WEMHOFF v. GERMANY - 2122/64 [1968] ECHR 2 (27 June 1968)

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In the "Wemhoff" case,

The European Court of Human Rights, constituted in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as "the
Convention") and with Rules 21 and 22 of the Rules of Court in a
Chamber composed of the following Judges:

Mr. H. ROLIN, President, and
MM. E. RODENBOURG,
T. WOLD,
H. MOSLER,
M. ZEKIA,
A. FAVRE,
S. BILGE, and also
Mr. H. GOLSONG, Registrar, and
Mr. EISSEN, Deputy Registrar,

Decides as follows:

PROCEDURE

1. By a request dated 7 October 1966 the European Commission of Human
Rights (hereinafter called "The Commission") referred to the Court the
"Wemhoff" case (Rule 31 (2) of the Rules of Court). The origin of the
case lies in an Application lodged with the Commission by
Karl-Heinz Wemhoff, a German national, against the Federal Republic of
Germany (Article 25 of the Convention) (art. 25).

The Commission's request, to which was attached the Report provided
for in Article 31 (art. 31) of the Convention, was lodged with the
Registry of the Court within the period of three months laid down in
Articles 32 (1) and 47 (art. 32-1, art. 47). The Commission referred
firstly to Articles 44 and 48 (a) (art. 44, art. 48-a) and secondly to
the declaration by the Government of the Federal Republic of Germany
(hereinafter called "the Government") recognising the compulsory
jurisdiction of the Court by virtue of Article 46 (art. 46)
of the Convention.

2. On 7 November 1966 Mr. René Cassin, President of the Court, drew
by lot, in the presence of the Deputy Registrar, the names of six of
the seven Judges called upon to sit as members of the Chamber
mentioned above, Mr. Hermann Mosler, the elected Judge of German
nationality, being an ex officio member under Article 43 (art. 43)
of the Convention; the President also drew by lot the names of three
Substitute Judges. One of the Judges who was designated as a member
of the Chamber was later prevented from taking part in the sittings;
he was replaced by the First Substitute Judge.

3. On 22 November 1966 the President of the Chamber ascertained the
views of the Agent of the Government and the Delegates of the
Commission on the procedure to be followed. By an Order of the same
day he decided that the Commission could present its first memorial
not later than 20 December 1966 and that the Government should have
until 15 April 1967 for its memorial in reply. At the Government's
request the latter term was extented until 15 May 1967 (Order of
6 April 1967).

The Commission's first memorial and that of the Government were
received by the Registry within the time-limits allowed.

4. In his Order of 6 April 1967 the President of the Chamber had
given the Commission until 1 September 1967 to file a second memorial.
This was received by the Registry on 3 August 1967.

5. As authorised by the President of the Chamber in an Order of
8 September 1967, the Government filed a second and final memorial on
17 November 1967.

6. Giving effect to a request of the Government, the Chamber
authorised the Agent, counsel and advisers of the former, on
24 November 1967, to use the German language in the oral proceedings,
it being the responsibility of the Government to ensure the
interpretation into French or English of their oral arguments or
statements (Rule 27 (2) of the Rules of Court).

7. On 6 and 10 January 1968 the President of the Chamber instructed
the Registrar to invite the Commission to produce certain documents,
which were placed on the file on 8 and 11 January 1968.

8. In accordance with an Order made by the President of the Chamber
on 21 November 1967, a public hearing was held at the Human Rights
Building, Strasbourg, on 9 and 10 January 1968.

There appeared before the Court:

- for the Commission:

Mr. M. Sørensen, Principal Delegate, and
MM. C.T. Eustathiades, F. Ermacora and J.E.S. Fawcett, Delegates;

- for the Government:

Mr. W. Bertram, Ministerialrat in the Federal Ministry of Justice,
Agent, assisted by:
Mr. W. Krüger, Regierungsdirektor in the Federal Ministry of Justice,
Mr. D. Schultz, Senatsrat in the Berlin Ministry of Justice, and
Mr. H. Gross, Senior Public Prosecutor, Public Prosecutor's Office,
Berlin, Counsel.

The Court heard statements and submissions:

- for the Commission: by Mr. M. Sørensen;

- for the Government: by MM. W. Bertram, H. Gross and D. Schultz.

On 9 January 1968 the Court put to the Agent for the Government and
the representatives of the Commission certain questions, to which they
replied on 10 January.

On the same day the President of the Chamber declared the hearings
closed.

9. On 1 February and 25 April 1968 the President of the Chamber
instructed the Registrar to obtain from the Commission certain
additional information and documents, which the Commission supplied in
February and at the end of April.

10. After deliberating in private the Court gave the present
judgment.

AS TO THE FACTS

1. The object of the Commission's request is to submit the case of
Karl-Heinz Wemhoff to the Court so that the Court may decide whether
or not the facts reveal any violation by the Federal Republic of
Germany of its obligations under Articles 5 (3) and 6 (1)
(art. 5-3, art. 6-1) of the Convention.

2. The facts of the case, as they appear from the Commission's
Report, the memorials, documents and evidence submitted to the Court
and the oral statements made by the Commission and the Government, are
essentially as follows:
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3. K. H. Wemhoff, a German national born at Berlin in 1927, is
habitually resident there. At the time of his arrest he was a broker
by profession.

4. Being under suspicion of being involved in offences of breach of
trust, the Applicant was arrested on 9 November 1961. A warrant of
arrest (Haftbefehl) issued the next day by the District Court
(Amtsgericht) of Berlin-Tiergarten ordered his detention on remand.

The warrant stated that Wemhoff was under grave suspicion of having
incited breach of trust (Anstiftung zur Untreue) contrary to
Sections 266 and 48 of the German Criminal Code: as a customer of the
August-Thyssen Bank in Berlin he was said to have incited certain of
the Bank's officials to misappropriate very large sums of money. It
was also stated in the warrant that it was to be feared that, if left
at liberty, the Applicant would abscond and attempt to suppress
evidence (Section 112 of the German Code of Criminal Procedure), for:

- he was likely to receive a considerable sentence;

- persons implicated in the offences but not yet known to the
authorities might receive warning; and

- there was a danger that the Applicant would destroy those business
documents that it had not yet been possible to seize.

