The European Court of Human Rights (ECHR) has ruled that the lack of legal recognition for same-sex partnerships in Poland violates the human rights of such couples.
The case against Poland was brought by four Polish women—one of the couples got married in the United Kingdom, the other in Denmark. Their request to have their foreign marriages registered in Poland was refused on the basis that that would violate the constitution, which defines marriage as “a union of a man and a woman.”
The women complained that they were being prevented from benefiting from spouses’ rights under Polish law to make tax-free donations to one another, to file joint tax returns, to receive benefits for caring for one another, and to extend health insurance to one another.
After losing all legal battles in Poland, the women turned to the Strasbourg-based ECHR, a 46-member European court that deals with human rights cases. ECHR ruled that member states “are required to provide a legal framework allowing same sex couples to be granted adequate recognition and protection of their relationship.” By not officially recognising the couples’ relationships, the Polish state has “left them in a legal vacuum and has not provided for the core needs of same-sex couples in a stable and committed relationship.” This, says the court, “amounts to a breach of the applicants’ right to respect for their private and family life” under the European Convention on Human Rights.
This is the second time the ECHR has warned Poland, after a previous ruling in December last year.
“It puts Poland in a difficult situation,” Olivier Bault, director of communications at the Warsaw-based Ordo Iuris Institute told The European Conservative.
On the one hand, Article 46 of the European Convention on Human Rights requires the implementation of any judgment of the Court; on the other hand, Article 18 of the Polish Constitution requires protection of the privileged nature of marriage as a union between one man and one woman. It would be inconsistent with Article 18 of the Constitution to institutionalise same-sex cohabitation by establishing such “marriages” or partnerships with rights similar to marriage.
The Ordo Iuris Institute believes that the ECHR ruling far surpasses the wording of the European Convention on Human Rights.
It changes the meaning of the concept of family life used in the Convention, defining as a family any configuration of persons based on emotional ties alone. Such an interpretation has no relation to the Convention’s original interpretation of the concept of family, which, from the beginning, was to be based on a stable relationship between one man and one woman and, generally, their children.
While the previous Polish government, led by conservative Law and Justice (PiS), was adamant in protecting the wording of the country’s constitution, and constantly fought against the promotion of LGBT and gender ideologies in Poland, the current leftist-liberal, Donald Tusk-led government has vowed to legalise same-sex marriage.
A draft bill submitted to the parliament by the Nowa Lewica junior coalition partner earlier this year wants to introduce same-sex unions, covering the right to a joint surname, similar tax status to married couples, the right to obtain the partner’s medical information, as well as the right to inheritance and to take over the care of the partner’s children in case of death.
However, another coalition partner, the agrarian centre-right Polish People’s Party, has opposed several elements of the law, including the right of homosexuals to care for a partner’s children.
“In our view, such a law would be, by nature, unconstitutional, as, in its current shape, it would give to civil unions (including same-sex unions) all the privileges that are currently reserved to married couples,” says Olivier Bault.
The minister for equality is preparing to put the law on the parliament’s agenda anyway this autumn, but because of the divisions it is causing, it may be postponed. Apart from the Polish People’s Party, the opposition conservative PiS and the right-wing Konfederacja parties also reject the draft bill.
“This means that Donald Tusk’s government is not even sure to get a majority in parliament. And even if the Polish parliament votes in favor of such a bill, it will likely be vetoed by President Andrzej Duda, and the ruling coalition does not have the necessary majority in the parliament to overturn the presidential veto,” Olivier Bault explains.
Poland is one of five EU countries where same-sex civil partnerships are not recognised—the others being Romania, Bulgaria, Lithuania, and Slovakia.
Despite voters of the current left-liberal coalition supporting marriage and civil unions for same-sex couples, a majority of Poles are opposed to the possibility of homosexual couples adopting children.
