CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                           Application No. 31967/96                       by Klaus, Winfried and Doris HAGEN                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 11 September 1997, the following members being present:              Mrs. J. LIDDY, President            MM.   M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN            Mrs. M. HION            Mr.   R. NICOLINI              Mrs. M.F. BUQUICCHIO, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 23 November 1995 by Klaus, Winfried and Doris HAGEN against Germany and registered on 19 June 1996 under file No. 31967/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:     THE FACTS        The first applicant, born in 1966, is a German national and resident in Bonn.        The first applicant brings the present application in his own name and also on behalf of his parents, the second and third applicants, a married couple, born in 1945 and 1947, respectively.   The first applicant is their only son.   The second and third applicants' whereabouts are unknown.        In the proceedings before the Commission, they are represented by Mr. H. Meilicke and partners, a law firm in Bonn.        The facts of the case, as submitted by the first applicant, may be summarised as follows.   I.    On 6 October 1993 the second and third applicants, in a document certified by a notary, conferred a general power of attorney on the first applicant, including the authority to conclude transactions with himself as their representative.   This power of attorney was supposed to remain valid in case of the second and third applicants' death with effect for their heirs.   The first applicant conferred a similar general power of attorney upon his parents.        In July 1994 the second and third applicant disappeared. In September 1994 criminal proceedings were instituted against the first applicant on the suspicion of having murdered his parents.   II.   On 15 November 1994 the Bonn District Court (Amtsgericht), upon the suggestion made by two sisters of the second applicant, ordered a curatorship (Abwesenheitspflegschaft) in respect of the second applicant, pursuant to S. 1911 of the Civil Code (Bürgerliches Gesetzbuch).   The curatorship concerned the representation of the absent second applicant in all financial matters, in particular the question whether any powers of attorney should be revoked.   The Court appointed Mr. W., a lawyer practising in Bonn, as curator.   In its decision, the Court noted that the Bonn Public Prosecutor's Office, despite extensive investigations, had yet not been able to establish the second applicant's whereabouts and that the second and third applicant had been missing since 13 July 1994.   The Court considered that the second applicant's absence was sufficiently long to justify the curatorship.   The Court further observed that while there existed full powers of attorney conferred upon the first applicant, there was a necessity for a curatorship as this power possibly might have to be revoked.        S. 1911 para. 1 of the Civil Code provides that, in case an adult is absent and his or her whereabouts are unknown, a curator will be appointed to administer all matters regarding the absentee's property if there is a need for such administration.   Such a curator will also be appointed where the absentee has given orders or a power of attorney for the administration of his property but new circumstances have arisen warranting the revocation of the order or power of attorney concerned.        In these and the following proceedings, the first applicant was represented by Mr. Meilicke and partners.        On 7 December 1994, as confirmed on 9 December 1994, the curator, Mr. W., revoked the first applicant's power of attorney in respect of the second applicant.      On 31 January 1995 the Bonn Regional Court rejected the first applicant's appeal which was made also on behalf of the second applicant against the decision of 15 November 1994.   The Regional Court noted that the second applicant owned substantial real estate and other assets which had to be administered. The Regional Court considered that the first applicant was not directly affected by the said decision and had, therefore, no right to appeal.   As regards the second applicant's appeal, the Court noted that the appeal had been lodged by the first applicant acting on the basis of the power of attorney of October 1993. However, this power of attorney had meanwhile been validly revoked. In any event, the District Court's decision was legally correct and could therefore not be objected to.   The second applicant's whereabouts had been unknown for a period of five months and there was a need to administer his property.   With regard to the first applicant's power of attorney, the Regional Court confirmed the first instance court's finding that there were circumstances justifying the revocation of this power.   In this respect, the Regional Court noted that the Bonn Public Prosecutor's Office was conducting preliminary investigations against the first applicant on the suspicion of murder.   The course of these proceedings was the exclusive responsibility of the prosecution authorities and it was not for the Regional Court to establish whether the institution of such proceedings against the applicant was justified.        On 10 March 1995 the Cologne Court of Appeal (Oberlandesgericht) dismissed the first and second applicants' respective further appeals. The Court of Appeal found that the appeals were admissible.   The first applicant could, though the power of attorney conferred upon him by the second applicant had been revoked, validly represent the second applicant, acting on the basis of the power of attorney conferred upon him by the third applicant who herself held a full power of attorney conferred upon her by the second applicant.   Moreover, the first applicant was entitled to appeal in his own name as he was directly affected by the appointment of a curator who was supposed to examine whether the first applicant's full power of attorney was to be revoked. However, the appeals were to no avail as the conditions under S. 1911 of the Civil Court for ordering the curatorship were met.   