Zu Leiningen v. Germany (dec.)

Information Note on the Court’s case-law No. 80

November 2005

Zu Leiningen v. Germany (dec.) - 59624/00

Decision 17.11.2005 [Section III]

Article 37

Article 37-1-c

Continued examination not justified

Friendly settlement in domestic proceedings containing a pledge by applicant to withdraw his pending application before the Court: struck out

Facts: The applicant, who is the eldest son of an old aristocratic family, was completely excluded by his father from the order of succession and from any legacies or financial benefits after his second marriage. His father then appointed the applicant’s brother as sole heir. The domestic courts upheld his late father’s refusal to consent to the applicant’s second marriage and his exclusion from the line of succession. Following the applicant’s father’s death, the applicant’s brother was issued a certificate of inheritance by the German courts, naming him sole heir to the family’s considerable fortune. This decision was confirmed by the domestic courts including the Federal Constitutional Court, which refused to entertain the applicant’s complaint as freedom of testamentary disposition enjoyed special protection. The applicant then lodged an application with the Court. In September 2002, in the course of a lawsuit with his brother, the applicant entered into a friendly settlement with him. He acknowledged in the settlement that his brother had become the sole heir to the family’s fortune, but received financial compensation in return. The settlement included a provision whereby the applicant undertook to withdraw the application pending before the Court. It however indicated the wrong file number. The settlement closed with the applicant’s renunciation of all claims against his brother. In the proceedings before the Court the applicant stated that he would not withdraw his application, because this provision had only been included by accident. In August 2005, in the context of the domestic execution proceedings the applicant also issued a statement announcing that he would not pursue his application pending before the Court. However, he requested the Court to consider the declaration meaningless and to continue the examination of the application.

Law: Article 37 § 1(c) – The applicant’s behaviour before the Court contravened his own behaviour before the domestic courts and his obligations under domestic law. As to the applicant’s claim that it was impossible to renounce the right to lodge and pursue an application, the Court recalled its principles under established case-law that the waiver of a Convention right has to be unequivocal and requires certain minimum guarantees. In the present case, although the application had been wrongly designated in the settlement, the applicant’s undertaking to withdraw the case was sufficiently clear and unequivocal. Moreover, the applicant had received considerable financial compensation in return, and, could have rescinded the settlement had he been coerced or misled into it. Therefore, the applicant’s pledge to withdraw his application was not only valid under domestic law, but also under valid in respect of the present application. A continued examination of the application was thus no longer justified within the meaning of this provision: struck out.

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This summary by the Registry does not bind the Court.

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