CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 décembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2C83438A { margin-top:52pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s780F5245 { border:0.75pt solid #000000; clear:both } .sE77B86B8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt } .sEC28DD31 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt } .sD37EA1D5 { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:8pt } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .s3DB046A9 { font-family:Arial; font-style:italic; background-color:#ffffff } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s8B983D37 { text-transform:none } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s807BA660 { margin-top:14pt; margin-left:24.16pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.34pt; font-family:Arial; font-weight:bold } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .sBD165FDE { width:5.39pt; font:7pt 'Times New Roman'; display:inline-block } .sEFEE80D7 { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113% } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s6747EE63 { width:0.95pt; font:7pt 'Times New Roman'; display:inline-block } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s17E903BE { width:3.01pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4EC10A73 { width:26.87pt; display:inline-block } .sA321E998 { width:138.07pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sD00444C6 { margin-top:0pt; margin-bottom:14pt } .s75A32C27 { border-collapse:collapse } .s2F3EB0E4 { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sE1A7A04C { font-family:Arial; font-weight:bold; color:#424242 } .sBAADFE8C { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FIRST SECTION CASE OF PRZYBYSZEWSKA AND OTHERS v. POLAND (Applications nos. 11454/17 and 9 others)   JUDGMENT   Art 8 • Positive obligations • Absence of any form of legal recognition and protection for same-sex couples • Respondent State’s failure to comply with positive obligation to ensure legal recognition and protection of such couples through specific legal framework • Application of principles established in Fedotova and Others v. Russia • Absence of official legal recognition resulted in same-sex partners being unable to regulate fundamental aspects of their lives • Public-interest grounds put forward not prevailing over applicants’ interests • Margin of appreciation overstepped   Prepared by the Registry. Does not bind the Court.   STRASBOURG 12 December 2023 This version was   rectified on 10 December 2024 under Rule 81 of the Rules of Court   FINAL   12/03/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Przybyszewska and Others v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Alena Poláčková , President ,   Krzysztof Wojtyczek,   Péter Paczolay,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato , judges , and Renata Degener, Section Registrar, Having regard to: the applications (nos.   11454/17 and nine others) 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 ten Polish nationals (“the applicants”) on the various dates indicated in the appended table; the decision to give notice to the Polish Government (“the Government”) of the applications; the observations submitted by the Government and the observations in reply submitted by the applicants; the comments submitted by Ms Dunja Mijatović, the Council of Europe Commissioner for Human Rights, who exercised her right to intervene in the proceedings (Article 36 §   3 of the Convention and Rule 44 §   2 of the Rules of Court); the comments submitted by the following organisations, all of which had been granted leave to intervene by the President of the Section: - Associazione Radicale Centri Diritti; - Commissioner for Human Rights of the Republic of Poland; - International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) on behalf of the Fédération Internationale pour les Droits Humains (FIDH), European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), Network of European LGBTIQ* Families Associations (NELFA) and European Commission on Sexual Orientation Law (ECSOL); - Institute of Psychology, Polish Academy of Sciences; - Ordo Iuris Institute for Legal Culture; - Polish Society of Anti-Discrimination Law (on behalf of Campaign Against Homophobia and Love Does not Exclude Association); the Chamber’s decision not to hold a hearing in the case; Having deliberated in private on 21 November 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicants are five same-sex couples who complained of a lack of any form of legal recognition and protection for their respective relationships. The case raises an issue under Article 8 of the Convention. THE FACTS 2.     The applicants live in committed, stable relationships. The details concerning the applicants and their representatives before the Court may be found in the appended table. As regards case no. 25891/17, by a letter dated 13   August 2020, the applicant’s lawyer notified the Court that the applicant had changed his name to Alcer. The Court advised the parties that it would continue processing the application under the case name of Łoś v. Poland . This corresponded to the applicant’s name as referred to in the domestic court proceedings in issue, as well as in his application lodged with the Court. 