THIRD SECTION

DECISION

Application no. 59624/00 by Karl-Emich ZU LEININGEN against Germany

The European Court of Human Rights (Third Section) , sitting on 17 November 2005 as a Chamber composed of

Mr B.M. Zupančič , President , Mr L. Caflisch , Mr C. Bîrsan , Mrs M. Tsatsa - Nikolovska ,

Mrs A. Gyulumyan , Mrs R. J aeger, Mr E. M yjer , judges , and Mr M . Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 5 March 2000 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karl-Emich zu Leiningen, is a German national who was born in 1952 and lives in Amorbach ( Germany ). He was represented before the Court by Professor Umbach, who lectures in law at Potsdam University . The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin , of the Federal Ministry of Justice.

The applicant is a member of the zu Leiningen family, an old aristocratic family.

1. General b ackground

(a) The 1897 f amily s tatute

In 1897, the zu Leiningen family issued a formal family statute ( Fürstlich Leiningisches Hausgesetz , – “ the 1897 f amily s tatute”) regulating the preservation of the family estate ( Stammgut ) in its entirety and the line of succession.

According to the f amily s tatute, family members could marry only with the prior written consent of the ruling prince. If they married without adhering to the above principles, they and their spouses and offspring would be excluded from the rights and privileges conferred by the f amily s tatute.

In 1919 Germany became a republic and the edicts promulgated by aristocratic families regarding the preservation of their family estates ( Fideikommisse ) were abolished.

(b) The 1925 c ontract of s uccession

On 14 April 1925 , the f ifth Prince zu Leiningen , as the official head of the family, entered into a contract of succession ( Erbvertrag – “ the 1925 c ontract of s uccession”) with his wife and his four children. In the c ontract of s uccession, the order of inheritance followed the rules of succession contained in the 1897 f amily s tatute and sections 2100 to 2146 of the German Civil Code, which govern the rights of immediate and reversionary heirs ( Vor - und Nacherbschaft ).

The qualifying criteria for eligibility as a future heir, namely having been born into a suitable marriage and belonging to the Protestant faith, were expressly defined in the c ontract of s uccession.

(c) The f amily c ontract

In 1974 the s eventh Prince zu Leiningen , the applicant ’ s father, entered into a family contract (“ the 1974 f amily c ontract”) with his wife and children. The contract stipulated, inter alia , that the succession to the family estate would be governed by the rules set out in the 1925 c ontract of s uccession. Family members were eligible to inherit only if they were Protestant s and had been born into a suitable marriage.

(d) The p rivate c ontract

On 23 December 1974 the applicant and the s eventh Prince zu Leiningen entered into a separate family contract ( “ the 1974 p rivate c ontract”) before a notary public, regulating the order of succession for the generation to follow. Under this contract, the seventh Prince designated the applicant as reversionary heir to the family estate, the reversion taking effect on the s eventh Prince ’ s death. The applicant appointed his (as yet unborn) eldest son as sole heir to his existing and future property.

A family member could be designated as heir to the family estate only if he or she had been born into a suitable marriage in accordance with the relevant provisions of the 1897 f amily s tatute and had neither been adopted nor declared legitimate.

Both contracting parties undertook to follow and abide by the 1974 f amily c ontract , which replaced and amended the 1897 f amily s tatute, in order to preserve the family tradition. The f amily c ontract was annexed to the p rivate c ontract along with an arbitration agreement and was expressly stated to be a binding part of the p rivate c ontract.

On 8 June 1984 , with the s eventh Prince ’ s express written consent, the applicant got married.

In 1989 the applicant ’ s wife died. One year later the applicant met G., who was a Roman Catholic and not a member of the aristocracy.

On 22 May 1991 , following the applicant ’ s engagement to G., the Prince amended his will of 19 December 1984 to the effect that, as the applicant ’ s marriage to G. did not comply with the principles inherent in the f amily c ontract, any offspring resulting from the marriage would be excluded from the order of succession.

On 24 May 1991 the applicant married G.

(e) The s eventh Prince ’ s new will

On 9 October 1991 the Prince made a new will, in which he revoked all testamentary dispositions previously made in favour of the applicant. He appointed his second son A. as his sole heir and A. ’ s eldest son as a substitute heir. He also stated explicitly that A. ’ s marriage was in accordance with the f amily s tatute and had taken place with his consent.

On 21 October 1991 the s eventh Prince informed the applicant that he had notified the German Association of Princely Houses ( Verein der deutschen Standesherren ) that the applicant ’ s marriage breached the provisions of the 1897 f amily s tatute and that he had therefore decided to appoint A. as his successor as e ighth Prince zu Leiningen and hence head of the House of Leiningen . He further informed him about the new will and his application to have the 1925 c ontract of s uccession set aside.

