MÜLLER v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mr Heinz Wilfried Müller, is a German national, who was born in 1944 and is currently detained in Straubing Prison. He was represented before the Court by Mr A. Ahmed, a lawyer practising in Munich. 2. 3. Between 1980 and 2006 the applicant was convicted by courts in Germany, Italy and the Czech Republic in four judgments of numerous counts of sexual abuse of minors entrusted to him (essentially boys, often aged under fourteen), committed, inter alia, in a boarding school directed by him and in the context of activities of a boy scout group founded by him. The applicant was sentenced to several terms of imprisonment of up to five years and two months and a prohibition for life on exercising a profession entailing the education and supervision of minors aged under fifteen. 4. On 22 February 2008 the Deggendorf Regional Court convicted the applicant of two counts of serious sexual abuse of children (committed between July 2001 and October 2004, probably in summer 2002), of three counts of attempted rape (committed between July 2001 and October 2004, probably in summer 2003) and of three counts of having breached a prohibition on exercising a profession. It sentenced him to seven years’ imprisonment and reserved the order for the applicant’s preventive detention (vorbehaltene Sicherungsverwahrung) under Article 66a § 1 of the Criminal Code, read in conjunction with Article 66 §§ 1 (3) and 3 of the Criminal Code (see paragraphs 28 and 30-31 below). 5. The Regional Court found that the applicant, together with another person, had abused a boy aged approximately seven and a girl aged approximately ten and had attempted on three occasions to rape a boy aged around sixteen in his residence in the Czech Republic. He had further given private lessons to boys aged under fifteen, in breach of the prohibition on exercising a profession entailing the training and supervision of adolescents. 6. The Regional Court further found that the requirements under Article 66a read in conjunction with Article 66 § 3 of the Criminal Code for making a reserved order for the applicant’s preventive detention were met. It noted that the applicant had been found guilty of serious sexual abuse of children for which he was sentenced to at least three years’ imprisonment, as required by Article 66 § 3 of the Criminal Code. As confirmed by psychiatric expert L. whom the court had consulted, the applicant had a propensity to sexually abuse minors, in particular boys aged below fourteen, for the purposes of Article 66 § 1 (3) of the Criminal Code. The court noted that the psychiatric expert had diagnosed the applicant with a sexual deviation, namely a long-standing paedophilia, which had already determined his choice of profession. 7. The Regional Court considered, however, that it could not establish with sufficient certainty that the applicant, as a result of that propensity, was dangerous to the public, as required by Article 66 § 1 (3) of the Criminal Code. As the applicant had refused having himself examined by the psychiatric expert, there were insufficient factual elements permitting a sound prognosis on the applicant’s – very probable – dangerousness to the public. The court further took the view that the reserved order for the applicant’s preventive detention was proportionate as the applicant had it in his hands to substantially influence the result of a subsequent prognosis concerning his dangerousness by undergoing a therapy. 8. On 9 September 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment. It noted that there had been an error of law in that, contrary to the Regional Court’s findings, the conditions for making an unconditional order for the applicant’s preventive detention had been met. However, the applicant did not suffer any disadvantage by the merely reserved order for his preventive detention. 9. On 18 November 2010 the Deggendorf Regional Court, sitting as a chamber composed of two professional judges and two lay judges, ordered the applicant’s preventive detention under Article 66a § 2 of the Criminal Code (see paragraph 28 below), read in conjunction with Article 66 § 3 of the Criminal Code. 10. The Regional Court considered that the requirements laid down in Article 66a § 2 of the Criminal Code were met. It had regard to the applicant’s convictions and endorsed the findings made by psychiatric expert O. who had diagnosed the applicant with paedophilia and a dissocial personality disorder. It considered that, in view of these elements, there was a very high risk that the applicant, who denied his offences and had not completed a therapy, would reoffend if released. He had a propensity to commit further sexual offences similar to those he had been found guilty of and was therefore dangerous to the public. Having regard to the large number of offences involving many victims he had committed over a long period of time and his failure to reflect on his offences, the applicant’s preventive detention was proportionate despite his age of then 66 years. 