CASE OF KOZAK v. POLAND
Preliminary objection joined to merits (victim);Remainder inadmissible;Preliminary objection dismissed (victim);Violation of Art. 14+8;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza
5. The applicant was born in 1951 and lives in Szczecin. 6. In 1989 the applicant moved in to a council flat at K. street, rented by T.B., the applicant's partner, with whom he had lived in a homosexual relationship. Earlier, in 1986 or 1987, they had lived together in a flat rented by T.B. at N. street. The applicant and T.B. shared the expenses for the flat. On 28 May 1989 the applicant was registered as a permanent resident of the flat in the residents' register kept by the Szczecin Municipality (Gmina). 7. On 1 April 1998 T.B. died. 8. On an unspecified later date the applicant applied to the Mayor of Szczecin (Prezydent Miasta), asking him to conclude a lease agreement with him, replacing thereby the agreement with the late T.B. He was informed orally by one of the municipality's clerks that he should first pay arrears in rent since otherwise a fresh agreement would not be effected. The applicant paid the arrears, which amounted to 4,671.28 Polish zlotys (PLN) and also renovated the flat, paying PLN 5,662 for the work. 9. On 19 June 1998 the Szczecin Town Office's Department for Municipal Buildings and Dwellings (Wydział Budynków i Lokali Komunalnych Urzędu Miejskiego) sent a letter to the applicant, informing him that his application could not be granted because he did not meet the relevant criteria. One such criterion was to live in a council flat at least from 11 November 1992. The authorities held that the applicant had not lived in the flat but had moved in after 1 April 1998, the date of T.B.'s death. Moreover, meanwhile – on 3 April 1998 – the applicant's name had been struck out of the register of the flat's residents due to the fact that he had not lived there for more than five years (see also paragraphs 14-23 below). Accordingly, the authorities ordered the applicant to vacate the flat and surrender it to the municipality, on pain of being evicted from it at his expense and risk, the eviction being effected regardless of his presence. 10. Subsequently, the applicant tried to negotiate an agreement with the municipality but to no avail. 11. The Government maintained that at some unspecified time the applicant and T.B. had come into conflict. T.B. asked the authorities to strike the applicant's name out of the residents' register and intended to start eviction proceedings against him. They stopped running the common household some one and a half years before T.B.'s death and, at the same time, the applicant stopped paying the rent for the flat. Three months before his death T.B. stayed in his brother's home but returned to the flat in mid-February 1998. The applicant did not live in the flat at the time of T.B.'s death. The Government further stated that the applicant had not assumed responsibility for T.B.'s funeral. In support of their submissions, the Government relied on the findings made by the administrative authorities and courts and in proceedings concerning permanent residence (see paragraphs 14-23 below) and eviction (see paragraphs 24-28 below). They produced copies of the relevant decisions. 12. The applicant acknowledged that he and T.B. had started to argue some one and a half years before the latter's death and that he had stopped paying the rent and moved out for some time. However, nine months before T.B.'s death they had reconciled and they had resumed their relationship. 13. The applicant submitted that until and upon T.B.'s death they both had lived in the flat. He had looked after T.B. during his illness up until his death. As regards T.B.'s funeral, the applicant stated that, officially, it had been T.B.'s former wife who had organised the funeral and had received a partial refund of expenses from the Social Security but he had helped her to organise it and had participated in the ceremony. 14. On 5 August 1997 T.B made an application to the Szczecin Municipality, asking it to strike the applicant's name as a permanent resident of the flat at K. street out of the residents' register on the ground that the latter no longer lived at that address. 15. On 3 April 1998 the application was granted and a new entry was made in the register. The relevant administrative decision became final on an unspecified date. 16. On 26 June 1998 the applicant asked the authorities to re-open the case, submitting that he had not been notified of the institution of the proceedings. He maintained that, in contrast to what had been established in those proceedings, he had continually lived in the flat since 18 May 1989. 17. The case was reopened and the authorities heard evidence from the applicant and several witnesses. 18. The applicant stated that in the years 1994-1998 he had on several occasions left for Germany to seek odd jobs for periods lasting usually some three months. In 1997 he had been absent only from March to May and, for one and a half months starting at the end of August or the beginning of September. 19. The authorities inspected visas and stamps in the applicant's passport and found that his stays in Germany and their length were confirmed. 20. They further heard evidence from two witnesses – K.P. and Z.M. – proposed by the applicant and also from residents of the building at K. street. While the applicant's neighbours did not clearly confirm that he had resided permanently in the flat, they said that they had often seen him around, that he had answered the door to the flat, helped one of them with moving furniture and that he had renovated the flat in April 1998. They also stated that T.B. had led a very lively social life and many men had visited him. K.P and Z.M. who were colleagues of the late T.B. and the applicant confirmed that he had lived in the flat until T.B.'s death. 21. On 31 March 1999 the Mayor of Szczecin (Prezydent Miasta) quashed the decision of 3 April 1998 and refused to strike the applicant's name out of the residents' register. In the decision, the Mayor referred to the fact that, in the years 19941995, the applicant had unsuccessfully attempted to succeed to a tenancy of a council flat at J. street, after the death of a certain E.B., the statutory tenant in 1994 (see also paragraph 26 below). It was noted that in those proceedings the applicant had stated that he had lived in the flat at J. street since March 1991, had had the keys, had kept his furniture and belongings there and, after his stay in Germany in 1994, had returned to the flat and renovated it. 22. It was further noted that the applicant, when asked to explain the inconsistency with the version recently presented, had said that his statements regarding the alleged residence at J. street had not been true and that he had done so solely for the sake of acquiring the right to lease the flat at J. street, whereas he had in fact lived permanently at K. street. He added that, in any event, he could not stay every day in the flat on account of T.B.'s and his colleagues' frequent drunkenness. 23. Assessing the facts as a whole, the Mayor considered that the testimonies given by the witnesses proposed by the applicant were not credible because they were his colleagues and, in addition, they did not reside in the building. The residents had not clearly confirmed that he had lived there from August 1997 to March 1998. However, given the fact that T.B. had died on 1 April 1998, that the impugned decision had been issued on 3 April 1998 and that, as confirmed by the neighbours, the applicant had lived in the flat after T.B.'s death and had renovated it, it was evident that on the date of the issuance of the decision he had been a resident of the flat. Accordingly, the original decision had not been given on the basis of the circumstances obtaining on the date of issuance and, as such, had to be quashed. 24. On 16 April 1999 the Szczecin Municipality sued the applicant before the Szczecin District Court (Sąd Rejonowy), seeking his eviction from the flat rented by the late T.B. On 27 May 1999 the court gave judgment in default, granting the claim. On 18 June 1999 the applicant applied for the judgment to be set aside and the claim to be dismissed. The court proceeded to hear evidence. 25. On 24 May 2000 the court heard evidence from the applicant. The applicant stated that he had lived with T.B. in the flat and that he was registered as a permanent resident of the flat, sub-letting it from T.B. At the material time he still lived in the flat, paying twice the rent due because he was using the flat without any legal title. He had informed T.B.'s brother of the latter's death but had not organised the funeral since he had felt that the family should take care of it. The family had refused to take part in the funeral. Probably, T.B.'s former wife had organised it. 26. On 2 June 2000 the District Court upheld the judgment in default of 27 May 1999. The court made the following findings of fact. The applicant was registered as a permanent resident of the flat since 28 May 1989. He sub-let one room from T.B. On 3 April 1998 his name as a permanent resident of the flat was struck out of the register upon T.B.'s motion. It was later restored, following the re-opening of the case (see also paragraphs 14-23 above). The applicant did not organise T.B.'s funeral. T.B. and the applicant had had arguments. The applicant moved to the flat at K. street after T.B.'s death. By virtue of a judgment given by the Szczecin Regional Court on 18 February 1997 the applicant had been evicted from the flat at J. street. The applicant had made attempts to succeed to a tenancy of the council flat at J. street after the death of E.B., a statutory tenant. In the relevant proceedings, he had stated that he had lived at J. street since 1991. Following the enforcement of the eviction order, he left the flat in June 1998. The court further held that even though the applicant was registered as a permanent resident of the flat, this fact could not be decisive since this had legal consequences only for the residents' register and not for the application of section 8 of the 1994 Act setting out the statutory conditions for the succession to lease (see also paragraph 40 below). In these circumstances, the court concluded that the applicant had no legal title to the flat in dispute and that the eviction order should be granted. 27. The applicant appealed, arguing that the first-instance court had made errors of fact, in particular that it had wrongly found that he had moved to the flat at K. street only after T.B.'s death. He also alleged several procedural shortcomings and arbitrary assessment of evidence. 28. On 14 September 2001 the Szczecin Regional Court (Sąd Okręgowy) heard and dismissed the appeal, upholding the grounds given for the firstinstance judgment. 29. On 14 July 2000 the applicant sued the Szczecin Municipality before the Szczecin District Court, seeking a judgment declaring that he had succeeded to the tenancy after T.B.'s death. 30. At a hearing held on 30 October 2000 the applicant's lawyer stated that the claim was based on section 8(1) of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych) (“the 1994 Act”) (see also paragraph 40 below) and that on this basis the applicant had a right to succeed to the tenancy as T.B.'s life-partner (konkubent), with whom he had cohabited for many years and had run a common household. 31. On 9 November 2000 the applicant asked the court to hear evidence from 3 witnesses, K.P., R.M. and S.B. in order to establish that he and T.B. had remained at all times in a particularly close relationship. 32. At a hearing held on 22 February 2001 the court rejected the motion and heard evidence from the applicant alone. It considered that the fact that the applicant had cohabited with his late partner had already been sufficiently proved on the basis of his own statements. Before the court, the applicant stated, among other things, that he had borne expenses involved in the running of their household, including the rent for the flat. He lived in a room and T.B. occupied the kitchen. On the same day it gave judgment and dismissed the claim. 33. The District Court made the following findings of fact. T.B. rented the flat in question from the municipality. He was a divorced single person. The applicant and T.B. had lived together from 1986 or 1987, initially in another flat and, subsequently in 1989, they moved to the flat in dispute. They had a homosexual relationship. The applicant bore the costs of running the household and paid the rent for the flat. They stopped running the common household some one and a half years before T.B.'s death and at the same time the applicant stopped payment of the rent to the municipality. In 1996 the defendant municipality lodged an action for eviction against T.B., on the ground that rent arrears had not been paid. After T.B.'s death the applicant paid the rent arrears and asked the defendant to conclude a lease agreement with him. He renovated the flat. In 1994 the applicant made a similar application to the defendant municipality, asking it to conclude a lease agreement with him in respect of another flat, rented by a certain E.B., after the latter's death. He alleged that he had permanently lived in E.B.'s flat at J. street, whereas in T.B.'s flat he had only been registered as a permanent resident. 34. The findings of law read, in so far as relevant: “Under section 8(1) of the 1994 Act a person can take over a tenancy if he or she has fulfilled jointly the four following conditions: (1) was in a close relationship with the late tenant by blood relations, adoption or de facto marital cohabitation; (2) resided permanently with the tenant until his or her death; (3) had not relinquished this right to the landlord and (4) upon the death of the tenant had no title to another flat. The applicant stated that he had lived in de facto marital cohabitation with T.B. This should be assessed in the light of the situation as it obtained upon the latter's death. The major features of a de facto marital relationship (konkubinat) are its dissolvability and lack of legal consequences following its dissolution – as it is a purely de facto union. For a relationship to be considered a de facto marital relationship there must be emotional, physical and also economic bonds between the partners. Yet it emerges from the applicant's testimony that the economic bond between the partners broke some one year and a half before T.B.'s death, when they stopped running a common household. In consequence, their relationship no longer fulfilled the conditions for a de facto marital relationship. However, even assuming that all the above-mentioned requirements for a de facto marital relationship existed, the applicant's and T.B.'s cohabitation could not be regarded as such. Indeed, a de