Friday, 15 March 2013

Kozak v Poland - an update from Poland

On the 12th March 2013 the Polish government submitted an Action Report for consideration by the Committee of Ministers which contains information about the measures undertaken to comply with the judgment in Kozak v Poland. The CoM will consider this at their next quarterly meeting (1172 DH meeting, 4-6 June 2013).

The judgment

In Kozak v Poland the European Court of Human Rights found that the applicant had been discriminated against on the grounds of his sexual orientation and suffered a violation of his right to respect for private life because, after his partner’s death in 1998, he was denied the succession to tenancy of their shared flat. The Court found that the rejection of the Mr. Kozak's application to succeed to the tenancy after his partner’s death, and the subsequent dismissal of his judicial claim on the basis of a Polish law that recognised de facto marital relationships only between opposite-sex partners, constituted a violation of Article 14 taken in conjunction with Article 8 of the Convention.

Kozak v Poland was a significant judgment for a number of reasons and, although seemingly focused on a narrow issue (state housing and tenacy rights), it has implications in respect of a wide range of discrimination based on sexual orientation. In its summary of 'Principles deriving from the Court's case-law', the Court made one of its strongest statements to date about how a difference in treatment based on sexual orientation should be understood in respect of Article 14:

'Sexual orientation is a concept covered by Article 14. Furthermore, when the distinction in question operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention' (para. 91, my emphasis). 

The Action Report

In its Action Report the Polish government state that the legislation which prevented Mr. Kozak's succession to his partner's tenacy has been repealed and new rules governing succession to lease have been included in the Civil Code (this was already the case at the time of the Court's judgment). They state that pursuant to Article 691 of the Civil Code, as applicable from 10/07/2001, in the event of a tenant's death, a person who has lived in de facto cohabitation with the tenant shall also succeed to the tenancy agreement and, in contrast to previous regulation, the current law does not foresee that the cohabitation must be 'marital'.

The Polish government argue that 'according to the information available by the end of 2011, the Polish courts recognise, for the purpose of Article 691 of the Civil Code, the same-sex partners as de facto cohabitants' and that 'this was further confirmed by the [Polish] Supreme Court in its resolution of 28/11/2012 in the case no. III CZP 65/12, in which it declared that a person living in de facto cohabitation with a tenant – in the meaning of Article 691 of the Civil Code – was a person being with a tenant in emotional, physical and economic relationship, also – a person of the same sex'.

The Supreme Court decision can be found here:
http://www.sn.pl/sprawy/SitePages/Zagadnienia%20prawne.aspx?ItemID=335&ListID=411c5dda-68cb-4ad8-b865-2705079f8593&el=Izba%20Cywilna

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