Supreme Administrative Court, Case II OSK 2552/16

Parties (including notable third parties)

I. Z. (The Applicant); Voivode (The Respondent); The Ombudsperson (Third Party Intervention); The Helsinki Foundation for Human Rights (Third Party Intervention)

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Summary of Facts

The Applicant was born in May 2014 and had been issued with a foreign birth certificate that listed two women, both Polish nationals, as parents. The Polish authorities refused to transcribe the birth certificate into the Polish legal order on the basis that it contradicted the fundamental principles of law in Poland, under the public order clause in Article 107(3) of the Act on Civil Status Records, and this refusal was upheld by the lower instance court. The lack of a birth certificate transcribed in Poland inhibited the child's access to Polish identity documents, despite there being recognition that as a son of a Polish mother he is undeniably a Polish national.

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Legal Arguments

Legal Arguments by the Applicant

I. Z. brought an action against the decision of the Voivode to refuse a transcription, demanding its repeal on the grounds that it was in violation of Article 18, Article 47, Article 48(1), and Article 72(1) of the Constitution of the Republic of Poland; Article 104(2), Article 107(3) of the Act on Civil Status Records; Article 6, Article 20(2)(a), and Article 21(2)(a) of the Treaty on the Functioning of the European Union (TFEU); Article 7, Article 9, Article 21, Article 24(2) and (3) of the EU Charter of Fundamental Rights; and Article 8 of the European Convention on Human Rights.

Legal arguments by the Respondent

In response to the complaint, the Voivode requested that the complaint be dismissed.

Legal Arguments by Third Party Interveners

The Ombudsperson contributed to the case to suggest annulling the contested decision of the Voivode, pointing out that Article 104(1) of the Act on Civil Status Records introduces the obligation to transcribe the birth certificate of the person who applies for a Polish identity document, i.e. a Polish passport document or a Polish identity card.

The identity card and passport are the only documents available to the Polish citizen that certify their identity and possession of Polish citizenship. A Polish citizen who does not have these documents (unless they are a citizen of another country) therefore functions de facto as a stateless person and cannot exercise freedom of movement nor travel to third countries. The refusal to transcribe the child’s birth certificate solely because of the legal status of his parents, i.e. being in a same-sex relationship registered abroad, constitutes discrimination prohibited by the Convention on the Rights of the Child.

The Helsinki Foundation for Human Rights intervened to underline that, in accordance with Article 21 TFEU, every citizen of the Union has the right to move and reside freely within the territory of the Member States, and the effectiveness of the rights conferred by it requires that the family life which a EU citizen has pursued in another Member State may continue after returning to the Member State of nationality (citing Lounes, case C-165/16). In Coman, C- 673/16, the CJEU held that the obligation to recognise a same-sex marriage solely for the purpose of granting a derived right of residence to a third-country national does not affect national identity or threaten the public order of the Member State concerned. Consequently, in the Foundation’s view, it must be considered that the failure to recognise same-sex parenthood legally established in another Member State constitutes an obstacle to the exercise of free movement rights both with regards to the child and the parent.

Outcome

Without questioning the validity of the application of the public order clause, the Supreme Administrative Court noted that the concept of public order as a justification for a deviation from the basic rule of transcription should be interpreted narrowly, considering carefully the specificities of each case under consideration and assessing the seriousness of actual threats to one or more of the fundamental interests of society. It referred to caselaw from the Court of Justice of the European Union (‘CJEU’), including Bogendorff von Wolffersdorff, C-438/14, and E v. Subdelegación del Gobierno en Álava, C -193/16.

According to Polish law, the documents confirming Polish nationality are a passport and an identity card, and one of the conditions for being issued a Polish identity document is to submit a Polish birth certificate to the competent administrative authority. The Court considered this aspect to be of key importance.

The Court noted that transcription of a foreign civil status certificate involves entering accurately its content into the Polish civil registry and it is forbidden to introduce any changes to its content. The head of the registry office can only refuse a transcription on the basis of reasons clearly indicated in Article 107 of the Act on Civil Status Records, including when such transcription would be contrary to the fundamental principles of the Polish legal order (Article 107(3)). Transcription is mandatory for a Polish citizen in three cases, including when applying for a Polish identity document or for a PESEL number. The Court noted that ‘the legislator has deliberately and consciously introduced mandatory transcription to prevent situations in which a Polish citizen is not issued identity documents. The latter may lead to obstacles in exercising the rights derived from the acquired Polish citizenship, as in the case under examination, by operation of the law by the child (e.g. lack of access to the healthcare system, education, etc.).’

The Supreme Administrative Court held that denying transcription on the basis of a public order clause, and thus not fulfilling the obligation to transcribe, is incompatible with legal obligations where the consequence is denying identity documents to a child that evidence that he has acquired citizenship by virtue of applicable law.

In addition to breaching the Act on Civil Status Records, the Court stressed that such an action undoubtedly constitutes a violation of children's rights. It agreed with the Applicant in noting that Article 72(1) of the Constitution of the Republic of Poland imposes an obligation on the state to protect children's rights. When refusing to transcribe a child's birth certificate, a public administration body must take into account not only statutory provisions, but also the rights of the child as guaranteed by the Constitution and the Convention on the Rights of the Child (‘CRC’), and particularly Article 3 of the latter.

Undoubtedly, the statutory obligation to transcribe a foreign civil status certificate which leads to the confirmation of a child's identity is part of the system of protection of children's rights. The Supreme Administrative Court noted how the European Court of Human Rights has emphasised in many judgments that where children are concerned the best interests of the child must be prioritised, and a child who has been refused transcription of their birth certificate is in an uncertain legal situation and without a recognised relationship to the parents (citing Labasse v France).

The Supreme Administrative Court concluded that, considering exclusively the context of the present case, that the obligation to transcribe specified in Article 104(5) of the Act on Civil Status Records, if fulfilled solely to protect the rights of the child by enabling him to certify his identity, does not contradict the fundamental principles of the Polish legal order (similarly to the CJEU judgment in Coman, case C-673/16).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child	Article 3
Domestic	Constitution of the Republic of Poland	Articles 68, 70 and 72
Domestic	Act on Civil Status Records	Articles 104 and 107

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Piotr Sadowski, 'Gloss on the Judgment of the Polish Supreme Administrative Court of 10 October 2018, II OSK 2552/16' (2020) 14(1) Ius Novum 179

• Sadowski observes that the Supreme Administrative Court limited itself to the literal interpretation of the law and did not try to define the term 'parent', an approach he considers ‘well-justified in the ratione decidendi as judges referred to the most important national and international law’, and he criticises the lower instances (the Human Rights Office, the Voivode, and the Voivodeship Administrative Court) for ignoring the fact that the decision not to transcribe the birth certificate infringes the rights of the child.
• He strongly agrees with the SAC's prioritisation of children's rights, stating that ‘no child can be discriminated owing to,inter alia, the marital status of the child's parents or their sex’ and he criticises the lower instances for their ‘omission of reference to the Polish involvement in the works on the CRC’, arguing that their reasoning was ‘based on the letter of law and historical interpretation’ while ignoring constitutional protections under Article 72 and international human rights obligations.
• Sadowski concludes that the child was discriminated against his personal features which are out of his control and that these verdicts infringed the rights of the child and, consequently, the Constitution and the CRC. While he acknowledges concerns that the interpretation ‘can be used as a loophole for expanding the rights of same-sex couples in Poland’, he states that ‘the HRO, the Voivode, the VAC and the SAC are not policy-making bodies, so they should limit themselves to the application of the law in force in individual cases.’