2. Court proceedings following the s eventh Prince ’ s death

On 30 October 1991 the s eventh Prince died. The applicant requested a certificate of inheritance to confirm that he was now sole heir to the family estate. A. made the same request to the Obernburg District Court.

On 17 December 1991 the applicant brought an action challenging the seventh Prince ’ s last will of 9 October 1991 .

On 31 July 1992 the Obernburg District Court rejected A. ’ s request and announced that it would issue a certificate of inheritance in the applicant ’ s favour.

On 15 March 1995, following an appeal by A., the Aschaffenburg Regional Court upheld that decision. On 3 September 1996 the Bavarian Court of Appeal allowed an appeal by A. and referred the matter back to the Regional Court in order to determine whether the s eventh Prince had consented to the applicant ’ s marriage to G.

On 17 September 1997 the Aschaffenburg Regional Court set aside the District Court ’ s decision of 31 July 1992 and ordered that a certificate of inheritance be issued to A., in which he would be named as sole heir to the family estate. In the light of the documents at its disposal it found that, contrary to the applicant ’ s allegations, the s eventh Prince had never consented to the applicant ’ s marriage to G. As the applicant had thus not married in accordance with the relevant provisions of the 1897 f amily s tatute, he was to be excluded from the order of succession.

In March 1998 the applicant and G. divorced.

On 4 August 1999 , following an appeal by the applicant, the Bavarian Court of Appeal upheld the decision of the Aschaffenburg Regional Court . Reiterating the Regional Court ’ s reasoning, it found that the seventh Prince ’ s failure to consent to the applicant ’ s marriage to G. was neither contra bonos mores nor contrary to the principles of good faith and fair dealing ( Treu und Glauben ). The Court of Appeal noted that , ultimately , it had been up to the applicant himself whether or not he inherited, as his appointment as heir depended on his own conduct .

On 21 February 2000 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint, finding that the impugned court decisions were not contrary to the relevant provisions of the Basic Law.

It considered that freedom of testamentary disposition enjoyed special protection, as it constituted an element of personal freedom protected by the Basic Law. It allowed testators to dispose of their property largely in accordance with their own wishes and ideas. In particular, testators were not required to treat their offspring even-handedly, but were free to decide on the order of succession without having to adapt it to society ’ s beliefs or the opinion of the majority.

The Federal Constitutional Court accepted that the marriage provisions implicit in the 1925 c ontract of s uccession could indirectly limit an heir ’ s freedom to marry whomever he chose. The threat of exclusion from the order of succession placed heir s under a considerable amount of pressure not to marry if it should prove contrary to the relevant provisions.

At the same time, it noted that an heir was not excluded from the order of succession merely by virtue of marrying a woman who was not “of equal birth” or did not otherwise meet the social-status criteria, but only if the ruling Prince refused to consent to the marriage in question.

The Federal Constitutional Court agreed with the Bavarian Court of Appeal ’ s detailed reasoning as to why the s eventh Prince ’ s refusal to consent to the marriage was not contra bonos mores and why it was reasonable to expect the applicant to accept the s eventh Prince ’ s conditions in order to become his heir. It found that t he Court of Appeal ’ s arguments had not been arbitrary and had been in line with the principles of the Basic Law.

The Federal Constitutional Court found that the refusal of consent to the applicant ’ s marriage to G. and the ensuing loss of his position as heir had not violated the applicant ’ s right to property as protected by the Basic Law. Although the applicant had been raised as a prospective heir throughout his life, his prospects of inheriting the family estate had never constituted an irrevocable legal right, but had always been subject to fulfilment of certain conditions at the time of the seventh Prince ’ s death. The prospect of future inheritance was thus not protected by the right to property set out in Article 14 of the Basic Law.

On 5 March 2000 the applicant lodged an application with the Court.

3. The friendly settlement concluded between the applicant and A . before the Aschaffenburg Regional Court on 17 September 2002

During the course of a related subsequent lawsuit the applicant and A. concluded a friendly settlement before the Aschaffenburg Regional Court on 17 September 2002 . It stipulated , inter alia , that A. was the sole heir of the s eventh Prince zu Leiningen and that A. had become the eighth Prince zu Leiningen following the death of the s eventh Prince zu Leiningen .

Furthermore, the settlement included the following provision:

“The defendant [the applicant] commits himself to withdraw ing the application pending before the European Commission of Human Rights [ sic ] (COUR EUROPEENNE DES DROITS DE L ’ HOMME) ( application no. PM 7058 ) against the court decisions in the proceedings concerning the issuance of the certificate of inheritance.”

