FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27224/09
by Adam OSTROWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 15 December 2009 as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Giovanni Bonello,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ján Šikuta,
	Mihai Poalelungi, judges,
and ,
Having regard to the above application lodged on 30 April 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Adam Ostrowski, is a Polish national who was born in 1928 and lives in Kraków, Poland.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1954 the applicant married H. The couple have two adult children. In 1989 the applicant retired.
In 1998 the applicant met L.P.
In 1999, without informing his wife, the applicant bought a flat. On 22 December 1999 he moved out of their marital flat.
In 2003 the applicant informed the Managing Board of Kraków Municipal Cemeteries (Zarząd Cmentarzy Komunalnych) that L.P. had the right to be buried in his family tomb. He also submitted a list of persons who had the right to be buried in the tomb, indicating his wife in sixth place (in a tomb for five persons).
On 22 December 2003 the Kraków District Court ordered the applicant to pay 170 Polish zlotys (PLN) in maintenance to his wife.
In 2003 the applicant made a will in which he indicated L.P as his sole heir.
On 15 January 2004 the Kraków District Court dissolved the marital co‑ownership of property between the applicant and his wife.
On 12 January 2006 the applicant filed a petition for divorce.
In her pleadings of 10 May 2006 the applicant’s wife agreed to a divorce. However, she subsequently withdrew her consent and asked the court to dismiss the applicant’s petition.
On 9 June 2008 the Kraków Regional Court refused to grant the divorce to the applicant. The court held that there was indeed “an irretrievable and complete breakdown of the marriage”. However, it considered that a divorce was not permitted in the present case. It referred to the fact that the applicant was at fault for the breakdown of the marriage and the applicant’s wife had not agreed to a divorce. In addition, it considered:
“There is no exceptional situation on the part of the petitioner [the applicant] which could indicate a need for dissolution of the marriage. While indeed the applicant is in a relationship with L.P., he does not present this relationship ... as very emotional. Furthermore, the present situation is not one where the applicant in this [with L.P.] or any other relationship has minor children requiring his presence as a parent.
...
The applicant has always been selfish in his marriage and the present petition is a continuation of his selfish attitude ...
The applicant should remain in the present marriage as he does not have important and serious arguments in favour of its dissolution. [His wife’s] refusal of a physical relationship is of no relevance in the present case in view of the parties’ age and a certain decline in this area of marital life.”
On an appeal by the applicant, on 16 October 2008 the Kraków Court of Appeal upheld the first-instance judgment. The court considered that the applicant’s wife was not at fault for the breakdown of the marriage. It further noted that the breakdown of the marriage was irretrievable and permanent and that there were absolutely no prospects of the applicant returning to his wife. However, the court was of the opinion that granting the divorce would have a detrimental effect on the applicant’s wife, who was the innocent party.
The judgment is final.
B.  Relevant domestic law and practice
Article 56 of the Family Code lists situations where, despite the complete breakdown of marriage, a divorce is not to be granted, for example if:
“(2) ... it would be detrimental to the well-being of common minor children or if, for other reasons, granting the divorce would be contrary to the universally accepted principles of community life;
(3) ... it has been requested by the spouse who is at fault for the breakdown of the marriage, unless the other spouse has expressed his or her consent thereto, or the refusal of such consent by the other spouse is – in the circumstances at hand – contrary to the universally accepted principles of community life ...”
COMPLAINTS
1.  The applicant complains under Article 6 of the Convention about Article 56 of the Family and Custody Code, alleging that it is in breach of the equality-of-arms principle.
2.  He also complains under Article 6 that the domestic courts based their decisions on unclear moral and ethical principles and that he is forced to remain in a “marital fiction”.
3.  The applicant further complains under Article 8 that the State has interfered in his private life to the extent that he is prohibited from establishing a new family.
4.  Lastly he invokes Article 14 in conjunction with Article 8, alleging that he is discriminated against on the basis of his age, in particular since the courts expressed the opinion that he was not able to establish a new family and have a physical relationship with a woman.
THE LAW
1.  The applicant complains under Article 6 of the Convention that Article 56 of the Family and Custody Code is in breach of the equality-of-arms principle.
Under Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted. In this respect the Court notes that it had already see,  (dec.), no. 47414/99, 9 October 2003). Consequently, a constitutional complaint filed by the applicant in the present case was an effective remedy within the meaning of the Convention. The applicant failed to pursue a constitutional complaint.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2.  The applicant also complains under Article 6 that the domestic courts based their decisions on unclear moral and ethical principles.
The Court has examined this complaint as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate this complaint. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention
3.  The applicant further complains under Article 8 that he is prohibited from establishing a new family.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
4.  Lastly the applicant complains under Article 14 in conjunction with Article 8 that he is discriminated against on the basis of his age.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 8 of the Convention and under Article 14 of the Convention in conjunction with Article 8;
Declares the remainder of the application inadmissible.
	Lawrence Early	Nicolas Bratza 
	Registrar	President