FIFTH SECTION

DECISION

Application no . 264/13 Heinz Wilfried MÃœLLER against 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. D e 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 .

A. The circumstances of the case

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

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

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.

2. The proceedings at issue

(a) The decision of the Deggendorf Regional Court

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.

(b) The decision of the Federal Court of Justice

11. 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

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 s trict review of proportionality. P roportionality 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.

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.

3. Subsequent developments

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).

B. Relevant domestic law and practice

1. The reserved order of preventive detention

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.”

2. Recent case-law of the Federal Constitutional Court

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 C ode 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.

COMPLAINTS

THE LAW

A. Alleged violation of Article 5 § 1 of the Convention

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...”

1. The applicant ’ s submissions

39. In the applicant ’ s submission, his preventive detention as ordered in and executed as a result of the proceedings at issue was incompatible with Article 5 § 1. It did not comply with sub-paragraph (a) of Article 5 § 1.

41. Moreover, the Federal Constitutional Court had explained that the persons concerned by a reserved preventive detention order could avert an order for their preventive detention by reducing their dangerousness while serving their term of imprisonment (compare paragraph 17 in fine above). Consequently, the necessary causal link between his conviction and his detention was missing or broken.

2. The Court ’ s assessment

(a) Victim status and exhaustion of domestic remedies

42 . As regards the applicant ’ s status as a victim of a breach of his Convention rights (Article 34 of the Convention), the Court observes that the Federal Constitutional Court, in its decision of 20 June 2012, quashed the decision of the Federal Court of Justice of 29 March 2011, but not that of the Regional Court of 18 November 2010 ordering his preventive detention. Furthermore, that order for the applicant ’ s preventive detention has also not been quashed in the subsequent resumed proceedings before the Federal Court of Justice and the Federal Constitutional Court (see paragraphs 23 and 25 above). The applicant can therefore still claim to be the victim of an alleged violation of Article 5 § 1 of the Convention.

43 . The Court shall further determine whether the applicant has exhausted domestic remedies, as required by A rticle 35 § 1 of the Convention. It notes that in the impugned proceedings, the Federal Constitutional Court, in its decision of 20 June 2012, quashed the decision of the Federal Court of Justice dated 29 March 2011 and remitted the case to that court. However, the Federal Constitutional Court confirmed that reserved preventive detention as such was compatible with the constitutional right to liberty and with Article 5 § 1 of the Convention. The court ’ s decision was final and binding on the lower courts in this respect. It remitted the case to the Federal Court of Justice only in order to examine a different issue, namely the compliance of the criminal court ’ s decision with the standards set up by the Federal Constitutional Court in its leading judgment of 4 May 2011. In these circumstances, the Court considers that the issue the applicant complained of before the Court, that is, the compliance with Article 5 § 1 of the Convention of the order for his preventive detention following a reserved preventive detention order , has been determined by the domestic courts in a binding and final manner already in the proceedings at issue. It considers that the applicant therefore exhausted domestic remedies.

(b) The well- foundedness of the applicant ’ s complaint

( i ) Recapitulation of the relevant principles

44 . The Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f) contain a n exhaustive list of permissible grounds for deprivation of liberty , and no deprivation of liberty will be lawful unless it falls within one of th os e grounds (see, inter alia , Guzzardi v. Italy , 6 November 1980, § 96 , Series A no. 39 ; Witold Litwa v. Poland , no. 26629/95, § 49, ECHR 2000 ‑ III ; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43 , ECHR 2008 ‑ ...).

45 . For the purposes of sub-paragraph (a) of Article 5 § 1, the word “conviction”, having regard to the French text (“ condamnation ”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi , cited above , § 100) , and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium , 24 June 1982, § 35 , Series A no. 50 ; and M. v. Germany , no. 19359/04 , § 87 , 17 December 2009 ).

46 . Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the “ detention ” must follow the “conviction” in point of time: in addition, the “detention” must result from, follow and depend upon or occur by virtue of the “conviction” (see Van Droogenbroeck , cited above, § 35) . In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom , 2 March 1987, § 42 , Series A no. 114 ; Stafford v. the United Kingdom [GC], no. 46295/99, § 64 , ECHR 2002 ‑ IV ; Waite v. the United Kingdom , no. 53236/99, § 65 , 10 December 2002 ; Kafkaris v. Cyprus [GC], no. 21906/04, § 117 , ECHR 2008 ‑ ...; M. v. Germany , cited above, § 88; and Haidn v. Germany , no. 6587/04 , § 75 , 13 January 2011 ).

47. However, with the passage of time, the link between the initial conviction and a further deprivation of liberty gradually becomes less strong (compare Van Droogenbroeck , cited above, § 40; and Eriksen v. Norway , 27 May 1997, § 78 , Reports of Judgments and Decisions 1997 ‑ III ). The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court ) or on an assessment that was unreasonable in terms of those objectives . In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (compare Van Droogenbroeck , cited above, § 40; Eriksen , cited above , § 78; Weeks , cited above , § 49; and M. v. Germany , cited above, § 88) .