This provision had been drafted by the applicant ’ s legal counsel and was inserted into the settlement by A. ’ s representatives. However, it indicated the wrong file number, as the present application had the provisional number PN 7056, not PM 7058. At the time of the friendly settlement there was, and there still is, only one application lodged by the applicant pending before the Court.

In return, A. undertook to compensate the applicant by , among other things, paying him a lump sum of EUR 2,607,588.60 and a sum of EUR 3,374,604.80 in monthly instalments of about EUR 11,000 from 1 July 2000 to 1 June 2025 . Furthermore, the applicant received shares in a timber company in Canada and acquired ownership of a farm in Namibia . Lastly, the applicant was allowed to continue to reside in the mansion he had been living in and to use the furniture.

The settlement concluded with the applicant ’ s renunciation of all claims ( Ansprüche ) against A.

4. Proceedings before the European Court of Human Rights

On 27 February 2003 A. ’ s legal counsel submitted a copy of the settlement to the Court. By letter dated 7 March 2003 the Registry asked the applicant ’ s legal counsel to verify whether such a settlement had been concluded. By letter dated 11 March 2003 the applicant ’ s legal counsel ’ s research associate informed the Court that to his knowledge no such settlement had been concluded.

By letter dated 13 March 2003 the Registry asked the applicant ’ s legal counsel to notify the Court whether the applicant wished to pursue his application further . As the applicant ’ s counsel did not reply to the letter, the Registry requested him by letter dated 1 July 2003 to submit a copy of the settlement to the Court by 28 July 2003 . After further correspondence and the setting of a new time limit, the applicant ’ s counsel finally submitted a copy of the friendly settlement to the Court by letter dated 1 November 2003 . The applicant notified the Court that he would not withdraw his application as the aforementioned provision had been included by accident.

5. Enforcement proceedings

In an attempt to enforce the applicant ’ s obligations under the friendly settlement of 17 September 2002 , A. requested the Aschaffenburg Regional Court to issue an enforcement order ( Vollstreckungsklausel ) against the applicant. On 7 December 2004 the court issued an enforcement order with the proviso that the applicant, pursuant to the friendly settlement of 17 September 2002 , must notify the Court that he would no longer pursue his application ( no. 59624/00 ) pending before the European Court of Human Rights. The applicant appealed against that judgment. However, on 14 July 2005 , during the hearing in his appeal before the Bamberg Court of Appeal, he withdrew his appeal in line with the court ’ s recommendation. On 10 August 2005 , the applicant issued the following declaration :

“I, Karl- Emich zu Leiningen , ... hereby declare ...

- in order to avoid impending claim s for damages and the threat to susp en d the monthly allowance provided for in the friendly settlement of 17 September 2002, ...

... that I am compelled ... , in order to maintain a decent standard of living , to make the following statement:

I hereby announce that I will not pursue my application ( no. 59624/00 ) pending before the European Court of Human Rights.”

On 16 August 2005 the applicant ’ s legal counsel faxed a copy of the applicant ’ s declaration to the Court. However, the applicant requested the Court to consider that declaration meaningless and to continue examination of the present application.

COMPLAINTS

The applicant complained under Articles 12 and 8 of the Convention that by upholding the laws and contracts governing the order of inheritance in his family, the German courts had breached the positive obligation they were under to protect his right to respect for his family life and to marry a woman of his choice.

He also complained under Article 1 of Protocol No. 1 that the German courts had upheld his exclusion from the order of succession; he argue d that , owing to his position as hereditary prince and the work he had done for the family estate, he ha d acquired a vested right of ownership of the family estate.

The applicant maintain ed that he ha d been discriminated against in breach of the above Articles, read in conjunction with Article 14, by comparison with persons who were not subject to restrictions on their choice of spouse. He also consider ed that he ha d been discriminated against as compared with aristocrats who had married persons from an aristocratic background.

Finally, the applicant complained under Article 6 of the Convention that the proceedings had been unfair.

THE LAW

The Court ta kes note of the friendly settlement of 17 September 2002 , the applicant ’ s declaration dated 10 August 2005 that he would not pursue his application further and his simultaneous request that examination of his application be continued .

