May 20, 2025
By Hanim Schnabel
In P v. Poland, the ECtHR ruled by 4 votes to 3 that the dismissal of a homosexual secondary school teacher for, inter alia, writing a blog for adults with some sexually explicit content violated Article 10 of the Convention. Without taking a stance on whether the dismissal actually pursued a legitimate aim, the Court held that it was, in any event, not necessary in a democratic society, since the blogging activity did not threaten the protection of morals of minors. In a dissenting opinion, judges Wojtyczek, Paczolay and Poláčkov found the majority’s approach incompatible with the Court’s subsidiary position.
It is commendable that the majority took the applicant’s vulnerability because of his sexual orientation into account in finding an Article 10 violation. That makes it all the more surprising that the Court explicitly failed to recognise the dimension of sexual orientation in other places. It namely chose a formal reading of the reasons for dismissal in deciding the applicability of Article 8 and did not conduct a substantive Article 14 analysis. As a result, this case did not become the strong precedent for increased protection against homophobic prejudice that it could have been.
The applicant is a Polish secondary school teacher who was recognized as an excellent teacher and had won multiple school-level and national prizes. He regularly posted public blog posts under a pseudonym on a website aimed at homosexual men. To access the website, prospective users had to declare that they were adults. Several posts had erotic connotations and described sexual acts between men, with some posts containing sexually suggestive photos, without depicting genitalia or intercourse. The applicant also expressed frustration with his job, using swear words. Although he claimed the blog was kept a secret, it was known to staff and students. Following a reprimand from the school principal, the applicant deleted the blog. In an incident separate from the blog, the applicant had brought his same-sex partner on two school trips, omitting him as a participant from any records.
The principal requested that disciplinary proceedings be opened against the applicant for the unauthorized third-party participation in school trips and for running a blog that contained ‘eroticism and profanities’ (§ 22). These incidents made the principal fear that the applicant was not fit to ‘shape his students’ moral attitudes’ (§ 22). In the proceedings, the regional Governor’s Office’s disciplinary officer requested a reprimand with a warning. The Disciplinary Commission, however, ordered the applicant’s dismissal, for undermining the dignity of the teaching profession ‘by using profane terms, by breaching good mores through his expression, and by posting obscene photographs’ (§ 27). The Commission explicitly stated that the profanities were distinguished from the applicant’s sexual orientation, which was not the subject of the disciplinary proceedings.
On appeal, the Appellate Disciplinary Commission overturned the dismissal, considering the applicant’s remorse and the lack of evidence of any negative impact on students. The Appellate Commission did not entertain the applicant’s argument that the original decision had been based on his sexual orientation. The Ministry of National Education’s disciplinary officer appealed, reiterating the Disciplinary Commission’s reasoning. Likewise, the officer stressed that the concern was the indecent content of the blog, not the sexual preferences it depicted. The Court of Appeal subsequently upheld the original Disciplinary Commission’s decision, including the dismissal order, asserting that the applicant’s sexual orientation could not justify public expression of obscenities and that the absence of a negative effect on students was irrelevant.
The applicant turned to the ECtHR, which was asked to rule on alleged violations of Articles 8 and 10 of the Convention, both read alone and in conjunction with Article 14 of the Convention.
The applicant claimed that his dismissal stemmed from prejudice against his sexual orientation, thereby breaching his right to respect for private and family life and the prohibition of discrimination (§ 42). Neither party contested that the applicant’s dismissal fell within the scope of Article 8. Nevertheless, the Court examined proprio motu whether the dismissal indeed affected the applicant’s private life (§ 43-44). It clarified that in employment disputes, private life may be implicated because of the underlying reasons for the impugned measure (reason-based approach) or because of the consequences it has on one’s private life (consequence-based approach) (§ 46).
Under the reason-based approach, the Court found that the direct reason for the applicant’s dismissal was a breach of his teaching duties under the Polish Teacher’s Charter Act (§ 47). There was no official policy against homosexual people (§ 49), nor were there indications that the applicant’s homosexuality was at the centre of deliberations in the proceedings (§ 50). Therefore, the Court was not convinced that sexual orientation was the real or crucial reason for the dismissal, thus finding an insufficient link to private life (§ 51, 53). The consequence-based approach also failed to render Article 8 applicable. The dismissal did not alter the applicant’s long-term professional opportunities, e.g. he was not suspended from the teaching profession and could in theory find a job at a different school. The applicant’s private life was therefore insufficiently affected to engage Article 8 (§ 56-57). Accordingly, the Court found the Article 8 complaint inadmissible.
