THE FACTS

The applicant is a German citizen. After having been convicted of theft

as a recidivist and having served a term of 7 years severe imprisonment

(Zuchthaus), he has been since 29th October, 1965, detained in

preventive detention (Sicherungsverwahrung) in the prison at Werl.

According to German law, the detention is ordered for an unlimited

period, but must be reviewed ex officio by the court every three years;

it can also be reviewed in the meantime, if there is a particular

reason (Articles 42 (e) and 42 (m) of the Penal Code).

The applicant is represented by Mr. S., a lawyer practising at Unna.

He has lodged a previous application (No. 3200/67) which was directed

exclusively against the fact that he was refused adequate remuneration

for the work which he had to perform during his detention and that no

contributions under the social system were made for him in this respect

by the authorities of the preventive detention institution. This

application was declared inadmissible by the Commission's decision of

6th April, 1968. On .. June, 1966, the applicant requested, through his

lawyer, the prison director at Werl permission for his wife to visit

him on every weekend from Saturday 2 p.m. until Monday 9 a.m., and to

stay with him in his cell in order to keep up their conjugal life

during these weekends.

On .. July, 1966, the prison director dismissed this request because

such a privilege was not provided by the Service Rules on the Execution

of Sentences (Dienst- und Vollzugsordnung). This decision was confirmed

on appeal by the Attorney-General (Generalstaatsanwalt) at Hamm, on ..

July, 1966, who stated that the limitation of the conjugal life was a

consequence of the preventive detention ordered by the Court. Conjugal

community in an institution for preventive detention would interfere

with the order of the institution.

The applicant requested a judicial decision by the Court of Appeal

(Oberlandesgericht) at Hamm on .. August, 1966.

By decision of .. October, 1966, the Court of Appeal rejected this

request as being unfounded and pointed out that according to Rule 244,

paragraph (2), of the Service Rules on the Execution of Sentences, the

general provisions concerning persons serving a sentence were

applicable mutatis mutandis to persons in preventive detention insofar

as they are compatible with the character and purpose of preventive

detention. In both cases, it was necessary to keep the detainees in

institutions which are isolated from the outer world. Therefore the

authorities must have the same means to uphold order and discipline in

both cases. Thus persons who are detained in preventive detention are

also obliged to work without receiving the same payment as a free

worker. Every kind of detention implied a separation of the detained

person from his wife and children. As this separation was a necessary

consequence of any detention, the Prison Rules provided for no

permission to have conjugal intercourse. The right of the wife to

conjugal community with her detained husband was necessarily limited

by the inherent consequences of the existing rules of law. The

permission of conjugal community in a preventive detention institution

would interfere with the maintenance of order and security in the

institution and at the same time reduce the deterrent effect of

preventive detention.

On .. December, 1966, the applicant lodged through his lawyer a

constitutional appeal (Verfassungsbeschwerde) with the Federal

Constitutional Court (Bundesverfassungsgericht). The lawyer alleged in

particular that preventive detention was not a kind of punishment. The

only reason for preventive detention was to protect the community

against the danger of further offenses committed by the detained

person.

Even if the Prison Rules did not provide expressly for a permission of

conjugal life, at least over a weekend, in a preventive detention

institution, they did not forbid it either. He states that also his

wife is very much affected by the complete disruption of their marital

life and that she is, in fact, considering a divorce. It would only be

for the benefit of social rehabilitation if he could be given the

possibility to maintain his conjugal life, rather than to see his

marriage broken up. In fact, it could not be seen how the order and

security in the preventive detention institution could be disturbed or

endangered by an elderly weak woman, like the applicant's wife.

By letter of .. January, 1967, the applicant's lawyer was informed by

the judge rapporteur that the constitutional appeal appeared to be

unfounded because the protection of marriage and family guaranteed by

Article 6, paragraph (1), of the Basic Law did not call for permission

for persons detained in preventive detention to have conjugal

intercourse. The Federal Constitutional Court communicated the case to

the Ministers of Justice of the Länder and was informed that at the

time 791 men and 4 women were kept in preventive detention, of whom 109

men and 6 women were married, but that in no case had they been given

a possibility to have intercourse with their spouse. On 19th October,

1967, a Committee of three judges of the 1st Senate of the Federal

Constitutional Court rejected the Constitutional Appeal as manifestly

ill-founded.

The applicant's lawyer refers to his arguments in the proceedings

before the German Courts and alleges a violation of Article 8 of the

Convention.

THE LAW

Whereas the applicant complains as to the refusal by the German Courts

to permit him to receive visits from his wife in order to maintain

their conjugal life; whereas he alleges that the courts thus interfered

with his right to family life as guaranteed under Article 8 (Art. 8)

of the Convention; whereas the Commission considered this important

issue in the light of a comparative survey of the relevant domestic

legislation and practice of the High Contracting Parties to the

Convention;

Whereas Article 8 (Art. 8) of the Convention indeed includes for

everyone the right to respect for his private and family life, his home

and his correspondence; whereas, however, paragraph (2) of the said

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 in the

interest of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the rights and

freedoms of others"; whereas the Commission noted with sympathy the

reformative movement in several European countries as regards an

improvement of the conditions of imprisonment and the possibilities of

detained persons to continue their conjugal life to a limited extent;

whereas, however, it considered that in view of the present general

practice in the States members to the Convention, it would not be

possible to regard the system of the Federal Republic of Germany

concerning conjugal visits to persons detained in prison as being

contrary to the provisions of paragraph (2) (Art. 8-2) allowing

interference by the authorities in a person's right to family life on

the ground that it is necessary in the interests of public safety;

whereas it follows that this application is manifestly ill-founded;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE