Resolution CM/ResDH(2013)81

Kozak against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 13102/02, judgment of 02/03/2010, final on 02/06/2010)

(Adopted by the Committee of Ministers on 7 May 2013 at the 1170th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment (see document DH-DD(2013)272E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report [1]

Information about the measures to comply with the judgment in the case of

Kozak against Poland

Case description

Kozak , Application No. 13102/02, judgment of 2/03/2010, final on 2/06/2010

This case concerns discrimination against the applicant and a violation of his right to respect for private life due to the fact that after his partner ’ s death in 1998 he was denied the succession to tenancy of a flat on grounds related to his sexual orientation (violation of Article 14 taken in conjunction with Article 8 of the Convention).

From 1989, the applicant had lived with his partner in a homosexual relationship, sharing a municipal flat rented by the partner. The applicant ’ s application to succeed to the tenancy after his partner ’ s death was rejected, and his subsequent judicial claim was also dismissed, on the basis of a Polish law recognising de facto marital relationships only between partners of different sex.

The European Court of Human Rights found that the Polish law in force at the material time, which excluded same-sex partners from succession to a tenancy, could be considered to have the legitimate aim of protecting the family. Nevertheless “having regard to the State ’ s narrow margin of appreciation in adopting measures that result in a difference based on sexual orientation, a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy cannot be accepted by the Court as necessary”. Thus in rejecting the applicant ’ s claim “the Polish authorities failed to maintain a reasonable relationship of proportionality between the aim sought and the means employed” (§ 99 of the Court ’ s judgment).

I. Individual measures

The Court did not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejected this claim. As regards non-pecuniary damage, the Court considered that it was sufficiently compensated by the finding of the violation of the Convention.

Having regard to the circumstances of the case, in particular contradictory and inconsistent statements made by the applicant before the domestic courts and administrative authorities in three separate sets of proceedings related to succession of the tenancy after his deceased partner and the outcome of the domestic proceedings concerning his permanent residence and eviction from the flat in question, in the opinion of the government, no other individual measure appears necessary.

II. General measures

Pursuant to section 8 of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 ( Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) (“the 1994 Act”), which is no longer in force, a person seeking succession to a tenancy had, among other things, to fulfil the condition of living with the tenant in the same household in a close relationship, such as, for instance, de facto “marital cohabitation”. The Polish courts rejected the applicant ’ s claim on the ground that under Polish law qualified only a different-sex relationship for de facto marital cohabitation, which excluded same-sex partners from succession to a tenancy (§§ 34, 96 of the Court ’ s judgment).

The Court noted that the 1994 Act was repealed on 10/07/2001. Since then, the rules governing succession to lease have been included in the Civil Code ( Kodeks cywilny ) (§ 41 of the Court ’ s judgment).

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. Thus, in contrast to previous regulation, the current law does not foresee that the cohabitation must be “marital”.

The Court ’ s judgment was translated into Polish, published on the website of the Ministry of Justice ( www.ms.gov.pl ) and disseminated. In addition, in 2011, a special publication has been prepared which contains the analysis of the Court ’ s case law in leading cases concerning Poland – “Human rights standards under the European Convention on Human Rights” ( Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka ) which was disseminated free of charge among all judges and prosecutors.

According to the information available by the end of 2011, the Polish courts recognise, for the purpose of Article 691 of the Civil Code, same-sex partners as de facto cohabitants. They base their interpretation of the term “ de facto cohabitation” on the Court ’ s findings in the present case (see, for example, judgment of 29/12/2010 of the Kielce District Court – Application No. VII C 111/10; judgment of 17/03/2011 of the Łask District Court – Application No. I C 140/10; judgment of 4/05/2011 of the Wrocław-Śródmieście District Court – Application No. I C 667/10; judgment of 11/10/2011 of the Wrocław-Śródmieście District Court – Application No. I C 485/11) or domestic rulings and other international instruments (see, for example, judgment of 15/05/2008 of the Warszawa Praga-Południe District Court – Application No. I C 190/07; judgment of 2/06/2010 of the Wrocław-Fabryczna District Court – Application No. I C 529/09; judgment of 29/12/2010 of the Złotów District Court – Application No. I C 118/10, etc.).

This Polish courts ’ practice was further confirmed by the 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. In the reasons for the resolution, the Supreme Court shared the position presented by the Court in the Kozak judgment that prohibition for tenancy succession in the same-sex relationship had not being necessary for legitimate aim protection, namely protection of the family, reminding that undisputedly jurisprudence of the European Court of Human Rights shall be taken into account while interpreting Polish law.

In these circumstances, no other general measure appears necessary .

III. Conclusions of the responding State

The government considers that further individual measures are not necessary in the present case and that the general measures adopted, in particular legislative changes, publication and dissemination of the judgment of the European Court of Human Rights will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 14 taken in conjunction with Article 8 of the Convention.

[1] Information submitted by the Polish authorities on 25 February 2013.