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CASE OF KOZAK v. POLAND
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
In the case of Kozak v. Poland,
European Court of Human Rights (Fourth Section), sitting as a Chamber
Nicolas Bratza, President,
David Thór Björgvinsson,
Ledi Bianku, judges,
deliberated in private on 9 February 2010,
the following judgment, which was adopted on that date:
case originated in an application (no. 13102/02) against
the Republic of Poland lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Mr
Piotr Kozak (“the applicant”), on 23 August 2001.
applicant was represented by Mr A. Byliński, a lawyer practising
in Szczecin. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz, of the
Ministry of Foreign Affairs.
applicant alleged, in particular, a breach of Article 14 taken
in conjunction with Article 8 of the Convention, submitting that
he had been discriminated against on the ground of his homosexual
orientation in that he had been denied the right to succeed to a
tenancy after the death of his partner.
4 December 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1951 and lives in Szczecin.
1. Undisputed facts
- In 1989 the applicant moved in to a council flat at K.
street, rented by T.B., the applicant's partner, with whom he
had lived in a homosexual relationship. Earlier, in 1986 or 1987,
they had lived together in a flat rented by T.B. at N. street. The
applicant and T.B. shared the expenses for the flat. On 28 May 1989
the applicant was registered as a permanent resident of the flat in
the residents' register kept by the Szczecin Municipality (Gmina).
1 April 1998 T.B. died.
an unspecified later date the applicant applied to the Mayor
of Szczecin (Prezydent Miasta), asking him to
conclude a lease agreement with him, replacing thereby the agreement
with the late T.B. He was informed orally by one of the
municipality's clerks that he should first pay arrears in rent since
otherwise a fresh agreement would not be effected. The applicant paid
the arrears, which amounted to 4,671.28 Polish zlotys (PLN) and also
renovated the flat, paying PLN 5,662 for the work.
19 June 1998 the Szczecin Town Office's Department for Municipal
Buildings and Dwellings (Wydział Budynków i Lokali
Komunalnych Urzędu Miejskiego) sent a letter to the
applicant, informing him that his application could not be granted
because he did not meet the relevant criteria. One such criterion was
to live in a council flat at least from 11 November 1992. The
authorities held that the applicant had not lived in the flat
but had moved in after 1 April 1998, the date of T.B.'s death.
Moreover, meanwhile – on 3 April 1998 – the
applicant's name had been struck out of the register of the flat's
residents due to the fact that he had not lived there for more than
five years (see also paragraphs 14-23 below). Accordingly, the
authorities ordered the applicant to vacate the flat and surrender it
to the municipality, on pain of being evicted from it at his expense
and risk, the eviction being effected regardless of his presence.
the applicant tried to negotiate an agreement with the municipality
but to no avail.
2. Facts in dispute
(a) The Government
Government maintained that at some unspecified time the applicant and
T.B. had come into conflict. T.B. asked the authorities to strike
the applicant's name out of the residents' register and intended
to start eviction proceedings against him. They stopped running
the common household some one and a half years before T.B.'s death
and, at the same time, the applicant stopped paying the rent for
the flat. Three months before his death T.B. stayed in his brother's
home but returned to the flat in mid-February 1998. The
applicant did not live in the flat at the time of T.B.'s death.
Government further stated that the applicant had not assumed
responsibility for T.B.'s funeral.
support of their submissions, the Government relied on the findings
made by the administrative authorities and courts and in proceedings
concerning permanent residence (see paragraphs 14-23 below) and
eviction (see paragraphs 24-28 below). They produced copies of the
(b) The applicant
applicant acknowledged that he and T.B. had started to argue some one
and a half years before the latter's death and that he had stopped
paying the rent and moved out for some time. However, nine months
before T.B.'s death they had reconciled and they had resumed their
applicant submitted that until and upon T.B.'s death they both had
lived in the flat. He had looked after T.B. during his illness up
until his death. As regards T.B.'s funeral, the applicant stated
that, officially, it had been T.B.'s former wife who had organised
the funeral and had received a partial refund of expenses from
the Social Security but he had helped her to organise it and had
participated in the ceremony.
B. Administrative proceedings concerning permanent
5 August 1997 T.B made an application to the Szczecin Municipality,
asking it to strike the applicant's name as a permanent resident of
the flat at K. street out of the residents' register on the ground
that the latter no longer lived at that address.
3 April 1998 the application was granted and a new entry was made in
the register. The relevant administrative decision became final on an
26 June 1998 the applicant asked the authorities to re-open the case,
submitting that he had not been notified of the institution of the
proceedings. He maintained that, in contrast to what had been
established in those proceedings, he had continually lived in
the flat since 18 May 1989.
case was reopened and the authorities heard evidence from the
applicant and several witnesses.
applicant stated that in the years 1994-1998 he had on several
occasions left for Germany to seek odd jobs for periods lasting
usually some three months. In 1997 he had been absent only from March
to May and, for one and a half months starting at the end of August
or the beginning of September.
authorities inspected visas and stamps in the applicant's passport
and found that his stays in Germany and their length were confirmed.
further heard evidence from two witnesses – K.P. and Z.M. –
proposed by the applicant and also from residents of the building at
K. street. While the applicant's neighbours did not clearly confirm
that he had resided permanently in the flat, they said that they had
often seen him around, that he had answered the door to the flat,
helped one of them with moving furniture and that he had
renovated the flat in April 1998. They also stated that T.B. had led
a very lively social life and many men had visited him.
and Z.M. who were colleagues of the late T.B. and the applicant
confirmed that he had lived in the flat until T.B.'s death.
31 March 1999 the Mayor of Szczecin (Prezydent Miasta) quashed
the decision of 3 April 1998 and refused to strike the applicant's
name out of the residents' register.
the decision, the Mayor referred to the fact that, in the years
1994 1995, the applicant had unsuccessfully attempted to succeed
to a tenancy of a council flat at J. street, after the
death of a certain E.B., the statutory tenant in 1994 (see also
paragraph 26 below). It was noted that in those proceedings the
applicant had stated that he had lived in the flat at J. street
since March 1991, had had the keys, had kept his furniture and
belongings there and, after his stay in Germany in 1994, had returned
to the flat and renovated it.
was further noted that the applicant, when asked to explain the
inconsistency with the version recently presented, had said that his
statements regarding the alleged residence at J. street had not been
true and that he had done so solely for the sake of acquiring the
right to lease the flat at J. street, whereas he had in fact lived
permanently at K. street. He added that, in any event, he could not
stay every day in the flat on account of T.B.'s and his
colleagues' frequent drunkenness.
the facts as a whole, the Mayor considered that the testimonies given
by the witnesses proposed by the applicant were not credible because
they were his colleagues and, in addition, they did not reside in the
building. The residents had not clearly confirmed that he had lived
there from August 1997 to March 1998. However, given the fact that
T.B. had died on 1 April 1998, that the impugned decision had been
issued on 3 April 1998 and that, as confirmed by the neighbours, the
applicant had lived in the flat after T.B.'s death and had renovated
it, it was evident that on the date of the issuance of the decision
he had been a resident of the flat. Accordingly, the original
decision had not been given on the basis of the circumstances
obtaining on the date of issuance and, as such, had to be quashed.
C. Proceedings for eviction
16 April 1999 the Szczecin Municipality sued the applicant before the
Szczecin District Court (Sąd Rejonowy), seeking his
eviction from the flat rented by the late T.B.
