Will Poland have to legalize same-sex relationships?

On January 17, 2023, the European Court of Human Rights (ECHR) issued a judgment in the case of Fedotova and others v. Russia. This ruling could have major implications for the rights of the LGBT+ community in countries that lack same-sex regulation. But let's start from the beginning...

Facts

In May 2009 (yes, it may take that long for the case to reach the ECtHR) Irina Fedotova and Irina Shipko submitted a notice to the Registry Office in Moscow that they wanted to get married. The Office and then the national courts refused to grant the application. Dmitriy Chunosov and Yaroslav Yevtushenko were in the same situation, as were Ilmira Shaykhraznova and Yelena Yakovleva.

National law

According to Russian law, family relations are based on the principles of voluntary marriage between a man and a woman, and the condition for registering such a union is a joint declaration of the will of a woman and a man. The jurisprudence of Russian courts (especially the Constitutional Court) indicates that neither the constitution nor other acts introduce the right to enter into same-sex marriages. There are also no partnership or any similar institution. The constitution mandates the protection of the "traditional family". On the other hand, no provision directly excludes the possibility of getting married by people of the same sex (so it is not one of the obstacles to getting married, such as consanguinity or adoption).

Judgment

In the present case, the Tribunal made an in-depth analysis of the facts, social relations and domestic and foreign law. In 30 states same-sex relationships are recognized by law, and only 17 states (including Poland and Russia) do not have a relevant regulation. The ruling stated that both the right to private life and family life referred to in Art. 8 of the Convention, refer to same-sex relationships and were violated in the present case.

At this point, it is worth quoting the most important arguments used by the ECtHR:

• The Convention is a "living organism" and the interpretation of its provisions changes along with social changes.What was normal and acceptable in the 1950s may be a violation now.

• Currently, there is a continuing trend in the States Parties to legal recognition of same-sex couples, which is confirmed by the introduction of appropriate legislative solutions in more than half of the States covered by the Convention.This is also confirmed by international regulations and opinions of international bodies and institutions.

• States are not obliged to provide homosexual people with the right to marry, but only to create some form of recognition of such unions (e.g. partnership). However, this form cannot be illusory.

• Granting legal protection to same-sex couples in no way diminishes or violates the rights of heterosexuals, nor does it threaten the "traditional family."

• The lack of acceptance of same-sex relationships by the majority of the society does not justify depriving minorities of their rights under Art. 8 of the Convention. Democracy does not simply mean that the views of the majority must always prevail: a balance must be struck that ensures that persons belonging to minorities are treated fairly and appropriately and that abuses of dominant positions are avoided.

What about Poland?

Many identical applications against Poland have been filed with the Court. They apply to both:

• refusal to accept the assurance that there are no obstacles to getting married (which makes it impossible to get married in Poland),

• refusal to issue a certificate on the absence of obstacles to marriage (which makes it impossible to get married abroad), as well as

• refusal to recognize a same-sex marriage concluded abroad (refusal to grant the spouses rights arising from marriage).

As the legal regulation in our country is very similar to the Russian one, it should be expected that the abovementioned cases will end with a declaration of infringement. If, despite the defeat, Poland does not introduce appropriate changes to the law, further complaints will certainly follow, which may result in compensation for the victims.