THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows.

The applicant is a German citizen, born in 1928 and at present residing

at H., Germany.

Her application concerns the decisions of German courts to keep

detained her husband in a lunatic asylum. She complains that this

decision was wrong and that the consequences thereof also interfered

with her own rights and freedoms, since the absence of her husband has

made her life insupportable.

By judgment of .. December 1968, the Regional Court (Landgericht) at

K. decided that the applicant's husband should be detained in a lunatic

asylum. The court held that he suffered from paranoia which caused a

form of pathological jealousy, for which he could not be held

responsible. The court thus acquitted him of the criminal charges which

were laid against him. It appears that the Public Prosecutor had

accused the applicant's husband of having ill-treated the applicant by

means of pushing a cudgel several times into her vagina. It appears

that the applicant's husband suspected the applicant of having had

intimate relations with other men. In the course of the criminal

proceedings the applicant's husband was medically examined as to his

criminal responsibility and thereupon an expert was heard at the trial.

On the basis of the expert's opinion the court found that the

applicant's husband was irresponsible for his offenses within the

meaning of Article 51 (1) of the German Penal Code (Strafgesetzbuch).

The applicant's husband appealed against this judgment to the Federal

Court (Bundesgerichtshof). He stated that even assuming that he had in

fact ill-treated the applicant this would not suffice to order his

detention in a lunatic asylum, since this offence did not constitute

a threat to the public safety as required in Article 42 (b) of the

Penal Code. He further stated that he had never been aggressive to

third persons and that consequently his detention was not justified.

It appears that the District Court (Amtsgericht) at H. thereafter

placed the applicant's children under the guardianship of the Youth

Welfare Office (Kreisjugendamt) of F. On the applicant's husband's

appeal the Regional Court of K. quashed this decision on the ground

that the District Court had failed to hear the applicant in person and

to enquire into her personal capacity to act as a guardian of her

children. It appears, however, that the District Court, after having

heard the applicant, again decided to appoint the above Youth Welfare

Officer to act as a guardian of these children since it found that the

unstable family situation was prejudicial to the well-being and

education of the children. No more details are available as to the

further development of these proceedings.

The applicant now complains:

- that the detention of her husband in a lunatic asylum was

  unjustified;

- that she suffered important financial and moral loss from the absence

of her husband;

- and that she was deprived of her children in an unlawful manner and

  that this measure also was to the great disadvantage of her children.

The applicant alleges violations of the Convention.

THE LAW

Whereas, in regard to the applicant's complaint that her husband's

detention in a lunatic asylum was unjustified and that the German

courts gave incorrect decisions in this respect, the Commission

considered whether the applicant had made this complaint on behalf of

her husband or of herself; whereas according to Article 25 (1)

(Art. 25-1) of the Convention "the Commission may receive petitions

addressed to the Secretary General of the Council of Europe from any

person ... claiming to be a victim of a violation by one of the High

Contracting Parties of the rights set forth in this Convention ...";

Whereas, the Commission on several occasions has established that the

term "victim" means not only the direct victim or victims of the

alleged violation but also any person who would indirectly suffer

prejudice as a result of such violation or who would have a valid

personal interest in securing the cessation of such violation (see e.g.

the decisions on the admissibility of Applications Nos. 282/57

(Yearbook, Vol. I, p. 166) and 1478/62 (Yearbook, Vol. VI, p. 590));

Whereas the applicant, who is the wife of the person who is detained

in the lunatic asylum, can reasonably claim that she is, in the present

circumstances, indirectly a victim, of the violations she complains of;

Whereas, however, under Article 26 (Art. 26) of the Convention, the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law; and whereas the applicant's husband failed to lodge

a constitutional appeal against the decision of the German Federal

Court of .. May 1969; whereas, therefore, the remedies available to him

under German law were not exhausted as regards this complaint; whereas,

moreover, an examination of the case as it has been submitted,

including an examination made ex officio, does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of international

law, from exhausting the domestic remedies at his disposal;

Whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3) of the

Convention has not been complied with by the applicant;

Whereas, further, the applicant complains that she suffered both

morally and financially as a result of the absence of her husband;

Whereas the Commission examined these complaints respectively under

Art. 8 (1) (Art. 8-1) of the Convention and under Article 1 of the

First Protocol (P1-1) of the Convention; whereas it is true that under

Article 8 (1) (Art. 8-1) of the Convention "everyone has the right to

respect for his private and family life, his home and his

correspondence"; and whereas Article 1 of the above Protocol (P1-1)

provides that "every natural or legal person is entitled to the

peaceful enjoyment of his possessions";

Whereas, however, the Commission observes that it is an inherent

feature of a lawful detention that the person detained should be

restricted in his personal liberty including, as in the present case,

separation from his family and his household; whereas the Commission

finds that the above consequences of the detention of her husband do

not therefore disclose any appearance of a breach of the

above-mentioned Articles;

Whereas, further, as regards the applicant's complaints on the

disruption of her family life as a result of her husband's detention

and, in particular, that the custody of her children was removed from

her, the Commission again had regard to the above Article 8 (Art. 8)

of the Convention;

Whereas, however, (2) of this Article (Art. 8-2) provides that "there

shall be no interference by a public authority with the exercise of

this right except such as is in accordance with the law and is

necessary in a democratic society ... for the prevention of disorder

or crime, for the protection of health or morals"; whereas the

Commission has noted that the German courts decided to put the children

under the guardianship of the local Youth Welfare Officer on the ground

that the family situation was so unstable as to be prejudicial to the

upbringing of the children;

Whereas the Commission has noted that the applicant has not shown that

this ground of the Court decisions was in any way unfounded; Whereas

the Commission finds that, in the circumstances, the interference with

the applicant's family life was lawfully taken and necessary for the

protection of their health and their morals;

Whereas, therefore, an examination of these complaints does not

disclose any appearance of a violation of the rights and freedoms set

forth in Article 1 of the Protocol (P1-1) of the Convention;

Whereas it follows that these parts of the application must be rejected

in accordance with Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE