CASE OF MÜLLER v. GERMANY
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1958. He is currently serving a life sentence in Schwalmstadt prison. 6. On 29 February 1984 the applicant was arrested after he had shot his wife, Ms I. M., who had recently left him, and injured two bystanders. On 17 December 1984 the Frankfurt am Main Regional Court convicted the applicant of murder and negligent bodily injury and sentenced him to life imprisonment. He has been imprisoned ever since. 7. On 3 December 1993 the Marburg Regional Court determined that the applicant’s guilt was not of “particular gravity” pursuant to Section 57 (a) of the German Criminal Code (see Relevant domestic law below), implying that the degree of the applicant’s guilt did not require an execution of more than fifteen years of his sentence. 8. From November 1995 until March 1997 the applicant served his sentence in a semi-custodial regime (offener Vollzug). On 13 March 1997 this privilege was withdrawn after preliminary investigations were initiated against the applicant who was suspected of having, in January 1997, while on prison leave, caused bodily harm to a female acquaintance, Ms J., by using an electric truncheon. On 2 February 1999 the Frankfurt District Court acquitted him of these charges on factual grounds without giving any further written reasons. 9. On 23 February 1999 the Marburg Regional Court, sitting as an execution of sentence chamber (Strafvollstreckungskammer) rejected the applicant’s request to suspend the remainder of his sentence and to release him on probation. The chamber considered that the criminal proceedings before the Frankfurt District Court had failed sufficiently to clarify the facts of the incident of January 1997. Having heard evidence by witnesses, the chamber noted that the applicant had started a sexual relationship with Ms J., who was married, in autumn 1995. When Ms J. decided to terminate the relationship in November 1995, the applicant had threatened to tell her husband and children about her extramarital relationship. Based on testimony given by several witnesses, the chamber was further convinced that the applicant had attacked Ms J. in the evening of 10 January 1997. The chamber considered that the applicant’s submissions that he had not been in Frankfurt at the time of the alleged incident lacked credibility. 10. With regard to the prognostic decision, the decision reads as follows: “The Chamber is convinced that a serious danger still emanates from [the applicant] for other persons’ lives and limbs. The established facts disclose remarkable similarities to the crime against I. M. The convict knew both women from his youth... Irrespective of the qualification of the incident under criminal law – which is irrelevant for the prognostic decision at hand – both incidents were preceded by a long period of time during which the perpetrator and the victim were deeply involved on an emotional level. The convict made elaborate plans for the future with both women, which ended in disappointment, and both women decided to leave him for another man...The convict was unable to take a clear stance in respect of the separation from both women. He oscillated between aggressive acts and menacing behaviour on the one side and pleadings on the other. In both cases, his behaviour followed the same pattern: it started with rather low-key aggression, which escalated during the course of the crisis which was marked by serious feelings of mortification....Now and then he threatened the women with violence and displayed suicidal tendencies... Ms J. might not yet have been in serious danger, as the convict had still been able to set himself limits. However, the Chamber has very serious doubts whether he will remain able to respect these limits in the future.” The Chamber further observed that the psychological expert Prof F., in an expert report prepared on 7 September 1994, had given the applicant a favourable legal prognosis. However, these findings had become obsolete in view of the freshly established events. The Chamber finally considered that the fact that the applicant had been acquitted in the criminal proceedings before the Frankfurt District Court did not prevent the execution of sentence chamber from making its own assessment of the relevant facts, as the Frankfurt District Court had failed sufficiently to examine those facts in a convincing way. 11. On 28 June 1999, the Frankfurt Court of Appeal rejected the applicant’s appeal. That court considered that the principle of presumption of innocence did not prevent the execution of sentence chamber from examining on its own motion those facts that were relevant for its prognostic decision. 12. On 11 October 2001, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. On 16 October 2001, the applicant lodged an application with the Court (no. 5598/02) in which he complained about his continued detention. On 6 April 2004, a Committee of three judges declared this application inadmissible. 13. Between February 2001 and November 2006, the applicant lodged four further requests for the stay of execution of the remainder of the sentence, which were likewise rejected by the domestic courts. 14. Since 2002, the applicant has again enjoyed relaxed conditions of detention (Vollzugslockerungen), like accompanied outings and therapy. Further relaxed conditions of detention were not granted because on 13 January 2004 the Hessian Ministry of Justice objected to the prison authority’s proposal in this regard. 15. By decision of 4 September 2007, the Kassel Regional Court, sitting as an execution of sentence chamber, and after having heard the applicant, rejected his request for a suspension of his sentence on probation. The court found that there was no real chance that the applicant would not reoffend if released. This finding was based on the psychiatric expert report submitted by Prof K. on 20 April 2007, which had found that the applicant continued to be dangerous. The Regional Court further found as follows: “On the other hand, it has to be taken into account that the expert detected risk factors in the convict’s personality which make it difficult to come to an unconditionally positive social and legal prognosis... [The expert found] that these risk factors derived on the one hand from the fact that the convict had failed to deal with his offence, had not admitted any guilt and had not shown sympathy for his victims. In the expert’s view, he displayed a massive infantile egocentricity which was reflected in distinctive cantankerousness. While it was true that this would not necessarily lead to