CASE OF SZYPUŁA AND OTHERS v. POLAND

FIRST SECTION

CASE OF SZYPUŁA AND OTHERS v. POLAND

(Applications nos. 78030/14 and 23669/16)

JUDGMENT
 

STRASBOURG

27 February 2025

This judgment is final but it may be subject to editorial revision.

In the case of Szypuła and Others v. Poland,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Erik Wennerström, President,
 Raffaele Sabato,
 Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision to give notice of the applications to the Polish Government (“the Government”) represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs;

the parties’ observations;

the comments submitted by the following organisations, all of which had been granted leave to intervene by the President of the Section:

- the Commissioner for Human Rights of the Republic of Poland;

- the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) on behalf of the Fédération Internationale pour les Droits Humains (FIDH), European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), Network of European LGBTIQ* Families Associations (NELFA) and the European Commission on Sexual Orientation Law (ECSOL);

- the Institute of Psychology, Polish Academy of Sciences;

- the Human Rights Centre of Ghent University;

- the Ordo Iuris Institute for Legal Culture.

Having deliberated in private on 30 January 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicants, who are in same-sex couples, complained principally under Article 8 of the Convention that Poland failed to provide them with a certificate allowing them to get married in Spain while in Poland there had been no form of legal recognition and protection for their respective relationships.

2.  On 20 October 2010 the applicant applied for a marriage eligibility certificate confirming lack of impediments for a Polish national to conclude a marriage abroad. He indicated that he intended to marry his same-sex partner in Spain.

3.  On 27 December 2010 the Warsaw Civil Status Office refused to issue the certificate finding that it would be contrary to the Polish law according to which marriage could only be concluded between a man and a woman.

4.  On 5 January 2012 the Warsaw-Praga District Court upheld the decision, and on 6 March 2013 the Warsaw Regional Court dismissed the applicant’s appeal.

5.  On 24 June 2014 the Supreme Court rejected the applicant’s cassation appeal. The court analysed domestic law and practice and concluded that the cassation appeal had not been available in cases of this kind. In particular, it disagreed with the arguments presented in the applicant’s cassation appeal that the case concerned personal rights law where cassation appeal had been available. The decision was sent to the applicant on 5 August 2014.

6.  On 24 July 2015 the first applicant applied for a marriage eligibility certificate confirming lack of impediments for a Polish national to conclude a marriage abroad. He indicated that he intended to marry his same-sex partner, the second applicant, in Spain.

7.  On 7 August 2014 the Warsaw Civil Status Office refused to issue the certificate. On 17 March 2015 the Warsaw-Śródmieście District Court upheld the decision of the civil status office.

8.  On 28 October 2015 the Warsaw Regional Court dismissed the applicant’s appeal. It reiterated that the certificate may only be issued if a given person had been eligible to enter into marriage with another specified person in accordance with the Polish law.

9.  The applicants complained under Article 8 of the Convention of a total lack of recognition of their relationships as couples in Poland, in that it was impossible for them to enter together into any type of legally recognised union. The applicants further complained that they had intended to marry abroad but were refused marriage eligibility certificates, which prevented them from marrying in Spain, in breach of Articles 8 and 12 of the Convention.

THE COURT’S ASSESSMENT

10.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

11.  The Court considers that the principal issue raised by the applicants under Article 8 of the Convention was that in Poland they did not have core rights which were relevant for any couple in a stable and committed relationship.

12.  The Government submitted a preliminary objection that no significant disadvantage had been suffered by the applicants since they continued to live together in their respective relationships and did not suffer any damage on account of the domestic decisions. The applicants contested the objection, reiterating that they had no access to core rights that were relevant to any couple in a stable relationship.

13.  The Court finds that the objection is closely linked to the merits of the complaint that the applicants’ Convention rights were breached by the lack of legal recognition of same-sex unions. Accordingly, it joins it to the merits.

14.  It follows that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

15.  The general principles confirming that, in accordance with their positive obligations under Article 8 of the Convention, member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship, are set out in Fedotova and Others v. Russia ([GC], nos. 40792/10 and 2 others, §§ 152‑65 and 178, 17 January 2023).

16.  In the application of those principles, the Court found in Przybyszewska and Others v. Poland (nos. 11454/17 and 9 others, § 122, 12 December 2023) that Poland had failed to comply with its positive obligation to ensure that the applicants in that case had a specific legal framework providing for the recognition and protection of their same-sex unions, in breach of Article 8 of the Convention (compare also, Formela and Others v. Poland [Committee], nos. 58828/12 and 4 others, § 25, 19 September 2024).

