for Sexual Orientation in Poland: The Role of the Judiciary

© Springer International Publishing Switzerland 2015
Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_14

Discrimination for Sexual Orientation in Poland: The Role of the Judiciary

Katarzyna Girdwoyń 

Assistant Professor of Criminal Law, University of Warsaw, Warsaw, Poland



Katarzyna Girdwoyń


Discrimination is considered to be one of the main challenges in the process of strengthening human rights. This chapter explores whether, despite significant conservatism of the Polish society, even slow social changes are reflected in the adjudicating practices of Polish courts and, if they are, what is the main reason for these changes to take place. After a short description of the legal status of homosexuals in Poland and the principle of autonomy of courts in interpreting legal provisions, the attention focuses on Polish jurisprudence. This analysis leads to the conclusion that Polish courts, particularly of higher instances, have started to interpret the law and to fill the gaps brought about by statutory regulations in compliance with the Polish Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms as well as with the guidelines issued by the European Union and the Council of Europe.

1 Introduction

Currently in Poland one can see some signs of social changes, which have had an impact both on the way the law is legislated and how it is applied. Many controversial questions, such as: the right to abortion for reasons other than medical or as a result of a crime, in vitro procedures or the right to euthanasia, are still being the focus of more or less intense debate, which confirms their social importance. Yet, those problems do not pertain only to human rights, but also to questions of morality and religion, which means that passing a law that touches on those questions is not a simple task. Against this background, it seems relatively clear-cut and obvious, either from a moral or religious point of view, to legally oppose any discrimination in any of its aspects. Discrimination is considered to be one of the main challenges in the process of strengthening human rights.1

Unfortunately, at present there are many situations in Poland where discrimination takes place, especially in the area of labour law, i.e., employment status or payment for women’s work. The signs of such discrimination, as well as examples of violation of the existing regulations can be found in questions women are asked by potential employers concerning their private life, e.g., if they have or are planning to have children. Another example is the termination of women’s employment contracts after they return to work from maternity leave. However, when such a case goes to court, the judgment is unequivocally in favour of the woman.2

Another important problem, also in the sphere of social life, is manifested in the cases of relatively frequently occurring discrimination of ethnic minorities. One example is a case when Roma people were refused to be served at a restaurant due to their ethnic origin. Another case of ethnic discrimination occurred when a Polish citizen of Palestinian origin was refused permission to work as a volunteer at the European Soccer Cup in 2012 held in Poland. Polish media have reported both cases in detail and non-governmental organizations involved in human rights protection, such as the Helsinki Foundation for Human Rights, have shown their interest in them.

On many buildings in Poland one can still find anti-Semitic graffiti which, taking into account Polish history and the World War II, is particularly hard to comprehend. But due to relative uniformity of the Polish society in terms of religion and ethnicity, and also because of the lack of separatist tendencies resulting from such uniformity, the trouble with ethnic minorities does not present itself as an important issue to the public, and only few of such cases go to court. Thus it is difficult to discuss this area in terms of traditional lines of judicial decisions.

There are also some cases of discrimination against people with disabilities. There were two cases that made the headlines because blind persons with guide dogs were not allowed into a restaurant and a shop. The courts ruled that persons treated in such a way should get compensation. However, the fundamental problem with respect to the disabled is not the lack of regulation or the application of law by the courts—it is the simple issue of making it possible for them to move in the public space, use public transport or cross the street.

There are many reasons why people suffer discrimination. Yet it is worth noticing that the need to treat people equally irrespective of their sex, age, ethnic origin or disability in a democratic State does not bring up any serious doubts in Poland. While the issue of equal rights for homosexuals has continuously been a bone of contention among the Polish society, the legal status of homosexual persons causes serious controversies, not only, as it would seem, in the Polish society.3 The Secretary-General of the Council of Europe, Mr Thorburn Jagland, has said that the discrimination of Lesbian, Gay, Bisexual and Transsexual (LGBT) persons is “one of the longest and most difficult to fight forms of discrimination”.4

There are several arguments that make the discrimination against homosexuals a relevant question. It is quite alarming that 24 % of the students of the first year of one of Polish medical universities consider homosexuality to be an illness and that this opinion is shared by 22 % of the last year students. This shows that education in this area is not very effective.5 Moreover, the legal status of sexual minorities, which I will discuss later in this chapter, is much worse than that of other minorities exposed to discrimination. Therefore it is the courts that can fill the gap brought about by lack of appropriate regulations.

The goal of this chapter is to attempt to show whether, despite significant conservatism of the Polish society, even slow social changes are reflected in the adjudicating practices of Polish courts and if they are, what is the main reason for these changes to take place.

2 Legal Status of Homosexuals in Poland

It is hard not to agree with the statement that:

Many would assert that a fundamental purpose of law today is to promote a more dynamic social order, designed to ensure that society is not locked into historic structures which sustain inequality, but is based on principles on equality and the prevention of social exclusion.6
The Polish Constitution guarantees equality of all persons before the law and prohibits discrimination. Article 32(1) of the Constitution stipulates:

All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. No one shall be discriminated against in political, social or economic life for any reason whatsoever.7
In the commentary to the Constitution one can read that there are no exceptions to or departures from the principle of equality and that discrimination must not be justified by any legal provisions or reasons.8 Despite the fact that it has been seventeen years since the Constitution was adopted, and twenty-one years since the ratification by Poland of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), still until today Poland has not managed to regulate in full the legal status of homosexual persons. Before 2002, the Polish law did not acknowledge the issue of homosexual minorities in Poland at all. Until that time expressions such as sexual orientation or sexual minority had not been used in any domestic legal act.9 The real division on the issues relating to this group, which is perhaps exposed more to discrimination by the Polish society than any other minority, has been obviously reflected in the divisions in the Polish parliament. Those divisions were the reason for the rejection in January 2013 again, after extremely hostile and homophobic discussions,10 of three different bills on registered partnership, including one presented by the government. The opponents of such regulations, the former Ministers of Justice, among others, have cited the provision of the Constitution of the Republic of Poland stipulating that:

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 (Article 18).11
It is worth mentioning that none of the provisions contained in those three proposed bills dealt with the issues of same-sex marriages or child adoption by such marriages.

Due to lack of political majority and strong right-wing objections, Poland is not party to the Protocol no. 12 to the ECHR, which forbids discrimination in all spheres. Although several regulations introduced into the Polish legal system aim at preventing and oppose discrimination in all spheres of life, so far as sexual minorities are concerned, those regulations address only labour-law-related issues. Moreover, as a consequence of these objections Poland has implemented European standards only partially. One example is the Act of 3 December 2010 on the implementation of some regulations of the European Union regarding equal treatment, drafted with the purpose to determine ways to prevent violation of the equal-rights principle due to sex, race, ethnic origin, nationality, religion, denomination, belief, disability, age or sexual orientation (Article 8).12 However this statute, referred to as “law of equality”13 was heavily criticized for the fact that:

The least protected ground is sexual orientation, which enjoys the right to equality only in the sphere of employment, whilst the grounds of race, ethnic origin and nationality (and gender to a lesser degree) are protected in all spheres of life.14
The regulations on preventing discrimination on the grounds of sexual orientation were implemented literally only in the sphere of employment. In 2004 the Polish Labour Code was amended to include regulations which imposed equal treatment of employees in the process in hiring them, terminating their employment, allowing them access to training courses to advance their professional qualifications irrespective of their sex, age, disability, race, religion, nationality, political convictions, trade union membership, ethnicity, denomination, sexual orientation, and also due to employment for definite or indefinite term, full time or part time (Article 18(3)(a)). Also the Act of 20 April 2004 on the promotion of employment and the employment market, which determines the role of the State in promoting employment, reducing the effects of unemployment and occupational activization, contains provisions designed to protect the equal treatment of people in their access to the services of employment market and other instruments of that market irrespective of, among other reasons, sexual orientation.

In terms of legal consequences for the violation of the prohibition of discrimination, apart from the Labour Code, “the law of equality” envisages regulation, which will grant the right to compensation to anyone with respect to whom the principle of equal treatment has been breached. However, according to the Ministry of Justice’s statistics, in 2011 only thirty cases were brought to courts and seventeen of them were resolved with a court’s decision (out of which nine claims were dismissed, in six cases the suit was remanded to the complainant, one was rejected and in one case the proceedings were discontinued) while thirteen cases were left to be heard in 2012.15 Even though the government tried to pass a bill amending the regulation to penalise the discriminatory behaviour towards sexual minorities, and in spite of intense activities of the organizations defending the right of the minorities, the law was not amended.16 The Polish Criminal Code, apart from offences against peace and humanity and war crimes, also envisages criminal protection of persons from hate speech and other bias-motivated crimes in Poland, sometimes referred to as “criminal discrimination”.17 Article 256 states that, whoever publicly promotes a fascist or other totalitarian State system or incites hatred based on national, ethnic, racial or religious differences or for reason of lack of any religious denomination, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to two years. Whereas, who publicly insults a group within the population or a particular person because of his national, ethnic, racial or religious affiliation or because of his lack of any religious denomination or for these reasons, breaches the personal inviolability of another individual, shall be subject to the penalty of deprivation of liberty for up to three years (Article 257).

While the legal status of homosexuals in the sphere of employment could be viewed as satisfactory, still there has not been any political will to regulate the rights of this minority group in terms of right to statutory succession, or rights with respect to court procedures. Due to the fact that there is no such law, the role of courts that interpret civil, criminal, labour or tax law with respect to situations involving homosexual persons is absolutely paramount.

