Introduction
The European Court on Human Rights has delivered a landmark judgement in connection with LGBTQI+ rights, in the case of Przybyszewska and others v. Poland (Appl. no. 11454/17). The Court identified that Poland has overstepped the margin of appreciation, and did not fulfil its positive obligation to ensure Article 8 (right to respect for private and family life), by not providing formal recognition of same-sex relationship, thus Poland’s violated its obligation under the Convention.
The decision could be seriously impactful on a national level and could definitely bring a change in the dynamics of legislation about the formal recognition of same-sex relationships in Poland (especially with the new Polish government, which has made several gestures regarding strengthening LGBTQI+ inclusivity[1]), although the Court has not presented an unique, newfangled approach in its reasoning in the field of same-sex related cases, mostly relying on previous judgement on the similar matter such as Fedotova and Others v. Russia[2], Maymulakhin and Markiv v. Ukraine[3] and Buhuceanu and Others v. Romania[4]. Regardless, the Polish case shall catch significant attention, in the context of the cleverly ,,cunning” argumentation of the Applicants by focusing on the unfavourable circumstances they face in everyday life due to the non-recognition of their homosexual relationship in fields of social nature, as well as the Court’s reasoning for the non-exhaustion of domestic remedies, the evolutive interpretation of the Convention, and the argument for reducing the margin of appreciation in such ethically challenging cases.
Circumstances of the Case
The applications were submitted by five Polish same-sex couples who had been in stable and committed relationships. The couples argued that their intent to legally formalize their relationship were rejected by the Polish authorities on several occasions, due to the legal basis stipulated in the Polish Constitution and the Family and Custody Code, which define marriage as a union between man and woman. Consequently, the couples appealed these rejections to the courts, although unsuccessfully, as they sustained the decision of the Civil Status Office, argumenting that the Polish legislation does not provide the possibility of marriage between same-sex couples, only for heterosexuals. However, the authorities argued that even though they cannot enter into marriage, there are various private law institutes with which they can sort out their joint matters regarding private and family life.
The applicants claimed that they experience several disadvantages and obstacles of many kinds, regarding joint matrimonial property, statutory inheritance, benefits in the personal income tax field, tax exemptions for gifts and inheritance, benefits in the event of the death of a partner, and health insurance coverage for a sick partner obstacles, as well as adoption of the child of one of the partners, stemming from the fact that they are not in a legally recognized relationship.[5] Considering the non-exhaustion of domestic remedies, the Applicants found that the Polish Constitutional Court is not an independent and impartial judicial authority anymore, and the proceedings before it could not be regarded as an effective remedy under Article 35 of the Convention.[6] They raised their concerns due to the current Constitutional Court crisis[7] since 2015 in Poland, and objected the controversial standings of exact Constitutional Judges, which expressed their negative bias towards LGBTQI+ rights in Poland.[8]
The Polish Government defence was based on the non-exhaustion of domestic remedies, as they were some cases pending before the Constitutional Court, since a constitutional complaint serves as an effective remedy for challenging the provisions of domestic law. The evolutive interpretation of the Articles of the Convention shall not impose the member states to ensure ,,extra” rights such as the specific legal recognition of stable same-sex relationships, in reference to the emerging supporting consensus of legally formalized same-sex unions spread in a number of member states. This shall not create international obligation to the state. The growing consensus shall not facilitate any heightening of the original minimum standard benchmark set out by the Convention.[9]
Furthermore, Poland took the position that the legal non-recognition of same-sex relationships are rooted in the constitution and the traditional concept of the family, which form part of Poland's social and legal heritage, and enjoy the support of the vast majority of Polish society.[10] They argued, that the Polish legislation did not discriminate on the basis of sexual orientation of the Applicants, as there are plenty of legal institutes available for organizing their private and family life matters, so they could not find themselves in a legal vacuum, as the constantly developing case-law and domestic administrative and legal practices left enough room for same-sex couples to formally enjoy the rightful entitlements granted for de facto partners of same sex.[11]
The Court’s assessment
On the subject of admissibility by the exhaustion of domestic remedies, the Court upheld its previous consideration about the effectivity and independence of the Polish Constitutional Court, thus expressed serious doubts regarding the acceptance of the Applicant’s constitutional complaint by the Constitutional Court, underscoring that ,, (…) the whole sequence of recent events in Poland vividly demonstrated that successive judicial reforms were aimed at weakening judicial independence, beginning with the grave irregularities in the election of judges to the Constitutional Court in December 2015”[12].