The mere fact that the criminal proceedings against the applicant on suspicion of having murdered the second and third applicants were still pending justified the appointment of the curator, irrespective of the strength of the suspicion.   Finally, this suspicion against the first applicant did not permit his continued administration of the second applicant's property.   In any event, there was a need for the continuation of the curatorship following the revocation of the first applicant's full power of attorney.        On 18 May 1995 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the first and second applicants' constitutional complaint.   III. On 9 February 1995 the Bonn District Court, upon the suggestion made by the curator, Mr. W., ordered a curatorship in respect of the third applicant, pursuant to S. 1911 of the Civil Code.   The curatorship concerned the representation of the absent third applicant in all financial matters, in particular the question whether any powers of attorney should be revoked.   The Court appointed Ms. M., a lawyer practising in Bonn, as curator.   In its decision, the Court noted that the first applicant intended to make legal transactions regarding the third applicant's banking account at a Bonn banking institution. Referring to its decision of 15 November 1994, the District Court considered that there was also a necessity to secure the proper administration of the third applicant's property.      On 10 February 1995 the curator, Ms. M., revoked the first applicant's power of attorney in respect of the third applicant.        On 23 May 1995 the Bonn Regional Court dismissed the first and third applicants' respective appeals against the decision of 9 February 1995.        On 7 August 1995 the Cologne Court of Appeal dismissed the first and third applicants' respective further appeals.   The appeals were to no avail as the conditions under S. 1911 of the Civil Court for ordering the curatorship were met.   In this respect, the Court of Appeal referred to the reasoning in its decision of 10 March 1995.        On 6 October 1995 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the first and third applicants' constitutional complaint.   Assuming that the third applicant's complaint had been validly lodged, the Constitutional Court considered that the complaint submissions did not raise any general constitutional questions. In particular there were no doubts as to the constitutionality of S. 1911 of the Civil Code.   As to its application in the third applicant's case, the Constitutional Court found that, in the appellate court decision, the consideration that the valid revocation of the first applicant's power of attorney by the curator necessitated the continuation of curatorship had not been decisive. Rather, the Court of Appeal had confirmed that the District Court had correctly appointed the curator.   Moreover, the principle of the presumption of innocence did not prevent the drawing of consequences from the suspicion of a criminal offence if such a suspicion gave rise to the need to take preventive measures.   The Court of Appeal's finding that the criminal proceedings against the first applicant had resulted in a loss of confidence and justified a curatorship for the purpose of possibly revoking his full power of attorney could not be objected to from a constitutional point of view.   COMPLAINTS   1.    The first applicant complains under Article 6 para. 2 of the Convention that the respective appointments of curators violate the principle of the presumption of innocence in that the German courts took their decisions on the sole basis of the opening of preliminary investigations against the first applicant.   2.    Moreover, in the first applicant's submission, the applicants did not have a fair hearing within the meaning of Article 6 in that they could not challenge the institution of the criminal proceedings against the first applicant.   3.    Furthermore, the said decisions infringed the right to respect for family life of all the applicants, as guaranteed under Article 8 of the Convention.   4.    Finally, the respective court decisions appointing curators for the administration of the second and third applicants' properties are regarded as a breach of their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1.   THE LAW   1.    The Commission notes at the outset that the present application has been introduced by the first applicant who has raised also several complaints in the name of his parents as second and third applicants.      The question arises whether, in the proceedings before the Commission, the first applicant can act on behalf of the second and third applicants who have been missing since July 1994. In this context, the Commission notes that the submissions in support of the application concern the same facts in respect of all applicants, namely the appointment of curators and ensuing revocation of the first applicant's full powers of attorney in respect of his parents. However, the Commission need not resolve this problem, as the application as a whole is inadmissible for the following reasons.   2.    The first applicant complains that the German courts took their decisions to appoint curators for the purpose of administering the properties of his missing parents on the sole basis of the opening of preliminary investigations against him.   He relies on the principle of the presumption of innocence under Article 6 para. 2 (Art. 6-2) of the Convention.        This provision reads as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The Commission recalls that the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty.   