Because Article 14 has an accessory nature but an autonomous meaning, it is possible to have an Article 14 analysis (and violation) even if there is no violation of the accompanying substantive right (e.g. E.B. v. France). The Court found Article 14 applicable because the situation fell within the ambit of Article 8, as the blogging activity was an expression of the applicant’s intimate life (§ 59). Referring to the reasoning under the reason-based approach, the Court inferred that since sexual orientation is not the real or crucial reason for the dismissal, there was no basis to conclude there was discrimination (§ 60). Consequently, the Article 14 complaint was deemed manifestly ill-founded.
The Government contended that the interference with the applicant’s right to freedom of expression pursued the legitimate aim of protecting the morals of students (§ 65), as the blog had allegedly affronted Polish social mores by talking about sexuality in explicit terms (§ 76). The Court did not examine whether the interference (the dismissal) actually pursued this purported legitimate aim, because the restriction was, in any event, not necessary in a democratic society (§ 78).
It repeated that Contracting States have a wider margin of appreciation when regulating freedom of expression regarding matters liable to offend intimate personal convictions within the sphere of morals (§ 79). Despite this principledly wide margin of appreciation, the Court concluded that the domestic authorities did not properly consider the following elements before restricting the applicant’s freedom of expression:
The Court concluded that the domestic authorities did not provide relevant and sufficient reasons for dismissing the applicant from his position, because the applicant’s blogging activity did not threaten the protection of morals of minors in a way justifying the imposed sanction. The interference with his right to freedom of expression therefore did not correspond to a pressing social need and was not proportionate to the legitimate aims purportedly pursued (§ 94). Therefore, the Court found a violation of Article 10 of the Convention. No separate issues under Article 14 were found (§ 96), despite the applicant’s argument that the proceedings against him had been motivated by homophobic prejudice (§ 64), third-party submissions by LGBT+ organisations, and the Court’s own considerations (at § 92).
The dissent found the analysis leading to the violation an unjustified interference with the system of domestic remedies, because the Court obligates appellate authorities to examine issues that were not raised by or in dispute between the parties (§ 3 dissent, e.g. that writing the blog was reprehensible). Regarding § 92, it pointed out that the outcome could have been different had the applicant depicted heterosexual relations (§ 5 dissent). Overall, it criticised the majority for allegedly undermining the subsidiarity of the Convention system, by assessing the case as if it were a higher domestic court (§ 6 dissent).
The violation of Article 10 was held by 4 votes to 3, which might explain the Court’s sometimes ambiguous reasoning. It rightfully found a violation of the Convention, in line with its evolving jurisprudence on the protection of LGBT-related speech. However, the judgment is noticeable for the Court’s formal approach to the reasons for dismissal and the lack of analysis under Articles 8 and 14.
The facts in P. v. Poland have in common with other cases, such as Bayev v. Russia, A.K. v. Russia and Macatė v. Lithuania, that they take place in an educational context and that the interferences with either Article 10 or Article 8 and 14 rights of LGBT+ people are deemed to protect the morals of minors and children. The main difference in P. v. Poland is that the domestic authorities explicitly deny the imposed sanction was influenced by the sexual orientation of the applicant. In contrast, in the other cases, the restrictions were motivated by:
However, sexual orientation still played an important role in P. v. Poland in the Court’s reasoning. Although the Court firmly states that the applicant’s sexual orientation is not part of the reason for his dismissal, its reasoning in § 92 still suggests that it cannot be discounted in the decision-making or that LGBT+-related speech is worthy of extra protection. By referring to the negative attitudes in Poland towards LGBT+ people, the Court shows that it is aware of prejudice and stigma. Regrettably, it does not elaborate further on the role they played in their ultimate finding. Even though the conclusion of the dissenting opinion is contrary to my argument in this post, it is right to question whether the argument in § 92 still holds if the applicant had depicted heterosexual relations (§ 5 dissent). Considering all this, it would have been worthwhile to analyse this case under Articles 8 and 14, as indicated by third-party intervener ILGA Europe.
While the reason- and consequence-based approach to the applicability of Article 8 is established case law (e.g. Denisov v. Ukraine), it is unusual that the Court considers these approaches proprio motu, all the more so given the similarities with the facts in A.K. v. Russia, in which the Court accepted Article 8’s applicability without further ado. In that case, the Court found a dismissal because of affectionate pictures with a same-sex partner on a private Facebook account to be in violation of Articles 8 and 14 of the Convention. Similarly to P. v. Poland, the Russian Government had contended that the applicant’s sexuality had not been a relevant factor in the case as every teacher would have been dismissed for similar actions (§ 39). The Court found that ‘[t]he dismissal of a teacher with appropriate qualifications, of good repute with students and parents and without a prior history of complaints could not have been the necessary, sole, and immediate sanction for the images whether they had stayed private or became public’ (§ 40).
