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