European Court of Human Rights: Constitutional definition of marriage as a union of a man and a woman cannot justify discrimination against same-sex partners

03/03/2010

On 2 March 2010, the European Court of Human Rights unanimously ruled that Poland discriminated against a gay man on the grounds of his homosexual orientation by denying him a right to succeed a tenancy of a flat where he had lived with his deceased partner.

The facts in this case are as follows: Mr Piotr Kozak had been living with T.B., his male partner, since 1989 until 1998 when T.B. died. Tenancy agreement was on T.B.’s name and after T.B.’s death the application by Mr Kozak to conclude a lease agreement of their flat with him was rejected. While Polish legislation recognises some rights of cohabiting partners, the Polish authorities and the Polish courts repeatedly rejected the notion that such laws apply to same-sex partners.

Throughout the legal process in Poland, the Polish authorities and the Polish courts justified their refusal to recognise Mr Kozak’s tenancy rights by referring to Article 18 of the Polish Constitution which defines marriage as ‘a union of a man and a woman’. Consequently they insisted that the only form of cohabitation which is recognised by the law is exclusively between a man and a woman.

The European Court of Human Rights disagreed with such an approach and unanimously ruled that Poland violated Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) by refusing to recognise cohabitation of same-sex partners. The Court said that “de facto marital cohabitation” must in Poland be understood to include persons in a same-sex relationship. While accepting the protection of the family founded on a union of a man and a woman as provided in the Article 18 of the Polish Constitution, the Court said that the state needs to strike a balance between such protection and the protections of the family and the Convention rights of sexual minorities. The Court pointed that the States had to take into considerations developments in society including the fact that there was not just one way of leading one’s private life.

Evelyne Paradis, Executive Director of ILGA-Europe said:

“We welcome this decision of the European Court of Human Rights. This is the second decision affirming that if a State provides certain rights to cohabiting different sex partners, the same rights have to be made available equally to same-sex partners.

During the last few years some European countries introduced provisions in their Constitutions defining marriage as a union of a man and a woman with a view to prevent advance of the legal rights for same-sex partners.

In this case the European Court of Human Rights rejected a notion that a Constitutional definition of marriage as a union of a man and a woman can be used to justify the denial of certain family rights to cohabiting same-sex partners.”

Ends

For more information please contact
Juris Lavrikovs at + 32 2 609 54 16 / + 32 496 708 375

Notes for editors:

(1) ILGA-Europe is the European Region of ILGA, the International Lesbian, Gay, Bisexual, Trans and Intersex Association and works for equality and human rights for lesbian, gay, bisexual, trans & intersex people in Europe: www.ilga-europe.org

(2) The judgement in the case of Kozak. v Poland is available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=12&portal=hbkm&action=html&highlight=&sessionid=47937399&skin=hudoc-en

(3) In 2003, the European Court of Human Rights, deliver its ruling in a similar case of Karner v. Austria when Austria was found in breach of the European Convention on Human Rights because it did not recognise same-sex partners in application of its tenancy law while recognising unmarried partners of different sex.

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