3 The Autonomy of Courts in Interpreting Legal Provisions

Article 178(1) of the Polish Constitution, which expresses the principle of the independence of the judiciary, also states that judges are subject only to the Constitution and statutes. The legislative power when enacting or amending laws may thus exert an influence on the work of judges.18 Because of that, it has been acknowledged that the principle of the independence of judges is not an absolute feature. A judge’s duty is to decide cases within the frames of law and in this way to guard the interest and guidelines they are supposed to serve, irrespective of the fact whether legal provisions are in compliance with their personal views and beliefs, or not. This means that judges are bound to a certain degree by the political system of the Country in which they implement the administration of justice.19 Another provision of the Constitution stipulates that the Constitution is the supreme law of the Republic of Poland whose provisions shall apply directly unless the Constitution provides otherwise (Article 8). A controversial question both raised in the Supreme Court case law and academic writing is whether judges—other than those of the Constitutional Tribunal—may ignore statutory provisions and base their judgment solely on the provision of the supreme law—the Constitution. However, there is no doubt that judges make use of constitutional norms, particularly its principles in order to establish the correct line of interpretation of statutory provisions.20

Having said that, let me stress that although judges cannot refuse to apply the mandatory law, we should not forget that in the course of the decision-making process they should take into account not only their experience and common sense, but also the customs and practices that are observed by the society at large.21 As a result it should be pointed out that the contents of the principle of the independence of judges comprises also the readiness to defy their own assessments based on their own experience, stereotypes and prejudices.22 In the Polish legal literature it is emphasized that one of the fundamental components of their independence is their autonomy in adjudicating all factual doubts in the case, as well as the autonomy in the interpretation of the law.23 However, the Polish legislation provides for certain significant exceptions to the rule, namely, that judges should interpret legal provisions independently.

The basic exception is presented in the Constitution itself. According to Article 193, any court may refer a question of law to the Constitutional Tribunal as to the conformity of a normative act to the Constitution, ratified international agreements or statute, if the answer to such question of law will determine an issue currently before such Court. According to Article 190(1) of the Constitution, judgments of the Constitutional Tribunal shall be of universally binding application and shall be final, which means that the requirement to take them into account is binding not only for the legislator but also for legal organs, including courts and the public prosecution.24 Therefore the role of the Tribunal in a nutshell is to strike out unconstitutional provisions from the legal system.25 As has been recognized by the Constitutional Tribunal itself, its role is not to perform the interpretation of legal provisions in order for them to be applied by the courts. Moreover, the tribunal is not appointed to assess whether the interpretation of provisions done by the courts or other legal organs is correct.26

However, due to the fact that the real contents of many provisions are being construed in the course of their application, the Constitutional Tribunal helps to determine if the interpretation of a provision conforms to the Constitution and if that interpretation is stable and unequivocal.27 In one of its judgments, the Tribunal pointed out that if:

[A]n interpretation of a given provision has been expressed unequivocally and authoritatively in the judicature of the Supreme Court or of the Supreme Administrative Court, then it should be recognized that the rule has acquired such contents that was approved by the courts of highest instance.28
As the Constitutional Tribunal is considered to be the court whose duty is to guard that the Constitution is observed in the law-making area, it is the function of the European Court of Human Rights (ECtHR) in Strasbourg to ensure that the decisions of courts are compatible with the ECHR. Ratifying the European Convention in 1992, Poland recognized the jurisdiction of the Convention’s control organs. Therefore the Polish Constitutional Tribunal has consistently emphasized that the Polish law must be interpreted in a way that is consistent with international obligations.29 This standpoint of the Polish Tribunal was expressed for the first time in 1997. In its judgment concerning the equality of rights of women and men, the Tribunal underlined that:

The consequence of the obligation to ensure compatibility of the law with the Constitution, which is borne by the parliament and government, is the obligation to ensure that the mandatory legislature is construed in such a way that will guarantee this compatibility most thoroughly.30
Apart from the Constitutional Tribunal, in Poland there are two courts, decisions of which have a significant effect on judgments of common and administrative courts, namely the Supreme Court and the Supreme Administrative Court. The Polish Constitution states that the Supreme Court shall exercise supervision over common and military courts regarding judgments (Article 183). Article 1 of the Supreme Court Act31 states the Supreme Court shall be a judicial body appointed, among others, to administer justice by means of ensuring, as part of its supervisory duties, the compliance with the law and uniformity of judicial decisions of common and military courts by hearing cassations as well as adopting resolutions to adjudicate questions of law. Until 1989 the Supreme Court was authorised to adopt guidelines concerning the interpretation of law and to explain legal provisions and resolve legal questions, which gave rise to doubts; the guidelines were formally binding for all courts. The current regulation introduces only one exception to judges’ autonomy in the interpretation of law. The provisions of the civil procedure as well as of the criminal procedure authorize solely the courts of second instance to refer to the Supreme Court a legal question requiring a substantial interpretation of the law. However this resolution ties the judges solely in a given particular case.

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