During the investigation the warrant was superseded successively by
two detention orders dated 28 December 1961 and 8 January 1962, both
issued by the District Court. These stated that Wemhoff was under
grave suspicion of continuing acts of fraud (fortgesetzter Betrug)
contrary to Section 263 of the Criminal Code, of prolonged abetment to
fraud (fortgesetzte Beihilfe zum Betrug) contrary to Sections 263 and
49 of the Code and of prolonged abetment to breach of trust
(fortgesetzte Beihilfe zur Untreue) contrary to Sections 266
and 49 of the Code.

5. In the course of 1961 and 1962 the Applicant asked at several
times to be released but all his requests were rejected by the Berlin
courts which referred to the reasons given in the warrants of arrest
mentioned above. In particular, in May 1962, he made an unspecified
offer of bail, which was rejected by the Court of Appeal
(Kammergericht) on 25 June 1962, on the grounds of a danger of
suppression of evidence (Verdunkelungsgefahr) and moreover because
bail could not dispel or diminish the danger of flight in the present
case. On 8 August 1962, he offered bail of 200,000 DM, but he
withdrew the offer two days later.

6. On the occasion of an ex-officio examination of the lawfulness of
the detention by the District Court, Wemhoff's lawyer asked on
20 March 1963 for conditional release of the Applicant, offering in
particular the deposit of identity papers. On the same day, however,
the court ordered the further detention of the Applicant on the
grounds given in the warrant of arrest.

The Applicant contested this decision on 16 April 1963, when he
invoked the provisions of the Convention for the first time. Asking
for release on any condition which might be thought to be necessary,
he held in particular that there was neither a danger of suppression
of evidence nor a danger of flight, for he had done all he could do to
clear up the transactions involved. He added that all his roots were
in West Berlin where he lived with his wife and child and where his
family had for one hundred and twenty years owned a jeweller's shop,
and which his father intended to convey to him very soon. He further
stressed that he had brought civil actions against his debtors and
therefore had to appear as plaintiff before several District Courts at
least five times a week. On the other hand, he pointed out that it
was not possible for him to flee from West Berlin: by reason of his
numerous previous journeys he was so well known at the Berlin airport
that he could not take an aeroplane there; having been detained for
several years in the Soviet Occupied Zone he could enter neither this
territory nor East Berlin. Finally the fact that he stayed at Berlin
after the discovery of his transactions by the Thyssen Bank on
27 October 1961 showed clearly that he never had any intention of
fleeing.

This appeal was rejected by the Regional Court (Landgericht) of Berlin
on 3 May 1963, on the following grounds:

- the Applicant was under suspicion of having committed the alleged
offences;

- the facts had not been fully investigated and were particularly
involved;

- he appeared to have played a particularly significant part in all
the transactions under consideration so that he was likely to receive
a particularly severe sentence and might therefore be suspected of
intending to flee;

- he had important connections abroad and it was impossible, at the
present stage of the preliminary investigation, to deny the
possibility that he had assets there;

- the threat of his financial collapse increased the danger of flight
which was not diminished by the existence of his family links in
Berlin;

- while it was doubtful whether the danger of suppression of evidence
was sufficient to justify continued detention, certain reasons still
suggested that there was still such danger.

In a second appeal (weitere Beschwerde) of 16 May 1963, the Applicant
specified that he had been sentenced in 1953 by a tribunal in East
Germany to ten years penal servitude and had been released in
November 1957. Adding that he had declared his opposition to
communism on many occasions, the Applicant declared that it was also
impossible for him to flee by passing through the Soviet Occupied Zone
by train or by road.

From the judgment of the Regional Court of 7 April 1965 (paragraph 12,
infra), it appears that the conviction mentioned by the Applicant had
been in respect of the illegal transport of goods belonging to
refugees and of timber to West Berlin; this conviction was dated
7 March 1953.

The Appeal of 16 May 1963 was rejected by the Court of Appeal on
5 August 1963. While admitting that at this stage there might be some
doubt as to whether there was still a danger of suppression of
evidence, the Court, taking up the grounds of the decision against
which the appeal was lodged, pointed out that there was still a danger
that the Applicant would abscond; and that his continued detention did
not conflict with the requirements of Article 5 (3) (art. 5-3) of the
Convention. The Court added that it was to be feared that Wemhoff
would refuse to comply with the summons to appear before the judicial
authorities on account of his character on which a medical expert had
given an unfavourable opinion, which had been confirmed by his conduct
while in detention pending trial.

7. Several applications for conditional release filed by the
Applicant in 1963 and 1964 were also rejected by the Berlin courts on
grounds similar to those stated by the Court of Appeal on
5 August 1963. In particular, this court found, in a decision of
22 June 1964, that the risk that the Applicant would abscond was even
greater than in August 1963. As a matter of fact, he was likely to
receive an appreciably higher sentence than had formerly been thought,
as in the meantime the Public Prosecution had extended the accusation
against the Applicant to certain offences under the Bankruptcy Code
some of which he was said to have committed while in detention. On
the other hand, the court considered that it was not yet possible to
forecast whether the Applicant, in the event of a conviction, would be
conditionally released in accordance with Section 26 of the Criminal
Code after serving two-thirds of his detention and whether, in the
event of such conviction, the time he had spent in detention pending
trial would be counted as part of the sentence.
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Between 13 November 1961 and 3 November 1964 the Applicant submitted
41 petitions concerning the conditions of his detention on remand,
16 of which were accepted by the responsible authorities while the
other 25 were refused.

During his detention, he was subjected to disciplinary punishment five
times.

8. The investigation concerned 13 persons. It was conducted by a
member of the Berlin Public Prosecutor's Office and lasted from
9 November 1961 to 24 February 1964 without any important
interruptions. In particular, Wemhoff was interrogated on about
40 occasions.

One of the subjects of the investigation was extremely complex cheque
manipulations of which the defendants were suspected (paragraph 57 of
the Commission's Report). It involved the examination of 169 accounts
at 13 banks in Berlin, 35 banks in West Germany and 8 banks in
Switzerland; the transactions checked totalled 776 million DM.
In the case of the Applicant alone, transactions amounting to
284.2 million DM were involved between 1 August 1960 and
27 October 1961, affecting 53 accounts at 26 banks.

Several dozen witnesses were questioned, both in the Federal Republic
and abroad. In addition some 15 expert opinions were obtained from a
number of auditing firms and accountants and from a retired President
of the Deutsche Bundesbank. The number of workdays amounted to
6,000. The reports of the financial experts alone comprised
1,500 pages.