This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty (cf. Eur. Court HR, Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, p. 18, para. 37; Lutz v. Germany judgment of 25 August 1987, Series A no. 123, p. 25, para. 60; Englert v. Germany judgment of 25 August 1987, Series A no. 123, pp. 54-55, para. 37; Nölkenbockhoff v. Germany judgment of 25 August 1987, Series A no. 123, p. 79, para. 37; Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A, p. 14, para. 26; Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, p. 16, para. 35).        In the present case, the Bonn Public Prosecutor's Office instituted preliminary investigations against the first applicant on the suspicion of having murdered the second and third applicants who have been missing since July 1994.   Following the opening of these proceedings, the German courts, in two sets of proceedings, decided to appoint curators for the administration of the second and third applicants' properties in their absence, including the question whether there were reasons to revoke the first applicant's full power of attorney.   The reasons advanced for the appointment of curators pursuant to S. 1911 of the Civil Code related only to the absence of the second and third applicant and the need for administration of their properties. Furthermore, in their respective decisions, the German courts solely referred to the conduct of criminal proceedings against the applicant on suspicion of having murdered the second and third applicant.        The Commission finds that the impugned court decisions refer to the first applicant's criminal prosecution without containing any appraisal of his guilt or any reasoning which could be regarded as a finding of guilt.   Accordingly, there is no appearance of a breach of the presumption of innocence guaranteed under Article 6 para. 2 (Art. 6-2).        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    As regards the complaint about the alleged unfairness of the German court proceedings, the Commission finds no indication that the first applicant, acting also on behalf of the second and third applicants and represented by counsel throughout the proceedings, could not duly advance his arguments to challenge the respective appointments of curators, or that the proceedings were otherwise in breach of Article 6 para. 1 (Art. 6-1) of the Convention.   It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   4.    Furthermore, the said decisions are said to have infringed the right to respect for family life of all applicants, as guaranteed under Article 8 (Art. 8) of the Convention.        Article 8 para. 1 (Art. 8-1) provides that everyone has, inter alia, the right to respect for his private and family life.        The Commission recalls that family life does not include only social, moral or cultural relations, for example in the sphere of children's education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate (cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, para. 52).        In the present case, the German courts, pursuant to S. 1911 of the Civil Code, arranged for a curatorship regarding the second and third applicants' properties following their disappearance in July 1994.   The respective curators were expressly charged to review the first applicant's full powers of attorney which had been conferred upon him by the second and third applicants in October 1993.   Having regard to the criminal proceedings pending against the first applicant on suspicion of murder, his powers of attorney were eventually revoked, as confirmed in the appeal proceedings.        The Commission considers that the impugned court decisions concerned legal transactions between the applicants which went beyond material interests related to family life.   The decisions were taken to secure the proper administration of the second and third applicants' properties following their disappearance and pending the criminal proceedings against the first applicant.   There is no indication of a lack of respect for the applicants' family life, and, therefore, no appearance of a violation of Article 8 (Art. 8).        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   5.    Finally, the respective court decisions appointing curators for the administration of the second and third applicants' properties are regarded as a breach of their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 (P1-1).        This provision reads as follows:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law.      The preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."        The Commission considers that the German court decisions concerned the regulation of the use of the second and third applicants' property within the meaning of the second paragraph of the above provision.   The decisions on the curatorship for the administration of the second and third applicants' properties was taken on the basis of domestic law.   The Commission further considers that the proper administration of property belonging to persons who are absent and whose whereabouts are unknown is in the general interest.   Finally, as far as the question of a fair balance between the general interest of the community and the requirements of the protection of the individual's fundamental rights is concerned (cf. Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 24 September 1982, Series A no. 52, p. 26, para. 69), the Commission notes that in the present case the second and third applicants have been missing since July 1994.   It is true that full powers of attorney had been conferred by them on the first applicant who had been entitled to represent them in any legal transaction, including transactions with himself as the other party. However, the German courts found that, following the institution of criminal proceedings against the first applicant on suspicion of having murdered the second and third applicant, there were reasons to review the continuance in force of these powers of attorney.   Considering also the provisional nature of the curatorships, the Commission finds that the impugned court decisions were not disproportionate.        The control of the second and third applicants property is, therefore, in accordance with the requirements of Article 1 of Protocol No. 1 (P1-1).        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber