Same-Sex Relationships: Right to Non-Discrimination and Succession to Public Tenancy

Kozak v Poland [2010] ECHR 280 (2 March 2010)

The European Court of Human Rights has held that Poland violated arts 8 and 14 of the European Convention on Human Rights by denying a man living in a homosexual relationship the right to succeed to a tenancy after the death of his partner.

The Court rejected the notion that the definition of marriage as a union of a man and a woman in the Polish Constitution could be used to justify the denial of certain family rights to cohabiting same-sex partners and held that in Poland ‘de facto marital cohabitation’ must be understood to include persons in a same-sex relationship.

Facts

Kozak, a Polish national, lived in a municipality flat rented by his partner for around nine years.  After his partner died, Kozak applied to the municipality to succeed to the tenancy of the flat.  The request was denied on the basis that the applicant had not lived in the flat before his partner's death and Kozak was ordered to move out.

Kozak brought proceedings against the municipality, arguing that he had a right to succession on the basis that he satisfied the requirements of the housing legislation in force at the time, having run a common household, and thus having lived in a de facto relationship, with his partner for many years.

The claim was dismissed by the District Court, and subsequently by the Regional Court.  Both courts held that regardless of whether Kozak could establish that he had lived permanently in his partner’s flat, he could not meet the statutory requirements of the housing law as only de facto relationships between partners of different sex were recognised by Polish law.

The Regional Court also denied the applicant’s request to have the question of whether the term ‘de facto marital cohabitation’ in the relevant housing law also concerned persons living in a homosexual relationship referred to the Supreme Court, or (in the alternative) for the Regional Court to obtain a ruling of the Constitutional Court as to whether the term, understood as including only heterosexual partners, was compatible with the Polish Constitution and the Convention.

Kozak subsequently lodged an application with the European Court of Human Rights, alleging that he had been discriminated against on the ground of his homosexual orientation in breach of arts 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the Convention.

Decision

The Court agreed with Kozak’s submission that the domestic courts had focused on the homosexual nature of his relationship in establishing whether he fulfilled the conditions of the housing legislation.  It found that both courts had rejected his claim on the grounds that under Polish law only a relationship between a woman and a man could qualify as de facto marital cohabitation.

Although the Court noted that not every difference in treatment will amount to a violation of art 14, it held that when the distinction in question operates in the sphere of sexual orientation, an ‘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.  To be lawful, any such measure should pursue a ‘legitimate aim’ and the state must demonstrate ‘reasonable proportionality between the means employed and the aim sought to be realised’.  In particular, the Court held:

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.

The Court found that the essential objective of the difference in treatment of the applicant by the domestic courts had been to ensure the protection of the family founded on ‘a union of a man and a woman’, as stipulated by the Polish Constitution.  However, although the Court accepted that this was in principle a legitimate reason which might justify a difference in treatment, it held that when striking the balance between the protection of the family and the rights of sexual minorities under the Convention, a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy could not be accepted by the Court as necessary for the protection of the family.

The Court held that in its choice of means designed to protect the family and secure, as required by art 8 (respect for family life), the State must take into account 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 one's family or private life’.

On this basis the Court unanimously concluded that there had been a violation of art 14 when considered in conjunction with art 8.

Relevance to the Victorian Charter

The Statute Law Amendment (Relationships) Act 2001 (Vic) and the Statute Law Further Amendment (Relationships) Act 2001 amended many Victorian Acts of Parliament, including laws relating to property rights and inheritance matters, to ensure that all couples are treated equally, irrespective of gender.

However, this case emphasises that any difference of treatment based on sexual orientation will breach s 8 of the Charter (right to recognition and equality before the law) unless it can be proved to be absolutely necessary, and that attempts to justify differential treatment of same-sexual couples on the basis of the protection of families and children afforded by s 17 of the Charter are unlikely to succeed.

It is also interesting to note that in this case, like in Ghaidan v Godin-Mendoza [2004] 2 AC 557, the Court went beyond the express terms of the legislation and effectively reinterpreted the Polish definition of ‘spouse’.  In light of the Victorian Court of Appeal’s differing approach to the interpretative provisions of the Charter recently elucidated in R v Momcilovic [2010] VSCA 50, it is likely that express provisions (like those in the Polish Constitution) will be the subject of declarations of inconsistency by Victorian courts, rather than a reinterpretation of the provisions to make them more compatible with human rights.  However, adopting the Momcilovic methodology, in the absence of express provisions to the contrary it is likely the courts would interpret the term in the way that is most compatible with human rights, thereby extending it to include same-sex couples.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/280.html.

Mimosa Rizzo is a lawyer with Corrs Chambers Westgarth