By the time the charge was preferred the court's records comprised
45 volumes containing some 10,000 pages.

9. On 23 April 1964, the investigation having been completed, the
indictment - a document of 855 pages - was filed with the Regional
Court of Berlin; it was notified to the Applicant on 2 May 1964. It
shows that the Applicant was accused of:

- two cases of prolonged incitement to breach of trust;

- prolonged fraud in one of these two cases;

- one case of prolonged abetment to breach of trust; and

- seven offences under Sections 239 (1) (i) and 241 of the
Bankruptcy Act (Konkursordnung).

The cases of incitement to breach of trust, fraud and abetment to
breach of trust were considered particularly grave ones within the
meaning of Sections 266 (2) and 263 (4) of the German Criminal Code.

10. On the basis of the indictment, the Regional Criminal Court,
on 7 July 1964, replaced the existing detention order by a new one
which stated that Wemhoff was under grave suspicion of having
committed the same acts of incitement to breach of trust and
complicity in breach of trust as well as fraud and two of the seven
offences against the Bankruptcy Act mentioned above.

In connection with the last-named offences the detention order stated
that there were grounds for thinking that in the autumn of 1961
Wemhoff had withdrawn 100,000 DM from an account in his wife's name at
the Banque Commerciale SA, Geneva, and secreted this amount somewhere.
It added that the same was true, at least in part, of a sum of
140,000 DM paid in by Wemhoff in the spring of 1962 to an account kept
by his agent with the "Papenberg-Bank", Berlin.

According to the detention order, there was still a danger that the
applicant would abscond, because of the likely sentence.

11. By an order (Eröffnungsbeschluss) of the Regional Court dated
17 July 1964, the Applicant and eight other accused were committed to
the trial court; the order severed the proceedings against a further
four accused persons from the main proceedings.

The Regional Court found there was reason to think that Wemhoff had
committed the offences described in the detention order of
7 July 1964.

Proceedings on five of the seven acts of bankruptcy of which the
applicant was suspected were severed from the main proceedings; they
were later discontinued (Einstellung) under Section 154 of the German
Code of Criminal Procedure.

12. The Applicant's trial opened on 9 November 1964. In the course
of it he lodged 117 applications for the hearing of witnesses,
covering 230 points. He challenged three judges and four financial
experts on the grounds of partiality. The Regional Court heard
97 witnesses, three medical experts and four financial experts. The
minutes of the hearing totalled nearly 1,000 pages, apart from the
appendices, which comprised about 600 pages.

On 15 February 1965, the Regional Court, acting under Section 154 of
the German Code of Criminal Procedure, discontinued (eingestellt) the
proceedings in those cases of fraud with which the Applicant was
charged that occurred before the beginning of June 1961. On
22 February 1965, it severed from the principal proceedings the two
offences under Section 239 (1) (i) of the Bankruptcy Act for which the
Applicant was still being prosecuted. Some months later the
proceedings relating to these were also discontinued (Section 154 of
the Code of Criminal Procedure).
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On 7 April 1965, the Regional Court found Wemhoff guilty of a
particularly serious case of prolonged abetment to breach of trust
(fortgesetzte Beihilfe zur Untreue, Sections 266 and 49 of the
Criminal Code) and sentenced him to six years and six months penal
servitude (Zuchthaus) and a fine of 500 DM, the period of detention on
remand being counted as part of the sentence. The court ordered that
the Applicant should be kept in detention on remand for the reasons
stated in the detention order of 7 July 1964.

Judgment was passed on the Applicant at the same time as on six other
accused. The judgment comprised 292 pages.

13. After conviction, Wemhoff again applied for provisional release
in April 1965, but the Regional Court rejected his application on
30 April 1965. His appeal against this decision was rejected by the
Court of Appeal on 17 May 1965. That court found that it was very
probable that he had secreted large sums of money and that he was
greatly in debt and insolvent, so that there was a danger that he
would yield to the temptation to evade prosecution.

14. On 16 August 1965, the Applicant requested provisional release
against security of 50,000 DM (20,000 DM in cash and 30,000 DM in the
form of a bank guarantee to be put up by his father). After
discussing the matter at the Public Prosecutor's Office, Wemhoff
amended his request two days later, offering security of 100,000 DM.
This offer was accepted by the Regional Court on 19 August 1965. The
Applicant, however, did not deposit this security but on
30 August 1965, offered a bank guarantee of 25,000 or 50,000 DM which
was to be provided by his father. The Regional Court rejected this
offer on 6 September 1965. The Applicant contested this decision and
offered security of 25,000 DM, but the Court of Appeal dismissed his
appeal on 29 October 1965 on the ground that a security of this sum
was not sufficient to dispel the danger of flight which was still
present.

On 19 October 1965, while these proceedings were still in progress,
Wemhoff again asked the Regional Court to order his release if
necessary against security of 10,000 DM. The court rejected the
application on 1 December 1965. It found that the temptation for
Wemhoff to abscond was still very great, for:

- the sentence remaining to be served was considerable;

- the Applicant was insolvent and deeply in debt, which he would
probably never be able to settle; and

- the suspicion that he had secreted away 200,000 DM, as stated in the
detention order of 7 July 1964, had grown stronger during the trial.

15. On 17 December 1965 the Federal Court (Bundesgerichtshof)
rejected an appeal (Revision) filed by the Applicant in July 1965
against his conviction by the Regional Court. The time he had spent
in detention since the judgment of 7 April, in so far as it exceeded
three months, was to be counted as part of the sentence.

16. On 8 November 1966, after serving two-thirds of his sentence,
Wemhoff was conditionally released (in accordance with Section 26 of
the Criminal Code) under an Order of the Regional Court dated
20 October 1966.

17. In his original Application lodged with the Commission on
9 January 1964, the Applicant alleged that the length of his detention
on remand violated his right under Article 5 (3) (art. 5-3)
of the Convention to be brought to trial within a reasonable time or
released pending trial. He complained of the fact that the decisions
of the District Court dated 20 March 1963, of the Regional Court dated
3 May 1963 and of the Court of Appeal dated 5 August 1963 had not put
an end to the detention. He claimed compensation for the damage
suffered and reserved the right to specify later the exact amount of
his claim.

On 2 July 1964 the Commission declared the Application admissible in
respect of Article 5 (3) (art. 5-3), and also, ex officio, with
reference to Article 6 (1) (art. 6-1).

Subsequent to his Application, Wemhoff made three other complaints.
On 28 September 1964 the Commission declared one of them inadmissible
as being manifestly ill-founded; the other two were not upheld by the
Applicant.

18. Following the decision declaring admissible the original
Application, a Sub-Commission ascertained the facts and unsuccessfully
sought a friendly settlement (Articles 28 and 29 of the Convention)
(art. 28, art. 29).

19. Before the Commission and the Sub-Commission, the Applicant
maintained that the purpose of Article 5 (3) (art. 5-3) was to avoid
an excessively long deprivation of liberty because of the extent and
length of the investigation. He stated that detention on remand was a
"special sacrifice" imposed upon persons, whether guilty or not, for
the maintenance of an effective administration of justice. As,
according to the Applicant, this involves a derogation from the
principle of the presumption of innocence enshrined in Article 6 (2)
(art. 6-2), the State has not the right to continue such detention
until the social position, the livelihood, the health, the
professional and family life of the individual concerned were
destroyed, consequences which his detention had brought about.
Pointing out that a remand prisoner's uncertainty as to his fate is a
mental strain that becomes heavier with the passage of time, the
Applicant also mentioned Article 3 (art. 3) of the Convention.

Wemhoff also submitted that it would have been possible to deal with
his case more speedily, in particular, by dividing it, by employing
several public prosecutors and by accelerating the work of the
experts. He added that he himself had not caused any substantial delay
in the proceedings but, on the contrary, assisted the Public
Prosecutor's Office in unravelling the transactions in issue.

Furthermore, the Applicant submitted that neither the length of his
anticipated sentence nor his civil liability for the loss suffered by
the Thyssen Bank constituted sufficient grounds for suspecting him of
intending to escape. His offers of bail and the fact that after the
discovery of the Thyssen affair on 17 October 1961, he remained with
his family in Berlin until his arrest on 9 November, proved that he
had no intention of resorting to flight.
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Lastly Wemhoff claimed that he was a victim of a violation of
Article 5 (3) (art. 5-3) notwithstanding the final result of his
trial, since, in his opinion, the decision whether or not the length
of detention pending trial is reasonable cannot depend upon any
subsequent occurrence. The Applicant added that, if the conditions of
detention on remand are less harsh than those of penal servitude, the
uncertainty of the remand prisoner as to his future constitutes a
special burden which does not exist in the case of a convicted
prisoner.

20. After the failure of the attempt to arrange a friendly settlement
made by the Sub-Commission, the plenary Commission drew up a Report as
required under Article 31 (art. 31) of the Convention. The Report was
adopted on 1 April 1966 and transmitted to the Committee of Ministers
of the Council of Europe on 17 August 1966. The Commission expressed
therein the following opinion, which it later confirmed before the
Court:

(a) by seven votes to three, that the Applicant had not been brought
to trial "within a reasonable time" or released pending trial, and
that, consequently, Article 5 (3) (art. 5-3) of the Convention had
been violated in the present case;

(b) by nine votes to one, that that conclusion could not be affected
by the fact that the judgment of 7 April 1965 required the period of
detention on remand to be counted as part of the sentence;

(c) unanimously, that the Applicant's continued detention on remand,
ordered by the competent courts on the grounds of danger of flight and
suppression of evidence, was a "lawful detention" within the meaning
of Article 5 (1) (c) (art. 5-1-c);

(d) unanimously, that it could not consider the Applicant's claim for
compensation under Article 5 (5) (art. 5-5), before:

(i) the competent organ, namely, the Court or the Committee of
Ministers, had given a decision on the question whether Article 5 (3)
(art. 5-3) had been violated; and

(ii) the Applicant had had an opportunity, with respect to his claim
for compensation, to exhaust, in accordance with Article 26 (art. 26)
of the Convention, the domestic remedies available to him under German
law;

(e) unanimously, that even if the period from 9 November 1961 to
17 December 1965 was considered, Article 6 (1) (art. 6-1) had not been
violated in the criminal proceedings against the Applicant.

In brief, of the ten members of the Commission who were present when
the Report was adopted, three found no breach by the Federal Republic
of Germany of its obligations under the Convention while the majority
considered that there had been a breach on one count, but none on the
others. The Report sets out four individual opinions - one
concurring, and the other three dissenting.

Arguments of the Commission and the Government

1. In the Commission's view Article 5 (3) (art. 5-3) of the
Convention lays down the right of a person detained in accordance with
Article 5 (1) (c) (art. 5-1-c) either to be released pending trial or
to be brought to trial within a reasonable time. If the person is
being held in detention on remand it must not exceed a reasonable
period. The most important problem, therefore, is to determine the
exact meaning of the words "reasonable time". The Commission finds
this expression vague and lacking in precision, with the result that
it is not possible to determine abstractly its exact meaning, which
can be evaluated solely in the light of the particular circumstances
of each case.
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2. In order to facilitate such evaluation the Commission believes
that it is in general necessary to examine an individual case
according to the seven following "criteria" or "elements":

(i) The actual length of detention.

In this respect, the Commission does not indicate in its Report when
it considers the "reasonable time" mentioned in Article 5 (3)
(art. 5-3) to begin and to end in abstracto. During the oral
proceedings before the Court, however, the Principal Delegate of the
Commission stated the problems which the Commission thinks arise in
this matter. Whereas the English version ("entitled to trial within a
reasonable time or to be released pending trial") would permit the
interpretation that the period referred to ends with the opening of
the case before the trial court, the French version ("être jugée dans
un délai raisonnable, ou libérée pendant la procédure") would cover a
longer period, ending at the date on which judgment is pronounced.
The Commission has not stated any definite opinion on this question,
but at the hearing its Principal Delegate expressed a clear preference
in favour of the interpretation based on the French text, the meaning
of which is, unlike the English version, clear and unequivocal and
also more favourable to the individual. In particular, the delegate
of the Commission rejected the argument of the German Government that
the English version should be accepted for the simple reason that it
limits the sovereignty of States to a lesser degree.

The Commission emphasised the importance which it attaches to the
Court's settling this question of interpretation.

