The case concerning protection of the rights of same-sex couples at the ECtHR

Polish law does not provide any possibility for same-sex couples to enter into a civil partnership. Neither does it guarantee equal access to social benefits and tax credits related to the protection of family life. For this reason, two Polish women who for the last 8 years have been in a stable same-sex relationship, complained against Poland to the ECtHR.

The complainants request a judgement that the European Convention of Human Rights provides for the right of same-sex couples to have access to legal protection.

In the years 2009–2012, the complainants took part in numerous proceedings before administrative and common courts which constituted the grounds for the present complaint with the ECtHR.

The first of those proceedings concerned lack of exemption from the gift tax. In light of the Polish law, the exemption applies only to categories of persons explicitly specified in the Act. This tax privilege is available to married couples, and also to one of the spouses together with, for example, a stepchild, son-in-law or father-in-law. However, same-sex couples living in a stable and long-lasting relationship are not entitled to avail of this privilege.

The second of the above-mentioned proceedings concerned the right to file a joint income tax return by same-sex couples. Also in this case, the ruling was unfavourable to the complainants, as in light of the binding regulations this privilege is available only to married couples. The same argument was used in the judgement by which the complainants were denied the right to attendance allowance. The case was referred as far as the Constitutional Tribunal. The Tribunal, however, noted that the lack of provisions regulating civil partnerships is in fact an example of legislative omission that the Constitutional Tribunal cannot comment upon.

The complainants accused Poland of violating the Convention by failing to provide same-sex couples with a possibility to enter into a legally regulated civil partnership. At the same time, the complainants pointed to an increasingly more visible tendency for European governments to legally recognise relationships of same-sex couples, and to provide such couples with legal protection. The legislation adopted in Poland discriminates same-sex couples and violates their right to the protection of private life.

The complainants further noted that Poland does not recognise foreign civil partnerships. In 2010, the complainants entered into a civil partnership in the United Kingdom. They mentioned this fact in the course of proceedings before Polish courts but it had no bearing on final decisions. Lack of recognition of foreign civil partnerships, in an equally severe way as the lack of possibility to form such unions in Poland, violates the right of same-sex couples to the protection of family life.

Addressing the issue of lack of possibility to file a joint income tax return, the complainants observed that creating conditions which are impossible to satisfy by same-sex couples leads to discrimination on grounds of sexual orientation.

In the complainants’ opinion, the above-mentioned proceedings point to the fact that in Poland same-sex couples are still not regarded as families which should be entitled to legal protection. In their application, the complainants contended that lack of access for same-sex couples to social and tax benefits available to married couples leads to unacceptable discrimination.

The case has been included in the Strategic Litigation Programme of the Helsinki Foundation for Human Rights. The complainants are represented before ECtHR by Adam Bodnar, PhD.