May 1999 the court gave judgment in default, granting the claim.
June 1999 the applicant applied for the judgment to be set aside and
the claim to be dismissed. The court proceeded to hear evidence.
24 May 2000 the court heard evidence from the applicant. The
applicant stated that he had lived with T.B. in the flat and that he
was registered as a permanent resident of the flat, sub-letting it
from T.B. At the material time he still lived in the flat, paying
twice the rent due because he was using the flat without any
legal title. He had informed T.B.'s brother of the latter's death but
had not organised the funeral since he had felt that the family
should take care of it. The family had refused to take part in the
funeral. Probably, T.B.'s former wife had organised it.
2 June 2000 the District Court upheld the judgment in default
of 27 May 1999.
court made the following findings of fact.
applicant was registered as a permanent resident of the flat since
28 May 1989. He sub-let one room from T.B. On 3 April 1998 his
name as a permanent resident of the flat was struck out of the
register upon T.B.'s motion. It was later restored, following the
re-opening of the case (see also paragraphs 14-23 above).
applicant did not organise T.B.'s funeral. T.B. and the applicant had
had arguments. The applicant moved to the flat at K. street after
virtue of a judgment given by the Szczecin Regional Court
on 18 February 1997 the applicant had been evicted from the
flat at J. street. The applicant had made attempts to succeed to
a tenancy of the council flat at J. street after the death of
E.B., a statutory tenant. In the relevant proceedings, he had stated
that he had lived at J. street since 1991. Following the enforcement
of the eviction order, he left the flat in June 1998.
court further held that even though the applicant was registered
as a permanent resident of the flat, this fact could not be
decisive since this had legal consequences only for the residents'
register and not for the application of section 8 of the 1994 Act
setting out the statutory conditions for the succession to lease (see
also paragraph 40 below).
these circumstances, the court concluded that the applicant had
no legal title to the flat in dispute and that the eviction
order should be granted.
applicant appealed, arguing that the first-instance court had made
errors of fact, in particular that it had wrongly found that he had
moved to the flat at K. street only after T.B.'s death. He also
alleged several procedural shortcomings and arbitrary assessment of
14 September 2001 the Szczecin Regional Court (Sąd Okręgowy)
heard and dismissed the appeal, upholding the grounds given for the
first instance judgment.
D. Proceedings for succession to tenancy
14 July 2000 the applicant sued the Szczecin Municipality before the
Szczecin District Court, seeking a judgment declaring that he had
succeeded to the tenancy after T.B.'s death.
a hearing held on 30 October 2000 the applicant's lawyer stated that
the claim was based on section 8(1) of the Lease of Dwellings and
Housing Allowances Act of 2 July 1994 (ustawa o najmie lokali
mieszkalnych i dodatkach mieszkaniowych) (“the 1994
Act”) (see also paragraph 40 below) and that on this basis the
applicant had a right to succeed to the tenancy as T.B.'s
life-partner (konkubent), with whom he had cohabited for
many years and had run a common household.
9 November 2000 the applicant asked the court to hear evidence from 3
witnesses, K.P., R.M. and S.B. in order to establish that he and T.B.
had remained at all times in a particularly close relationship.
a hearing held on 22 February 2001 the court rejected the motion and
heard evidence from the applicant alone. It considered that the fact
that the applicant had cohabited with his late partner had already
been sufficiently proved on the basis of his own statements. Before
the court, the applicant stated, among other things, that he had
borne expenses involved in the running of their household,
including the rent for the flat. He lived in a room and T.B.
occupied the kitchen.
the same day it gave judgment and dismissed the claim.
District Court made the following findings of fact.
T.B. rented the flat in question from the municipality. He was a
divorced single person. The applicant and T.B. had lived together
from 1986 or 1987, initially in another flat and, subsequently in
1989, they moved to the flat in dispute. They had a homosexual
relationship. The applicant bore the costs of running the household
and paid the rent for the flat. They stopped running the common
household some one and a half years before T.B.'s death and at the
same time the applicant stopped payment of the rent to the
1996 the defendant municipality lodged an action for eviction against
T.B., on the ground that rent arrears had not been paid.
T.B.'s death the applicant paid the rent arrears and asked the
defendant to conclude a lease agreement with him. He renovated the
1994 the applicant made a similar application to the defendant
municipality, asking it to conclude a lease agreement with him in
respect of another flat, rented by a certain E.B., after the
latter's death. He alleged that he had permanently lived in E.B.'s
flat at J. street, whereas in T.B.'s flat he had only been registered
as a permanent resident.
findings of law read, in so far as relevant:
“Under section 8(1) of the 1994 Act a person can
take over a tenancy if he or she has fulfilled jointly the four
following conditions: (1) was in a close relationship with the late
tenant by blood relations, adoption or de facto marital
cohabitation; (2) resided permanently with the tenant until his
or her death; (3) had not relinquished this right to the landlord and
(4) upon the death of the tenant had no title to another flat.
The applicant stated that he had lived in de facto
marital cohabitation with T.B. This should be assessed in the light
of the situation as it obtained upon the latter's death.
The major features of a de facto marital
relationship (konkubinat) are its dissolvability and lack of
legal consequences following its dissolution – as it is
a purely de facto union. For a relationship to be
considered a de facto marital relationship there must be
emotional, physical and also economic bonds between the partners.
Yet it emerges from the applicant's testimony that the
economic bond between the partners broke some one year and a half
before T.B.'s death, when they stopped running a common household. In
consequence, their relationship no longer fulfilled the conditions
for a de facto marital relationship.
However, even assuming that all the above-mentioned
requirements for a de facto marital relationship existed, the
applicant's and T.B.'s cohabitation could not be regarded as
such. Indeed, a de facto marital relationship is a not
legalised substitute for a marriage. Pursuant to Polish law, Article
1 §1 of the Family and Custody Code, a marriage can be
contracted only between a woman and a man. Consequently, [the law]
recognises only de facto relationships of different-sex
That being said, the applicant does not belong to the
group of entitled persons referred to in section 8(1) of the 1994
Act. All of the above-mentioned four requirements of section 8(1)
must be fulfilled jointly; non-fulfilment of even one of them
makes it redundant to examine compliance with the remaining ones. It
should be added in passing that, given the applicant's attempts to
succeed to the tenancy of [another] flat, his permanent
residence in the flat [in question] upon the death of the statutory
tenant is open to doubt.
applicant appealed to the Szczecin Regional Court (Sąd Okręgowy),
seeking to have the impugned judgment quashed and the case remitted
or, alternatively, to have the judgment altered and his claim granted
in its entirety. He asked the Regional Court to hear supplementary
evidence from him, in order to establish the actual duration of his
relationship with T.B. Furthermore, relying on Article 390 § 1
of the Code of Civil Procedure (Kodeks postępowania
cywilnego), he asked the court to refer to the Supreme Court
(Sąd Najwyższy) the following legal question:
“Does the term “a person who has lived with
a tenant in de facto marital cohabitation” used in
section 8(1) of the 1994 Act also concern a person who has lived in a
homosexual cohabitation with a tenant, or only a person living
in a heterosexual cohabitation?”