(ii) The length of detention on remand in relation to the nature of
the offence, the penalty prescribed and to be expected in the case of
conviction and any legal provisions making allowance for such a period
of detention in the execution of the penalty which may be imposed. On
this point the Commission remarked that the length of detention on
remand may vary according to the nature of the offence concerned and
the penalty prescribed and to be expected. However, in determining
the relation between the penalty and the length of detention, it is
necessary to take into account the presumption of innocence as
guaranteed by Article 6 (2) (art. 6-2) of the Convention. If the
length of detention should approach too closely the length of the
sentence to be expected in case of conviction, the principle of
presumption of innocence would not be fully observed;

(iii) material, moral or other effects on the detained person.

(iv) the conduct of the accused:

(a) Did he contribute to the delay or expedition of the investigation
or trial?

(b) Was the procedure delayed as a result of applications for release
pending trial, appeals or other remedies resorted to by him?

(c) Did he request release on bail or offer other guarantees to appear
for trial?

(v) difficulties in the investigation of the case (its complexity in
respect of facts or number of witnesses or co-accused, need to obtain
evidence abroad, etc.).

(vi) the manner in which the investigation was conducted:

(a) the system of investigation applicable;

(b) the conduct by the authorities of the investigation (the diligence
shown by them in dealing with the case and the manner in which they
organised the investigation).

(vii) the conduct of the judicial authorities concerned:

(a) in dealing with the applications for release pending trial;

(b) in completing the trial.

3. The Commission argues that a rational scheme of this kind makes
possible in each case a "coherent interpretation without any
appearance of arbitrariness". The Commission remarks, however, that
the conclusion in any particular case will be the outcome of an
overall evaluation of all the elements. Even if examination of some
of the criteria leads to the conclusion that the length of detention
is reasonable, the application of other criteria may lead to a
contrary conclusion. The final and determining conclusion will
therefore depend on the relative weight and importance of the
criteria, but this in no way precludes one single criterion from
having decisive importance in some cases.

The Commission adds that it has endeavoured to cover, through the
aforementioned criteria, all the situations of fact which it is
usually possible to find in cases of detention on remand, but that the
list should not be considered exhaustive, there being exceptional
situations, other than those submitted to the Court for decision in
the case in question, which might justify the examination of other
criteria.

4. In this case the Commission ascertained the facts in the light of
the said criteria and proceeded to their legal evaluation by the same
method of interpretation.

Certain of the facts established by the Commission seemed to it
important in the light of several criteria. There will be found below
a summary of the Commission's opinion on these various points.

5. With regard to application of the first criterion, that is to say
the length of Wemhoff's detention on remand, the Commission takes into
account the period from 9 November 1961 (the date of his arrest) to
9 November 1964 (the date of the opening of the trial before the
Regional Court). According to the Commission the actual length of
this detention (three years) seems to warrant the conclusion that it
exceeded a "reasonable" period.

6. As regards the second criterion mentioned above, the Commission is
of the opinion that its application in the present case seems to
justify the same conclusion. It remarks that here it has taken into
consideration both the possibility of the Applicant's provisional
release under Section 26 of the Criminal Code, and the fact that the
length of detention has been counted as part of the sentence imposed.
The Commission accepts that this last measure constitutes an element
comparable to an "extenuating circumstance", but states that it in no
way changes the distinctive nature of detention on remand which, not
being in accordance with Article 5 (3) (art. 5-3), remains a violation
of the Convention, even if in the execution of the sentence finally
imposed, account has been taken of the period of detention.

7. Application of the third criterion, in the opinion of the
Commission, likewise leads to the conclusion that the length of
detention was excessive, in view of the prejudicial effects of the
detention on the Applicant's family life; his long detention is said
to have destroyed his marriage and injured his close relations with
his parents.
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8. The Commission does not think, as regards the fourth criterion,
that the Applicant's conduct contributed substantially to the length
of his detention.

9. In evaluating the fifth criterion the Commission considers that
the case in question was of very great complexity, not only on account
of the nature and number of the financial transactions involved but
also because of the number of accused and witnesses who had to be
heard and the ramifications of the case both in Germany and abroad.
According to the Commission these circumstances support and conclusion
that the length of detention was reasonable.

10. The examination of the sixth and seventh criteria does not, in
the opinion of the Commission, lead to the conclusion that the
criminal proceedings against the Applicant were substantially
prolonged through any fault of the authorities.

11. In the light of the overall evaluation of these various criteria,
and in consideration of the peculiar circumstances of the case, the
Commission attaches particular importance to the actual length of
detention and concludes that the Applicant was not brought to trial
within a "reasonable" time or released pending trial, and that
consequently he has been a victim of a violation of Article 5 (3)
(art. 5-3).

12. It should be added that in the Commission's view the continued
detention on remand of the Applicant, ordered by the competent courts
because of the danger of flight and suppression of evidence, was
lawful within the meaning of Article 5 (1) (c) (art. 5-1-c).

13. The Commission maintains that Article 6 (1) (art. 6-1) poses
questions of interpretation similar to those raised by Article 5 (3)
(art. 5-3), in particular as regards the "time" mentioned in
Article 6 (1) (art. 6-1). However, in the opinion of the Commission,
the question whether the time was "reasonable" for the purposes of
Article 5 (3) (art. 5-3) or of Article 6 (1) (art. 6-1) must be judged
differently in the two cases; the former, being intended to safeguard
the physical freedom of the individual, requires stricter application
than the latter, the object of which is to protect the individual
against abnormally long judicial proceedings, irrespective of the
question of the actual detention. In the present case, the criminal
procedure related to extremely complex facts; it was not unduly
prolonged by the German judicial authorities. Therefore, the
Commission arrives at the conclusion that even if the period concerned
were considered to run from 9 November 1961 until 17 December 1965,
Article 6 (1) (art. 6-1) has not been violated in the criminal
proceedings against the Applicant.

14. At the hearing of 9 January 1968, the Commission made the the
following submissions:
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"May it please the Court to decide:

(1) whether or not Article 5 (3) (art. 5-3) of the Convention has been
violated by the detention of Wemhoff from 9 November 1961 to
9 November 1964 or any later date;

(2) whether or not Article 6 (1) (art. 6-1) of the Convention has been
violated by the duration of the criminal proceedings against Wemhoff
between his arrest on 9 November 1961 or any later date and the
judgment of the Regional Court of Berlin on 7 April 1965 or any other
date."

15. The German Government, for its part, remarks that it shares the
Commission's opinion as to the absence of any violation of
Article 6 (1) (art. 6-1) of the Convention.

16. With regard to the interpretation of Article 5 (3) (art. 5-3)
of the Convention and its application to the present case, the
Government believes that the period to be considered is that which the
Commission takes into account in its Report, from arrest
(9 November 1961) to the opening of the case before the trial court,
the Regional Court of Berlin (9 November 1964).

According to the Government it is essential, at least in the present
case, not to rely on the French text ("le droit d'être jugée dans un
délai raisonnable ou libérée pendant la procédure"), which could
signify a longer period (up to the date of the judgment) than one
terminating on the date of the opening of the trial, as suggested by
the English version ("entitled to trial within a reasonable time or to
release pending trial"). It could therefore lead to a further
limitation of the sovereignty of the Contracting States. Moreover,
application of Article 5 (3) (art. 5-3) in the French version would
allow the accused to prolong the protection accorded by that provision
by making excessive use of procedural devices. The result would be an
undue prolongation of proceedings, with the danger that by the time
release was possible, the period would no longer be "reasonable".

17. In general terms the Government expresses considerable
reservations as to the method adopted by the Commission - that of
laying down seven "criteria" - while admitting that the answer depends
on the circumstances of the case. In its opinion, the Commission was
not objective, on its strict allocation of the facts to the same
criteria, as indeed some of the facts mentioned in relation to one of
the criteria would be equally relevant to others.

18. The Government also sets against the Commission's reasoning the
following considerations which, in its opinion, demonstrate the
absence of any violation of Article 5 (3) (art. 5-3) in the case of
the Applicant.

19. To the first criterion advanced by the Commission, namely, the
actual length of detention, the Government raises objections of
principle. In its opinion, the adjective "reasonable", qualifying the
noun "time", introduces a relative element; the absolute factor which
the actual length of detention represents cannot therefore serve as a
criterion for determining whether such a length of time is
"reasonable". Furthermore, the Government remarks that, in the
Commission's view, the Applicant's detention was "lawful" for the
whole of its length within the meaning of Article 5 (1) (c)
(art. 5-1-c) of the Convention; it adds that the Commission, in
evaluating the fifth criterion, admits that the complexity of the
investigation tends to justify the length of detention. The
Government therefore does not see how it is possible to consider as
"unreasonable" the length of the detention on remand in toto.
Moreover, the Commission has not indicated at what moment the
detention ceased, in its opinion, to be "reasonable".

20. Neither does the Government share the evaluation of the
Commission with respect to the second criterion. It emphasises that
the opinion of the Commission is based primarily on the possibility,
provided in Section 26 of the Criminal Code, of the conditional
release of a detained person. However, according to the Government,
that Section, whose application depends on the Court's discretion, can
operate only when the sentence has become final and, more precisely,
from the moment when the convicted person has already served
two-thirds of his sentence; it cannot therefore justify the conclusion
that the length of detention on remand has been "unreasonable".
Moreover, the German judicial authorities granted the Applicant
conditional freedom when he had served two-thirds of his sentence.
This decision, which dates from 20 October 1966, was able to be taken
so early because the length of detention on remand had been counted as
part of the sentence.

With regard to the Commission's argument that detention on remand
represents a distinct situation even where it has been counted in part
or in whole against the sentence, the Government stresses the
advantages - which are not disputed - of such detention compared with
a sentence of imprisonment. It is inferred from this that the length
of the detention operated in favour of the Applicant : had it been
shorter, Wemhoff would have had to spend longer in penal servitude,
which would have made the conditions of his detention appreciably
worse.

21. In evaluating the third criterion, the Commission has omitted, in
the Government's view, to verify the existence of a causal relation
between Wemhoff's detention and the deterioration of his family life.
The Government maintains that if Wemhoff had been convicted earlier
and thus subjected to a longer period of imprisonment, the effects
would have been equally prejudicial - indeed, even graver - for his
financial and family position than would those of detention on remand.
It is deduced from this that the evaluation of the third criterion by
the Commission is not convincing.
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With regard to the Commission's argument that detention on remand
represents a distinct situation even where it has been counted in part
or in whole against the sentence, the Government stresses the
advantages - which are not disputed - of such detention compared with
a sentence of imprisonment. It is inferred from this that the length
of the detention operated in favour of the Applicant : had it been
shorter, Wemhoff would have had to spend longer in penal servitude,
which would have made the conditions of his detention appreciably
worse.

21. In evaluating the third criterion, the Commission has omitted, in
the Government's view, to verify the existence of a causal relation
between Wemhoff's detention and the deterioration of his family life.
The Government maintains that if Wemhoff had been convicted earlier
and thus subjected to a longer period of imprisonment, the effects
would have been equally prejudicial - indeed, even graver - for his
financial and family position than would those of detention on remand.
It is deduced from this that the evaluation of the third criterion by
the Commission is not convincing.

22. In the opinion of the Government, the statements of fact arrived
at by the Commission in the light of the fourth criterion contain
certain lacunae. Certainly, it may be acknowledged that the numerous
requests, appeals and other approaches, set out in detail in
Appendices VIII and IX of the Commission's Report, do not allow it to
be affirmed that Wemhoff generally intended to slow down the course of
the proceedings. According to the Government, there can, however, be
no doubt that the examination of the case was thereby prolonged. On
this point, the Government likewise remarks that the Regional Court of
Berlin decided on 19 August 1965, i.e. after conviction, to suspend
the detention order subject to the deposit of bail of 100,000 DM.
The Court had, in the light of the documents in its possession,
discovered that the Applicant had deposited the sum of 100,000 DM in
an account opened in the name of his wife in a Swiss bank, and that he
had withdrawn this sum when his offences came to light. In the course
of the proceedings, the Applicant had given highly contradictory
explanations of this transaction; the judicial authorities have not
been in a position to discover what Wemhoff had done with the sum of
money in question. Whatever the position may be, the Applicant did
not take up the offer of bail of the Court.

According to the Government, it should be concluded that the
application of the fourth criterion does not authorise the Commission
to consider as unreasonable the length of detention on remand.

23. As regards the application of the fifth, sixth and seventh
criteria, the Government states that it shares the opinion expressed
by the Commission.

24. In dealing with a criminal case as enormous and as complex, both
as to the facts and to the law, as is the Wemhoff case, the Government
considers that the Commission's method of evaluation does not allow
objective determination of whether the length of detention on remand
was reasonable or not within the meaning of Article 5 (3) (art. 5-3)
of the Convention or of where in time the line should be drawn between
what is "reasonable" and what is "unreasonable".

