Mirror of Justice

Press release issued by the Registrar  

Chamber judgment¹

 
Kozak v. Poland (application no. 13102/02)

SUCCESSION TO TENANCY OF A FLAT DENIED TO HOMOSEXUAL AFTER HIS PARTNER’S DEATH IN BREACH OF THE CONVENTION

Unanimously

Violation of Article 14 (prohibition of discrimination)

in conjunction with Article 8 (right to respect for private and family life)

of the European Convention on Human Rights

Principal facts

The applicant, Piotr Kozak, is a Polish national who was born in 1951 and lives in Szczecin (Poland). For several years, he lived together with his partner in a homosexual relationship. They shared a municipality flat rented by the applicant’s partner. After his partner had died in April 1998, the applicant applied to the municipality to succeed to the tenancy of the flat. The municipal buildings department denied the request in June 1998, claiming that the applicant had not lived in the flat before his partner’s death, and ordered the applicant to move out.

While eviction proceedings against him were still pending, the applicant brought proceedings against the municipality in 2000, seeking to have his succession to the tenancy acknowledged. Relying on the housing act in force at the time, he brought forward that he had a right to succession, as he had run a common household with his partner for many years and had thus lived with him in de facto marital cohabitation. The claim was dismissed by the district court, holding in particular that Polish law recognised de facto marital relationships only between partners of different sex. On appeal, the judgment was upheld by the regional court in June 2001.

The regional court did not grant the applicant’s request to have referred to the Supreme Court the question of whether the clause “de facto marital cohabitation” also concerned persons living in a homosexual relationship. Nor did it obtain a ruling of the Constitutional Court on whether that clause, understood as including only heterosexual partners, was compatible with the Polish Constitution and the Convention.

Complaints, procedure and composition of the Court

Relying in particular on Articles 8 and 14, the applicant complained that the Polish courts, by denying him the right to succeed to a tenancy after the death of his partner, had discriminated against him on the ground of his homosexual orientation.

The application was lodged with the European Court of Human Rights on 23 August 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (United Kingdom), President,

Lech Garlicki (Poland),

Giovanni Bonello (Malta),

Ljiljana Mijović (Bosnia and Herzegovina),

David Thór Björgvinsson (Iceland),

Ján Šikuta (Slovak Republic),

Ledi Bianku (Albania), judges, 

and Lawrence Early, Section Registrar.

Decision of the Court

The Court agreed with the Polish Government that some of the applicant’s statements concerning the nature and duration of his relationship with his partner and his residence in the latter’s flat that he had made before the domestic courts and authorities had been inconsistent. However, it was not for the Court to decide which of the trial courts made correct findings of fact. It had to confine its examination to the proceedings at issue, concerning the applicant’s succession to tenancy.

The Court observed that in establishing whether the applicant fulfilled the conditions of the housing act the domestic courts had focused on the homosexual nature of the relationship with his partner. While the district court had also expressed some doubts as to whether the applicant had lived in the flat at the relevant time, both courts had rejected his claim on the grounds that under Polish law only a relationship between a woman and a man could qualify for de facto marital cohabitation.

The Court accepted that the protection of the family founded on a union of a man and a woman, as stipulated by the Polish Constitution, was in principle a legitimate reason which might justify a difference in treatment. However, when striking the balance between the protection of the family and the Convention rights of sexual minorities, States had to take into consideration developments in society including the fact that there was not just one way of leading one’s private life. The Court could not accept that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was necessary for the protection of the family. It therefore unanimously concluded that there had been a violation of Article 14 taken in conjunction with Article 8.