- Alternatively, the applicant asked the court to refer,
under section 3 of the law of 1 August 1997 on the
Constitutional Court (ustawa o Trybunale Konstytucyjnym)
(“the Constitutional Court Act”), to the Constitutional
Court the following legal question:
“Is the term “a person who has lived with a
tenant in de facto marital cohabitation” referred to in
section 8(1) of the 1994 Act – if interpreted as including only
de facto marital cohabitation of a woman and a man –
compatible with Articles 32 § 2 and 75 of the Constitution
and Article 14 of the European Convention of Human Rights?”
regards the principal grounds for the appeal, the applicant argued
that the District Court had failed to establish the facts of the case
properly, in particular because it had concluded that he and T.B. had
stopped running their common household one and a half years before
the latter's death solely on the basis of his incomplete testimony
and had refused to admit evidence from the witnesses proposed by him
in order to clarify the circumstances of the case. He also
alleged a breach of the substantive civil law consisting in an
erroneous interpretation of the term “a person who ha[d] lived
with a tenant in de facto marital cohabitation” as
relating solely to cohabitation of a man and a woman.
1 June 2001 the Szczecin Regional Court heard, and dismissed the
appeal. It considered that the lower court had correctly held that
the applicant had failed to meet the requirements laid down in
section 8(1) of the 1994 Law. The reasoning, in so far as
relevant, read as follows:
“In the case under consideration the applicant
derived his entitlement to succession of the tenancy from his stable
homosexual relationship with the tenant.
For this reason, the determination of the scope of the
term “a person who has lived with a tenant in de facto
marital cohabitation” was of crucial importance for the
determination of the claim.
In contrast to what has been argued in the appeal, the
District Court correctly interpreted the above-mentioned term. This
court shares the opinion stated in the reasoning of the impugned
judgment that the legal regulation in section 8(1) of the 1994 Act
concerns persons remaining in a de facto marital relationship,
i.e. an actual relationship of different sex persons with stable
physical, emotional and economic ties, imitating a marriage.
The appellant is not right in saying that the scope of
the above-mentioned provision encompasses also homosexual
relationships. According to an opinion commonly accepted in our legal
writing and case-law ..., de facto marital cohabitation takes
place only if a woman and a man cohabit together.
It must be stressed that a de facto marital
relationship differs from a marriage only by lack of its
legitimisation. For this reason, the subjects actually remaining in
marital cohabitation can only be persons who, under Polish law, are
eligible for marriage. Pursuant to Article 1 § 1 of the Family
and Custody Code, the fundamental principle of the family in Poland
is the difference in sex of a prospective nuptial couple
(nupturienci), which means that contracting a marriage between
persons of the same sex is inadmissible. Having regard to the fact
that de facto cohabitation constitutes a substitute for a
marriage, one must consider that its subjects can exclusively
be a woman and a man.
While the appellant is right in saying that in the
European legal writing the concept of de facto marital
cohabitation also encompasses homosexual relationships ..., according
to the general construction rules, legal concepts should be given the
meaning that they have in our legal system. Polish law does not
recognise relationships of same-sex persons. For this reason, where a
legal provision (in this case section 8(1) of the 1994 Act) entails
legal consequences on account of remaining in a de facto marital
relationship, it does not concern partners having homosexual
relations, even if they have stable emotional, physical and economic
Contrary to what is being argued in the appeal, the
above legal solution does not infringe the constitutional principle
of equality before the law, which does not have an absolute
character and exceptions to which may be justified by the need to
protect other rights. Indeed, Article 18 of the Constitution ...
clearly states that “marriage, being a union of a man and a
woman, as well as the family ... shall be placed under the protection
and care of the Republic of Poland”.
The above-mentioned provision creates the constitutional
principle of the protection for the family founded on a union of a
woman and a man. Provisions of the international treaties ratified by
Poland, i.e. Article 12 of the European Convention of Human
Rights and Article 23 of the International Covenant of Civil and
Political Rights ..., which ensure legal protection only in respect
of heterosexual relations, correspond to the regulations in the
Polish legal system.
In conclusion, the District Court rightly held that the
applicant did not belong to the group of persons entitled to succeed
to a tenancy referred to in section 8 of the 1994 Act. In the
circumstances, it was unnecessary to take evidence in order to
establish whether the applicant had indeed remained in cohabitation
with the tenant and whether other conditions for succession to the
tenancy had been satisfied. For this reason, the arguments
[concerning the refusal to take evidence from witnesses and the
alleged errors of fact] are unfounded.
In view of the foregoing, the appeal should be
cassation appeal to the Supreme Court was not available in this case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Succession to the right to lease a flat
- Section 8(1) of the 1994 Act read:
“1. In the event of a tenant's death,
his or her descendants, ascendants, adult siblings, adoptive parents
or adopted children or a person who has lived with a tenant in de
facto marital cohabitation, shall, on condition that they lived
in the tenant's household until his or her death, succeed to the
tenancy agreement and acquire the tenant's rights and obligations
connected with [the lease of] the flat, unless they relinquish that
right to the landlord. This provision shall not apply to persons who,
when the [original] tenant died, had title to another residential
2. In cases where there is no successor to
the tenancy agreement, or where the successors have relinquished
their right, the lease shall expire.”
1994 Act was repealed on 10 July 2001. Since then, the rules
governing succession to lease have been included in the Civil Code
to section 26(12) of the 2001 Act, a new Article 691 was introduced
into the Civil Code.
691, as applicable from 10 July 2001, reads, in so far as
relevant, as follows:
“1. In the event of a tenant's death,
his or her spouse (if he or she is not a co tenant), his or
her and his or her spouse's children, other persons in respect
of whom the tenant had maintenance obligations and a person who
has lived in de facto cohabitation with the tenant
shall succeed to the tenancy agreement.”
B. Family law
1 § 1 of the Family and Custody Code (Kodeks rodzinny
i opiekuńczy) states:
“A marriage shall be contracted when a man and a
woman simultaneously present have declared before the Registrar of
the Civil Status Office that they marry each other.”
C. Bill on same-sex registered partnerships
2003 a group of 36 senators submitted a bill on same-sex registered
partnerships to the Polish Senate (Senat). According to the
bill, entering into a registered partnership was to create rights
similar to those flowing from a marriage in respect of succession,
health and social insurance and taxation. Following a long debate and
having aroused considerable controversy over most of its provisions,
the bill was eventually referred to Sejm at the end of 2004.
It did not have any follow-up in Sejm, which had not started
its reading before the dissolution of Parliament in connection
with general elections held in 2005. Since then, there have been no
further similar legislative initiatives in Parliament.
D. Constitutional provisions
- Article 18 of the Constitution, which refers to
“Marriage being a union of a man and a woman, as
well as the family, motherhood and parenthood shall be placed under
the protection and care of the Republic of Poland.”
32 of the Constitution, which lays down the principles of equality
before the law and non-discrimination, reads as follows:
“1. All persons shall be equal before
the law. All persons shall have the right to equal treatment by
2. No one shall be discriminated against in
political, social or economic life for any reason whatsoever.”
75 of the Constitution, which refers to the State's housing policy,
states the following:
“1. Public authorities shall pursue
policies conducive to satisfying the housing needs of citizens, in
particular combating homelessness, promoting the development of
social housing construction and supporting activities aimed at
acquisition of a home by each citizen.
2. Protection of the rights of tenants shall
be established by statute.”