11. On 29 March 2011 the Federal Court of Justice dismissed the applicant’s appeal on points of law. 12. On 11 May 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his right to liberty under the Constitution and Article 5 § 1 of the Convention and the principle of proportionality had been violated by the order for his preventive detention, having regard to the findings in the Federal Constitutional Court’s leading judgment of 4 May 2011 (see paragraph 32-34 below). He further claimed that his right to a tribunal established by law had been breached in that the Deggendorf Regional Court had decided his case in a composition of two professional and two lay judges only. Given the complexity of the legal issue and the severity of the measure involved, the court should have sat in its standard composition of three professional and two lay judges. 13. On 20 June 2012 the Federal Constitutional Court allowed the applicant’s constitutional complaint, quashed the decision of the Federal Court of Justice of 29 March 2011 and remitted the case to that court (file no. 2 BvR 1048/11). 14. The Federal Constitutional Court referred to its judgment of 4 May 2011 in which it had found that Article 66a §§ 1 and 2 of the Criminal Code were incompatible with the constitutional right to liberty. These provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). They could only be further applied in the transitional period (until the entry into force of new legislation and until 31 May 2013 at the latest) subject to a strict review of proportionality. Proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 15. The judgment of the Deggendorf Regional Court and the decision of the Federal Court of Justice violated the applicant’s constitutional right to liberty for failure to examine the applicant’s case under the strict proportionality criteria set up in the Federal Constitutional Court’s judgment of 4 May 2011. 16. The Federal Constitutional Court further found that Article 66a of the Criminal Code was not incompatible with the Constitution on other grounds. 17. The Federal Constitutional Court considered that, just as preventive detention, reserved preventive detention, which served the protection of the public, was compatible with the dignity of the person enshrined in Article 1 § 1 of the Constitution. The court conceded that it remained unclear for a person concerned by a reserved preventive detention order during a large part of the duration of his term of imprisonment whether he would be taken in preventive detention. However, it was essentially in the hands of the person concerned whether the requirements for a subsequent preventive detention order would be met. That person was notably in a position to reduce or eliminate his dangerousness while serving his term of imprisonment by completing a therapy with success. 18. Moreover, apart from the above-mentioned ground (see paragraphs 14-15), reserved preventive detention complied with the constitutional right to liberty. In particular, it did not disproportionately restrict the constitutional right to liberty having regard to the valuations (Wertungen) of Article 5 § 1 of the European Convention on Human Rights and the case-law of the European Court of Human Rights. 19. The Federal Constitutional Court took the view that reserved preventive detention complied with sub-paragraph (a) of Article 5 § 1 of the Convention. There was a sufficient causal connection, as required by the European Court of Human Right’s case-law (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50; and M. v. Germany, no. 19359/04, §§ 87 s., ECHR 2009) between the “conviction” by the sentencing court, in which the applicant’s preventive detention had already been reserved, and the applicant’s detention flowing from the later order for his preventive detention. 20. The court argued in this respect that the preventive detention subsequently ordered against the applicant was within the limits defined by the law applicable at the time of the applicant’s conviction and by the sentencing court’s judgment. The sentencing court’s judgment had already authorised a subsequent order for his preventive detention should he prove dangerous to the public (compare also the European Court of Human Right’s judgments in the cases of Van Droogenbroeck, cited above; De Schepper v. Belgium, no. 27428/07, §§ 35 ss., 13 October 2009; Haidn v. Germany, no. 6587/04, 13 January 2011; and B v. Germany, no. 61272/09, § 75, 19 April 2012). Therefore, the order for the applicant’s preventive detention was not a correction of, but a necessary complement to the sentencing court’s judgment, which concluded a two-part decision on the order of preventive detention. Only by the subsequent order for the applicant’s preventive detention a final decision on the applicant’s dangerousness was taken. It had been likely that he had been dangerous at the time of the sentencing court’s judgment, but the court had not been in a position to establish this with the necessary certainty. 21. The causal link between the authorisation of the applicant’s preventive detention in the sentencing court’s judgment and the later order for his preventive detention was also not broken by the lapse of time between that judgment and the preventive detention order. Article 66a of the Criminal Code was further formulated with sufficient precision and was foreseeable in its application so as to comply with the requirement of a “lawful” detention under Article 5 § 1 of the Convention. 