3.     The Polish Government were represented by their Agent, Mr   J.   Sobczak, of the Ministry of Foreign Affairs. 4.     On various dates the applicants each declared before the head of their local Civil Status Office ( kierownik urzędu stanu cywilnego ) that there were no impediments preventing them from marrying their same-sex partner. This declaration is a condition for getting married in Poland. In each case the head of the Civil Status Office issued a notice refusing to accept their declarations, relying on the domestic law, which defined marriage only as a union between a man and a woman. 5.     The applicants appealed to the courts, contesting the Civil Status Office’s respective decisions and the reasons given for them. 6.     On various dates the relevant district courts upheld the decisions of the head of the Civil Status Office. The courts referred to, in particular, Article   18 of the Constitution and Article 1 of the Family and Custody Code (see   paragraphs 13 and 17 below), which did not provide for the possibility of marriage between two persons of the same sex. The applicants lodged further appeals. 7.     On various dates the relevant regional courts dismissed the applicants’ appeals. The courts held that it was not possible to legally acknowledge same-sex marriages, as they were not recognised in the provisions of the Constitution or the Family and Custody Code. According to the courts, this did not constitute discrimination, as the applicants were free to make decisions about their family and private life. 8.     By way of example, on 12 December 2017 the Łódź Regional Court gave a final judgment in the case of the ninth and tenth applicants. It held, inter alia : “... it must be assumed that the applicants form a family within the meaning of the broad constitutional understanding of this concept and that they enjoy the protection of the Republic of Poland under Articles 18 and 47 of the Constitution of the Republic of Poland. However, it has escaped the applicants’ attention that the fact that Article 47 of the Constitution protects so-called privacy and prohibits the legislature from unjustifiably interfering in the sphere of family relationships and personal life does not imply that it is possible to make a contra legem interpretation of the unequivocal provision of Article   18 of the Constitution of the Republic of Poland and of the provisions of the Family Code relating to marriage. There is, of course, no obstacle to individual member States permitting homosexual couples to be entitled not only to civil partnerships but also to marriage, but they are not obliged to do so under Article 12 of the Convention. It should be noted that in Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010), the [Court] held that the Convention did not oblige a member State to legislate on or recognise marriages between persons of the same sex, but for the first time expressly accepted homosexual couples as a form of ‘family life’. The [Court] ruled that the Convention required that same-sex couples enjoy legal recognition but did not require the opening up of marriage to same-sex couples.” 9.     On various dates in 2017 the first eight applicants lodged constitutional complaints (all registered under case no. SK 12/17). They complained that Article 1 § 1 of the Family and Custody Code was incompatible with Article   47 of the Constitution, in conjunction with Article 31 § 3 and Article   32 §§ 1 and 2 and with Article 30 in so far as “it made it impossible for two persons of the same sex to marry and did not at least provide for any other form of legal recognition of relationships between two persons of the same sex”. On 17 June 2017 the Constitutional Court decided to proceed with the constitutional complaint ( nadać skardze dalszy bieg ) in case no. SK 12/17, finding that the complaint had fulfilled the formal requirements of admissibility ( spełnia wymogi formalne ). 10 .     On various dates in 2018 the applicants requested that Judge M.   Muszyński be excluded from the panel that would examine their case pending before the Constitutional Court. The applicants asserted that the judge had been unlawfully elected to the Constitutional Court. On 30 October 2018 the Constitutional Court gave a ruling dismissing their request for the exclusion of Mr M. Muszyński. 11.     On 30 April 2018 the ninth and tenth applicants also lodged a   constitutional complaint with the Constitutional Court (case no. SK 9/19). They relied on the same grounds, namely that Article 1 § 1 of the Family and Custody Code was incompatible with Article 47 of the Constitution, in conjunction with Article 31 § 3 and Article 32 §§ 1 and 2 and with Article 30 in so far as “it [did] not allow for marriage between two persons of the same sex, or at least [did] not provide for any legal form of institutionalisation of unions formed by persons of the same sex”. On 18 December 2018 the Constitutional Court decided to proceed with the constitutional complaint, finding that the complaint had fulfilled the formal requirements of admissibility. 12 .     On 15 December 2021 the Constitutional Court discontinued the proceedings in case no. SK 9/19. The court sat in a composition including Judge K. Pawłowicz. The Constitutional Court first emphasised that it could examine the formal requirements of the constitutional complaint at any stage, including after it had decided to proceed with a case. The court held: “In view of the fact that during the examination of the present case doubts arose as to how to characterise the lack of regulation in Article 1 § 1 of the Family and Custody Code of the right of persons in same-sex unions to marry, the Constitutional Court reiterates that there are two different situations in this regard: a legislative omission ( zaniechanie prawodawcze ) and a legislative oversight ( pominiecie prawodawcze ). A legislative omission occurs when the legislature has an obligation to regulate a   certain area but fails to fulfil it, leaving a certain issue outside legal regulation, which ‘results from an intended (or even tolerated) legislative policy’ ... A legislative oversight, on the other hand, occurs when – from the point of view of constitutional principles – a regulation has too narrow a scope of application or overlooks content that is relevant to its object and purpose ... The Constitutional Court has already expressed its opinion on many occasions, indicating that it cannot adjudicate on a legislative omission. It is not the role of the Constitutional Court to take the place of the legislature in a situation in which the legislature has neglected to regulate an issue, even if the obligation to regulate it is imposed by the Constitution ... The review of the constitutionality of legislative omissions is inadmissible, as the powers of the Constitutional Court do not include the adjudication of issues which the legislature has left outside legal regulation, intentionally leading to the creation of a legal loophole ... In turn, the assessment of the constitutionality of a legislative oversight falls within the competence of the Constitutional Court and is carried out from the point of view of whether provisions are lacking which, if they were in place, would have an impact on the constitutionality of a given regulation. Thus, an allegation of unconstitutionality levelled at a legislative oversight concerns not what the lawmaker has regulated in a   given act, but what he [or she] has overlooked, and the assessment of the Constitutional Court is extended to the entire normative content of the provision in question, and thus also to the absence of certain normative elements ... The Constitutional Court has repeatedly pointed out that the unequivocal classification of a specific normative state of affairs into one of the above-mentioned categories may, in practice, pose difficulties ... Transposing the above reservations into the subject of the complaint in the present case, it should first of all be noted that the Constitution does not contain a provision prescribing the regulation of the institution of same-sex marriages. The Constitutional Court has already commented on this issue, indicating that ‘[m]arriage as a union between a man and a woman’ has been given a separate constitutional status in the domestic law of the Republic of Poland determined by the provisions of Article 18 of the Constitution. A change in this status would only be possible within the procedure for amending the Constitution ... In the opinion of the Constitutional Court, the regulation contained in Article 1 § 1 of the Family and Custody Code was a fully conscious and deliberate decision of the legislature. ... The wording of that provision ... clearly indicates that the provision constitutes a complete, compact normative element of the Code. Pursuant to Article 18 of the Constitution, marriage as a union between a man and a   woman is protected by the Republic of Poland. According to case-law and legal commentators, this provision unequivocally states that in the Polish legal system the institution of marriage is reserved exclusively for a couple formed by a man and a   woman. There is also no doubt that Article 1 § 1 of the Polish Family and Custody Code should be interpreted, according to the requirement of pro-constitutional interpretation, in a manner compliant with Article 18 of the Constitution. This is due to the fact that that provision is an element of constitutional axiology ... . That is because it defines the fundamental values related to the institution of marriage and family and their role in society. The remaining constitutional provisions should be interpreted and applied in a manner allowing for the fullest possible consideration and realisation of these values. The same direction applies to the interpretation of all other provisions of law (see the Supreme Administrative Court’s judgment of 7 December 2009). The process of such interpretation and application should be guided by an ‘awareness of the value of the family in social life and of the importance of this basic unit for the existence and functioning of the nation’. From the legislature’s point of view, in the case under consideration there is no qualitative equivalence, or even a far-reaching