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
Full & Egal Universal Law Academy