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 La╠łnder 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