As of 23 August, fresh models of papers adapted to the transcription of abroad acts of same-sex matrimony apply. But not everywhere they can number on a affirmative outcome. The Mayor of Zakopane Łukasz Filipowicz in 1 of the interviews, citing, among others, the constitution, reiterated the announcement that the office there would question specified transcripts. However, the head of the civilian position office shall formally decide on the refusal in a circumstantial case by a decision which shall be subject to administrative and judicial review.
New paper templates
– Let us remember that the administrative body should apply the applicable laws, including regulations, regardless of its own views. The body is not a court, hence it cannot omit in ruling the acts of the constitution. If it refuses to transcribe, it should issue an administrative decision against which the voivode is entitled to appeal. The decision may then be subject to review of the administrative court – explains Dr Jacek Piecha, legal advisor and partner at ERS Legal, as well as an assistant prof. at the Faculty of Law and Administration of the University of Warsaw.
Since 23 August, regulations in force in Poland have not introduced the anticipation of same-sex marriages, but have changed the model papers issued from the registry of civilian status. The erstwhile lines: "women's data" and "man's data" have been replaced by "man's/woman's data" so that the paper can cover 2 persons of the same sex. This amendment concerns the copy of the complete and abbreviated matrimony certificate, as well as certificates issued from the registry of civilian status.
On the first day following the entry into force of the Regulation, the fresh acts received at least a twelve same-sex couples. Until the publication of this article, the number of refusals was not yet known on the basis of the conditions of Article 107 of the civilian position Act, including point 3, i.e. the clause of the contradiction of transcription with the basic principles of the Polish legal order.
– It was this provision that was most frequently the basis for refusals in terms of transcription. However, the fresh case law of the European and national courts limited the anticipation of utilizing this clause in the cases at issue, namely the transcription of a matrimony certificate concluded abroad. In contrast, the subsequent amendment of the regulation, which introduced fresh models of authoritative documents, was intended to remove, first of all, an obstacle of a strictly formal nature, namely the deficiency of anticipation to enter 2 persons of the same sex in the form," Dr. Piecha explains.
We request to keep an eye on the deadline.
Where the head of the civilian position office refuses to transcribe, a mention to the voivodes shall be made within 14 days.
– Of course, with the current political and planet view lines in government administration, specified appeals are expected to be taken into account in principle. On the another hand, if the voivode continues to refuse, a complaint to the provincial administrative court and then a cassation complaint to the NSA remains. That means the most crucial thing is to keep the deadline. If the organization fails to meet this deadline, in colloquially speaking, it will miss it, and the decision will become final, the situation is clearly complicated. The decision becomes final and benefits from the quality of durability – the expert from the University of Warsaw observes.
No regionalization
It is besides crucial that, in the case of transcription, there is no regionalisation, which means that a couple of same-sex persons may request a transcription to any office throughout the country. Article 104 of the civilian evidence law explicitly allows an application to be made to the selected USC manager.
– The applicant can decide whether to submit it in Warsaw, Zakopane, Poznań or Gdańsk. Therefore, if it is known that in a peculiar USC the practice is negative, circumstantial migration of applications to the offices where transcriptions are made can be expected. Applicants will not want to make additional problems and will choose an office where the practice is already shaped by affirmative decisions – notes lawyer Piotr Ciepiński, academic lecturer from the Faculty of Law in Warsaw at SWPS University, in an interview with “Rz”.
However, the expert points out that administrative authorities should besides search uniform practice. In this case there is already the case law of the TEU, the NSA, as well as the standard resulting from the case law of the European Court of Human Rights.
– In addition, Article 8(2) of the Code of Administrative Procedure states that public administrations should not, without a legitimate reason, deviate from the established practice of resolving cases in the same factual and legal situation. Therefore, there should not be a situation in which the same transcription is recognised in Warsaw, and it is denied in Zakopane, due to the fact that public administration bodies represent a single state – Ciepiński adds.
The Problem of the Final Decision
However, the substance will become more complicated erstwhile the first office not only says no, but makes a decision that will become final. Even the issue of a new, affirmative decision at another office for applicants can be problematic.
Article 156 of the Code of Administrative Procedure provides for the annulment of a decision concerning a case already decided on by another final decision.
– If the same pair then submit an identical application in another USC, there is simply a question of the seriousness of the substance resolved. The case has already been settled by a final decision. Therefore, first and foremost, the refusal should not be disregarded, and then the 14-day deadline for bringing an appeal to the voivode from the date of transportation of the decision should be observed. I would not urge a solution that, after the final refusal, you can simply start an identical case from the beginning at another office," said SWPS expert.
For couples applying for the transcription, it is crucial that, respective months ago, the NSA ordered the transfer to the Polish registry of 2 men's matrimony certificate concluded in Germany in a circumstantial case. The regulation was subsequently amended in May by the Minister of Digitisation.
Recently, however, the Constitutional Court has complicated the matter, which concluded that the provisions of the Regulation allowing the application of fresh designs to abroad acts concerning the same-sex relationships are broadly incompatible with the Constitution (document reference: U 2/26).
– The activity of the transcription of the abroad matrimony certificate may concern only specified a marriage, which corresponds to the constitutional rule of heterosexual marriage, that is, matrimony of a female and a man – justified the ruling of justice TK Stanisław Piotrowicz. However, it has not been announced in the authoritative diary of the Laws as the government continues to consistently competition the decision of the Constitutional Tribunal in its current form.
A separate group are those who received final rejection decisions even before the current legal state and jurisprudence developed. According to an SWPS expert, in their case, extraordinary modes of moving past decisions can be analysed.
Refusals from the Past
– 1 anticipation may be Article 154 of the KPA, which allows the withdrawal or amendment of a final decision whereby no organization has acquired a right where there is simply a social interest or a legitimate interest of the party. The individual who received a refusal, e.g. in 2024, can so consider specified a request, citing a later standard resulting from the case law of the TEU, the ETPC and the NSA, the explanation of Article 107(3) of the civilian position Act and the entry into force of fresh models of documents, adds Ciepinski.
However, the judicial way means a long waiting time for a settlement, and it is so in the interests of the same-sex couple to choose an USC that allows to bypass the office announcing the refusal of transcription.
– From a applicable point of view, therefore, the couple should, first and foremost, not let a refusal to be admissible and to lodge an appeal within the time limit. An application for the transcription of a abroad civilian position act may be submitted to any USC manager elected. If a circumstantial office announces a refusal, you can immediately submit an application to another office and not make the request for additional appeal proceedings," concludes Dr Jacek Piecha.
