Applicant name X. and Y.
Applicant type Prisoner
Country Switzerland
Decision no.8166/78
Institution Commission
Type Decision
Outcome Art. 8 Inadmissible
Reason Manifestly ill-founded (prevention of disorder)
Type of privacy Bodily privacy
Keywords Sex in prison
Facts of the case Couple has been detained for two months and are not allowed to have sex, except when on leave.
Analysis The case is interesting for a number of reasons:

1. It seems as though not being able to have sex in a detention facility for two months would not per sé be an interference with the couple’s right to private and family life; the Commission however, disagrees.
2. Although the Commission denies that this situation resulted in a matter that falls under Article 3 ECHR, it does treat it as a matter concerning the right to privacy.
3. As to the margin of appreciation left to states, the Commission notes with appreciation that there are legislative reforms in a number of European countries to allow for sex between prisoners and between a couple where one is imprissoned and the other is not. However, it also points out that most countries still set limits on conjugal visits.
4. The limits are deemed necessary in order to maintain order in the prison facilities.
5. There is a remarkable discussion on the relation between Article 8 ECHR and Article 12 ECHR. Throughout the jurisprudence of the Commission and the Court, there is an interesting discussion of whether these are two independent rights, whether they cover different sides of the same coin or whether Article 12 ECHR is a sub-right of Article 8 ECHR. In addition, there is unclarity on the limitation clause in Article 12 ECHR, which stresses that everyone has the right to marry and found a family “according to the national laws governing the exercise of this right.” Sometimes, this clause is interpreted as more narrow than those contained in Articles 8-11 ECHR, as it only allows for rules on the ‘exercise’ of this right, not on the substance of it. Othertimes, this clause is deemed wider, as it does not include a necessity and proportionality test. In this decision, the Commission seems to interpret ARticle 12 ECHR as a sub-right of Article 8 ECHR, as it finds that if a limitation is legitimate under Article 8 ECHR, it must necessarily also be so in light of Article 12 ECHR. This also means that the limiation clause in the latter provision is in any case not stricter than the one contained in Article 8 ECHR.
5. The difference between prisoners and detainees in terms of the rules on conjugal visits is not deemed in violation with Article 14 ECHR,

Documents Decision