By Dorota Pudzianowska (tekst dostępny również w języku polskim)

The European Court of Human Rights in Strasbourg has informed the Polish government that it has received complaints regarding the lack of legal protection for same-sex couples. A total of 20 complaints have been made, by more than a dozen applicants.

Four of these cases are being handled by the Helsinki Foundation for Human Rights, which launched the court actions in these matters in Poland. It was in 2008 that the Foundation’s lawyers wrote its first memorandum on strategies for a case that could potentially reach the Strasbourg Court and result in an improvement of the situation of same-sex partnerships in Poland.

We are delighted that, eight years after it was submitted, the ECHR has communicated the first of our cases, in addition to three newer ones.

These concern a female couple in a long-term relationship who are unable to benefit from the rights available to married couples. Over the years, Katarzyna and Sylwia Formela have participated in a series of proceedings in national courts. The women demand equal treatment and the chance to benefit from rights reserved for heterosexual marriages.

“The Polish state is behaving like a child that buries its head under the duvet and shouts, ‘it’s not there!’” say the Formelas. “Whereas there are many same-sex married couples living in our country, the lawmakers still don’t acknowledge us. Our marriages are not honoured by Poland, and informal relationships are not recognised.”

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“As a result, we live in a legal vacuum, which has fundamentally negative consequences in many areas of our daily lives. We have a formally registered marriage that is recognised in many countries around the world but is not honoured in Poland.”

The first application to the court, from 2012, concerned three problems. First, the clients had lost a case at national level concerning exemption from tax on a donation. This fiscal privilege is available mostly to spouses or other close family members. This action resulted in denial of tax relief.

Second, the national tax authorities refused the women the right to submit a joint tax return. This case also ended in failure in the national courts, as Polish law extends this privilege only to married couples.

Third, the women were also denied the right to a benefit to care for a sick spouse, which can be received when looking after a family member – here too, the resolution was negative.

The second application, in 2017, concerned a case when one of the partners demanded that her health insurance should cover the other – again the hurdle was legal regulations, which reserve such rights for spouses. These issues demonstrate the problems such couples deal with in their everyday lives.

“We’re still being hit painfully by the lack of equality in our country,” say the Formelas. “Apart from the applications, which the ECHR will be considering (finally, after many years!), we face constant discrimination, hatred, marginalisation, lack of respect for our rights, our family and private lives. Our dignity is being violated and our right to lead our lives as we wish is being denied.”

Finally, Katarzyna and Sylwia Formela wanted to register their marriage, contracted before the British authorities in 2015 (converted from a civil union formed in 2010) at the Polish registry office. On this occasion too, it was refused by the administrative bodies and courts. This was the subject of the third and fourth applications to the Strasbourg Court, made in 2018.

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Various arguments were made at the national courts concerning the impossibility of treating a same-sex civil union or marriage entered abroad identically to heterosexual marriages. The courts argued, for example, that they cannot themselves determine the conditions for considering a relationship as a partnership.

Regarding registration of marriage, the courts cited the argument that this action would violate the fundamental principles of the Polish legal order, in addition to a public official attesting an untruth.

Exhausting the legal process in Poland opened up the possibility of applying to the European Court of Human Rights in Strasbourg.

“We hope that the ECHR’s judgements in our cases will be favourable to us and bring very concrete legal changes in our country, joy and tears of happiness as well as relief for non-heteronormative people in a country that – for now – does not respect  some of its citizens” say the Formelas.

“Mostly, we are counting on the court making a judgement that leaves the state a certain margin of freedom in terms of implementing marriage equality in the given country, but no such margin in the case of recognising marriages already formally entered into abroad.”

The first application was submitted in 2012 (concerning tax relief, joint taxation, a benefit to care for a sick spouse), the next in 2017 (health insurance) and the final one in 2018 (marriage registration). The European Court of Human Rights has given the Polish government formal notifications of all the applications regarding Katarzyna and Sylwia Formela’s cases simultaneously.

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Both the authorities and the clients will now have to formally state their position regarding the possibility of reaching a friendly settlement. If the cases reach litigation, the Polish authorities will be able to answer the claims made in the applications. The applicants’ representatives will then have the opportunity to respond to the government’s position. This stage of proceedings at the Strasbourg Court could last between a few months and more than a year.

The remaining 16 cases communicated by the ECHR concern such problems as people of the same sex being unable to obtain a marriage eligibility certificate confirming lack of impediments for a Polish national to conclude marriage abroad, being denied a tax waiver on inheritance from a partner of the same sex, being unable to subscribe together with a same-sex life partner to a private life insurance scheme or being unable to change their name to that of their partner, as well as the general impossibility of entering a same-sex marriage in Poland.

The main complaint in the majority of the applications concerns the fact that Polish law does not allow people of the same sex to marry, enter any other union, or have any legal recognition of a long-term relationship. Currently, the majority of European states make provision for the institution of civil unions or marriage for people of the same sex.

The court will examine the cases in terms of violation of the right to respect for private and family life (Article 8) and prohibition of discrimination (Article 14) on the basis of sexual orientation guaranteed by the European Convention on Human Rights.

The applications also drew attention to the illogical nature of certain legal solutions. For example, although every working person is obliged to have health insurance, for people in civil partnerships, payment of benefit for caring for the other person is impossible. It is a similar story with fiscal law. A person living in an actual cohabitation is financially responsible for his or her partner’s tax arrears, yet may not benefit from tax relief.

Notification of the cases does not mean victory – the decisive stage of the litigation begins now. But the court’s judgements in cases against Italy from a few years ago suggest that the outcome could be positive.

In 2012, when the first application was submitted, the court’s case law did not yet set out a clear standard for treatment of people in same-sex civil partnerships. In the ground-breaking Oliari and Others v. Italy case (2015), however, the court ruled that states have a positive obligation to institutionalise civil unions. The lack of such solutions contravenes Article 8 of the Convention. Following this ruling Italy introduced the institution of civil partnerships in 2016.

Yet the Strasbourg Court’s ruling still does not clearly stipulate the minimum rights that should be guaranteed by the institution of civil partnerships. The judgements on these Polish cases could lead to the court setting a standard for such cases.

The other relevant Italian case is that of Orlandi and Others v. Italy (2017). In this case, six couples applied to have their marriages from other countries registered in Italy. The Italian authorities and courts denied them registration (before the introduction of civil partnerships), which Strasbourg saw as a violation of the Convention (Article 8 again). This case is in effect analogous to the third of the Polish ones outlined above.

Translated by Ben Koschalka

Main image credit: Ivan Chopyk/Flickr (under CC BY-SA 2.0)

Dorota Pudzianowska is an associate professor at the University of Warsaw and a legal expert at the Helsinki Foundation for Human Rights, where she coordinates the cases of the Formelas and represents the applicants along with attorney Artur Pietryka and legal counsel Dr Marcin Górski.

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