Decision of Court (Fifth Section), February 10, 2015 (case MÜLLER v. GERMANY)

JudgeAHMED A.
Resolution DateFebruary 10, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

DECISION

Application no. 264/13Heinz Wilfried MÜLLERagainst Germany

The European Court of Human Rights (Fifth Section), sitting on 10 February 2015 as a Chamber composed of:

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              Vincent A. De Gaetano,              André Potocki,              Helena Jäderblom, judges,and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 20 December 2012,

Having deliberated, decides as follows:

THE FACTS

  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.

    1. The circumstances of the case

  2. The facts of the case, as submitted by the applicant, may be summarised as follows.

  3. The applicant’s convictions and the reserved order for his preventive detention

  4. 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.

  5. 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).

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. The proceedings at issue

    (a) The decision of the Deggendorf Regional Court

  11. 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.

  12. 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.

    (b) The decision of the Federal Court of Justice

  13. On 29 March 2011 the Federal Court of Justice dismissed the applicant’s appeal on points of law.

    (c) The decision of the Federal Constitutional Court

  14. 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.

  15. 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).

  16. 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.

  17. 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.

  18. The Federal Constitutional Court further found that Article 66a of the Criminal Code was not incompatible with the Constitution on other grounds.

  19. 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.

  20. 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.

  21. The...

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