similarity, between the matter regulated in Article 1 § 1 of the Family and Custody Code and the regulation allegedly lacking in that provision. ... [The applicants] indicated in their constitutional complaint: ‘[t]he couples live together, ... run a common household, ... [and] take decisions together in life and family matters’. This does not, however, prove that a same-sex relationship is identical to marriage, which differs from a same-sex relationship primarily in its potential for procreation. As the court’s well-established case-law shows, ‘[t]he protection of the family implemented by public authorities must take into account the vision of the family adopted in the Constitution as a permanent union of a man and a   woman directed towards motherhood and responsible parenthood’ (see Article 18 of the Constitution). Indeed, the purpose of the constitutional regulations relating to the status of the family is to impose on the State, and in particular on the legislature, the obligation to take measures that ‘strengthen the bonds between persons forming a   family, and in particular the bonds existing between parents and children and between spouses’ (see   the judgment of the Constitutional Court of 12 April 2011, SK 62/08, paragraph 22). Therefore, in the context of the constitutional principle of equality and the established case-law of the Constitutional Court concerning legislative omission, it is difficult to assume that the matter of regulating same-sex unions is qualitatively identical to the matter of regulating marriage as defined in Article 1 § 1 of the Family and Custody Code. Taking the above considerations into account, the Constitutional Court has concluded that the constitutional complaint under examination accused the legislature of a   legislative omission; therefore, in the case initiated by the complaint, adjudication was inadmissible and the proceedings should have been discontinued.” RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW AND PRACTICE Constitution 13 .     The relevant provisions of the Constitution of the Republic of Poland of 1997 read as follows: Article 18 “Marriage, as a union between a man and a woman as well as the family, motherhood and parenthood, shall be under the protection and care of the   Republic   of   Poland.” Article 30 “The inherent and inalienable dignity of the person shall constitute a source of the freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.” Article 32 “1.     All persons shall be equal before the law. All persons shall have the right to   equal treatment by public authorities. 2.     No one shall be discriminated against in political, social or economic life for any reason whatsoever.” Article 33 § 1 “Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.” Article 47 “Everyone shall have the right to legal protection of his or her private and family life and of his or her honour and good reputation and to make decisions about his or her personal life.” Civil Code 14.     Article 691 of the Civil Code concerns entering into a tenancy relationship after a partner has died (for case-law concerning the application of this provision to same-sex couples, see paragraph 20 below). “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 [children] and his or her spouse’s children, other persons in respect of whom the tenant had maintenance obligations and any person who has lived in de   facto cohabitation with the tenant shall succeed to the tenancy agreement. 2. The persons referred to in paragraph 1 shall enter into the tenancy relationship in respect of the premises in question if they permanently resided with the tenant until his or her death.” Criminal Code 15.     Article 115 of the Criminal Code provides a glossary of terms: “11. The closest person ( osoba najbliższa ) is a spouse, an ascendant, a descendant, a   sibling, a relative in the same line or degree, a person in an adoptive relationship and his or her spouse and a person living in cohabitation.” Code of Criminal Procedure 16.     Article 182 of the Code of Criminal Procedure allows a person closest to an accused to refuse to testify against him or her (for case-law concerning same-sex couples, see paragraph 24 below). Article 182 reads as follows, in so far as relevant: “1. The person closest to the accused may refuse to testify ...” Family and Custody Code 17 .     The relevant provision of the Family and Custody Code ( Kodeks rodzinny i opiekunczy ) of 25 February 1964 reads as follows: Article 1 § 1 “A marriage is established when a man and a woman are both present before the head of a civil status office and make a declaration that they enter with each other into a   marital union.” 18.     The relevant provision of the Law on Civil Status Records ( Prawo o   aktach stany cywilnego ) of 28   November 2014 provides as follows: Section 81(1) “If a marriage is to be established ... the head of the civil status office, on the basis of the declarations made, shall issue a written certificate affirming the absence of impediments to the marriage ...” Domestic practice Constitutional Court 19.     The relevant part of the Constitutional Court’s judgment of 9   November 2010 (case no.   