1. The Government

The Government took the view that the applicant was obliged under the friendly settlement of 17 September 2002 to withdraw his application , and argued that any refusal to do so would contradict the position he had taken before the domestic courts. In particular, the Government contended that the applicant ’ s pledge to withdraw his application under the friendly settlement had been unequivocal, despite the wrong application number having been cited . It pointed out that the applicant had lodged only one application and that the parties to the settlement had been aware that the agreement could relate only to the present application. Moreover, the Government observed that the pledge in question, including the mistaken designation, had been drawn up by the applicant ’ s legal counsel. T he Government also drew the Court ’ s attention to the fact that the applicant had not revoked the settlement on account of the alleged error. The Government have not commented on the applicant ’ s declaration of 10 August 2005 .

2. The applicant

In general, the applicant took the view that it was impossible to renounce the right to lodge and pursue an application under the Convention. In respect of the present case the applicant argued that the content of the friendly settlement could not have any effect on his pending application because A., although a party to the settlement, was not a party to the proceedings pending before the Court.

In any event, the applicant was of the opinion that his pledge under the friendly settlement of 17 September 2002 had not been unequivocal, stressing the mistake in referring to the application. Furthermore, he stated that he had been forced by his dire financial situation to accept the friendly settlement.

With regard to his declaration of 10 August 2005 , the applicant submitted that he had issued it only in order to maintain his monthly allowance and avoid claims for damages. The applicant added that he had made the declaration exclusively in respect of the proceedings pending before the domestic courts. Therefore, his declaration could not have any effect on his pending application.

B. The Court ’ s assessment

The Court notes that , according to the judgment of the Aschaffenburg Regional Court , which has acquired legal force, the applicant was obliged under the friendly settlement of 17 September 2002 to withdraw his application. T he applicant ’ s declaration of 10 August 2005 therefore complied with his obligation s under domestic law. However, contrary to those obligation s , the applicant then requested that the Court continue to examine his application. Hence the applicant ’ s conduct before the Court contradicts the position he took before the domestic courts and is in breach of his obligations under domestic law.

As regards the applicant ’ s assertion that his declaration did not affect his pending application because it was impossible to renounce the right to lodge and pursue an application, the Court notes the following.

The Court has already examined a case in which the applicant and the Government had agreed that the applicant would waive his rights under Article 6 of the Convention in respect of a certain set of proceedings. The Court held that such a waiver, in order to be valid, had to be unequivocal and required certain minimum guarantees commensurate with its importance (see Pfeifer and Plankl v. Austria , judgment of 25 February 1992, Series A no. 227, p. 16, § 37). The Commission found in a subsequent case that those criteria could also be applied to a case in which the applicant had agreed not to lodge future applications, with the result that any such applications would be rendered inadmissible (see Mlynek v. Austria , no. 22634/93, Commission decision of 31 August 1994, Decisions and Reports (DR) 79-A, p. 106).

The Court notes that in the present case the applicant ’ s pledge under the friendly settlement of 17 September 2002 to withdraw his application had been made not vis-à-vis the Government, but vis-à-vis the opposing party in a civil lawsuit. However, the Court finds that the principles established in the case of Pfeifer and Plankl can be applied mutatis mutandis to the present case since applicants, as held in Pfeifer and Plankl , are, as a matter of principle, free to renounce their right to lodge and pursue an application. Although the application was wrongly designated in the settlement, the Court finds that the provision in question was sufficiently clear and hence unequivocal, given that the applicant had lodged only one application with the Court. Moreover, the applicant did not revoke the settlement on account of the error in its content.

As regards the applicant ’ s allegation that he had to enter into the friendly settlement of 17 September 2002 owing to his dire financial situation, it has to be pointed out that the applicant received considerable financial compensation in return and was , moreover, represented by legal counsel during the negotiations. Above all, the applicant had the right to revoke the settlement if he had been coerced or misled by the contracting party, or if he had misinterpreted the meaning of his pledge. However, the applicant did not do so. Lastly, there is no indication that the Government put the applicant under any pressure.

T he Court therefore considers the applicant ’ s pledge to withdraw his application under the settlement of 17 September 2002 as not only valid under domestic law, but also valid in respect of the present application. Regarding the applicant ’ s assertion in his declaration of 10 August 2005 that he had been compelled to issue the declaration , the Court notes that he had not been put under pressure by the Government or A., but had been obliged to issue the declaration pursuant to the judgment of the Aschaffenburg Regional Court of 7 December 2004 . It follows that, for the aforementioned reasons, the applicant ’ s declaration of 10 August 2005 withdraw ing his application was also valid.

The Court concludes that , in the light of the aforementioned circumstances, in particular the applicant ’ s valid pledge not to pursue his application and his subsequent contradictory behaviour, continued examination of the application is no longer justified within the meaning of Article 37 § 1 of the Convention. The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application .

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Mark Villiger Boštjan M . Zupančič Deputy Registrar President