Kozak v. Poland

Information Note on the Court’s case-law No. 128

March 2010

Kozak v. Poland - 13102/02

Judgment 2.3.2010 [Section IV]

Article 14

Discrimination

Homosexual denied succession to tenancy of a flat following his partner’s death: violation

Facts – Following the death of his homosexual partner, the applicant instituted proceedings against the municipality claiming to be entitled to succeed to the tenancy of the council flat, which was in his partner’s name. In dismissing his claim, the domestic courts found that the applicant had moved out of the flat and stopped paying rent before his partner’s death and that, in any event, a de facto marital relationship, which was a pre-requisite for succession to the tenancy of a council flat, could only exist between persons of the opposite sex.

Law – Article 14 in conjunction with Article 8: While agreeing that some of the applicant’s statements concerning the nature and duration of his relationship with his partner and his residence in the flat made before the domestic courts had been inconsistent, the Court considered that it was not its task to decide which of the trial courts had made correct findings of fact. It had to confine itself to the assessment of whether the rulings given on the facts as established in the domestic proceedings complained of respected the prohibition of discrimination enshrined in Article 14.

In deciding the applicant’s claim to be entitled to succeed to the tenancy, the domestic courts had concentrated almost exclusively on the homosexual nature of his relationship with his partner, concluding that, since Polish law did not recognise same-sex marriages, a de facto marital relationship could only exist between a man and a woman. Despite the importance of the legitimate aim pursued in the applicant’s case, namely that of protecting traditional families, in its choice of means to protect that aim the State had to take into account developments and changes in society, including the fact that there was not just one way or one choice in the sphere of leading and living one’s family and private life. Given the State’s narrow margin of appreciation in cases of difference in treatment on the basis of sexual orientation, a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy could not be considered acceptable.

Conclusion: violation (unanimously).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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