In particular, the Government expresses its regret that in following
the system of "criteria" the Commission has lost sight of the reasons
which, in the view of the judicial authorities, made continued
detention necessary. The danger that the Applicant would abscond is
said to have been a real one throughout his detention, by reason not
only of the gravity of the likely sentence and its effect on his civil
responsibility but also of his financial malpractices and particularly
the unexplained withdrawal of 100,000 DM from an account in his wife's
name with a Swiss bank.

25. At the hearing of 9 January 1968, the Government made the
following submission:

"We ask this Court to find:

that the decisions and measures taken by
German authorities and courts in the Wemhoff case are compatible with
the commitments entered into by the Federal Republic under
Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention".

AS TO THE LAW

1. In his Application to the Commission of 9 January 1964, Wemhoff
complained, inter alia, that he had been kept in detention since his
arrest on 9 November 1961. As this part of the Application was
declared admissible by the Commission, the Court is now called upon to
decide whether Wemhoff has been the victim of a violation of the
Convention in respect of the facts complained of by him.

2. The Court finds that Wemhoff was arrested and detained in
accordance with the provisions of Article 5 (1) (c) (art. 5-1-c)
for the purpose of bringing him before the competent legal authority,
there being a reasonable suspicion that he had committed an offence
and reasonable grounds for believing that it was necessary to prevent
his fleeing after having done so. Nor is it denied that he was
informed promptly of the reasons for his arrest or that he was brought
promptly before a judge. Consequently, it is evident that there has
been no violation in the present case of Article 5 (1) (c)
(art. 5-1-c) or the first part of Article 5 (3) (art. 5-3) of the
Convention.

3. The question arises however whether there has been a contravention
by the German judicial authorities of two other provisions of the
Convention, to wit, the second part of Article 5 (3) (art. 5-3),
according to which everyone who is arrested or detained in accordance
with the provisions of Article 5 (1) (c) (art. 5-1-c) is "entitled to
trial within a reasonable time or to release pending trial", it being
understood that "release may be conditioned by guarantees to appear
for trial", and Article 6 (1) (art. 6-1)in so far as it states that
"in the determination of ... any criminal charge against him",
everyone is entitled to a hearing "... within a reasonable time by a
... tribunal ..."

A. As regards Article 5 (3) (art. 5-3) of the Convention

4. The Court considers that it is of the greatest importance that the
scope of this provision should be clearly established. As the word
"reasonable" applies to the time within which a person is entitled to
trial, a purely grammatical interpretation would leave the judicial
authorities with a choice between two obligations, that of conducting
the proceedings until judgment within a reasonable time or that of
releasing the accused pending trial, if necessary against certain
guarantees.

5. The Court is quite certain that such an interpretation would not
conform to the intention of the High Contracting Parties. It is
inconceivable that they should have intended to permit their judicial
authorities, at the price of release of the accused, to protract
proceedings beyond a reasonable time. This would, moreover, be flatly
contrary to the provision in Article 6 (1) (art. 6-1) cited above.

To understand the precise scope of the provision in question, it must
be set in its context.

Article 5 (art. 5), which begins with an affirmation of the right of
everyone to liberty and security of person, goes on to specify the
situations and conditions in which derogations from this principle may
be made, in particular with a view to the maintenance of public order,
which requires that offences shall be punished. It is thus mainly in
the light of the fact of the detention of the person being prosecuted
that national courts, possibly followed by the European Court, must
determine whether the time that has elapsed, for whatever reason,
before judgment is passed on the accused has at some stage exceeded a
reasonable limit, that is to say imposed a greater sacrifice than
could, in the circumstances of the case, reasonably be expected of a
person presumed to be innocent.

In other words, it is the provisional detention of accused persons
which must not, according to Article 5 (3) (art. 5-3), be prolonged
beyond a reasonable time. This is, moreover, the interpretation given
to the text by both the German Government and the Commission.

6. Another question relating to the interpretation of Article 5 (3)
(art. 5-3) raised in the course of the hearing before the Court is
that of the period of detention covered by the requirement of a
"reasonable time". While the Commission had expressed the opinion in
its Report that the appearance of the accused before the trial court,
which in this case took place on 9 November 1964, should be considered
as the end of the detention, the length of which was to be appreciated
by it, the President of the Commission, recalling that Wemhoff's
detention on remand had continued after his appearance before the
Regional Court of Berlin and referring also to the dissenting opinion
of a minority within the Commission, requested the Court during the
oral proceedings to pronounce upon the lawfulness of the detention
from 9 November 1961 until 9 November 1964 or a later date.

The representative of the German Government expounded the reasons
which led him to maintain the interpretation, accepted in the
Commission's Report, that it is the time of appearance before the
trial court that marks the end of the period with which Article 5 (3)
(art. 5-3) is concerned.

7. The Court cannot accept this restrictive interpretation. It is
true that the English text of the Convention allows such an
interpretation. The word "trial", which appears there on two
occasions, refers to the whole of the proceedings before the court,
not just their beginning; the words "entitled to trial" are not
necessarily to be equated with "entitled to be brought to trial",
although in the context "pending trial" seems to require release
before the trial considered as a whole, that is, before its opening.

But while the English text permits two interpretations the French
version, which is of equal authority, allows only one. According to
it the obligation to release an accused person within a reasonable
time continues until that person has been "jugée", that is, until the
day of the judgment that terminates the trial. Moreover, he must be
released "pendant la procédure", a very broad expression which
indubitably covers both the trial and the investigation.

8. Thus confronted with two versions of a treaty which are equally
authentic but not exactly the same, the Court must, following
established international law precedents, interpret them in a way that
will reconcile them as far as possible. Given that it is a law-making
treaty, it is also necessary to seek the interpretation that is most
appropriate in order to realise the aim and achieve the object of the
treaty, not that which would restrict to the greatest possible degree
the obligations undertaken by the Parties. It is impossible to see
why the protection against unduly long detention on remand which
Article 5 (art. 5) seeks to ensure for persons suspected of offences
should not continue up to delivery of judgment rather than cease at
the moment the trial opens.
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9. It remains to ascertain whether the end of the period of detention
with which Article 5 (3) (art. 5-3) is concerned is the day on which a
conviction becomes final or simply that on which the charge is
determined, even if only by a court of first instance.