the commission of further criminal offences, the criminal offence that the applicant had committed to the detriment of Ms J. showed that the applicant was willing to enter into relationships with women once more and that a separation would lead to violent acts for reasons of wounded pride. His problem was that he was incapable of dealing either with his own weaknesses or with his catastrophic actions and that he could not take a mature, adult stance towards them”. (“Anderenfalls war hierbei jedoch zu berücksichtigen, dass auch nach den Ausführungen des Gutachters in der Person des Verurteilten Risikofaktoren festgestellt wurden, die eine uneingeschränkt positive Sozial- und Legalprognose...erschweren. Diese Risikofaktoren ergeben sich zum einen daraus, dass der Verurteilte sich nach der Tat nicht mit seinem eigenen Tun auseinandergesetzt hat und weder seine eigene Schuld eingeräumt noch Mitleid mit den Opfern gezeigt hat. Bei ihm besteht nach Auffassung des Sachverständigen eine massive infantile Egozentrik, die sich in einer ausgeprägten Rechthaberei widerspiegelt. Zwar führe dies nicht notwendig zur Begehung weiterer Straftaten. Doch zeige die Straftat zum Nachteil der Frau J., dass der Verurteilte geneigt und imstande sei, wieder Beziehungen zu Frauen einzugehen und dass es bei Trennungen zu Gewalttaten aus gekränkter Eitelkeit komme. Seine Problematik bestehe darin, dass er auβerstande sei, sich mit seinen eigenen Schwächen, aber auch mit seinen eigenen katastrophalen Handlungen auseinanderzusetzen und diesen gegenüber einen reifen, erwachsenen Standpunkt zu gewinnen.“) 16. The Regional Court further considered that there was no need to obtain further expert reports. It observed, in this context, that it was part of the expert’s task to assess a factual situation from a medical point of view in order to deliver the requested prognostic assessment. The court observed that the risk associated with a suspension of the sentence on probation could only be taken once it was clear that the applicant would adhere to the norms and once his conduct had been tested for some time in the framework of relaxed conditions of detention, in particular in a semi-custodial regime. In this context, the court also welcomed that the applicant was now cooperating and it was thus envisioned to start individual therapy in September 2007. 17. On 13 September 2007, the applicant appealed against the Regional Court’s decision. He submitted, inter alia, that he had not received the Public Prosecutor’s observations the Regional Court had referred to in its decision and that his rights under Article 6 § 2 of the Convention were violated because the Regional Court had based its decision on the alleged incident with J., even though he had been acquitted of all charges in this respect. He further maintained that the decision could not be based on the lack of relaxed conditions of detention; otherwise, the court had an obligation to ensure that appropriate measures were taken. 18. On 9 October 2007, the Frankfurt Court of Appeal dismissed the appeal. The Court of Appeal based its decision on the expert report, recalling the expert’s findings, inter alia, that the murder of his wife and the incident with Ms J., as referred to in previous decisions of the Regional Court and of the Court of Appeal, showed that with regard to women the applicant thought he could execute his own “law” at his discretion. He still did not accept his own weaknesses and did not have a plan on how to avoid or deal with critical situations in the future. Referring to its previous decisions of 1999, 2001 and 2005, the Court of Appeal concluded that the circumstances had not changed to a decisive degree. The murder of his wife was not triggered by the environment, but by the applicant’s personality. Since the criminogenic structure of his personality remained unchanged, the fact that the applicant’s conduct was non-objectionable was only of minor prognostic relevance. 19. The Court of Appeal observed that it had been legitimate for the execution of sentence chamber to investigate on its own motion the incident with Ms J., since this was relevant for the prognosis. Therefore, the expert was allowed to base his prognostic assessment on the execution of sentence chamber’s findings in this respect. According to the Court of Appeal, which referred to its prior decisions, this did not constitute a violation of the presumption of innocence. Having regard to the persistent danger that the applicant committed further violent acts in situations which could be compared to the original offence, the Court of Appeal considered that it was not justifiable to take the risk of suspending the further execution of the life sentence. 20. On 19 October 2007, the applicant submitted a constitutional complaint. He raised in particular the issue of presumption of innocence and further alleged that his right to be heard had been violated since he had not received the prosecution’s observations. 21. On 6 February 2008, the Federal Constitutional Court declared the complaint inadmissible for non-exhaustion of prior remedies on the grounds that the applicant had failed to lodge a motion to be heard (Anhörungsrüge). 22. On 19 March 2008, the Kassel Regional Court dismissed the applicant’s motion to be heard on the grounds that the applicant and his counsel had been informed about the content of the public prosecutor’s statement and of the prison authority’s submissions during a hearing. Furthermore, the prison authority’s submissions had been served on the applicant’s counsel for comments on 12 July 2007. On 5 June 2008, the Frankfurt Court of Appeal, relying on the same grounds, rejected the applicant’s appeal. 23. On 18 July 2008, the Federal Constitutional Court refused to admit the applicant’s fresh complaint lodged on 12 May 2008 against the decisions given by the Frankfurt Court of Appeal on 9 October 2007 and by the Kassel Regional Court on 4 September 2007 for adjudication without giving any further reasons. This decision was served on the applicant on 29 July 2008. 24. On 21 January 2013 the Marburg District Court refused to order the applicant’s probationary release and, at the same time, instigated fresh proceedings on the review of the applicant’s continued detention. On 28 May 2013 the Frankfurt Court of Appeal confirmed. 25. Until July 2013, the applicant underwent therapy. He was granted prison leave to attend therapy lessons. As from March 2013 the applicant was additionally granted one or two prison leaves per week. Since 23 October 2013 the applicant is serving his sentence in a semi-custodial regime.