SK 10/08) reads as follows: “As regards the allegation of a violation of the principle of protection of the family, it should be stated that Article 18 of the Constitution, in expressing this principle, has the nature of a policy standard ( norma programowa ). This means that no substantive rights can be directly derived from it ... . In judgment SK 21/99 the Constitutional Court stated that Article 18 of the Constitution could not constitute the basis for individual enforcement of claims and could not be the basis for a constitutional complaint (which   does not prevent it from being referred to as a benchmark in other proceedings for the review of constitutionality). It is further pointed out in the doctrine of constitutional law that the only normative element that may be taken from Article 18 of the Constitution is the establishment of the principle of the heterosexual nature of marriage ... . However, this aspect remains unrelated to the case at hand.” Tenancy (Article 691 of the Civil Code) 20 .     The Supreme Court’s (Civil Chamber) resolution of 28 November 2012 (case no. III CZP 65/12) stated as follows: “[A] person living in cohabitation with the tenant ( osoba pozostająca we wspólnym pożyciu z najemcą ) within the meaning of Article 691 § 1 of the Civil Code is a person who has an emotional, physical and economic bond with the tenant, including a person of the same sex.” 21.     The Warsaw Court of Appeal, in a judgment of 26 June 2014 (case no. I ACa 40/14), concluded as follows: “There are no convincing reasons in the case-law or any sociological or psychological arguments in favour of distinguishing on a legal basis between the effects resulting from heterosexual and homosexual cohabitation ( konkubinat ); on the contrary, the emotional, physical and economic bonds arising from such cohabitation are the same in both cases and can create an equally strong bond. At present, the concept of cohabitation refers to the permanent common life of two persons, regardless of their sex. Constitutional considerations, that is, the guarantee of equal treatment established in Article 32 of the Constitution of the Republic of Poland and the corresponding prohibition of any discrimination on the grounds of, inter alia , sexual orientation, support the recognition that a refusal to provide insurance cover to same-sex persons who are cohabitating constitutes discrimination on grounds of sexual orientation.” Housing benefits 22 .     On 10   January 2008 the Gliwice Regional Administrative Court gave a judgment (case no. IV SA/Gl 534/07) in which it dealt with housing benefits. The court held: “Within the meaning of section 4 of the Act of 21 June 2001 on housing benefits, the circle of persons permanently residing in and running a household with a person applying for a housing allowance... may include persons regardless of the family relationship between them and the applicant, including persons in a de facto relationship with the applicant, regardless of their sex.” Taxes 23 .     In a case concerning tax liability in relation to a donation between unmarried (opposite-sex) partners living in cohabitation, the Supreme Administrative Court held as follows (judgment of 11 March 2016, case no.   II   FSK 1682/14): “It should also be explained that it follows from the case-law of the Supreme Court that the provisions of the Family and Custody Code relating to married persons cannot be applied to cohabiting partners ... . The provisions on matrimonial property regimes cannot be appropriately applied to relations between cohabitants, even when their relationship corresponds in substance to marriage. Such a position, initiated by the resolution of 2 July 1955 ... , still remains valid in the case-law of the Supreme Court ... . A lawfully contracted marriage is a legal institution which is subject to special protection enshrined in the Constitution of the Republic of Poland (Article 18) and which is expressed in, inter alia , the special regulation of property relations between spouses. On the other hand, cohabitation is a specific factual state to which the provisions of civil law do not attach specific consequences in terms of property relations. This means that the nature and consequences of the property relationships created in connection with the de facto cohabitation of cohabiting spouses should be assessed on the basis of norms appropriate to the type and content of those relationships. The protection of marriage manifests itself in, inter alia , the fact that the legal effects of marriage do not apply to other unions and that the interpretation and application of provisions that would lead to legal equality of marriage and other forms of cohabitation are not allowed. In view of the constitutional principle of protection of marriage and the lack of grounds for considering the lack of legal regulation of non-marital unions to constitute a loophole in the law, it is inadmissible to apply the provisions of the law concerning marriages (including joint property and division of inheritance), even by way of analogy, to relationships characterised by the existence of personal and property ties other than marriage. This consistent and uniform position has, with the approval of legal commentators, been adopted in the case-law of the Supreme Court with respect to property settlements of persons who have been cohabiting.” Criminal law 24 .     