Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12990/87

by W.

against Austria

The European Commission of Human Rights sitting in private

on 10 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 April 1987 by

W. against Austria and registered on 4 June 1987 under file N°

12990/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1971, is an Austrian national and

resident in Linz. Before the Commission, he is represented by

Mr. Binder and Mr. Blum, lawyers practising in Linz.

In October 1986 criminal proceedings were instituted against

the applicant on the suspicion that he had stolen a purse from his

room-mate in the boarding-school which he attended at that time. On 30

December 1986 the District Court (Bezirksgericht) of Linz-County, upon

the request of the Public Prosecutor (Bezirksanwalt), discontinued the

criminal proceedings under S. 12 para. 1 of the Juvenile Court Act

(Jugendgerichtsgesetz). It requested the Linz District Court to

instruct the applicant in accordance with S. 12 para. 1 which reads:

"(1) The Public Prosecutor may discontinue criminal

proceedings against a juvenile offender where it may be

assumed that the trial court would apply S. 42 of the Penal

Code or issue a warning (para. 2). If the Public Prosecutor

discontinues the proceedings, the Guardianship Court must be

informed about the charge. The Guardianship Court must

instruct the juvenile about the wrong of such acts and their

possible consequences irrespective of whether it takes

action under S. 2 of the Act.

(2) Where the offence when committed by a juvenile offender

is punishable by a minor fine or a light sentence of

imprisonment, the Court may issue a warning.

[German:

(1) Der Staatsanwalt kann von der Verfolgung eines

Rechtsbrechers wegen einer Jugendstraftat absehen, wenn

anzunehmen ist, dass das Gericht nach § 42 des Straf-

gesetzbuches vorgehen oder dem Rechtsbrecher bloss eine

Ermahnung (Abs. 2) erteilen würde. Sieht der Staatsanwalt

von der Verfolgung ab, so hat er die Anzeige dem Vormund-

schaftsgericht zu übermitteln. Dieses hat unabhängig

davon, ob es Verfügungen nach § 2 dieses Bundesgesetzes

trifft oder nicht, den Minderjährigen über das Unrecht

solcher Taten und deren mögliche Folgen zu belehren.

(2) Wäre über einen Rechtsbrecher wegen einer Jugend-

straftat nur eine geringe Geld- oder Freiheitsstrafe zu

verhängen, so kann sich das Gericht damit begnügen, ihm

eine Ermahnung zu erteilen.]

According to S. 42 of the Penal Code an act requiring public

prosecution shall not be punishable, under certain circumstances, in

cases of minor guilt of the offender. S. 2 of the Juvenile Court Act

provides that the Juvenile Court may, under certain circumstances,

take educational measures.

On 12 January 1987, the Linz District Court, acting as

Guardianship Court, summoned the applicant in order to instruct him

under S. 12 para. 1 of the Juvenile Court Act. On 29 January 1987

the applicant was instructed by that Court under S. 12 para. 1.

According to the record the applicant emphasized that he did not

commit the theft with which he was charged; however, he took notice of

the instruction under S. 12 para. 1 of the Juvenile Court Act.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the

Convention that the proceedings before the District Court of

Linz-County were not fair. He submits in particular that the Court,

when deciding to discontinue the criminal proceedings against him,

violated his right to have the criminal charge against him determined

in a fair hearing.

2. Furthermore, he complains under Article 6 para. 2 of the

Convention that the instruction under S. 12 of the Juvenile Court Act

violated the presumption of innocence.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the criminal proceedings against him were discontinued

and that he had, therefore, no fair hearing before a court.

The Commission is not required to consider, in the present

case, the applicability of Article 6 (Art. 6) of the Convention in

juvenile cases: when the public prosecutor's office decides to

discontinue criminal proceedings or withdraws the indictment, Article

6 (Art 6) of the Convention does not confer upon a person charged with

a criminal offence the right to obtain a judicial determination of the

merits of the charges brought against him (cf. Deweer v. Belgium,

Comm. Report 5.10.78, para. 58).

Consequently, this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 6 para. 2 (Art. 6-2) of

the Convention that the instruction under S. 12 of the Juvenile Court

Act violated the presumption of innocence.

It is true that the presumption of innocence will be

violated if, without the accused's having previously been proved

guilty according to law, a judicial decision concerning him reflects

an opinion that he is guilty (cf. Eur. Court H.R., Minelli judgment of

25 March 1983, Series A no. 62, p. 18, para. 37; and, mutatis mutandis,

Lutz/Englert/Nölkenbockhoff judgments of 25 August 1987, Series A no.

123, p. 25 para. 60, p. 54-55 para. 37, and p. 79 para. 37).

In the present case, the Commission notes that the applicant

was prosecuted as a juvenile offender under the special provisions of

the Juvenile Court Act and the criminal proceedings against him were

discontinued in pursuance of S. 12 para. 1 of the Juvenile Court Act.

The Commission considers that, like in criminal proceedings

terminated under S. 42 of the Austrian Penal Code (cf. Eur. Court

H.R., Adolf judgment of 26 March 1982, Series A no. 49, pp. 18 - 19

paras. 39-40), the decision, as such, to discontinue proceedings

against a juvenile offender does not imply any finding of guilt.

Furthermore, the Commission is of the opinion that the ensuing

instruction under S. 12 para. 1 of the Juvenile Court Act does not

presuppose that the juvenile had in fact committed the offence with

which he was charged. Under S. 12 para. 1 of the Juvenile Court Act

the Guardianship Court is, on the occasion of suspicion against a

juvenile which gave rise to criminal prosecution, merely called to

instruct him about the wrong of criminal acts of the kind in question

and their consequences in general.

The Commission finds that the applicant did not submit that

the instruction given by Linz District Court on 29 January 1987

contained any finding that he had in fact committed the theft in

question. The Commission, in this respect, notes that the Linz

District Court, on the occasion of the instruction, recorded the

applicant's statements that he had not committed the theft with which

he was charged and that he would nevertheless take notice of the

instruction.

Moreover, the Commission considers that the applicant did not

show that the termination of the criminal proceedings against him

under S. 12 para. 1 of the Juvenile Court Act adversely affected his

legal position, or that, in particular, the instruction was included

into his criminal record.

The Commission finds that in these circumstances the

applicant's complaints do not disclose any appearance of a breach of

Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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W. v. AUSTRIA

W. v. AUSTRIA

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