CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 19 septembre 2024

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POLAND (Applications nos. 58828/12 and 4 others – see appended list)             JUDGMENT   STRASBOURG 19 September 2024     This judgment is final but it may be subject to editorial revision. In the case of Formela and Others v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Péter Paczolay , President ,   Gilberto Felici,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the applications 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein; the decision to give notice of the applications to the Polish Government (“the Government”) represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by 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: - the Commissioner for Human Rights of the Republic of Poland; - the 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 the European Commission on Sexual Orientation Law (ECSOL); - the Institute of Psychology, Polish Academy of Sciences; - the Ordo Iuris Institute for Legal Culture; - the Polish Society of Anti-Discrimination Law (on behalf of “Campaign Against Homophobia and Love Does not Exclude” Association); Having deliberated in private on 29 August 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The applicants form same-sex couples who complained under Article   8 of the Convention that their marriages, contracted abroad, had not been registered in Poland while there had been no other form of legal recognition and protection for their respective relationships.         THE FIRST AND SECOND APPLICANTS (M s K. FORMELA AND M s S. FORMELA)    Proceedings relating to donation, tax returns, social benefits and health insurance 2 .     In June 2009 the first applicant received a donation from the second applicant. She indicated to the tax office that the donation was from her “spouse” (being the first and closest group of affiliation, allowed to receive tax free donations). In   September 2009 the tax office established that the first applicant was due to pay tax on the donation since it was received from a   person falling within the third group – no affiliation. The first applicant appealed but the ruling was upheld on 20 March 2012 by the Supreme Administrative Court. 3.     In April 2009 the applicants submitted a joint tax return as spouses. The tax authorities recalculated their tax obligations in view of the fact that they were not allowed by law to submit a joint tax return. On 20 March 2012 the Supreme Administrative Court dismissed the applicants’ cassation appeals. 4 .     In August 2009 the second applicant was on leave to care for her sick partner, the first applicant, and applied for benefits to care for a sick spouse. The authorities dismissed the request (the final judgment was delivered by the Gdańsk Regional Court on 3 September 2010). On 12 October 2011 the Constitutional Court refused to examine the constitutional complaint lodged by the first applicant. The court considered that the case concerned a lack of regulation: a legislative omission rather than the incompatibility of a   regulation with the Constitution. 5.     On 24 September 2012 the second applicant lodged a request to extend her health insurance to cover the first applicant. The authorities refused the request, finding that the first applicant could not be insured as the second applicant’s family member because this was not allowed for by law. Their final appeal was dismissed on 25 October 2016 by the Supreme Administrative Court.    Proceedings to register a marriage contracted abroad 6.     On 16 January 2015 the first and second applicants were married in the United Kingdom. Subsequently they requested the Gdańsk Civil Status Office to register their marriage contracted abroad. 7.     On 7 July 2015 the Head of the Gdańsk Civil Status Office dismissed both applications, finding that registering their marriage would be contrary to Polish legal order in breach of, inter alia, Article 18 of the Constitution which provided that a marriage was only possible between two people of opposite sex. The applicants appealed, but the Pomorskie Governor upheld the decision, as did the Gdańsk Regional Administrative Court and the Supreme Administrative Court (on 28 February 2018).       THE THIRD AND FOURTH APPLICANTS ( M s M. HANDZLIK-ROSUŁ AND M s A. ROSUŁ) 8.     On 7 November 2015 the third and fourth applicants were married in Denmark. Subsequently, they requested the Gdańsk Civil Status Office to register their marriage contracted abroad. 9.     On 5 November 2018 the authorities dismissed the request because it would have been contrary to the Polish legal order which allowed only for a   marriage between a man and a woman. The applicants’ appeals were dismissed by the Pomorskie Governor on 1 July 2019 (notified on 10 July 2019).     COMPLAINTS 10.     The applicants complained under Article 8 of the Convention 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. The applicants further complained that their marriages contracted abroad were not recognised by the Polish authorities in any way. THE COURT’S ASSESSMENT         JOINDER OF THE APPLICATIONS 11.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.       ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION    Admissibility 12.     The Government raised a preliminary objection on non-exhaustion of domestic remedies in respect of the third and fourth applicants, who did not appeal against the decision of the Pomorskie Governor of 1 July 2019. 13.     However, the Court notes that the first two applicants, who were in a   similar situation, appealed against their decision, firstly to the Regional Administrative Court and later to the Supreme Administrative Court. Both courts upheld the administrative decisions as based on clear domestic law and jurisprudence, confirming that the registration of foreign same-sex marriages would be considered as breaching the fundamental principles of the Polish legal order. 14.     The Government also argued that the applicants had failed to complain to the Constitutional Court. The Court considers that there are strong doubts as to the admissibility of a constitutional complaint in a case concerning the impossibility of registering in Poland a same ‑ sex marriage contracted abroad, and the lack of any other form of recognition and protection for such couples, as similar complaints had in the past been characterised as a legislative omission, the examination of which was outside the competence of the Constitutional Court ( see Przybyszewska and Others v.   Poland , nos.   11454/17 and 9 others, § 53, 12 December 2023). Indeed, the first applicant lodged a constitutional complaint in one of her cases, which the Constitutional Court refused to examine, considering that the matter should be characterised as a legislative omission (see paragraph   4 above). 15.     The Court concludes that the applicants should be considered to have exhausted domestic remedies and dismisses the Government’s objections in this respect. 16 .     The Government further submitted that no significant disadvantage had been suffered by the applicants and that they could not claim to be victims of the alleged violations of the Convention since, despite unfavourable decisions by the Polish authorities, the applicants continued to live together in their respective couples and did not suffer any damage on account of those decisions. The applicants contested the objections, reiterating that they had no access to core rights that were relevant to any couple in a stable relationship. 17.     The Court finds that both objections are phrased in similar terms and are closely linked to the merits of the complaint that the applicants’ Convention rights were breached by the lack of legal recognition of same-sex unions. Accordingly, it   joins these objections to the merits. 18.     It follows that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.    Merits 19.     The general principles confirming that, in accordance with their positive obligations under Article 8 of the Convention, the member States are required to provide a legal framework allowing same ‑ sex couples to be granted adequate recognition and protection of their relationship, are set out in Fedotova and Others v. Russia [GC], nos. 40792/10 and 2   others, §§   152 ‑ 65 and 178, 17 January 2023. 20.     In the application of those principles, the Court found in Przybyszewska and Others (cited above, § 122) that Poland had failed to comply with its positive obligation to ensure that the applicants in that case had a specific legal framework providing for the recognition and protection of their same-sex unions, in breach of Article 8 of the Convention. 21.     In the case at hand, the applicants did not complain that it was impossible for them to get married in Poland and the Court notes that Articles   8, 12 and 14 of the Convention have to date not been interpreted as imposing a positive obligation on the States Parties to make marriage available to same ‑ sex couples (ibid., §   165). 22.     The Court will focus its examination on the question of whether the respondent State has satisfied its positive obligation to provide a legal framework allowing the applicants to be granted adequate recognition and protection of their relationships (see Koilova and Babulkova v.   Bulgaria , no.   40209/20, § 41, 5 September 2023). To that end, it must examine whether, having regard to the margin of appreciation afforded to it, the respondent State struck a fair balance between the prevailing interests it relied on and the interests claimed by the applicants (see Buhuceanu and Others v. Romania , nos.   20081/19 and 20 others, § 75, 23   May 2023). 23.     It has not been disputed that Polish law still provides for only one form of family union – an opposite-sex marriage – and does not allow for any form of legal recognition for same-sex couples (see Przybyszewska and Others , cited above, § 105). The situation therefore differs significantly from that of a very large number of member States which have undertaken to amend their domestic law with a view to ensuring that persons of the same sex enjoy effective protection of their private and family life (see Koilova and   Babulkova , cited above, §   46). 24.     As submitted by the applicants and shown by the facts of the case, they were prevented from taking leave to care for their ill partner, could not extend health insurance to cover their partner, were treated as being unrelated in the field of taxation and could not benefit from an exemption from donation tax granted to next-of-kin or from the right to submit a joint tax declaration. The applicants underlined that same-sex partners could not inherit from each other unless expressly indicated in a will, or be awarded maintenance in the event of separation or death. 25.     