The resolution of seven judges of the Supreme Court (Criminal Chamber) of 25 February 2016 (case no. IKZP 20/15) stated as follows: “The expression ‘person living in cohabitation’ ( osoba pozostająca we wspólnym pożyciu ) in Article 115 § 11 of the Criminal Code describes a person who has an actual relationship with another person in which there are emotional, physical and economic (common household) ties between them ... [and] being of different sexes is not a   condition for recognising them as remaining in cohabitation.” Resolutions on “counteracting the LGBT ideology” 25 .     On 28 June 2022 the Supreme Administrative Court (case no. III OSK 3746/21) delivered a final ruling in a case initiated by a complaint lodged by the Polish Commissioner for Human Rights (see paragraph 84 below) against a resolution of the Istebna Municipal Council ( Rada Gminy ) concerning “counteracting the LGBT ideology”. The court dismissed appeals lodged by the prosecutor and the intervener Ordo Iuris against the judgment of the Gliwice Regional Administrative Court, which had declared that resolution null and void ( stwierdził nieważność ). The Supreme Administrative Court considered that the resolution exceeded the boundaries of freedom of expression of a local government body, holding: “The Supreme Administrative Court agrees with the assessment set out in the grounds of the contested judgment that the resolution of the Istebna Municipal Council of 2   September 2019, no. X/78/2019, on the subject of counteracting LGBT ideology is an authoritative act. This is evidenced by the passages in which the Council states: ‘we will not agree to the unlawful installation of political correctness officers in schools ...’; ‘we will do everything to prevent those interested in the early sexualisation of Polish children according to the so-called WHO standards from entering the schools’; and ‘we will not allow the exertion of administrative pressure to apply political correctness (sometimes rightly called, simply, “ homopropaganda ”) in selected professions’. The Regional Administrative Court rightly considered that such formulations attested to the authoritative character of the act, as they set directives of action addressed to the executive body and the organisational units subordinate to the municipality. They constitute guidelines for the application of the law, which is a sufficient basis for considering a resolution to constitute an empowering act ... A comprehensive analysis of the above position, which has been collectively described under the slogan ‘Municipality of Istebna free of LGBT ideology’, leads to the conclusion that the essence of the message contained in the declaration is a de facto negation of equality and anti-discrimination activities in the public space and of the actual freedom of action of persons belonging to the LGBT community ... The State is a community of all citizens of the Republic of Poland, irrespective of their nationality, gender, social position, religion or political convictions. They must all have the same personal, political and social rights and the same obligations towards the State. No one in the Republic of Poland may be discriminated against for any reason. It should be borne in mind that Poland is a party to a number of international treaties on human rights, including [the Convention] and the Charter of Fundamental Rights of the European Union, and has also transposed EU directives against discrimination in employment, including on the basis of sexual orientation. Public authorities are therefore legally obliged to protect the rights of Polish citizens, in particular those belonging to different types of minorities. The constitutional principle of respect for binding international law (Article 9 of the Constitution) makes it necessary to fulfil, in good faith, the obligations incumbent on the State as a subject of the international legal order ...” 26 .     On the same date, 28 June 2022, the Supreme Administrative Court dismissed appeals in three other cases concerning similar resolutions on “counteracting LGBT ideology” issued by the municipalities of Serniki, Osiek and Klwów. Financial disputes 27 .     The Białystok Regional Court, in a judgment of 23 February 2007, dealt with the resolution of a financial dispute concerning the division of assets between two same-sex partners after the end of their relationship. It   held: “1. Cohabitation ( konkubinat ) should be understood as a stable, de facto personal and material community of two people. Gender is irrelevant in this context. 2. There are no grounds for applying different rules to the settlement of homosexual cohabitation from those applicable to heterosexual cohabitation.” 28 .     