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)