17.  In the case at hand, the applicants did not complain that it was impossible for them to get married in Poland and the Court notes that Articles 8, 12 and 14 of the Convention have to date not been interpreted as imposing a positive obligation on the States Parties to make marriage available to same‑sex couples (Przybyszewska and Others, cited above, § 165).

18.  It has not been disputed that Polish law still provides for only one form of family union – an opposite-sex marriage – and does not allow for any form of legal recognition for same-sex couples (see ibid., § 105). The situation therefore differs significantly from that of a very large number of member States which have undertaken to amend their domestic law with a view to ensuring that persons of the same sex enjoy effective protection of their private and family life (see Koilova and Babulkova v. Bulgaria, no. 40209/20, § 46, 5 September 2023).

19.  As submitted by the applicants in their observations, they were prevented from taking leave to care for their ill partner, could not extend health insurance to cover their partner, were treated as being unrelated in the field of taxation and could not benefit from an exemption from donation tax granted to next-of-kin or from the right to submit a joint tax declaration. The applicants underlined that same-sex partners could not inherit from each other unless expressly indicated in a will, or be awarded maintenance in the event of separation or death.

20.  The Court notes that, in Poland, same-sex couples, in the absence of official recognition, are mere de facto unions. Same-sex partners are not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities (see Przybyszewska and Others, cited above, § 113). The Court reiterates that the need to apply to the domestic courts for protection of their couple’s ordinary needs is in itself an obstacle to respect for their private and family life.

21.  Referring to the findings already established by the Court in respect of Poland in the cases indicated above, it thus concludes that by failing to ensure that the applicants have a specific legal framework providing for recognition and protection, the Polish authorities have left them in a legal vacuum and have not provided for the core needs of recognition and protection of same-sex couples in a stable and committed relationship. The Court finds that none of the public interest grounds put forward by the Government prevail over the applicants’ interest in having their respective relationships adequately recognised and protected by law.

22.  The Court notes that member States have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples. However, it is important that the protection afforded by the States to same‑sex couples should be adequate. It is in the latter context that Poland’s social and cultural background may be taken into account.

23.  The Court concludes that the respondent State has overstepped its margin of appreciation and has failed to comply with its positive obligation to ensure that the applicants had a specific legal framework providing for the recognition and protection of their same-sex unions. This amounts to a breach of the applicants’ right to respect for their private and family life. The Government’s preliminary objection regarding them suffering no significant disadvantage (see paragraph 12 above) must therefore be dismissed.

24.  There has accordingly been a violation of Article 8 of the Convention.

25.  The applicants also complained under Article 8 and 12 of the Convention that they were not issued a marriage eligibility certificate which would allow them to get married in Spain although such marriage would have no legal consequences in Poland. The Government pointed out that as of 2015 they could obtain a civil status certificate which could facilitate them marrying abroad.

26.  The Court considers that the refusal of the Polish authorities to issue a certificate confirming the eligibility of the applicants to marry their respective same-sex partners was a consequence of the situation at the heart of the case – lack of a legal framework providing for the recognition and protection of the applicants’ same-sex unions in Poland – resulting in the violation of the Convention established above. The Court thus considers that it has dealt with the main legal questions raised by the case and that there is no need to examine this complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

27.  In so far as the applicants complain that they could not get married in Spain the Court notes that the present application is directed solely against Poland. This complaint is therefore incompatible ratione loci.

28.  Finally, having regard to its finding under Article 8, the Court considers that it is not necessary to examine separately whether, in this case, the fact that they were unable to secure legal recognition of their relationships amounted to discrimination on grounds of sexual orientation in breach of Article 14 in conjunction with Article 8 (see Przybyszewska and Others, cited above, § 126).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  The applicant in the first case sought not less than 3,000 euros (EUR) for non-pecuniary damage. The applicants in the second application claimed, also in respect of non-pecuniary damage, EUR 5,000 each. No claim for costs and expenses was made by the applicants. The Government contested the claims.

30.  Having regard to the circumstances of the case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicants (see Fedotova and Others, cited above, § 235).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 27 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

78030/14

Szypuła v. Poland

11/12/2014

Tomasz SZYPUŁA
1980
Warsaw
Polish

Marcin GÓRSKI

2.

23669/16

Urbanik and Alonso Rodriguez v. Poland

22/04/2016

Jakub URBANIK
1975
Warsaw
Polish

José Luis ALONSO RODRIGUEZ
1969
San Sebastian
Spanish

Paweł MARCISZ