The Court reiterated that the case in concerning the State’s positive obligation to provide legal tools which allow same-sex relationships to be recognized and protected. The evolving legislation of the member States indicates that such recognition shall be adequate to ensure practical and effective rights in particular of material moral nature, even if the member states have certain margin of appreciation.[13] The Court highlighted, that the case did not address the right to same-sex marriage stemming from Art. 8 of the Convention, but homosexual couples to be granted some sort of legal framework for recognition.[14] The lack of any form of legal recognition for stable, committed homosexual relationships amounts to an omission, which cannot be justified by the existence of some legal institutes available for granting each other powers of attorney, preparing wills, and authorizing access to medical files. These do not fully serve the fundamental needs of a couples in a stable and committed relationship.[15] Eventually, the Court highlighted, the lack of official recognition prevents the applicants from regulating essential aspects such as property, maintenance, taxation, and inheritance.
Furthermore, the Polish Government arguments based on public interest, to preserve traditional concept of marriage, the social and legal heritage of Poland, the minimum of tolerance of Polish citizens towards same-sex unions, and the wide margin of appreciation, were rejected by the Court as traditions, stereotypes, and social attitudes characteristic of a given state alone cannot justify differential treatment based on sexual orientation, under Article 14.[16] In respect to the protection of traditional form of marriage, the Court again underscored that the case did not concern same-sex marriage, and the government failed to elaborate on how same-sex unions would hurt or prevent heterosexual couples to marry each other. Lastly, the Court emphasized that the States’ discretion was significantly reduced regarding the provision of legal recognition and protection for same-sex couples. It observed that this case did not pertain to specific ,,supplementary” rights that might arise from a same-sex union, which could be highly controversial due to their sensitive nature. Instead, this case focused solely on the fundamental need for legal recognition and core protection for same-sex couples.[17]
Thus, taking into account the argumentation above, the Court concluded that Poland had exceeded its margin of appreciation and failed to fulfil its positive obligation to allow same-sex couples in Poland to regulate fundamental aspects of their lives. Such failure constituted a violation of Article 8 of the Convention.[18]
Conclusion
Certainly, the timing of the Judgement makes this case even more significant, especially in Poland, with the new government taking power, however, at the same time it remains bland in the light of the Court’s decision making considering LGBTQI+ rights from an extensive perspective.
Surely, the Court strengthened its findings mainly from a previous landmark judgement of Fedotova and Others v. Russia, but missed some key considerations, which were brought up by the parties, leaving the member states with no clearer vision about how to interpret and facilitate same-sex unions in their legislation.
Firstly, what is the most ,,concerning” issue, is the Courts’ assessment on the dismissal of the Polish constitutional complaint as an effective form of domestic legal remedy required under Article 13 and Article 35 of the ECHR. Recently, however, a shift could be observed in the ECtHR’s assessment criteria about the Polish constitutional complaint, that a ,,general context” of the operation of the national judicial authority to be subjected to examination. This was exactly the ground on which the Court found the non-effectiveness of the domestic remedies in the human rights protection, incorporating a rather subjective element of evaluating the Polish Constitutional Court reform of 2015, and the personal composition of the Polish Constitutional Court, which undoubtedly questions what an adequate application of the subsidiarity principle amounts to.*
Most vividly, the Court did not elaborate on the exact legal tools, which will ease an adequate protection of same-sex couples. The fields and examples of legal protection mentioned in the current case remain just supplementary, and without a clearcut minimum standard, the Court did not add any meaningful aspects and legislative approaches to the member state to follow, with regard to the evolution of LGBTQI+ rights in the Courts jurisprudence.[19] This ,,nitpicking” manner of the Court could be explained, by the fact that it did not address at all the question of children being raised in these families (brought up by the both the Applicants and third-party interveners), and whether they could be impacted by the non-recognition of their relationship.
Furthermore, the Applicants highlighted that they did not challenge the right to homosexual marriage in Poland, but sought any form of legal protection married couples enjoy in different fields, such as taxation, inheritance, maintenance, which the Polish legal framework did not grant them at all.[20] By so ,,cleverly” shaping the scope of their complaint, the Court also focused on the legal protection of same-sex couples, and allowed itself to far-reaching conclusions as it believed the case did not pertain to same-sex marriage but rather to any legal recognition and protection of such relationships. Thus, the public interest concerns of Poland about legal and social heritage, the wide margin of appreciation, the generally negative attitude of the Polish population were instantly dismissed, and focused on the practicality of the rights available for same-sex couples to benefit as individuals from a committed stable relationship.
In conclusion, the case is overall pivotal, in particular to states which do not provide a certain legal framework for same-sex relationships, as, according to the Court, it seems to be a straightforward breach of Article 8 of the Convention. Additionally, the question or state of constitutionality, effective and independent judiciary in a given state has an undoubted impact on how the Court evaluates the admissibility criteria for the exhaustion of domestic remedies. Member States safeguarding the traditional family now are certainly required to some extent focus on the adequate protection (not necessarily recognition) of same-sex unions, too, with the provided catalogue of rights the Court’s case-law so far presented. For the long run, the scope of the positive obligation of the states regarding the protection same-sex relationships, and the reduced margin of appreciation, stemming from the overarching trend of other member states to provide protection and recognition of same-sex unions, has been ascertained.
* An excellent research on the issue has been published by: Zombory, K. (2023). The right to an effective remedy: a key element for ensuring the effectiveness of the ECHR human rights system – the example of Poland and Hungary. In Efficiency of the judiciary (pp. 205–244).
[1] Schmitz, Rob (2023) As Europe applauds Poland's election results, civil rights groups prepare to fight [Online]. Available at: https://www.npr.org/2023/10/21/1207263724/poland-election-tusk-lgbtq-abortion-rights (Accessed: 27 April 2024).
[2] Fedotova and Others v. Russia, Applications nos. 40792/10, 30538/14 and 43439/14, Judgement on 17 January 2023
[3] Maymulakhin and Markiv v. Ukraine, Application no. 75135/14, Judgement on 1 June 2023
[4] Buhuceanu and Others v. Romania, Applications nos. 20081/19 and 20 others, Judgement on 25 September 2023
[5] Przybyszewska and other v. Poland, Appl. no. 11454/17, Judgement on 12 March 2023, p. 59
[6] Ibid. p. 44
[7] Citing the Court’s Judgement in Advance Pharma sp, z o. o v. Poland, Application no. 1469/20, Judmegent on 3 February 2022
[8] Przybyszewska and others v. Poland, Appl. no. 11454/17, Judgement on 12 March 2023, p. 74
[9] Ibid, p. 70
[10] Ibid. pp. 44-46
[11] Ibid. p. 73
[12] Ibid. p. 52
[13] Ibid. pp. 100-102
[14] Ibid. pp. 99, 106, 107
[15] Ibid. pp. 113-115
[16] Ibid. p. 118
[17] Ibid. pp. 121-122
[18] Ibid. pp. 123-124
[19] Wąsik M. (2024) Przybyszewska and others v. Poland: A milestone for Poland while a tiny brick for the other countries [Online]. Available at: https://strasbourgobservers.com/2024/01/16/przybyszewska-and-others-v-poland-a-milestone-for-poland-while-a-tiny-brick-for-other-countries/ (Accessed: 20 March 2024).
[20] Przybyszewska and others v. Poland, Appl. no. 11454/17, Judgement on 12 March 2023, p. 116
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