In the same case, following a cassation appeal, the Supreme Court gave judgment on 6 December 2007. It upheld the earlier ruling, holding: “... the constitutional protection of marriage does not mean that forms of cohabitation other than marriage are prohibited by law. There is also no doubt that property settlements between persons in non-marital unions are permissible and that such persons may claim protection with regard to property relations arising during the existence of such a union. Polish law does not contain any comprehensive or even fragmentary regulations of non-marital relationships of a personal and property nature and for that reason they are treated as legally indifferent de facto unions. Owing to the fact that the law does not regulate the status of such unions and that it is inadmissible to apply to them the provisions on property relations in respect of married couples, it is necessary to seek grounds for settlement within the civil law. This requires in each case that the circumstances of the case and the specific aspects resulting from the intertwining of personal and property relations formed within the framework of the relationship in question be taken into account. This is precisely the method of settlement – contrary to the unfounded allegations of the appellant – that the Court of Appeal applied.” The court concluded: “The property settlement after the cessation of a de facto same-sex personal relationship is made on the basis of the provisions of the Civil Code relevant to the content of the relations formed in the relationship in question.” Change of surname 29.     On 21 October 2015 the Łódź Regional Administrative Court dismissed an application submitted by the second applicant to have her name changed to that of her same-sex partner, the first applicant. It held: “To accept, as [the applicant] wishes, that the fact that a person remains in a same-sex relationship constitutes a valid reason for changing one’s surname to that of one’s partner is not possible as the law currently stands. A change of the family name determining a person’s descent can, as a rule, only take place upon marriage. Therefore, to apply such a broad interpretation, as sought by the applicant, of the concept of ‘important reasons’ and to consider that one such important reason is being in a stable partnership with another person would be misleading in social contacts and legal dealings as to the type of family ties (in the legal sense) linking the partners. In the case of a relationship between persons of different sexes (heterosexual cohabitation), it would suggest that one is dealing with a marriage, and in the case of same-sex relationships, for example, with siblings. In essence, this would also constitute a   circumvention of the law, as it would be a substitute for marriage (as presented by the applicant). The applicant’s lawyer himself admitted that the change of the applicant’s surname was intended to legitimise her relationship with another person and create the impression of a relationship. To sum up, as the law stands, it follows that the fact of living in cohabitation, whether in a same-sex or a heterosexual relationship, but in a relationship other than a marriage, does not constitute an ‘important reason’ to change the surname of one partner to that of the other partner within the meaning of [the Act on the changing of surnames].” 30.     In the same case, following a cassation appeal, on 10 October 2017 the Supreme Administrative Court upheld the Regional Administrative Court’s judgment (case no. II OSK 293/16). The court held that “to consider that a civil partnership – unknown in the Polish legal system – could be among the valid reasons for a person’s change of name violates this legal system”. EUROPEAN AND INTERNATIONAL LAW AND PRACTICE 31.     The most recent relevant comparative and international law material was set out in Fedotova and Others v. Russia ([GC], nos. 40792/10 and 2   others, §§ 46, 48-52, 54 and 56-67, 17 January 2023). 32.     In its report on Poland, adopted on 20 March 2015 and published on 9   June 2015, the European Commission against Racism and Intolerance (ECRI) recommended that the Polish authorities “draft and submit to Parliament legislation, or amendments to existing legislation, in order to enshrine in Polish law the equality and dignity of LGBT persons in all areas of life”. 33 .     In its most recent report on Poland, adopted on 27 June 2023 and published on 18 September 2023, ECRI noted as follows: “32. ECRI recalls that the Polish law does not provide for same-sex marriage or civil partnership. Recognition of same-sex marriages concluded abroad or of children of same-sex couples born abroad remain sensitive issues. ... At the same time, ECRI learned that, due to the lack of recognition of same-sex partnerships, same-sex partners cannot benefit from family reunification and that if a de facto partner dies, the surviving partner has no heritage rights or other contextual rights, such as choosing the place for the funeral. ECRI encourages the authorities to address this issue. 33. In the field of healthcare, the Polish authorities explained that in accordance with Article 3(1)(2) of the Act of 6 November 2008 on Patients’ Rights and the Commissioner for Patients’ Rights, the term ‘next of kin’ encompasses a cohabitee or a person indicated by the patient, which means that a same-sex ‘partner’ may be considered next of kin in a healthcare context. 