22. The Federal Constitutional Court finally found that the impugned judgment of the Regional Court, taken in a composition of two professional judges (instead of three) and two lay judges, had not breached the applicant’s constitutional right to a tribunal established by law. The Deggendorf Regional Court’s assessment that the applicant’s case, which necessitated the hearing of three witnesses and one expert only, was not particularly complex and thus permitted reducing the formation from three to two professional judges under the applicable law was not arbitrary. 23. On 10 January 2013 the Federal Court of Justice, following the Federal Constitutional Court’s remittal of the case to it, again dismissed the applicant’s appeal on points of law against the judgment of the Deggendorf Regional Court of 18 November 2010. It found that the order for the applicant’s preventive detention complied with the stricter proportionality criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011. It was very likely that the applicant would again commit serious sexual offences similar to those he had been found guilty of by the Deggendorf Regional Court in 2008. 24. Since October 2013 the applicant, having served his full prison sentence, has been in preventive detention on the premises of Straubing Prison. 25. On 6 November 2014 the Federal Constitutional Court declined to consider the applicant’s further constitutional complaint of 13 March 2013 against the judgment of the Deggendorf Regional Court dated 18 November 2010 and the decision of the Federal Court of Justice dated 10 January 2013 (file no. 2 BvR 582/13). 26. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). The provisions referred to in the present case provide as follows: 27. Article 66a of the Criminal Code, which provides for the possibility to make reserved preventive detention orders, was inserted in the Criminal Code by the Introduction of Reserved Preventive Detention Act (Gesetz zur Einführung der vorbehaltenen Sicherungsverwahrung) of 21 August 2002, which entered into force on 28 August 2002 (see Federal Gazette I, p. 3344). 28. Article 66a §§ 1 and 2 of the Criminal Code, on reservation of placement in preventive detention, in the version in force at the relevant time, read: “(1) If on conviction for one of the offences listed in Article 66 § 3, first sentence, it cannot be established with sufficient certainty whether the perpetrator is dangerous to the public within the meaning of Article 66 § 1 (3), the court may reserve the order for preventive detention if the remaining requirements of Article 66 § 3 are met. (2) The court decides on whether preventive detention shall be ordered no later than six months before the date on which the suspension of the remainder of the prison term on probation ... is possible. It shall order preventive detention if a comprehensive assessment of the convicted person, of his acts and of his development while serving his prison term reveal that it is likely that he will commit serious offences which seriously harm their victims mentally or physically.” 29. Article 66a of the Criminal Code remained in force in an amended version also after the legislative changes made to the provisions on preventive detention since then. 30. Article 66 of the Criminal Code, to which Article 66a of that Code refers, concerns orders of preventive detention. Article 66 § 1, in the version in force at the relevant time, provided that the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions were satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence (Article 66 § 1 (1)). Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years (Article 66 § 1 (2)). Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims mentally or physically or which cause serious economic damage, the perpetrator presents a danger to the general public (Article 66 § 1 (3)). 31. Under Article 66 § 3, first sentence, of the Criminal Code, preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including rape and sexual abuse of children, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met. Article 66 § 3, second sentence, provides that if a person committed two of the offences listed in the first sentence of that provision for each of which he is punishable to at least two years’ imprisonment and if he is sentenced for one or more of these offences to a term of imprisonment of not less than three years, the court may order preventive detention in addition to the prison sentence under the conditions laid down in Article 66 § 1 (3) even in the absence of a prior conviction or detention (Article 66 § 1 (1) and (2)). 32. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code and Article 7 § 2 of the Juvenile Courts Act (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 33. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in the version of 27 December 2003 and Article 66a §§ 1 and 2 of the Criminal Code in the version of 21 August 2002. 34. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code or Article 7 § 2 of the Juvenile Courts Act, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.