79 of the Constitution, which refers to a constitutional complaint
reads, in so far as relevant, as follows:
“1. In accordance with principles
specified by statute, everyone whose constitutional freedoms or
rights have been infringed, shall have the right to appeal to the
Constitutional Tribunal for its judgment on the conformity to the
Constitution of a statute or another normative act upon which basis a
court or organ of public administration has made a final decision on
his freedoms or rights or on his obligations specified in the
E. Constitutional Court's practice
1. Judgment of 1 July 2003 (no. P 31/02)
that judgment the Constitutional Court dealt with a legal question
submitted by the Środa Śląska District Court (Sąd
Rejonowy) in connection with pending proceedings for succession
to a tenancy. The question concerned the possible unconstitutionality
of the 2001 Act in that, in consequence of the repeal of the
1994 Act and its section 8(1) (see paragraphs 40-41 above), it
had introduced a new list of persons entitled to succession to the
right to lease after the death of a tenant as laid down in Article
691 § 1 of the Civil Code (see paragraph 41 above). In contrast
to the previous regulation, the list no longer included the tenant's
grandchildren. The Constitutional Court ruled that the modification
under the 2001 Act was compatible with Article 2 (rule of law) and
Article 32 (principle of equality before the law and
non-discrimination) of the Constitution.
2. Judgment of 9 September 2003 (no. SK 28/03)
judgment was given following a constitutional complaint lodged by a
certain J.B. and D.Cz., alleging that section 8(1) of the 1994 Act
had been incompatible with a number of the constitutional provisions,
including the principle of social market economy, protection of
property rights, equality before the law, prohibition of
discrimination, protection of succession rights and the
protection of the rights of tenants. The applicants maintained, among
other things, that the impugned section was in breach of the
aforementioned provisions because it excluded from succession to a
tenancy descendants of the late tenant's siblings as well as all
other heirs who had title to another residential dwelling which,
as a result, restricted their succession rights in a
Constitutional Court held that section 8(1) of the 1994 Act,
in so far as it operated in the manner contested by the
applicants, was compatible with the constitutional provisions invoked
by them in support of their complaint.
F. Supreme Court's case-law
Supreme Court, in its judgment of 6 December 2007 (no. IV CSK
301/07), dealt with a cassation appeal concerning the division of
common property acquired by a same-sex couple. The gist of the ruling
concerns the rules that apply to such property division, which, as
the court held, were those provisions of the Civil Code that were
relevant in the context of the particular relationship. They might
differ depending on each specific situation, the nature of mutual
relations and the organisation of personal and economic matters
between the partners. While the court clearly rejected the idea that
same-sex relationships could be considered “de facto
marital relationships”, it did not exclude that the rules
applicable to de facto marital relationships might apply by
analogy to a same-sex couple's claims for the division of common
that context, the Supreme Court analysed in depth the legal concept
of de facto marital relationship and made conclusions
that, in so far as relevant, read as follows:
“The [principle of the] protection of marriage set
forth in Article 18 of the Constitution means that a legally
formalised union of a woman and a man remains under the protection
and care of the Republic of Poland. The protection of marriage
is shown by, among other things, the fact that legal
consequences ensuing from marriage shall not apply to other
relationships and that any interpretation or application of the
law that would lead to equating other forms of cohabitation with
marriage is inadmissible. Having regard to the constitutional
principle of protection of marriage and to the fact that the
lack of legal regulations for extra-marital relationships cannot be
considered a lacuna, it is inadmissible to apply provisions
of matrimonial law (including matrimonial property and its
division) – even by analogy – to other than marriage
relationships based on existing personal and economic bonds. ...
Polish law does not include any, either comprehensive or
even fragmentary, regulations of extra-marital relationships of a
personal and economic nature and, for that reason, they are regarded
as legally indifferent factual relationships. ...
Given the lack of legal regulations for extra-marital
personal and economic relationships, certain rules for defining and
treating such relationships – named de facto
marital relationships – have been developed in the
jurisprudence and legal writing. The criteria for a de facto
marital relationship include, as a rule, no formal basis for
cohabitation, no limitations on ending the relationship, the
stability of the relationship, the existence of community in personal
and economic life and different sex of the partners. The concept of
de facto marital relationship as developed by the
jurisprudence and legal writing considers the difference of sex
between the partners as one of its material elements.
The established tradition, including the semantic
tradition, militates against including in the notion of de facto
marital relationship unions of same-sex persons modelled on
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
applicant alleged a breach of his right to a fair hearing guaranteed
by Article 6 § 1 of the Convention on account of the fact that
in the proceedings for succession to a tenancy the District
Court had refused to hear evidence from the witnesses proposed by him
in order to determine that he had lived in a particularly close
relationship with his late partner.
6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing
... by [a] ... tribunal ...”
Court reiterates that, while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I, with further references).
the present case the witnesses proposed by the applicant were
to be heard in order to establish a “particularly
close relationship” between him and the late T.B., a
circumstance which the District Court considered conclusively proved
on the basis of evidence given by the applicant himself. This
assessment of the evidential value of the applicant's testimony was
fully endorsed by the appellate court (see paragraphs 32-33 and 38
being so, the Court concludes that the refusal to hear the witnesses
did not affect the fairness of the process of obtaining and
evaluation of evidence. Nor did it appear to have infringed the
principle of equality of arms. Accordingly, the courts did not
overstep the margin of appreciation left to them in such matters as
admission and assessment of evidence.
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
applicant further complained under Article 14 taken in conjunction
with Article 8 of the Convention that the Polish courts, by denying
him the right to succeed to a tenancy after the death of his partner,
had discriminated against him on the ground of his homosexual
orientation. Article 14 reads:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Government made four preliminary objections. They first argued that
the complaint was incompatible ratione personae with the
provisions of the Convention because the applicant could not claim
to be a victim for the purposes of Article 34. Second,
they maintained that he had not complied with the six-month rule laid
down in Article 35 § 1. The third objection concerned his
non-compliance with the rule of exhaustion of domestic remedies.
Fourth, they submitted that, in any event, the complaint was
incompatible ratione materiae with the provisions of the
Convention since Article 14 did not apply in the case.
1. The Government's objection on compatibility ratione
(a) The Government
Government submitted that the applicant could not be considered
a “victim” for the purposes of Article 34 of the
Convention because he had not suffered discrimination on the ground
of his sexual orientation. In particular, he had not demonstrated
that he had indeed been treated less favourably than other persons in
an analogous situation. The domestic courts had based their decisions
on the objective prerequisite, namely the fact that the applicant had
not met the basic condition laid down in section 8(1) of the 1994 Act
since he had not resided permanently with the statutory tenant until
his death. The same condition – which, as such, could not be
regarded as unreasonable or unjustified – would have been
applied to all individuals, regardless of their sexual orientation.
sum, the complaint should be rejected as being incompatible ratione
personae with the Convention.
(b) The applicant
applicant disagreed and maintained that he had been personally and
directly affected by discrimination related to his relationship with
a same-sex partner and his sexual orientation.