48 . Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo v. the Netherlands , 2 September 1998, § 52, Reports 1998 ‑ VI; Baranowski v. Poland , no. 28358/95, § 50, ECHR 2000 ‑ III; and Saadi , cited above, § 67) . I n order to comply with the rule of law , d omestic law authorising deprivation of liberty must further be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France , 25 June 1996, § 50, Reports 1996 ‑ III; Nasrulloyev v. Russia , no. 656/06, § 71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03 , § 76, 9 July 2009).

(ii) Application of these principles to the present case

( α ) Grounds for deprivation of liberty

49 . The Court is called upon to determine whether the applicant ’ s preventive detention at issue was justified under any of the sub ‑ paragraphs (a) to (f) of Article 5 § 1 . It notes that the Federal Constitutional Court considered that the preventive detention of the applicant complied with Article 5 § 1 (a) as there was a sufficient causal connection between the conviction by the sentencing court and the applicant ’ s detention flowing from the later order for his preventive detention. This view was contested by the applicant.

50 . In determining whether the applicant ’ s preventive detention is t o be classi fied as detention “after conviction” for the purposes of sub ‑ paragraph (a) of Article 5 § 1, the Court refers to its well-established case-law according to which “conviction” for the purposes of that provision signifies a finding of guilt in respect of an offence and the imposition of a penalty or other measure involving deprivation of liberty (see paragraph 45 above). As has been clarified in a number of cases concerning preventive detention , it is only the judgment of a sentencing court finding a person guilty of an offence which meets the requirements of a “conviction” for the purposes of the said provision. By contrast, the decision of a court responsible for the execution of sentences to retain the person concerned in detention does not satisfy the requirement of a “conviction” for the purposes of Article 5 § 1 (a) as it no longer involves a finding that the person is guilty of a (new) offence (see, in particular, M. v . Germany , cited above, §§ 95-96; and Haidn , cited above , § 84; and B v. Germany , no. 61272/09 , § 72, 19 April 2012 ) . The same holds true for a judgment ordering a person ’ s preventive detention retrospectively in relation to a previous offence that person had already been sentenced for (see B v. Germany , cited above, § 72) .

51 . Thus, in the present case, it is only the judgment of the sentencing Deggendorf Regional Court of 22 February 2008, in which the applicant was convicted , in particular, of serious sexual abuse of children and attempted rape and in which his preventive detention was reserved , which can be classified as a “ conviction ” for the pu rposes of Article 5 § 1 (a). In contrast, the judgment of the Deggendorf Regional Court of 18 November 2010 in the proceedings at issue, in which the applicant ’ s preventive detention was ordered having regard to the said same offences, did not involve a finding of guilt in respect of a (new) offence and cannot, therefore, be qualified as a “conviction” within the meaning of sub ‑ paragraph (a) of Article 5 § 1.

52 . The applicant ’ s detention at issue occurred “after” his conviction by the Deggendorf Regional Court o n 22 February 2008 , for the purposes of sub-paragraph (a) of Article 5 § 1, if there was a sufficient causal connection between that conviction and the applicant ’ s preventive detention.

53. The Court recalls that in its judgment in the case of M. v. Germany (cited above, §§ 92 ss.) it found that a person ’ s preventive detention resulting from a sentencing court ’ s preventive detention order constituted detention “after conviction” for the purposes of Article 5 § 1 (a) unless that detention was prolonged retrospectively beyond the maximum period permitted by the sentencing court ’ s judgment read in conjunction with the law applicable at the relevant time. The Court notes that in the present case – other than in the case of M. v. Germany (cited above, § 95) – the order for the applicant ’ s preventive detention was not yet made in the sentencing court ’ s judgment convicting him itself, but in the subsequent separate judgment of the Deggendorf Regional Court dated 18 November 2010.

54 . The Court further recalls that in several cases concerning orders for a person ’ s retrospective preventive detention (see B v. Germany , cited above, § 75; and S. v. Germany , no. 3300/10 , § 86 , 28 June 2012 ) or a person ’ s placement in detention for preventive purposes (see Haidn , cited above , § 86 ), in which the sentencing court ’ s judgments did not contain an order of preventive detention or provide for a possibility that the person would be placed in preventive detention retrospectively, it found that there was not a sufficient causal connection between the person ’ s conviction and detention as required by Article 5 § 1 (a). However, the present case also differs from these cases in that the order for the applicant ’ s preventive detention was already reserved under Article 66a § 1 of the Criminal Code in the judgment convicting him of several sexual offences .

55 . The Court considers that it follows from its above-mentioned case ‑ law and is indeed its common basis that there i s a sufficient causal connection between a person ’ s conviction by the sentencing court and that person ’ s preventive detention for the purposes of Article 5 § 1 (a) if, and as long as that detention occur s within the framework established by the judgment of the sentencing court, read in the light of the law applicable at the relevant time ( see, in particular, M. v. Germany , cited above , §§ 92 ss., in particular § 99).

