they are impinging on the needs of a particular person. A legal interest understood in this way should be distinguished from a factual interest, that is, where a legal or natural person is directly interested in the resolution of the case, but cannot support this interest with the provisions of the general law (see judgments of the Supreme Administrative Court of 23 April 2013, case no. I OZ 265/13, and of 25   January 2023, case no. II OZ 27/23; and decision of the Rzeszow Regional Administrative Court, 24   November 2020, case no. II SA/Rz 1119/20). 68.     A community organisation ( organizacja społeczna ) such as an association, but not a foundation, acting in defence of a third-party interests can also have party status if the case concerns the organisation’s registered purpose (section 33(2) of the 2002 Administrative Courts Act). Importantly, to be granted the status of a participant, it i