In Poland, same-sex couples, in the absence of official recognition, are mere de facto unions, even if – as in the applicants’ case – a valid marriage has been contracted abroad. Same-sex partners are not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities (see Przybyszewska and Others , cited above, §   113). The Court reiterates that the need to apply to the domestic courts for protection of their couple’s ordinary needs is in itself an obstacle to respect for their private and family life (see Koilova and Babulkova , cited above, § 53). 26 .     The Court thus concludes that by refusing to register the applicants’ marriages under any form and failing to ensure that they have a specific legal framework providing for recognition and protection, the Polish authorities have left them in a legal vacuum and have not provided for the core needs of recognition and protection of same-sex couples in a stable and committed relationship. The Court finds that none of the public interest grounds put forward by the Government prevail over the applicants’ interest in having their respective relationships adequately recognised and protected by law. 27.     In particular, all considerations pertaining to the alleged lack of support for granting recognition in Polish society, and the fact that the law and the case-law of the domestic courts did not permit the introduction of any modifications in this area, have already been examined in the Court’s previous judgment against Poland and should be dismissed for the same reasons (see   Przybyszewska and Others , cited above, §§ 118 and 120). 28.     The Court notes that member States have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples. However, it is important that the protection afforded by the States to same ‑ sex couples should be adequate. It is in the latter context that Poland’s social and cultural background may be taken into account. 29.     The Court concludes that the respondent State has overstepped its margin of appreciation and has failed to comply with its positive obligation to ensure that the applicants had a specific legal framework providing for the recognition and protection of their same-sex unions. This amounts to a breach of the applicants’ right to respect for their private and family life. The   Government’s preliminary objections regarding their suffering no significant disadvantage and their lack of victim status (see paragraph   16 above) must therefore be dismissed. 30.     There has accordingly been a violation of Article 8 of the Convention.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 31.     The applicants alleged that the fact that they were unable to secure legal recognition of their relationships amounted to discrimination on grounds of sexual orientation. They relied on Article   14 of the Convention taken in conjunction with Article 8. 32.     Having regard to its finding under Article 8, the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 14 in conjunction with Article   8 (see   Przybyszewska and Others , cited above, § 126). APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.     The applicants claimed various sums in respect of non-pecuniary damage. The third and the fourth applicants sought 2,500 Polish zlotys, equivalent to 600 euros (EUR), in respect of costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. The   Government contested the claims for non-pecuniary damage and left the claim for costs and expenses to the Court’s discretion. 34.     Having regard to the circumstances of the case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicants (see   Fedotova and Others , cited above, § 235). 35.     Having regard to the documents in its possession, the Court considers it reasonable to award jointly to the third and fourth applicants (application no.   45301/19) EUR   600, to cover costs under all heads, plus any tax that may be chargeable. FOR THESE REASONS, THE COURT, UNANIMOUSLY,      Decides to join the applications;      Decides to join to the merits the preliminary objections of lack of significant disadvantage and victim status and dismisses them;      Declares the applications admissible;      Holds that there has been a violation of Article 8 of the Convention;      Holds that there is no need to examine the complaints under Article   14 of the Convention taken in conjunction with Article 8 of the Convention;      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;      Holds ,   that the respondent State is to pay the applicants Ms Handzlik-Rosuł and Ms Rosuł jointly, within three months, EUR 600 (six hundred euros), plus any tax that may be chargeable to them, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;      Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 19 September 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President   APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 58828/12 Formela v. Poland 31/08/2012 Katarzyna FORMELA 1966 Gdańsk Polish Sylwia FORMELA 1974 Gdańsk Polish Dorota PUDZIANOWSKA 2. 40795/17 Formela v. Poland 31/05/2017 Sylwia FORMELA 1974 Gdańsk Polish Artur PIETRYKA Dorota PUDZIANOWSKA 3. 55306/18 Formela v. Poland 15/11/2018 Katarzyna FORMELA 1966 Gdańsk Polish Marcin GÓRSKI   4. 55321/18 Formela v. Poland 15/11/2018 Sylwia FORMELA 1974 Gdańsk Polish 5. 45301/19 Handzlik-Rosuł and Rosuł v. Poland 16/08/2019 Marta Agnieszka HANDZLIK-ROSUŁ 1981 Gdańsk Polish Anna Katarzyna ROSUŁ 1981 Gdańsk Polish Katarzyna WARECKA