The Court finds for the latter interpretation.

One consideration has appeared to it as decisive, namely that a person
convicted at first instance, whether or not he has been detained up to
this moment, is in the position provided for by Article 5 (1) (a)
(art. 5-1-a) which authorises deprivation of liberty "after
conviction". This last phrase cannot be interpreted as being
restricted to the case of a final conviction, for this would exclude
the arrest at the hearing of convicted persons who appeared for trial
while still at liberty, whatever remedies are still open to them.
Now, such a practice is frequently followed in many Contracting States
and it cannot be believed that they intended to renounce it. It
cannot be overlooked moreover that the guilt of a person who is
detained during the appeal or review proceedings, has been established
in the course of a trial conducted in accordance with the requirements
of Article 6 (art. 6). It is immaterial, in this respect, whether
detention after conviction took place on the basis of the judgment or
- as in the Federal Republic of Germany - by reason of a special
decision confirming the order of detention on remand. A person who
has cause to complain of the continuation of his detention after
conviction because of delay in determining his appeal, cannot avail
himself of Article 5 (3) (art. 5-3) but could possibly allege a
disregard of the "reasonable time" provided for by Article 6 (1)
(art. 6-1).

In this case, therefore, the period whose reasonableness the Court is
called upon to consider lasts from 9 November 1961 to 7 April 1965.

10. The reasonableness of an accused person's continued detention
must be assessed in each case according to its special features. The
factors which may be taken into consideration are extremely diverse.
Hence, the possibility of wide differences in opinion in the
assessment of the reasonableness of a given detention.

11. With a view to reducing the risk and the extent of such
differences and as a measure of intellectual discipline, as the
President of the Commission put it in his address to the Court, the
Commission has devised an approach which consists in defining a set of
seven criteria whose application is said to be suitable for arriving
at an assessment, whether favourable or otherwise, of the length of
the detention imposed. The examination of the various aspects of the
case in the light of these criteria is supposed to produce an
evaluation of its features as a whole; the relative importance of each
criterion may vary according to the circumstances of the case.

12. The Court does not feel able to adopt this method. Before being
referred to the organs set up under the Convention to ensure the
observance of the engagements undertaken therein by the High
Contracting Parties, cases of alleged violation of Article 5 (3)
(art. 5-3) must have been the subject of domestic remedies and
therefore of reasoned decisions by national judicial authorities. It
is for them to mention the circumstances which led them, in the
general interest, to consider it necessary to detain a person
suspected of an offence but not convicted. Likewise, such a person
must, when exercising his remedies, have invoked the reasons which
tend to refute the conclusions drawn by the authorities from the facts
established by them, as well as other circumstances which told in
favour of his release.

It is in the light of these pointers that the Court must judge whether
the reasons given by the national authorities to justify continued
detention are relevant and sufficient to show that detention was not
unreasonably prolonged and contrary to Article 5 (3) (art. 5-3)
of the Convention.

13. The arrest warrant taken out in Wemhoff's name on 9 November 1961
was based on the fear that if he were left at liberty, he would
abscond and destroy the evidence against him, in particular by
communicating with persons who might be involved (statement of the
facts, para. 4). Both of these reasons continued to be invoked until
5 August 1963 in the decisions of the courts rejecting Wemhoff's many
applications for release pending trial.

On that date, however, although the investigation had yet to be
concluded, the Court of Appeal accepted that there was some doubt as
to whether any danger of suppression of evidence still existed, but it
considered that the other reason was still operative (statement of the
facts, para. 6), and the same reasoning was repeated in later
decisions dismissing the Applicant's appeals.

14. With regard to the existence of a danger of suppression of
evidence, the Court regards this anxiety of the German courts to be
justified in view of the character of the offences of which Wemhoff
was suspected and the extreme complexity of the case.

As to the danger of flight, the Court is of opinion that, while the
severity of the sentence which the accused may expect in the event of
conviction may legitimately be regarded as a factor encouraging him to
abscond - though the effect of such fear diminishes as detention
continues and, consequently, the balance of the sentence which the
accused may expect to have to serve is reduced, nevertheless the
possibility of a severe sentence is not sufficient in this respect.
The German courts have moreover been careful to support their
affirmations that a danger of flight existed by referring at an early
stage in the proceedings to certain circumstances relating to the
material position and the conduct of the accused (statement of the
facts, paras. 6 and 7).

15. The Court wishes however, to emphasise that the concluding words
of Article 5 (3) (art. 5-3) of the Convention show that, when the only
remaining reasons for continued detention is the fear that the accused
will abscond and thereby subsequently avoid appearing for trial, his
release pending trial must be ordered if it is possible to obtain from
him guarantees that will ensure such appearance.

It is beyond doubt that, in a financial case such as that in which
Wemhoff was involved, an essential factor in such guarantees should
have been the deposit by him of bail or the provision of security for
a large amount. The positions succesively taken up by him on this
matter (statement of the facts, paras. 5 and 14) are not such as to
suggest that he would have been prepared to furnish such guarantees.

16. In these circumstances the Court could not conclude that there
had been any breach of the obligations imposed by Article 5 (3)
(art. 5-3) unless the length of Wemhoff's provisional detention
between 9 November 1961 and 7 April 1965 had been due either (a) to
the slowness of the investigation, which was only completed at the end
of February 1964, or (b) to the lapse of time which occurred either
between the closing of the investigation and the preferment of the
indictment (April 1964) or between then and the opening of the trial
(9 November 1964) or finally (c) to the length of the trial (which
lasted until 7 April 1965). It cannot be doubted that, even when an
accused person is reasonably detained during these various periods for
reasons of the public interest, there may be a violation of
Article 5 (3) (art. 5-3) if, for whatever cause, the proceedings
continue for a considerable length of time.

17. On this point, the Court shares the opinion of the Commission
that no criticism can be made of the conduct of the case by the
judicial authorities. The exceptional length of the investigation and
of the trial are justified by the exceptional complexity of the case
and by further unavoidable reasons for delay.

It should not be overlooked that, while an accused person in detention
is entitled to have his case given priority and conducted with
particular expedition, this must not stand in the way of the efforts
of the judges to clarify fully the facts in issue, to give both the
defence and the prosecution all facilities for putting forward their
evidence and stating their cases and to pronounce judgment only after
careful reflection on whether the offences were in fact committed and
on the sentence.
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