Government, he added, seemed to refer to, and to base their arguments
exclusively on, other proceedings, not those complained of. It was
evident that in the proceedings for succession to a tenancy the
courts had rejected his claim on the sole basis that he had had a
homosexual relationship with the late T.B. This, in their view, had
automatically excluded him from the circle of persons entitled to
succession, regardless of whether or not he had met other
(c) The Court's assessment
Court observes that the issue of whether or not the applicant
suffered discrimination on the ground of his homosexual orientation
is inseparably linked with its assessment of whether the
requirements of Article 14 have been respected in the particular
circumstances of the case.
accordingly joins the Government's plea of inadmissibility on the
ground of incompatibility ratione personae to the merits of
2. The Government's objection on compliance with the
(a) The Government
Government also maintained that the complaint should be rejected
for non-compliance with the six-month rule laid down
in Article 35 § 1 of the Convention. They
drew the Court's attention to the fact that the final decision in the
proceedings for succession to the disputed tenancy had been given by
the Szczecin Regional Court on 1 June 2001, whereas the application
had been lodged with the Court on 18 December 2001,
that is to say, outside the relevant time-limit.
(b) The applicant
applicant replied that his counsel had filed a formal complaint on
his behalf with the Strasbourg Court already on 23 August 2001 and
had been later instructed by the Registry to supplement it within six
weeks. The Registry had also advised him that the failure to do so
might affect the running of the six-month term laid down in Article
35 § 1 of the Convention. He had observed the deadline and, on
18 December 2001, had duly completed an application form that he had
received from the Registry. It had been posted on the same day.
he had complied with the six-month rule. He asked the Court to
dismiss the Government's objection as unfounded.
(c) The Court's assessment
35 § 1 provides, in so far as relevant, as follows:
“ The Court may only deal with the
matter ... within a period of six months from the date on which the
final decision was taken.”
(i) Applicable principles
object of the six-month time-limit under Article 35 § 1
is to promote legal certainty, by ensuring that cases
raising issues under the Convention are dealt with in a reasonable
time and that past decisions are not continually open to challenge.
It marks out the temporal limits of supervision carried out by
the organs of the Convention and signals to both individuals and
State authorities the period beyond which such supervision is no
longer possible (see, amongst other authorities, Varnava and
Others v. Turkey [GC], nos. 16064/90; 16065/90; 16066/90;
16068/90; 16069/90; 16070/90; 16071/90; 16072/90 and 16073/90, §§
156 et seq., ECHR 2009-...; and Walker v. the United Kingdom
(dec.), no. 34979/97, ECHR 2000 I).
- The final decision for this purpose is that taken in
the process of exhaustion of effective domestic remedies which
exist in respect of the applicant's complaints (ibid; see also Devine
v. the United Kingdom (dec.) no. 35667/02, 1 February 2005; and
Chalkley v. the United Kingdom (dec.), no. 63831/00, 26
September 2002, with further references).
accordance with the established practice, the Court considers the
date of the introduction of an application to be the date of the
first letter indicating an intention to lodge an application and
giving some indication of the nature of the application.
However, where a substantial interval follows before an applicant
submits further information about his proposed application or before
he returns the application form, the Court may examine the particular
circumstances of the case to determine what date should be regarded
as the date of introduction with a view to calculating the running of
the six month period imposed by Article 35 of the Convention (see
Chalkley, cited above).
(ii) Application of the above principles
in the present case
the present case the first letter from the applicant was dated
23 August 2001. As shown by the postmark on the envelope
contained in the case file, it was sent to the Court on the same
day by registered mail. In that letter, with which copies of the
judgments given in the impugned proceedings were enclosed, the
applicant summarised the course of the trial and clearly expressed
his intention to lodge an application with the Court in this
connection. While he initially relied on Article 6 of the Convention
only, he submitted, among other things, that in consequence of the
domestic courts' judgments “he had been openly discriminated
against on the ground of his sexual preferences”.
19 November 2001 the Registry sent a letter to the applicant, asking
him to fill in a Court's application form and to inform the Court
whether he had lodged a constitutional complaint. He was given a
six-week time-limit for that purpose and advised that the delay might
affect the introduction date of the application. On 18 December 2001
the applicant filed the application form, invoking Article 6 and
Article 14 of the Convention and adding that he had not made a
complaint to the Constitutional Court. He posted it on the same day,
without any delay. It was received at the Registry on 3 January
being so, the Court concludes that the applicant complied with the
six-month term laid down in Article 35 § 1 and that the
Government's objection should be dismissed.
3. The Government's objection on exhaustion of domestic
(a) The Government
Government next pleaded that the complaint should be rejected for
non-exhaustion of domestic remedies since the applicant had failed
to lodge a constitutional complaint under Article 79 § 1 of
the Constitution, a remedy which had been available to him at the
date of lodging his application with the Court.
support of their contention, the Government submitted that the issue
of the constitutionality of section 8(1) of the 1994 Act –
which had been the legal basis for the domestic judgments rejecting
the applicant's action for succession to the tenancy – had been
examined by the Constitutional Court in two relevant cases that had
concerned the categories of persons entitled to succession to a
the first of those judgments, delivered on 1 July 2003 (no. P
31/2002), the court found that the exclusion of a tenant's grandson
from succession to a tenancy had not infringed the Constitution
(see also paragraph 48 above).
the second, given on 9 September 2003 (no. SK 28/03),
the Constitutional Court had held that section 8(1), in so far
as it had excluded a tenant's siblings from succession had not been
contrary to the Constitution (see also paragraph 49 above).
consequence, nothing had prevented the applicant from putting before
the Constitutional Court a question concerning an interpretation
of the notion of “a person who ha[d] lived with a tenant
in de facto cohabitation” if he had indeed considered
that the cause for the rejection of his claim had been the
national court's wrong interpretation of section 8(1) of the 1994
Act, not the fact that he had not lived with E.B. until his death.
view of the foregoing, the Government asked the Court to reject the
complaint for non-exhaustion of domestic remedies.
(b) The applicant
applicant disagreed and argued that the constitutional complaint
would not have provided him with the relief required by Article 35 §1
of the Convention. First of all, under Polish law, a constitutional
complaint was an exceptional remedy. Secondly, its scope of
operation was limited to a declaration that a given legal
provision was incompatible with the Constitution and, by lodging
such a complaint, an individual could not obtain a ruling that his
rights or freedoms had been infringed. In consequence, even a
successful constitutional complaint could not result in the quashing
of the impugned final judgment.
any event, he made an unsuccessful attempt to put the issue
of discrimination before the Constitutional Court, asking the
appellate court to address a legal question concerning the
interpretation of the term “de facto marital
applicant invited the Court to reject the Governments' objection.
(c) The Court's assessment
35 § 1, in so far as relevant, reads:
“ The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law ...”
(i) Applicable principles
rule of exhaustion of domestic remedies contained in Article 35 §
1 of the Convention requires that normal recourse should be had
by an applicant to remedies which are available and sufficient
to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain
not only in theory but in practice, failing which they will lack
the requisite accessibility and effectiveness (see, among other
authorities, Akdivar and Others v. Turkey, judgment of
16 September 1996, Reports of Judgments and Decisions
1996 IV, § 65).
aim of the rule is to afford Contracting States an opportunity to put
matters right through their own legal system before having to answer
before an international body for their acts. However, although
Article 35 § 1 requires that the complaints intended
to be brought subsequently before the Court should have been made to
the appropriate domestic body, it does not require that recourse
should be had to remedies that are inadequate or ineffective
(see Egmez v. Turkey no. 30873/96, ECHR 2000-XII, §§ 65
but not least, Article 35 § 1 must be applied with some degree
of flexibility and without excessive formalism. This means,
amongst other things, that the Court must take realistic account not
only of the existence of formal remedies in the legal system of
the Contracting Party concerned but also of the general legal and
political context in which they operate as well as the personal
circumstances of the applicants (see Akdivar and Others,
cited above, § 69).
