Strasbourg Court Says Refusal to Recognise Cohabitation of Gay Partners Violates Article 14

On 2 March 2010, the European Court of Human Rights in the case of Kozak v. Poland (application No. 13102/02) found that a same-sex partner should be able to succeed to a tenancy held by their deceased partner. The Court held that the Polish authorities’ exclusion of same-sex couples from succession could not be justified as necessary for the legitimate purpose of protection of the family and was a violation of the right to non-discrimination under Article 14 of the European Convention on Human Rights.

In this case the Polish authorities had denied the applicant, Mr Kozak, the right to succeed to the tenancy of his partner’s flat after his death. The domestic courts had rejected Mr Kozak’s claim on the ground that under Polish law only a relationship between a man and a woman satisfied the requirements for inheritance under the Lease of Dwellings and Housing Allowances Act 1994.

The Court unanimously held that the blanket exclusion of persons living in same-sex relationships from succession to a tenancy was in breach of the Article 14, taken in conjunction with Article 8 (the right to respect for private and family life). Rejecting the government’s argument that the discriminatory treatment was necessary to protect the family founded on a “union of a man and a woman”, as stipulated in Article 18 of the Polish Constitution, the Court stated that there is a need for governments to recognise “developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice in the sphere of leading and living one's family or private life”. Furthermore, it asserted that laws adversely affecting the “intimate and vulnerable sphere of an individual’s private life” need strong justifications, which had not been satisfied in this case.

Speaking about the recent decision, ERT’s Executive Director Dimitrina Petrova said:

“As in its previous jurisprudence, the European Court of Human Rights has made it clear that distinctions on the ground of sexual orientation are subject to the highest scrutiny. Blanket bans aimed solely at protecting and preserving the heterosexual family model can no longer be used to justify the inequality experienced by same-sex couples in Europe today.

“In stating so clearly that governments must recognise changing social attitudes and that different people constitute families in different ways, the court has set down an important marker which must be followed domestically.”

To read the ERT case summary, click here.

To read the full case, click here.