34. That said, one of the most striking setbacks against LGBTI equality in Poland in the last few years was the adoption by more than one hundred municipal or regional councils of so-called anti-LGBTI resolutions. Some of these resolutions have taken the form of ‘Family Charters’. Reportedly, the adoption of such charters was promoted by supporters of the ruling government coalition and some local council members were taken by surprise when the adoption of the charters was put on local council meeting agendas, without any prior consultation.” 34.     On 28 June 2023 ECRI adopted its General Policy Recommendation No. 17 on preventing and combating intolerance and discrimination against LGBTI persons (published on 28 September 2023). ECRI made the following recommendations to the governments of the member States under the heading “Policies and Institutional Co-ordination” in relation to private and family life: “... 16. extend legal recognition and protection to LGBTI people, and ensure that couples, who have formalised their same-sex relationship, have equal access to the same rights and benefits as individuals in legally recognised different-sex relationships, including property, maintenance and inheritance rights. Transgender and intersex people should have the right to form legal relationships in accordance with their legally recognised gender; 17. provide an effective legal framework for the recognition of LGBTI partnerships and other family ties of LGBTI people in cross-border situations; ...” 35.     In the “Memorandum on the stigmatisation of LGBTI people in Poland”, issued on 3   December 2020, the Council of Europe Commissioner for Human Rights stated, in so far as relevant: “The Commissioner notes that current trends in Europe are towards an increasingly hardening consensus in favour of legal recognition for same-sex couples. Indeed, at the time of writing, 30 of the 47 Council of Europe member states provide for such legal recognition in one form or another. Considering that the absence of legal recognition for same-sex couples violates their right to private and family life and that it is a form of discrimination on the ground of sexual orientation, she encourages Poland to grant effective and non-discriminatory legal recognition to same-sex couples in the form of same-sex marriage, civil unions or registered partnerships.” 36 .     A 2019 Fundamental Rights Agency survey of LGBTI people found that 73% of Polish respondents did not live openly and did not disclose their sexual orientation and gender identity. The survey also found that 50% of Polish LGBTI respondents were in a stable and committed relationship, with 31% of respondents living together with their partner and 10% raising children. Furthermore, the survey found that 68% of LGBTI respondents – the highest percentage in the countries of the European Union by a wide margin – believed that prejudice and intolerance against LGBTI people had increased in Poland over the past five years. THE LAW JOINDER OF THE APPLICATIONS 37.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule   42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 38.     The applicants complained of a total lack of recognition of their relationships as couples in Poland, in that it was impossible for them to enter together into any type of legally recognised union. In their view, this amounted to a violation of their right to respect for their private and family life as protected by Article 8 of the Convention, which provides: Article 8 “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.” Admissibility Applicability of Article 8 of the Convention 39 .     The Court notes, firstly, that the Government did not dispute that Article   8 was applicable to the facts of the case. Indeed, the Court has confirmed on several occasions that Article 8 of the Convention was applicable under both its “private life” and “family life” aspects in cases concerning the alleged lack of legal recognition and/or protection for same-sex couples (see   Schalk and Kopf v. Austria , no. 30141/04, § 94, ECHR 2010 ; Oliari and Others v. Italy , nos. 18766/11 and   36030/11, §   169, 21 July 2015; Orlandi and Others v.   Italy , nos.   26431/12   and 3 others, § 143, 14   December 2017; Pajić v.   Croatia , no.   68453/13, § 68, 23 February 2016; Chapin and Charpentier   v.   France , no.   40183/07, § 44, 9 June 2016; and Taddeucci and McCall v.   Italy , no.   51362/09, § 58, 30 June 2016). Moreover, the Court has held that the unavailability of a legal regime for recognition and protection of same-sex couples affects both the personal and the social identity of the applicants as homosexual people wishing to have their relationships as couples legitimised and protected by law (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2   others, § 144, 17 January 2023). 40.     The Court accordingly concludes that Article 8 of the Convention is applicable in the present case under both its “private life” and “family life” aspects. The Government’s preliminary objections 41.     The Government raised two preliminary objections: of non ‑ exhaustion of domestic remedies and lack of significant disadvan