facto marital relationship is a not legalised substitute for a marriage. Pursuant to Polish law, Article 1 §1 of the Family and Custody Code, a marriage can be contracted only between a woman and a man. Consequently, [the law] recognises only de facto relationships of different-sex persons. That being said, the applicant does not belong to the group of entitled persons referred to in section 8(1) of the 1994 Act. All of the above-mentioned four requirements of section 8(1) must be fulfilled jointly; non-fulfilment of even one of them makes it redundant to examine compliance with the remaining ones. It should be added in passing that, given the applicant's attempts to succeed to the tenancy of [another] flat, his permanent residence in the flat [in question] upon the death of the statutory tenant is open to doubt. ...” 35. The applicant appealed to the Szczecin Regional Court (Sąd Okręgowy), seeking to have the impugned judgment quashed and the case remitted or, alternatively, to have the judgment altered and his claim granted in its entirety. He asked the Regional Court to hear supplementary evidence from him, in order to establish the actual duration of his relationship with T.B. Furthermore, relying on Article 390 § 1 of the Code of Civil Procedure (Kodeks postępowania cywilnego), he asked the court to refer to the Supreme Court (Sąd Najwyższy) the following legal question: “Does the term “a person who has lived with a tenant in de facto marital cohabitation” used in section 8(1) of the 1994 Act also concern a person who has lived in a homosexual cohabitation with a tenant, or only a person living in a heterosexual cohabitation?” 36. Alternatively, the applicant asked the court to refer, under section 3 of the law of 1 August 1997 on the Constitutional Court (ustawa o Trybunale Konstytucyjnym) (“the Constitutional Court Act”), to the Constitutional Court the following legal question: “Is the term “a person who has lived with a tenant in de facto marital cohabitation” referred to in section 8(1) of the 1994 Act – if interpreted as including only de facto marital cohabitation of a woman and a man – compatible with Articles 32 § 2 and 75 of the Constitution and Article 14 of the European Convention of Human Rights?” 37. As regards the principal grounds for the appeal, the applicant argued that the District Court had failed to establish the facts of the case properly, in particular because it had concluded that he and T.B. had stopped running their common household one and a half years before the latter's death solely on the basis of his incomplete testimony and had refused to admit evidence from the witnesses proposed by him in order to clarify the circumstances of the case. He also alleged a breach of the substantive civil law consisting in an erroneous interpretation of the term “a person who ha[d] lived with a tenant in de facto marital cohabitation” as relating solely to cohabitation of a man and a woman. 38. On 1 June 2001 the Szczecin Regional Court heard, and dismissed the appeal. It considered that the lower court had correctly held that the applicant had failed to meet the requirements laid down in section 8(1) of the 1994 Law. The reasoning, in so far as relevant, read as follows: “In the case under consideration the applicant derived his entitlement to succession of the tenancy from his stable homosexual relationship with the tenant. For this reason, the determination of the scope of the term “a person who has lived with a tenant in de facto marital cohabitation” was of crucial importance for the determination of the claim. In contrast to what has been argued in the appeal, the District Court correctly interpreted the above-mentioned term. This court shares the opinion stated in the reasoning of the impugned judgment that the legal regulation in section 8(1) of the 1994 Act concerns persons remaining in a de facto marital relationship, i.e. an actual relationship of different sex persons with stable physical, emotional and economic ties, imitating a marriage. The appellant is not right in saying that the scope of the above-mentioned provision encompasses also homosexual relationships. According to an opinion commonly accepted in our legal writing and case-law ..., de facto marital cohabitation takes place only if a woman and a man cohabit together. It must be stressed that a de facto marital relationship differs from a marriage only by lack of its legitimisation. For this reason, the subjects actually remaining in marital cohabitation can only be persons who, under Polish law, are eligible for marriage. Pursuant to Article 1 § 1 of the Family and Custody Code, the fundamental principle of the family in Poland is the difference in sex of a prospective nuptial couple (nupturienci), which means that contracting a marriage between persons of the same sex is inadmissible. Having regard to the fact that de facto cohabitation constitutes a substitute for a marriage, one must consider that its subjects