Commissioner for Human Rights

ECHR ruling on unregulated same-sex unions in Poland

Date:

In a landmark ruling, the European Court of Human Rights (ECHR) has declared that the failure to legalise same-sex unions in Poland violates Article 8 of the ECHR, which guarantees the protection of the right to private and family life (application no. 11454/17 and 9 others). The Court concluded that the lack of legal recognition and protection for same-sex couples in Poland violated the Convention.

Summary of the complaints

In 2020, the Commissioner for Human Rights (CHR) joined three cases before the ECHR concerning the legal status of same-sex couples in Poland and presented amicus curiae positions on these issues. 
The applicants argued that Poland violated their right to private and family life by refusing to legalise their relationships, thereby denying them state recognition and legal protection. The issues ranged from refusal to accept marriage certificates, denial of legal privileges to same-sex spouses, and obstacles to obtaining a marriage certificate abroad.
Unlike heterosexual partners, same-sex partners in Poland do not have the opportunity to enjoy certain privileges after marriage, a situation that the CHR considers to be indirect discrimination on the basis of sexual orientation. The CHR emphasised that the Polish Constitution does not prevent the legalisation of same-sex unions.
The CHR argued that, despite legislative initiatives, the Polish legal framework does not provide for any form of institutionalisation of same-sex unions. While the constitutionality of same-sex marriage is debated, the CHR asserts that the Constitution does not prevent the legal recognition of same-sex relationships. 
According to the CHR, this legal situation unjustifiably differentiates between the legal status of same-sex and heterosexual couples, leading to indirect discrimination on the basis of sexual orientation.
Significance of the cases
The ECHR rulings may have a significant impact on the legal status of LGBTQ+ people in Poland. The Court's decision may force the authorities to provide protection and legal recognition for same-sex unions, possibly through the institutionalisation of civil partnerships.
Notably, the ECHR's position is that while Member States have a wide margin of appreciation in determining the legal regime, they must provide practical and effective protection to same-sex couples. The judgment emphasises that the Convention aims to guarantee practical and effective rights, and that States have a choice of means to fulfil their positive obligations under Article 8.
While awaiting the outcome of other cases involving Polish citizens alleging a violation of Article 8 due to the inability to legalise same-sex unions, the ECHR's decision sets a precedent for the recognition and protection of the rights of same-sex couples in Poland.