56 . The Court notes that in the present case, the judgment of the sentencing Deggendorf Regional Court specified that the order for the applicant ’ s preventive detention was reserved under Article 66a of the Criminal Code. In these circumstances, it was clear for the applicant already at the time of his conviction that his preventive detention would be ordered by the Regional Court in a separate judgment under the conditions laid down in Article 66a § 2 of the Criminal Code, read in conjunction with Article 66 § 3 of the Criminal Code.

57. Having regard to those provisions, the applicant was thus aware that his conviction would entail a preventive detention order if a comprehensive assessment of his person, his act s and his development while serving his prison term reveal ed that it wa s likely that he w ould commit serious offences which seriously harm their victims mentally or physically. If these requirements were met, the preventive detention order would be made against him while he served his prison sentence – which allowed for a broader basis for the prognosis on his dangerousness – and no later than six months before the date on which the suspension of the remainder of his sentence on probation wa s possible .

58 . The Court takes note in this context of the fact that under Article 66a § 2 of the Criminal Code, the Regional Court thus was to take into account, inter alia , the development of the convicted person while serving his prison term in determining whether it should order preventive detention. However, it considers that, having regard to the legal framework for ordering preventive detention following a reserved preventive detention order as a whole, such an order did not amount to imposing an additional penalty on the convicted person owing to his conduct in the course of the execution of his sentence in view of the said element of the convicted person ’ s development while serving his sentence . It notes that the latter element was only one of several elements, examined in addition to a comprehensive assessment of the convicted person and of his acts, for the prognosis as to the convicted person ’ s dangerousness and as such, therefore, not constitutive for an additional penalty.

59 . The Court further cannot but note that in cases in which an unconditional – instead of a reserved – preventive detention order was made by the sentencing court , the courts dealing with the execution of sentences , in determining whether the execution of that order is still necessary in view of its objective, equally have regard, inter alia , to the convicted person ’ s conduct in prison in order to make a prognosis as to the person ’ s dangerousness (compare for the domestic courts ’ approach in this respect , for instance, Ostermünchner v. Germany , no. 36035/04 , §§ 17-18 and 72 ‑ 82, 2 2 March 2012; and Rangelov v. Germany , no. 5123/07 , §§ 18-19, 22 and 90-99, 22 March 2012 ). In view of these elements, the Court finds that the requirements for the actual execution of preventive detention against a convicted offender in fact are very similar in cases in which the sentencing courts made unconditional preventive detention orders and in cases in which these courts made reserved preventive detention orders. In both cases, the convicted offender is aware as a result of the sentencing court ’ s ruling that he may be remanded in preventive detention after having served his prison sentence. The question whether preventive detention will subsequently be executed will notably depend on whether there was a risk that he would reoffend and thus his dangerousness at the time of the decision of the court deciding on the execution of preventive detention.

62 . In view of these elements, the Court finds that there was a sufficient causal connection between the applicant ’ s conviction and his preventive detention at issue. His detention therefore occurred “after conviction” for the purposes of sub-paragraph (a) of Article 5 § 1.

(ß) “Lawful” detention “in accordance with a procedure prescribed by law”

64 . The Court finds that during the period at issue before the Court, prior to the expiry of the transitional period, the applicant ’ s detention must therefore be considered to have complied with national law, as the said provisions, read in conjunction with the Federal Constitutional Court ’ s order, remained valid and applicable during that period (compare already Haidn , cited above , § 96) .

( γ ) Conclusion

66 . It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 6 §§ 1 and 2 of the Convention

67 . The applicant further complained under Article 6 § 1 of the Convention that his right to have his case determined by the tribunal established by law had been breached in that the Deggendorf Regional Court had not sat in its standard composition of three professional and two lay judges . Despite the complexity of his case, involving comprehensive expert advice on the question of his preventive detention, the court had decided his case in a composition of two professional and two lay judges only.

68. Moreover, the applicant claimed that the Federal Constitutional Court had violated the presumption of innocence under Article 6 § 2 of the Convention in that it had stated that persons concerned by a reserved preventive detention order could reduce or eliminate their dangerousness while serving their term of imprisonment (see paragraph 17 in fine above). It had thereby considered those persons as dangerous despite the fact that the sentencing court had been unable to determine with certainty that the persons concerned were dangerous.

69 . The Court has examined the remainder of the applicant ’ s complaints as submitted by him . However, having regard to all material in its possession, the Court finds that , even assuming their compatibility ratione materiae with the provisions of the Convention in all respects, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in t he Convention or its Protocols.

70. It follows that the remainder of the application must equally be rejected as manifestly ill- founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 5 March 2015 .

Claudia Westerdiek Mark Villiger Registrar President