It is true that in A.K. v. Russia, the statements by the domestic authorities were explicit in their dismay with the sexual orientation of the applicant. Nevertheless, the Court’s reasoning in A.K. v. Russia still stands: ‘the concept of “private life” under Article 8 […] covers, inter alia, the physical and psychological integrity of a person, including their sexual orientation and sexual life’ (§ 30) and ‘[a]n individual’s sexual orientation may not be isolated from the private and public expressions of it, which are evidently protected elements of an individual’s private life under Article 8 of the Convention’ (§ 44). Instead, in P. v. Poland, the Court chose a formal reading of the reasons for the applicant’s dismissal, thereby failing to acknowledge that sexuality and sexual life in general are part of one’s private life. In line with prior case law, personal blogging activity expressing one’s most intimate thoughts, including about one’s sexual life and identity, should fall within the scope of Article 8.
The applicant’s expressions on his sexual life constituted direct reasons for his dismissal (reason-based approach). Since the applicant’s expressions are inherently linked with his sexual orientation, Article 8 should be applicable per A.K. v. Russia (§ 44), regardless of whether sexual orientation was the formal crucial reason for dismissal. Additionally, it can be argued that the impact of a dismissal on one’s private life exceeds mere future employment prospects (consequence-based approach). For instance, precisely because LGBT+ people need heightened protection as a result of their vulnerability, the impact of a dismissal on an applicant’s psychological integrity and privacy could be construed as at least engaging the threshold of Article 8 protection. An Article 8 analysis would not only have made the judgment more robust and less easy to circumvent in the future, but would also be in accordance with precedent and have great symbolic value, helping to reduce stigma.
Article 14 of the Convention (the so-called Cinderella of the Convention) has again suffered from a subordinate position. In conjunction with Article 8, the Court repeats its findings under the reason-based approach, setting a high threshold to trigger an Article 14 analysis compared to its prior jurisprudence. The protected ground namely has to be the ‘real or crucial reason’ for the differential treatment (§ 60). Furthermore, in conjunction with Article 10, the Court briefly concludes that no separate issue arises under Article 14, despite the previous importance it attached to the negative attitudes in Poland towards LGBT+ persons. If the Court cannot disregard such attitudes, doesn’t this imply a possible issue under Article 14 that requires heightened scrutiny and further analysis? That impression is strengthened considering the Court’s avoidance to examine whether the dismissal actually pursued the aims put forward by the Government under Article 10.
Usually, the Court does not specify the form of discrimination at hand, but it is established that Article 14 targets a difference in treatment of persons in relevantly similar situations (formal equality) and a failure to treat persons in relevantly different situations differently (substantive equality). The Court has also accepted indirect discrimination within the scope of Article 14, which explicitly does not require intent (D.H. and Others v. the Czech Republic), contrary to the ‘real or crucial reason’-test in § 60.
One frequent way in which the Court assesses whether discrimination took place is a comparator test (e.g. E.B. v. France). This intellectual exercise of comparing the applicant to a person without the protected characteristic, namely a heterosexual teacher placed in similar circumstances, would have increased the clarity and completeness of the judgment, even if no violation of Article 14 were found. Especially in light of the prevailing negative social attitudes towards LGBT+ persons, one could seriously question whether a heterosexual teacher writing a blog with sexual connotations on an adult site would have faced the same backlash. And if so, would they have been only reprimanded or dismissed as well? Indeed, it is plausible that the traditional, heteronormative attitudes in society coloured the Government’s perceptions of what it means to breach ‘good mores’ in such a way that it justifies dismissal. Therefore, a substantial Article 14 analysis provides a better safeguard to uphold the ‘demands of pluralism, tolerance and broadmindedness without which there is no democratic society’ (§ 70). The Court would have duly considered the broader, structural context of the applicant’s claim that his dismissal was (subconsciously) motivated by homophobic prejudice. The ‘real or crucial reason’-test alone is unsatisfactory in scrutinising this possible impact of prejudice.
P. v. Poland rightly stresses the importance of carefully balancing all factual elements before sanctioning the online speech of a homosexual teacher on an adult blog with occasional sexual content. Here, the blogging activity did not threaten the protection of morals of minors, resulting in the absence of a pressing social need. It is laudable that the Court took into account the special vulnerability relating to the sexual orientation of the applicant in an environment of negative attitudes towards LGBT+ people. Unfortunately, it shied away from engaging with the argument of homophobic prejudice under Articles 8 and 14 of the Convention by sticking to a formal reading of the reasons for dismissal and by diverging from its prior jurisprudence. Thereby, the Court did not exploit the full potential of the case to set a clear precedent in the protection against structural homophobic prejudice.
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