CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 1988

.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. 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)