(ii) Application of the above principles
in the present case
- In the present case the Government, in support of
their objection, referred to two judgments of the Constitutional
Court concerning the constitutionality of section 8(1) of the 1994 in
that it limited the circle of persons entitled to succession to
a tenancy, excluding certain relatives of a late tenant and,
across the board, persons who had title to another flat. The first
ruling originated in a legal question submitted by a civil court, the
second in a constitutional complaint. In both cases the provision was
found to have been compatible with the Constitution (see paragraphs
Court cannot speculate whether or not the same conclusion would have
been valid in the circumstances of the applicant's case, in which,
however, the issue to determine was not a per se exclusion
from the circle of statutory successors but an interpretation of a
specific legal notion. That notion – “a person living
with a tenant in de facto marital cohabitation” –
was, and apparently still is, continually construed by the Polish
courts as covering only heterosexual relationships. Such a continuing
and established interpretation emerges not only from the reasons
given by the civil courts dealing with the applicant's claim at
the relevant time but also from firm and unambiguous statements of
the Supreme Court in its judgment of 6 December 2007, given
nearly six years after the events that gave rise to the present
application. In that judgment, the Supreme Court leaves no doubt
whatsoever that the term “de facto marital cohabitation”
applies exclusively to different-sex couples (see paragraphs 51
the general legal and political context relating to same-sex
relationships in Poland (see paragraphs 43 and 51 above) the Court is
not persuaded that the applicant, by lodging a constitutional
complaint formulated as suggested by the Government (see paragraph 69
above) would have indeed succeeded in obtaining an interpretation of
the term in question that would have been in a fundamental
conflict with the line firmly settled in the Polish jurisprudence and
it as it may, there is another aspect of the case that the Government
seem to have overlooked, namely the fact that the applicant, in his
appeal against the first-instance judgment, sought to obtain
an interpretation of the expression “de facto marital
cohabitation” by means of a legal question to be put to the
Supreme Court (see paragraph 35 above). Alternatively, he asked the
Regional Court to obtain a ruling of the Constitutional Court on the
issue whether, if that term was to be understood as including solely
heterosexual partners, it would be compatible with, inter alia,
Article 32 § 2 of the Constitution, prohibiting discrimination
(see paragraphs 36 and 70 above). However, both motions were
rejected. The Regional Court, although it acknowledged that the
interpretation of the term was “of crucial importance for the
determination of the claim”, did not see it fit to clarify its
meaning and interpreted it on its own in the context of the
relevant constitutional provisions (see paragraph 38 above).
in the circumstances of the present case it cannot be said that the
applicant failed to put the substance of his Convention claim before
the domestic authorities as required by Article 35 § 1
(see paragraph 71 above). The Government's objection
should therefore be rejected.
4. The Government's objection on compatibility ratione
(a) The Government
Government further submitted that Article 14 of the Convention did
not apply in the case. This provision, as confirmed by the Court
on many occasions, did not have an independent existence and
could only be invoked in relation to a breach of other rights. The
applicant relied on Article 14 read together with Article 8.
However, the subject-matter of his case, which concerned the
right to succeed to a tenancy, did not come within the ambit of
Article 8 § 1 which referred to four elements: “private
life”, “family life”, “home” and
that context, the Government heavily relied on the findings made by
the national courts in the proceedings for eviction (see paragraphs
24-28 above). They stressed that it had been established that T.B.
had rented the flat from the Szczecin Municipality and that the
applicant had sublet one room in the flat. The witnesses had
confirmed before the District Court that T.B. and the applicant had
had a tense relationship and had often argued. The former had even
applied for the applicant's name as a permanent resident of the flat
to be struck out of the residents' register and had wanted to evict
the applicant from the flat. They had stopped running a common
household some one and a half years before T.B's death. The applicant
had not organised his funeral.
these facts, the Government concluded that the applicant and T.B had
not been in any close relationship that could have been regarded
as a form of “family life”. They had not even
kept the same household and the applicant had moved to the flat after
fact, the applicant had made an attempt to succeed to the lease
of another flat, at J. street, after the death of the statutory
tenant E.B., claiming that he had been in de facto marital
cohabitation with the latter. This, in the Government's view,
excluded the possibility of his being in the same kind of
relationship with T.B.
relationship between the applicant and T.B. had been of a merely
contractual nature as it had been based on the sublease agreement
that they had concluded and, in consequence, had had no elements
of “private life” within the meaning of Article 8 of the
Convention; thus, this provision could not be read as protecting
relations between landlords and tenants.
could the applicant claim under Article 8 the protection afforded
by this provision to “home” as defined by the Court.
Relying on the Commission's case-law, in particular the case
of Gillow v. the United Kingdom (no.
9063/80; Commission's decision of 9 December 1982, D.R. 31,
p. 76), the Government stressed that even if a person owned
a house, this fact was not in itself sufficient to regard it as
a “home” for the purposes of Article 8 if in reality he
had never lived there. In the eviction proceedings the applicant had
stated he had lived at J. street and had left that flat only in June
1998, when an eviction order against him had been enforced.
that the applicant's claim about discrimination did not fall within
the catalogue of rights guaranteed by Article 8 and lacked the
necessary link with any other substantive Convention provision, the
Government invited the Court to find that Article inapplicable and to
reject the complaint as being incompatible ratione materiae with
the provisions of the Convention.
(b) The applicant
applicant opposed that argument, maintaining that the circumstances
of his case fell within the scope of Article 8 of the Convention. He
stressed that the Government had again failed to argue the case on
the basis of the facts giving rise to his application. Instead, they
referred to the other proceedings, which had had no relation to his
complaint about discrimination in the sphere of his private life. In
the proceedings complained of the courts had not considered the
circumstances examined in other cases but had focused on only
one issue, i.e. the fact that he had remained in a homosexual
relationship with T.B. In their opinion, this had been sufficient to
exclude him from succession to a tenancy, regardless of whether
or not he had met other statutory conditions. Compliance with those
other conditions, as the courts had held, had not needed
to be examined.
applicant asked the Court to reject the Government's objection.
(c) The Court's assessment
(i) Applicable principles
14 only complements the other substantive provisions of the
Convention and its Protocols. It has no independent existence, since
it has effect solely in relation to the “rights and freedoms”
safeguarded by those provisions. Although the application of Article
14 does not presuppose a breach of one or more of such
provisions, and to this extent it is autonomous, there can
be no room for its application unless the facts of the case fall
within the ambit of one or more of the latter (see, among many other
authorities, Odièvre v. France [GC], no. 42326/98, §
54, ECHR 2003-III; and Karner v. Austria [GC], no. 40016/98, §
32, ECHR 2003-IX).
(ii) Application of the above principles
in the present case
Court notes that the applicant's complaint relates to the
interpretation and application in his case of the legal term “de
facto marital cohabitation” by the Polish courts in a
manner resulting in a difference of treatment between
heterosexual and homosexual couples in respect of succession to
a tenancy after the death of a partner (see paragraphs 29-38, 51 and
sexual orientation, one of most intimate parts of an individual's
private life, is protected by Article 8 of the Convention (see Smith
and Grady v. the United Kingdom nos. 33985/96 and 33986/96, §§
71 and 89, ECHR 1999-VI; S.L. v. Austria no. 45330/99, §
37, ECHR 2003-I; and Salgueiro da Silva Mouta v. Portugal no.
33290/96, §§ 23 and 28, ECHR 1999-IX).
leaving aside the question whether the applicant, as he maintained,
lived in the flat upon T.B.'s death or, as the Government argued, at
that time resided elsewhere (see paragraphs 11-13 above),
it is uncontested that he was registered by the authorities
as a permanent resident of that flat from at least May 1989 and lived
there when the succession proceedings were pending (see paragraphs 6,
23 and 38). Accordingly, the facts of the case also relate to the
right to respect for his “home” within the meaning of
Article 8 (see Karner, cited above, § 33).
view of the foregoing, the Court holds that Article 14 of the
Convention applies in the present case and rejects the Government's
objection on compatibility ratione materiae.
consequently declares the complaint admissible.
1. The parties' submissions
(a) The applicant
applicant submitted that his homosexual orientation had been the
single ground on which he had been denied the right to succeed to the
tenancy of the flat in which he had lived with the late T.B. He had
been refused the status of a person who had remained in actual
marital cohabitation only because they had formed a same-sex couple.
In contrast to heterosexual common-law partners, who could at
the material time enjoy the right to succeed to a tenancy, homosexual
relationships had been excluded on the basis of the well-established
and categorical interpretation of the notion “de facto
marital cohabitation” as covering only a different-sex
relationship. For that reason, the courts, having established the
fact that he and T.B. had remained in a homosexual relationship,
had not even given him a chance to prove his compliance with the
remaining statutory conditions laid down in section 8(1) of the 1994
to the Government's argument that in the eviction proceedings against
him he had not mentioned the fact that he had cohabited with the late
T.B. but had alleged that he had sublet a room from him
(see paragraph 88 below), the applicant stated that such
admission on his part could have exposed him to ostracism, mockery
and prejudice and for that reason he had preferred not to have his
sexual orientation discussed in public. He added that Polish
society was not liberal in this area.
he stressed that his complaint concerned the manner in which the
courts had dealt with his claim for succession to a tenancy, not the
other proceedings that the Government chose to use and emphasise
before the Court to defend their position. The examination of his
case, he added, should be limited to the object of his complaint
and not be extended to other issues.
applicant concluded that he had been clearly discriminated against on
the ground of his sexual orientation and asked the Court to find
a violation of Article 14 taken in conjunction with Article 8 of
(a) The Government
Government began by recalling the findings made by the courts in the
proceedings for eviction and the final result of the case. In those
proceedings the applicant had based his defence on the fact that he
had allegedly sublet a room in T.B.'s flat. He had not referred to
his sexual orientation and homosexual cohabitation with T.B. On 2
June 2000 the District Court had upheld the judgment in default and
the applicant had been ordered to vacate the flat. Having learnt
about the negative outcome of the proceedings, he had decided to
change the line of his arguments and, consequently, in his
particulars of claim of 14 July 2000, he had begun to assert
that he had cohabited with T.B. and that they had run a common
household for many years.
to the proceedings complained of, the Government referred to the
statutory conditions for succession to a lease laid down in section
8(1) of the 1994 Act and stressed that a close relationship with a
tenant by blood relation, adoption or de facto marital
cohabitation had been one of four requirements that had had to be
fulfilled jointly. The provision had, among other things, in addition
required a claimant to prove that he had resided permanently with a
tenant until the latter's death.
had been established in the domestic proceedings that the applicant
had permanently lived in E.B.'s flat at J. street and that he had
only been registered as a permanent resident in T.B.'s flat. Hence,
the applicant who had not met the condition of permanent residence
with T.B. and had not developed any close relationship with him, had
not fulfilled the other criteria set out in section 8(1). As a
result, his claim had been rejected. The same principles would have
been applied to a heterosexual person seeking succession to a lease
in such circumstances. Accordingly, the facts of the case did not
disclose any element of discrimination against the applicant.
Government next referred to the case of Karner v. Austria
(cited in paragraph 82 above), expressing the view that that
judgment was of no relevance for the applicant's complaint since
it was based on entirely different circumstances from those in the
in contrast to the applicant, Mr Karner had lived with his partner,
had had a homosexual relationship with him and they had run a common
household. Second, Mr Karner's life had been concentrated in his
partner's flat; in consequence, he could justifiably seek protection
of his “home” under Article 8 of the Convention. The
applicant, on the other hand, had claimed that his life had been
centred on E.B.'s, not T.B.'s flat. Thirdly, in the Karner
case the applicant's succession claim had not been recognised
even though he had met all the statutory conditions, whereas the
applicant in the instant case had failed to comply with the
relevant prerequisites because he had not lived with T.B. until the
latter's death and their relationship had not had the features of de
facto marital cohabitation.
conclusion, the Government asked the Court to find that there had
been no discrimination in the present case and, consequently, no
violation of Article 14 taken in conjunction with Article 8
of the Convention.
2. The Court's assessment
(a) Principles deriving from the Court's
the enjoyment of the rights and freedoms guaranteed by the
Convention, Article 14 affords protection against different
treatment, without an objective and reasonable justification, of
persons in similar situations (see, among many other authorities,
Odièvre, cited above, § 55; Salgueiro Da Silva
Mouta, cited above, § 29).
every difference in treatment will amount to a violation of this
provision; thus, Contracting States enjoy a margin of appreciation
in assessing whether and to what extent differences in otherwise
similar situations justify a different treatment in law. For the
purposes of Article 14, it must be established that there is no
objective and reasonable justification for the impugned distinction,
which means that it does not pursue a “legitimate aim”
or that there is no “reasonable proportionality between the
means employed and the aim sought to be realised” (see
Sheffield and Horsham v. the United Kingdom, 30 July 1998, §
75, Reports of Judgments and Decisions 1998-V; E.B. v.
France [GC], no. 43546/02, § 91, ECHR 2008-...;
and Karner, cited above, § 37).
orientation is a concept covered by Article 14. Furthermore, when the
distinction in question operates in this intimate and vulnerable
sphere of an individual's private life, particularly weighty reasons
need to be advanced before the Court to justify the measure
complained of. Where a difference of treatment is based on sex or
sexual orientation the margin of appreciation afforded to the State
is narrow and in such situations the principle of proportionality
does not merely require that the measure chosen is in general suited
for realising the aim sought but it must also be shown that it
was necessary in the circumstances. Indeed, if the reasons advanced
for a difference in treatment were based solely on the applicant's
sexual orientation, this would amount to discrimination under the
Convention (see E.B., cited above, §§ 91 and 93;
S.L., cited above, § 37, ECHR 2003-I; Smith and Grady,
cited above, §§ 89 and 94; and Karner, cited above,
§§ 37 and 41).
(b) Application of the above principles in
the present case
(i) Scope of the case before the Court
their arguments and conclusions concerning the alleged violation of
the Convention the parties referred to different proceedings. The
Government essentially relied on the findings made by the courts in
the proceedings for eviction, pointing out that in that case the
applicant had given a different account of his relationship with T.B.
and of the times at which they had allegedly lived together.
They further mentioned a number of inconsistencies in the
applicant's testimonies, submitting that in each particular case
his statements had varied considerably depending on the claim
asserted (see paragraphs 76-80 and 88-90 above). The applicant, for
his part, invited the Court to confine its examination of the case to
the proceedings for succession to the tenancy at issue, which were
the object of his complaint (see paragraphs 58, 81 and 87
Court agrees with the Government that certain statements concerning
the nature and duration of the applicant's relationship with T.B. and
his residence in T.B.'s flat that he made before the domestic courts
and administrative authorities in the three separate proceedings
described above (see paragraphs 14-38 above) are contradictory or
inconsistent. However, it is not the Court's role to replace the
national courts in their assessment of evidence in those cases
and to determine which parts of the applicant's testimonies in each
case should be considered credible and which are questionable or of
no evidential value (see paragraph 53 above). The issue before the
Court is not which of the trial courts in the two parallel
proceedings for eviction and for succession to a tenancy made correct
findings of fact and properly evaluated material before it but
whether the ruling given on the facts as established in the
proceedings complained of respected the standards under Article
14 of the Convention.
(ii) Compliance with Article 14
ruling of the Szczecin District Court had its legal basis in section
8(1) of the 1994 Act, which is no longer in force (see paragraphs
40-41 above). Pursuant to this provision, a person seeking succession
to a tenancy had, among other things, to fulfil the
condition of living with the tenant in the same household in a close
relationship – such as, for instance, de facto marital
cohabitation (see paragraphs 29-38 and 40-41 above).
the Government's submission, the case disclosed no element
of discrimination since the applicant's claim was rejected not
for reasons related to his sexual orientation but for his
non-compliance with the above two statutory conditions. First, the
applicant had not lived in T.B.'s household until the latter's death
but in another flat, originally let by the late E.B. Second, his
relationship with T.B. did not have the features of de facto
marital cohabitation (see paragraphs 89-90 above).
having regard to the findings of fact and law made by the District
Court and the Regional Court (see paragraphs 33-34 and 38 above), the
Court does not accept the Government's contention.
begin with, both courts, in particular the Regional Court,
concentrated on only one aspect of the facts as adduced by the
applicant in support of his claim, namely on the homosexual
nature of his relationship with T.B. (see paragraphs 34 and 38
true that the District Court expressed some doubts as to whether,
given the breakdown of the economic ties between them, the
relationship had all the features of de facto marital
cohabitation understood as a union based on emotional, physical and
economic bonds and whether the applicant had indeed lived in the flat
(see paragraph 34 above). Nevertheless, it rejected the claim on
the ground that under Polish law only a different-sex relationship
qualified for de facto marital cohabitation, which excluded
same-sex partners from succession to a tenancy (see paragraph 34
Regional Court fully endorsed this view, explaining at length and
with reference to the constitutional principle of protection of
marriage versus the principle of equality before the law that “Polish
law does not recognise relationships of same-sex persons”, “de
facto cohabitation takes place only if a woman and a man cohabit
together” and that “it does not concern partners having
homosexual relations, even if they have stable emotional, physical
ties”. It further held that “[i]n the circumstances, it
was unnecessary to take evidence in order to establish whether the
applicant had indeed remained in cohabitation with the tenant and
whether other conditions for succession to the tenancy had been
satisfied” (see paragraph 38 above).
the Court's opinion, the above conclusions clearly show that the
Regional Court considered that the principal issue material for the
ruling related to the applicant's sexual orientation. In contrast to
what the Government argued, the relevant element was not the
question of the applicant's residence in the flat or the emotional,
economic or other quality of his relationship with T.B but the
homosexual nature of that relationship, which per se excluded
him from succession.
remains for the Court to determine whether the Polish authorities can
be said to have given “objective and reasonable justification”
for the impugned distinction in law in respect of same- and
different-sex partners, that is to say whether this measure pursued a
“legitimate aim” and maintained “reasonable
proportionality between the means employed and the aim sought to be
realised” (see paragraph 91 above).
emerges from the grounds given by the Regional Court that
the essential objective of the difference in treatment was to
ensure the protection of the family founded on a “union of a
man and a woman”, as stipulated in Article 18 of the
Polish Constitution (see paragraphs 38 and 44 above). The Court
accepts that protection of the family in the traditional sense is, in
principle, a weighty and legitimate reason which might justify
a difference in treatment (see Karner, cited above, §
40, with further references).
in pursuance of that aim a broad variety of measures might
be implemented by the State (ibid). Also, given that the
Convention is a living instrument, to be interpreted in the
light of present-day conditions (see E.B. cited above, §
92), the State, in its choice of means designed to protect the
family and secure, as required by Article 8, respect for family life
must necessarily take into account developments in society and
changes in the perception of social, civil-status and relational
issues, including the fact that there is not just one way or one
choice in the sphere of leading and living one's family or private
a balance between the protection of the traditional family and the
Convention rights of sexual minorities is, by the nature of things,
a difficult and delicate exercise, which may require the State
to reconcile conflicting views and interests perceived by the parties
concerned as being in fundamental opposition. Nevertheless, having
regard to the State's narrow margin of appreciation in adopting
measures that result in a difference based on sexual
orientation (see paragraph 92 above), a blanket exclusion of
persons living in a homosexual relationship from succession to a
tenancy cannot be accepted by the Court as necessary for the
protection of the family viewed in its traditional sense (see Karner,
cited above, § 41). Nor have any convincing or compelling
reasons been advanced by the Polish Government to justify the
distinction in treatment of heterosexual and homosexual partners
at the material time. Moreover, the fact that the provision
which shortly afterwards replaced section 8(1) removed the difference
between “marital” and other forms of cohabitation (see
paragraphs 40-41 above) confirms that no such reasons were found
to maintain the previous regulation.
view of the foregoing, the Court finds that the Polish authorities,
in rejecting the applicant's claim on grounds related to the
homosexual nature of his relationship with T.B. failed to maintain a
reasonable relationship of proportionality between the aim sought and
the means employed. The impugned distinction was not, therefore,
compatible with the standards under the Convention.
Court accordingly rejects the Government's objection regarding the
applicant's victim status and holds that there has been a violation
of Article 14 taken in conjunction with Article 8 of the
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
applicant claimed 16,790.53 Polish zlotys (PLN) in respect
of pecuniary damage. This sum included arrears in rent for the
late T.B's flat due for 1996-1998 which he had paid and costs of the
renovation of the flat incurred at various times between 1998 and
the head of non-pecuniary damage the applicant claimed 20,000 PLN
for mental suffering arising from the discriminatory treatment to
which he had been subjected.
Government did not make any comments on the applicant's claims.
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
As regards non-pecuniary damage, the Court considers that, in
the particular circumstances of the case described above, it is
sufficiently compensated by the finding of the violation of the
Convention and makes no award under this head.
B. Costs and expenses
applicant also claimed PLN 4,552 for the costs and expenses incurred
before the domestic courts and in the proceedings before the Court.
The applicant stated that he had no bills or invoices relating to the
above expenses but maintained that they had been incurred and that
the amount was moderate.
Government did not make any submissions in this regard.
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the fact that the applicant failed to produce any documents showing
that the sums claimed had been incurred, the Court rejects the claim
for costs and expenses in its entirety.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection on victim status;
- Declares the complaint concerning the alleged
breach of Article 14 taken in conjunction with Article 8 admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
14 taken in conjunction with Article 8 of the Convention and
dismisses the above-mentioned preliminary objection;
- Holds that the finding of violation constitutes
in itself sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza