January 16, 2024
by Dr. Mateusz Wąsik
‘Member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship’, ruled the ECtHR in the latest judgment for same-sex couples in the case of Przybyszewska and Others v. Poland on 12 December 2023. Academics and practitioners may say nihil novi sub sole (‘there is nothing new under the sun’) as the judgment reiterates milestones of LGBT+ protection from Fedotova and Others v. Russia, Maymulakhin and Markiv v. Ukraine and Buhuceanu and Others v. Romania, but the Polish case should not be ignored.
The Strasbourg Court steered the definition of ‘adequate protection’ towards tax aspects, which filled me with joy as a tax practitioner. After all, the ECtHR does not usually show eagerness to discuss tax aspects in relation to Article 8 of the Convention on the right to private life. Moreover, the case is considered as a landmark ruling for the protection of LGBT+ rights in Poland, as it was submitted with 9 other claims within ‘the Coalition for Civil Partnerships and Marriage Equality’ – a non-profit movement formed by lawyers, human rights advocates and NGOs whose purpose is to introduce a legal recognition of the same-sex partnerships in Poland. The decision came one day ahead of the formation of the new liberal government in Poland. That government had promised to introduce same-sex partnerships.
Irrespective of its significant impact on the Polish domestic regulation, the decision has its omissions that may disappoint human rights advocates. This post will focus on these two sides of the decision and its impact on a global and local level.
The applications were lodged by five Polish same-sex couples who had been living together in a stable and committed relationship. On various dates, the applicants each declared before the authorities that there were no obstacles preventing them from marrying their same-sex partner. Their attempts were rejected on the basis that the Constitution and the Family and Custody Code of Poland define marriage as a union between a woman and a man. The applicants appealed to the courts, but the decisions of the authorities were upheld stating that marriage between same-sex partners is not possible. According to the authorities, this does not constitute discrimination, as the applicants were allegedly free to make decisions about their family and private life.
While certain aspects of same-sex couples can be regulated based on private law or have been developed through the evolution of the case-law, same-sex partners are deprived of a legal framework for their relationship. Their applications to the ECtHR contained a detailed catalogue of rights that are not available for same-sex partners, inter alia a 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 (para. 59).
The Government’s response was that the applicants had not given the Polish authorities an opportunity to address the alleged violations of the Conventions, as some proceedings before the Constitutional Court are pending. Unsurprisingly (as similar arguments were raised in the Russian, Ukrainian and Romanian cases), the Government argued that same-sex couples can have a recourse to a variety of legal measures allowing them to arrange their everyday lives. According to the Polish Government, this serves as a proof that there is no significant disadvantage for same-sex couples in Poland.
The decision is set in the current Polish constitutional crisis that had implications for the case. It is worth noting how the Court has dealt with the arguments of the government concerning non-exhaustion of domestic remedies. To understand properly the situation, the current situation of the Polish Constitutional Court (Trybunał Konstytucyjny) should be briefly described. The Constitutional Court has fifteen seats. In 2015, 5 seats were due to expire. The parliament controlled by the previous leading party (until October 2015) completed its election process for replacing the judges. When the new parliament was formed (after October 2015) the new parliamentary majority has elected completely new judges that subsequently were sworn by the president. It created a precedent that a judge has been elected for a seat already taken. It is considered a constitutional court crisis which lasts until this day. That situation was already subject to the attention of the ECtHR which ruled that the Polish Constitutional Court no longer serves as an independent judicial authority (Xero Flor v. Poland).
Having above in mind, the Strasbourg Court took the same position and held that there are serious doubts about how the Polish Constitutional Court could deal with the complaints of the applicants. Albeit the applicants did indeed file constitutional complaints and subsequently submitted their cases to ECtHR without waiting for the result, the Court did not accept the government’s arguments concerning inadmissibility. The Court strongly doubted that the cases would be admissible in the Constitutional Court. Additionally, the ECtHR asserted that ‘the whole sequence of recent events in Poland vividly demonstrated that successive judicial reforms were aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015’ (para. 52).
Turning to the merits, in reference to both recent judgments (particularly Fedotova and Others) and the ongoing trend within the Member States of the Council of Europe, the Court reiterated that States have positive obligations under Article 8 of the Convention to provide a legal framework that allows same-sex couples to be granted adequate recognition and protection of their relationship (para. 97-98). Member States have certain margin of appreciation in implementing the positive obligation, but the protection must be effective and practical. Rights guaranteed by the Convention cannot be theoretical or illusory (para. 102). In this regard, States may opt for different regimes such as civil union or registered partnership to provide such protection. This, however, does not imply an obligation to allow same-sex marriage (para. 99).
Returning to the situation of the applicants, the ECtHR noted that the Polish legal system does not provide any legal framework for same-sex partners. The only recognised form of family life is reserved for an opposite-sex partners through marriage. Confirming previous approach, the Strasbourg Court repeated that same-sex couples are in a relevantly similar situation to different-sex couples with regards to their need for acknowledgement and protection of their relationship (para. 110 referring to cases of Schalk and Kopf, Vallianatos and Others, Oliari and Others and Maymulakhin and Markiv). Granting each other power of attorneys, preparation of the wills and authorisation for medical files do not fulfil basic needs of a couple living in a stable and committed relationship. According to the Court, absence of official recognition results in inability to regulate fundamental aspects of the applicants inter alia property, maintenance, taxation and inheritance.
The Court’s analysis then turned to the reasons put forward by Poland to justify the lack of any legal recognition and protection for same-sex couples. So far, the Court has rejected justifications concerning the protection of the traditional family (Fedotova, para 212), negative attitude of the population (ibid. para 219) or gradual maturation of societal attitude on the recognition of new forms of family (Oliari para 176). The government in the Polish case decided to refer to three aspects: a negative attitude of Poles towards same-sex couples, the concept of the traditional family and a margin of appreciation.
The Polish case was destined to the same fate as the other same-sex partnership cases, since the Court rejected all the arguments raised by the government. With regards to the negative attitude of the Polish people, the Court took notes from the applicants and the interveners that had presented different data showing support for same-sex union at 56%. Irrespective of the positive attitude, the Court reiterated that a predisposed bias on the part of a heterosexual majority against the homosexual minority cannot be endorsed and considered as sufficient justification for a differential treatment based on sexual orientation (para. 118). As to the second argument, the Court reminded the government that the applicants did not claim the right to same-sex marriage. Even if they had done so and this justification could have been considered, the government had not explained how same-sex couples could harm ‘traditional families’ or compromise their future or integrity. Lastly, in regard to the wide margin of appreciation, the Strasbourg judges reiterated that the margin is heavily reduced when it comes to the legal recognition and protection of same-sex couples.
In light of the above, the Court considered that Poland had overstepped its margin of appreciation and failed to comply with its positive obligation to ensure that same-sex couples in Poland may regulate fundamental aspects of their lives. This failure was considered a violation of Article 8 of the Convention. The Court decided to not examine separately whether there has also been a violation of Article 14 on the accessory right to non-discrimination in conjunction with Article 8, recognising that findings under Article 8 alone are sufficient.
At first glance, Przybyszewska and Others may be considered as another brick in building a well-grounded interpretation of Article 8 of the Convention with respect to the protection of same-sex partnerships. It will certainly not receive the same level of attention as previous milestone cases like Oliari and Others, Fedotova and Others or even the recent Ukrainian case, but it can be perceived as a milestone for Poland. The new Polish government is planning to introduce a framework for same-sex couples in upcoming months. Moreover, the applicants listed the basic rights with respect to tax and social security protection which were taken into consideration by the Court. That may be a guidance for other member states that have not implemented any solutions for such couples yet. However, despite the positive outcome, Przybyszewska and Others may leave academics and practitioners with a feeling of dissatisfaction, as the case itself is a reiteration of findings described in Fedotova without taking an opportunity to clarify and summarise fundamental aspects related to same-sex couples.
Speaking about the essence of the case, Przybyszewska may serve as a case delivering a catalogue of rights which should be provided to same-sex partners. Similar to Buhuceanu, the Court emphasised ‘protection’ over the ‘recognition’, which should be taken as a positive sign. It is commendable that the Court noticed that same-sex couples have essential need for recognition (para. 108-110) but above all they also have a primal need for protection as with the official recognition, then comes rights. The Court therefore concluded that having a possibility to shape their future together, same-sex partners should have an unimpaired access to mutual investments, joint tax return filing, tax free movements of assets, tax free inheritance, possibility to cover their partner by state social or health insurance (non-exhaustive catalogue of minimum protection demanded by the applicants has been included in para. 59-61 and acknowledged by the Court in para. 114.). Otherwise, they would live in a legal limbo and such state is contradictory to actual understanding of protection under article 8. For those member states that are still behind introducing same-sex partnership legislation, Przybyszewska and Others can be used as a supplementary catalogue of practical solutions which should be provided to same-sex couples to fill the concept of ‘adequate’ with a specific content. The catalogue remains supplementary because the Court to date has not stipulated what ‘adequate’ means. To fill this word with a substance, Contracting States should read this case in conjunction with all earlier cases (starting from Oliari) to understand what the Court had in mind.
Strikingly, this is what the ECtHR has not been able to clarify. The Court could have clearly defined the framework which should be offered to same-sex partners. Albeit each country has different solutions to support families (tax exemptions, reliefs, deductions, social programs) and it is impossible to define the only right regime, the Court had an opportunity to set up a certain standard which should be obeyed by Contracting States. From a practitioner’s perspective, it would be useful to have a clear stipulation of core rights for same-sex couples.
Moreover, the applicants stated that the lack of recognition of the relationships may have a negative impact on children being raised by them (para. 59). This aspect has been also brought by the interveners (para. 76, 89, 92) but has been completely ignored by the Court. By reiterating that legal protection and recognition are needed for same-sex partners, the judges seemed to forget that the protection described in Article 8 is intended for the family life established by same-sex partners. It is not uncommon that children are being raised in these families and the lack of legal framework put them in a legal limbo as well (for more information about this, see the following publication). In this context, one may argue that the case itself referred to applicants’ particular situation and the purpose of the Court is to conduct an in concreto review. At the same time, a general comment about the children in those families and scope of Article 8 could suffice, as this aspect of the case was brought by some of the applicants (para. 59).
As for the lack of examination of the complaint under Article 14 ECHR in conjunction with Article 8 on the right to non-discrimination, I join the opinion of Giulio Fedele. If the Court considered that discrimination was not a ‘fundamental aspect of the case’, what is the root cause of the lack of legal framework? The sexual orientation of the applicants was the only cause of the lack of any legal recognition and protection in Poland. On the one hand, I understand the legal need to decide the case solely on Article 8. On the other hand, the Court had some examples illustrating the daily inequalities encountered by same-sex couples that are ‘in a relevantly similar situation to different-sex couples’ which directly leads to a need to examine whether there was a discrimination of same-sex couples in Poland. By not doing so (see a different approach affirmed by the Court in the Ukrainian case (para 66-79), the analysis made by the Court seems incomplete.
Przybyszewska and Others is a positive and important decision. My mixed feelings with regard to the case do not deprive the decision of its importance. The case shows that the Court established a stable and clear interpretation of Article 8 of the Convention with regards to same-sex partnership. Moreover, it is another signal for States that have not offered any legal framework for same-sex partnerships, that this is a direct breach of the Convention. It is also a pivotal voice for countries whose judiciary system is not considered impartial and independent. Nonetheless, it is important from a practitioner’s perspective to have a clear catalogue of core rights for same-sex couples. The applicants stated precisely what tax and social rights are being ignored to properly protect their interests. Giving the priority to ‘protection’ over ‘recognition’, the Court could have finally defined what ‘adequate’ means and included children into this scope of protection. Overall, the judgment will be taken into account by the liberal government that took the lead in Poland since December 2023 and will be used as a legal argument to finally introduce same-sex partnerships in Poland.