can exclusively be a woman and a man. While the appellant is right in saying that in the European legal writing the concept of de facto marital cohabitation also encompasses homosexual relationships ..., according to the general construction rules, legal concepts should be given the meaning that they have in our legal system. Polish law does not recognise relationships of same-sex persons. For this reason, where a legal provision (in this case section 8(1) of the 1994 Act) entails legal consequences on account of remaining in a de facto marital relationship, it does not concern partners having homosexual relations, even if they have stable emotional, physical and economic ties. Contrary to what is being argued in the appeal, the above legal solution does not infringe the constitutional principle of equality before the law, which does not have an absolute character and exceptions to which may be justified by the need to protect other rights. Indeed, Article 18 of the Constitution ... clearly states that “marriage, being a union of a man and a woman, as well as the family ... shall be placed under the protection and care of the Republic of Poland”. The above-mentioned provision creates the constitutional principle of the protection for the family founded on a union of a woman and a man. Provisions of the international treaties ratified by Poland, i.e. Article 12 of the European Convention of Human Rights and Article 23 of the International Covenant of Civil and Political Rights ..., which ensure legal protection only in respect of heterosexual relations, correspond to the regulations in the Polish legal system. In conclusion, the District Court rightly held that the applicant did not belong to the group of persons entitled to succeed to a tenancy referred to in section 8 of the 1994 Act. In the circumstances, it was unnecessary to take evidence in order to establish whether the applicant had indeed remained in cohabitation with the tenant and whether other conditions for succession to the tenancy had been satisfied. For this reason, the arguments [concerning the refusal to take evidence from witnesses and the alleged errors of fact] are unfounded. ... In view of the foregoing, the appeal should be dismissed. ...” 39. A cassation appeal to the Supreme Court was not available in this case. 40. Section 8(1) of the 1994 Act read: “1. In the event of a tenant's death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant's household until his or her death, succeed to the tenancy agreement and acquire the tenant's rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling. 2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.” 41. The 1994 Act was repealed on 10 July 2001. Since then, the rules governing succession to lease have been included in the Civil Code (Kodeks cywilny). Pursuant to section 26(12) of the 2001 Act, a new Article 691 was introduced into the Civil Code. Article 691, as applicable from 10 July 2001, reads, in so far as relevant, as follows: “1. In the event of a tenant's death, his or her spouse (if he or she is not a cotenant), his or her and his or her spouse's children, other persons in respect of whom the tenant had maintenance obligations and a person who has lived in de facto cohabitation with the tenant shall succeed to the tenancy agreement.” 42. Article 1 § 1 of the Family and Custody Code (Kodeks rodzinny i opiekuńczy) states: “A marriage shall be contracted when a man and a woman simultaneously present have declared before the Registrar of the Civil Status Office that they marry each other.” 43. In 2003 a group of 36 senators submitted a bill on same-sex registered partnerships to the Polish Senate (Senat). According to the bill, entering into a registered partnership was to create rights similar to those flowing from a marriage in respect of succession, health and social insurance and taxation. Following a long debate and having aroused considerable controversy over most of its provisions, the bill was eventually referred to Sejm at the end of 2004. It did not have any follow-up in Sejm, which had not started its reading before the dissolution of Parliament in connection with general elections held in 2005. Since then, there have been no further similar legislative initiatives in Parliament. 44. Article 18 of the Constitution, which refers to marriage, states: “Marriage being a union of a man and a woman, as well as the family, motherhood and parenthood shall be placed under the protection and care of the Republic of Poland.” 45. Article 32 of the Constitution, which lays down the principles of equality before the law and non-discrimination, reads as follows: “1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.” 