THIRD SECTION

DECISION

Application no. 25859/17 Holger SCHUETT against Germany

The European Court of Human Rights (Third Section), sitting on 30 November 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 25859/17) against Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 March 2017 by a German national, Mr Holger Schuett, who was born in 1957 and lives in Frankfurt/Main (“the applicant”);

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The applicant was repeatedly convicted of sexual offences to the detriment of children, committed on several occasions from the 1980s onwards. On 20 June 2007 the Hamburg Regional Court convicted him of sexual abuse of a child on two counts and sentenced him to a global sentence of five years and eight months’ imprisonment. The global sentence also comprised the sentences imposed for two counts of sexual abuse of children and one count aggravated sexual abuse of children, for all of which the applicant had been convicted on 25 April 2006; he was serving his prison sentence for that conviction at the time of the judgment of 20 June 2007. When the applicant was about to complete serving his prison sentence in full, the Hamburg Regional Court, in June 2011, ordered that the applicant’s conduct be supervised following his release from prison and obliged him to comply with certain directions for a period of five years.

2. On 19 August 2016 the Hamburg Court of Appeal ordered the indefinite supervision of the applicant’s conduct, with certain directions, including (i) the prohibition to frequent equestrian facilities or places that served horse-keeping or breeding, unless accompanied by another adult person, of whom he had to stay within five metres distance at all times; (ii) the prohibition to engage in activities relating to equestrian sport, horse ‑ keeping or breeding, or to possess horses; (iii) the prohibition to make contact with children under the age of 18; in particular he was prohibited to supervise, to employ or occupy, to host, to train or to otherwise associate with children; (iv) the obligation to report in person to his probation officer on a monthly basis as well as to comply with summons.

3. The Court of Appeal considered, in particular, that the applicant had committed sexual offences of a similar nature and pattern to the detriment of children over a very long period of time. A psychiatric expert, who had examined the applicant in 2005 in the framework of criminal proceedings, considered it likely that the applicant had a paedophilia and that there was a high risk that he would commit similar sexual offences in the future. These expert findings remained valid, and it was not necessary to order a new report, because the applicant refused to undergo the necessary therapy. Even though the applicant had complied with the respective directions in recent years and had re-integrated into professional life, there were no positive developments in his personality. It was known that sexual offenders tended to re-offend even after long periods of not offending. This was reflected in the applicant’s case: while there had been periods where he had not committed such offences over several years, he had eventually re-offended and his experience of having previously served a prison sentence had not prevented him from doing so. He lived his life in an isolated manner, without social control, and there were no indications that his age (59 years) reduced his inclination to commit sexual offences to the detriment of children.

4. The Court of Appeal considered that the impugned supervision of his conduct and the specific directions pursued the aim of preventing future offences of a similar nature. The directions concerning equestrian and similar facilities, related activities as well as horse-keeping continued to be necessary to prevent the applicant from relapsing to behavioural patterns which had marked his previous offences, notably using the horses to establish contact with underage girls interested in horses and abusing such contacts to commit further sexual offences to their detriment. The prohibition to make any contact with children continued to be necessary, the Court of Appeal found, in order to keep the applicant away from situations which could expose him to the temptation to initially establish amical relationships to children, which could lead to further sexual offences to the detriment of these children following the pattern of his previous offences. Having the probation officer accompany the applicant was required to ensure a certain control over the applicant’s development which was not otherwise ensured as well as for the applicant to have a contact person, in the event that he was to consider therapy in the future. The Court of Appeal concluded that the impugned directions did not disproportionality interfere with the applicant’s private life, including his possibility to interact with friends and acquaintances.

5. On 19 October 2016 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint against the Court of Appeal’s order for adjudication, without providing reasons (no. 2 BvR 1990/16).

6. The applicant complained about the Court of Appeal’s order of 19 August 2016. In his view, the indefinite supervision of his conduct, with the said directions, was aimed at making him confess to having committed the acts of which he had been convicted, which he continued to deny. The measure of indefinite duration was neither proportionate nor necessary, as there was no risk that he would offend: he had complied with all directions since 2011 and did not pose a danger; there was no sufficient basis for concluding the contrary and the Court of Appeal had relied on an outdated expert report. The impugned directions unduly restricted his liberty, his freedom of movement, his right to freedom of assembly and his right to respect for private life, including in the professional context: he worked as a self-employed IT system programmer, which included travel throughout the country and even abroad, and some of his customers employed underage apprentices. In respect of the aforementioned complaints, the applicant invoked Articles 2, 5 § 1, 8 and 11 of the Convention as well as Article 2 of Protocol No. 4. Lastly, the applicant alleged a breach of his right to a fair trial under Article 6 of the Convention due to errors in the application of domestic law and the disproportionality of the impugned measure.

THE COURT’S ASSESSMENT

7. The Court, as master of the characterisation to be given in law to the facts of the case (see Tlapak and Others v. Germany , nos. 11308/16 and 11344/16, § 64, 22 March 2018), finds it appropriate to examine the applicant’s complaints concerning the order of his indefinite supervision of his conduct, with the respective directions, under Article 8 of the Convention. It relies on its considerations in Harvey v. the United Kingdom ((dec.), no. 80237/13, §§ 61-62 and 67, 21 November 2017) to adjudicate that complaint.

8. The Court finds that the Court of Appeal’s order of 19 August 2016 constituted an interference with the applicant’s right to respect of his private life as guaranteed by Article 8 of the Convention. It was “in accordance with the law” (Article 68c § 3 no. 2 lit. a of the Criminal Code) and pursued legitimate aims foreseen in Article 8 § 2 of the Convention: the “prevention of crime” and the “protection of the rights and freedoms of others”.

9. Insofar as the applicant alleged that he did not pose a danger, it is not for the Court to examine the level of risk which the applicant posed and the Court cannot question the assessment of the domestic authorities unless there is clear evidence of arbitrariness (see Harvey , cited above, § 61). The Court cannot discern any indications of arbitrariness in the assessment of the Court of Appeal – which had reviewed and thoroughly addressed the applicant’s arguments – that there continued to be a high risk that the applicant would reoffend (see Harvey , cited above, § 62).

10. As regards the applicant’s complaint about the proportionality of the measure, the Court observes that the Court of Appeal had established that there was a pattern in the sexual offences previously committed by the applicant in that he had used horses to come into contact with his child victims. It considers that the Court of Appeal thoroughly and convincingly reasoned why the respective directions, which were specific and targeted at preventing recidivist behaviour on part of the applicant in view of the behavioural pattern he had employed when he had committed his previous offences, were necessary, given that it had established that there was a high risk that the applicant would commit further sexual offences to the detriment of children in the future. Moreover, the impugned directions entailed restrictions in respect of the applicant’s leisure time activities, but they did not constitute a ban to exercise his professional activities. Indeed, as established in the domestic proceedings, the applicant was a trained IT system programmer and continued to exercise this profession. Lastly, the indefinite supervision of the applicant’s conduct and the directions were, by law (Article 68e § 3 of the Criminal Code), subject to a periodic judicial review every two years, which constitutes an important safeguard (see Harvey , cited above, § 67).

11. In light of the foregoing, the Court concludes that the Court of Appeal struck a fair balance between the competing interests and that it provided relevant and sufficient reasons why the measure constituted a proportionate interference with the applicant’s right to respect for his private life as guaranteed by Article 8 of the Convention. The domestic authorities did not overstep their margin of appreciation. It follows that the applicant’s complaint is manifestly ill-founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

12. Having regard to the facts of the case and its findings under Article 8 of the Convention, the Court considers that it has examined the main legal questions raised in the present application, and that there is thus no need to give a separate ruling on the remaining complaints (see, mutatis mutandis , Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 January 2022.

Olga Chernishova Georgios A. Serghides Deputy Registrar President