Commentary on the judgment of the European Court of Human Rights of 12 December 2023, No. 11454/17 and 9 other applications, Przybyszewska and Others v. Poland

Rafał Mizerski

Uniwersytet Warmińsko-Mazurski w Olsztynie UWM
https://orcid.org/0000-0001-7192-1374

Abstract

In the case of Przybyszewska and Others v. Poland, the European Court of Human Rights ruled for the first time that Poland had violated the European Convention on Human Rights (ECHR) by failing to legally recognise and protect same-sex couples. This judgment follows the line of case law that culminated in the Grand Chamber’s judgment in Fedotova and Others v. Russia and reproduces its flaws. The author aims to identify the most significant of these flaws and to address the legal issues related to the implementation of the judgment. Among the former, the author includes: grounding the reinterpretation of Article 8 of the ECHR – despite the absence of a European consensus – on a European trend whose parameters remain undefined; focusing on the individual dimension of inherently social institutions; juxtaposing exceptions to a rule with a contrary rule, when linking the institutionalization of human relationships to their procreative capacity; opening a legal gateway for further modifications of the social structure, such as institutionalizing polygamous and polyamorous relationships; and, finally, adopting a judicial tactic of deriving justification for successive precedent-setting rulings more from prior judgments than from social reality. The author points out that implementing this judgment requires the institutionalisation of same-sex unions – which must be carried out through statutory legislation – as well as ensuring an adequate standard of rights for the partners entering into such unions. The draft law prepared by the Minister for Equality essentially meets the requirements of the ECHR.

Keywords:

European Convention on Human Rights, European Court of Human Rights, civil partnerships, same-sex couples