46. Article 75 of the Constitution, which refers to the State's housing policy, states the following: 47. Article 79 of the Constitution, which refers to a constitutional complaint reads, in so far as relevant, as follows: “1. In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 48. In that judgment the Constitutional Court dealt with a legal question submitted by the Środa Śląska District Court (Sąd Rejonowy) in connection with pending proceedings for succession to a tenancy. The question concerned the possible unconstitutionality of the 2001 Act in that, in consequence of the repeal of the 1994 Act and its section 8(1) (see paragraphs 40-41 above), it had introduced a new list of persons entitled to succession to the right to lease after the death of a tenant as laid down in Article 691 § 1 of the Civil Code (see paragraph 41 above). In contrast to the previous regulation, the list no longer included the tenant's grandchildren. The Constitutional Court ruled that the modification under the 2001 Act was compatible with Article 2 (rule of law) and Article 32 (principle of equality before the law and non-discrimination) of the Constitution. 49. The judgment was given following a constitutional complaint lodged by a certain J.B. and D.Cz., alleging that section 8(1) of the 1994 Act had been incompatible with a number of the constitutional provisions, including the principle of social market economy, protection of property rights, equality before the law, prohibition of discrimination, protection of succession rights and the protection of the rights of tenants. The applicants maintained, among other things, that the impugned section was in breach of the aforementioned provisions because it excluded from succession to a tenancy descendants of the late tenant's siblings as well as all other heirs who had title to another residential dwelling which, as a result, restricted their succession rights in a discriminatory manner. 50. The Constitutional Court held that section 8(1) of the 1994 Act, in so far as it operated in the manner contested by the applicants, was compatible with the constitutional provisions invoked by them in support of their complaint. 51. The Supreme Court, in its judgment of 6 December 2007 (no. IV CSK 301/07), dealt with a cassation appeal concerning the division of common property acquired by a same-sex couple. The gist of the ruling concerns the rules that apply to such property division, which, as the court held, were those provisions of the Civil Code that were relevant in the context of the particular relationship. They might differ depending on each specific situation, the nature of mutual relations and the organisation of personal and economic matters between the partners. While the court clearly rejected the idea that same-sex relationships could be considered “de facto marital relationships”, it did not exclude that the rules applicable to de facto marital relationships might apply by analogy to a same-sex couple's claims for the division of common property. In that context, the Supreme Court analysed in depth the legal concept of de facto marital relationship and made conclusions that, in so far as relevant, read as follows: “The [principle of the] protection of marriage set forth in Article 18 of the Constitution means that a legally formalised union of a woman and a man remains under the protection and care of the Republic of Poland. The protection of marriage is shown by, among other things, the fact that legal consequences ensuing from marriage shall not apply to other relationships and that any interpretation or application of the law that would lead to equating other forms of cohabitation with marriage is inadmissible. Having regard to the constitutional principle of protection of marriage and to the fact that the lack of legal regulations for extra-marital relationships cannot be considered a lacuna, it is inadmissible to apply provisions of matrimonial law (including matrimonial property and its division) – even by analogy – to other than marriage relationships based on existing personal and economic bonds. ... Polish law does not include any, either comprehensive or even fragmentary, regulations of extra-marital relationships of a personal and economic nature and, for that reason, they are regarded as legally indifferent factual relationships. ... Given the lack of legal regulations for extra-marital personal and economic relationships, certain rules for defining and treating such relationships – named de facto marital relationships – have been developed in the jurisprudence and legal writing. The criteria for a de facto marital relationship include, as a rule, no formal basis for cohabitation, no limitations on ending the relationship, the stability of the relationship, the existence of community in personal and economic life and different sex of the partners. The concept of de facto marital relationship as developed by the jurisprudence and legal writing considers the difference of sex between the partners as one of its material elements. The established tradition, including the semantic tradition, militates against including in the notion of de facto marital relationship unions of same-sex persons modelled on heterosexual unions.”