Legal summary
December 2023
Przybyszewska and Others v. Poland - 11454/17, 11810/17, 15273/17 et al.
Judgment 12.12.2023 [Section I]
Article 8
Positive obligations
Absence of any form of legal recognition and protection for same-sex couples: violation
Facts – The applicants – five same-sex couples – each declared before the head of their local Civil Status Office that there were no impediments preventing them from marrying their same-sex partner, a condition for getting married in Poland. In each case the head of the Civil Status Office issued a notice refusing to accept their declarations, relying on the domestic law, which defined marriage only as a union between a man and a woman. The applicants challenged those decisions without success.
Law – Article 8:
(a) Applicability – Article 8 was applicable under both its “private life” and “family life” aspects. The Court had confirmed on several occasions that both aspects applied in cases concerning the alleged lack of legal recognition and/or protection for same-sex couples. Moreover, it had held that the unavailability of a legal regime for recognition and protection of same-sex couples affected both the personal and the social identity of the applicants as homosexual people wishing to have their relationships as couples legitimised and protected by law.
(b) Merits – Art 8 required member States to ensure legal recognition and protection of same-sex couples by putting in place a “specific legal framework”. It had not been disputed that Polish law provided for only one form of family union – an opposite-sex marriage – and did not provide for any form of legal recognition for same-sex couples. Therefore, there existed no legal recognition of the applicants’ same-sex relationship.
(i) The applicants’ individual interests – The Court had accepted that legal recognition formed part of the development of both personal and social identity of same-sex partners. It had further held that partnerships constituting an officially recognised alternative to marriage had an intrinsic value for same-sex couples irrespective of the legal effects, however narrow or extensive, that they produced. Accordingly, official recognition of same-sex couples conferred an existence and a legitimacy on them vis-à-vis the outside world. Beyond the essential need for official recognition, same-sex couples, like different-sex couples, had “basic needs” for protection. The Court had held on a number of occasions that same-sex couples were in a relevantly similar situation to different-sex couples as regards their need for formal acknowledgment and protection of their relationship.
The Court noted the domestic case-law confirming that the same rules had to be applied to the settlement of financial disputes between cohabiting couples regardless of their gender. Domestic case-law also allowed same-sex partners to enter into tenancy agreements after the death of a partner by considering them to have cohabitated with the tenant and to obtain housing benefits. In addition, the Supreme Court had interpreted the definition of the closest person to the accused for the purposes of being able to refuse to give testimony in criminal proceedings, to include same-sex partners. However, the Court rejected the argument that the rights that the applicants allegedly could not enjoy because of the lack of legal recognition of their same-sex relationships could be effectively exercised through private contractual agreements. The Court had previously found that such private agreements failed to provide for some basic needs which were fundamental to the regulation of a relationship between a couple in a stable and committed relationship, such as, inter alia, the mutual rights and obligations they had towards each other, including moral and material support, maintenance obligations and inheritance rights. Those findings applied in the instant case, since in Poland the applicants could regulate important aspects of life, such as those concerning property, maintenance and inheritance, only as private individuals entering into contracts under the ordinary law.
In the absence of official recognition, and in spite of some positive developments in domestic case-law, same-sex partners were unable to regulate fundamental aspects of their life, such as those concerning property, maintenance, taxation, and inheritance, as an officially recognised couple. In the majority of situations, they were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities. In accordance with the principle of subsidiarity underpinning the Convention, it was above all for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their “jurisdiction”, and it was not for the Court itself to determine the legal regime to be accorded to same-sex couples. However, the Polish legal framework, as applied to the applicants, could not be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship.
(ii) Public-interest grounds put forward by the respondent State – The Court had consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority. It had also held, under Article 14, that traditions, stereotypes and prevailing social attitudes in a particular country could not, by themselves, be considered to amount to sufficient justification for a difference in treatment based on sexual orientation. The Court had further held that the allegedly negative, or even hostile, attitude on the part of the heterosexual majority could not be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law. It therefore rejected those arguments in the instant case. In respect of the Government’s arguments that the traditional concept of marriage as a union of a man and a woman constituted Poland’s social and legal heritage, the Court noted that the present case did not concern same-sex marriage.
The Court had already held that there was no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity. Indeed, the recognition of same-sex couples did not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples did not in itself entail weakening the rights secured to other people or other couples. Those arguments therefore could not justify the absence of any form of legal recognition and protection for same-sex couples in the present case.
Lastly, the Court reiterated that the States’ margin of appreciation was significantly reduced when it came to affording same-sex couples the possibility of legal recognition and protection. In that context it noted that the instant case was not concerned with certain specific “supplementary” (as opposed to core) rights which might or might not arise from a same-sex union and which might be subject to fierce controversy in the light of their sensitive dimension. Indeed, the instant case concerned solely the general need for legal recognition and the core protection of the applicants as same-sex couples. The Court had also held that the States had 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 was important that the protection afforded by member States to same‑sex couples should be adequate. It was in the latter context that Poland’s social and cultural background might be taken into account. Consequently, none of the public-interest grounds put forward by the Government prevailed over the applicants’ interest in having their respective relationships adequately recognised and protected by law.
(iii) Conclusion – In the light of the facts of the present case, the arguments put forward by the parties, the third-party interveners’ comments and the Court’s case‑law as clarified and consolidated in Fedotova and Others v. Russia, the respondent State had overstepped its margin of appreciation and had failed to comply with its positive obligation to ensure that the applicants had had a specific legal framework providing for the recognition and protection of their same-sex unions. That failure had resulted in the applicants’ inability to regulate fundamental aspects of their lives and amounted to a breach of their right to respect for their private and family life.
Conclusion: violation (six votes to one).
Art 41: Finding of a violation sufficient in respect of non-pecuniary damage.
(See also Kozak v. Poland, 13102/02, 2 March 2010, Legal summary; Schalk and Kopf v. Austria, 30141/04, 24 June 2010, Legal summary; Vallianatos and Others v. Greece [GC], 29381/09 and 32684/09, 7 November 2013, Legal summary; Oliari and Others v. Italy, 18766/11 and 36030/11, 21 July 2015, Legal Summary; Orlandi and Others v. Italy, 26431/12 et al., 14 December 2017, Legal Summary; Fedotova and Others v. Russia [GC], 40792/10 et al., 17 January 2023, Legal Summary; Buhuceanu and Others v. Romania, 20081/19 et al., 23 May 2023, Legal Summary; Maymulakhin and Markiv v. Ukraine, 75135/14, 1 June 2023, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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