ECHR Grand Chamber ruling may force Poland to institutionalize same-sex unions - Ordo Iuris analysis

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- In early 2023. The Grand Chamber of the Strasbourg Court found a violation of the right to respect for private and family life of a group of same-sex couples due to the inability to formalize their relationship.

- The Ordo Iuris Institute has prepared an analysis in which it points out that although the Grand Chamber's judgment is formally addressed to the Russian Federation, in practice it may affect Poland and other European countries.

- This is because the Strasbourg Court derived from Article 8 of the Convention a general obligation of states, not limited to Russia, to create a "legal framework" for "stable and committed" same-sex couples.

- The Grand Chamber's ruling sets the standard for interpreting the Convention for the Court's smaller panels, which are currently hearing complaints by LGBT activists against Poland.

- The Ordo Iuris Institute has prepared an analysis on the subject.

The case involved three same-sex couples who unsuccessfully attempted to marry in Russian registry offices between 2009 and 2013, despite unambiguous laws providing for marriage only for the union of a man and a woman.   The first couple in 2010, and the second and third in 2014, filed complaints with the European Court of Human Rights in Strasbourg, accusing Russia of violating their right to respect for private and family life (Article 8 of the ECHR). In 2021. Court upheld their complaint, but Russia appealed to the Grand Chamber of the ECHR, which upheld the earlier judgment in early January this year. The verdict was adopted by a 14-to-3 majority, but of the three, only two judges voted against the merits of the ruling (including Judge Prof. Krzysztof Wojtyczek of Poland).

In a prepared analysis, the Ordo Iuris Center for International Law points out that although the Grand Chamber's judgment is formally addressed to the Russian Federation, in practice it will also affect Poland and all other Council of Europe states. This is because the Grand Chamber of the ECHR sets de facto standards for the interpretation of the Convention, which are followed by the Court's smaller adjudicatory panels, including those considering the very complaints of Polish LGBT activists against Poland, demanding the institutionalization of same-sex relationships.

The ECHR Grand Chamber derived from Article 8 of the Convention a positive obligation on all European states to create a "specific legal framework" for "stable and committed" same-sex unions. At the same time, it disqualified all the basic arguments against the institutionalization of same-sex unions that could be raised so far to evade this obligation - in the Grand Chamber's view, neither the will of the majority of society, nor the protection of the family, nor the protection of minors from the promotion of homosexuality justifies it. The Grand Chamber merely left it up to the states to decide on the form and content of formalizing same-sex unions, which need not be completely equated with marriage.

According to the Grand Chamber of the ECHR, "stable and committed" homosexual relationships constitute "family life" within the meaning of Article 8 of the Convention, because they are no different in substance from relationships between a man and a woman.  In its analysis, however, the Ordo Iuris Institute points out that the Court's understanding of family differs significantly from its meaning derived from the text of Article 8 of the Convention, which, according to its preamble, must be read in light of Articles 16(1) and (3) and 25(2) of the Universal Declaration of Human Rights. In turn, it is clear from these provisions that a family is a community based on the union of a man and a woman striving to become parents.

The ECHR's position is the fruit of the technique of interpreting the Convention as a "living instrument," which assumes that the understanding of the concepts contained therein is not fixed, but evolves with the views of society. In its analysis, the Ordo Iuris Institute points out that the Court does not have the authority to adapt the provisions of the Convention to society's views - that is the domain of the legislature, which in the case of the treaty is the body of state parties that can revise it through the appropriate procedure. Changing the definition of the concept of family would require states parties to amend the Convention, and is not the domain of the Strasbourg Court.