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B. As regards Article 6 (1) (art. 6-1) which gives to everyone the
right to have his case heard within a reasonable time
18. The Court is of opinion that the precise aim of this provision in
criminal matters is to ensure that accused persons do not have to lie
under a charge for too long and that the charge is determined.
There is therefore no doubt that the period to be taken into
consideration in applying this provision lasts at least until
acquittal or conviction, even if this decision is reached on appeal.
There is furthermore no reason why the protection given to the persons
concerned against the delays of the court should end at the first
hearing in a trial: unwarranted adjournments or excessive delays on
the part of trial courts are also to be feared.
19. As regards the beginning of the period to be taken into
consideration, the Court is of opinion that it must run from
9 November 1961, the date on which the first charges were levelled
against Wemhoff and his arrest was ordered.
It was on that date that his right to a hearing within a reasonable
time came into being so that the criminal charges could be determined.
20. The period to be taken into consideration in order to check
whether Article 6 (1) (art. 6-1) has been observed thus coincides in
Wemhoff's case, for the greater part, with the period of his detention
as covered by Article 5 (3) (art. 5-3). The Court therefore, having
found no failure on the part of the judicial authorities in their duty
of particular diligence under that provision, must a fortiori accept
that there has been no contravention of the obligation contained in
Article 6 (1) (art. 6-1) of the Convention. Even if the length of the
review proceedings (Revision) is to be taken into account, it
certainly did not exceed the reasonable limit.
FOR THESE REASONS, THE COURT,
Holds, by six votes to one, that there has been no breach of
Article 5 (3) (art. 5-3) of the Convention;
Holds, unanimously, that there has been no breach of Article 6 (1)
(art. 6-1) of the Convention;
Decides, accordingly, that the facts of the case do not disclose any
breach by the Federal Republic of Germany of its obligations arising
from the Convention;
Finds, therefore, that the question whether K. H. Wemhoff is entitled
to compensation in respect of such a breach does not arise.
Done in French and in English, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-seventh day of June,
one thousand nine hundred and sixty-eight.
H. ROLIN
President
G. GOLSONG
Registrar
MM. T. Wold and A. Favre, Judges, while concurring with the operative
provisions of the judgment, attach thereto the statement of their
individual opinions (Article 51 (2) of the Convention and Rule 50 (2)
of the Rules of Court) (art. 51-2).
Mr. S. Bilge, Judge, declares that he agrees with the opinion thus
stated by Mr. A. Favre.
Mr. M. Zekia, Judge, considers that there was a breach of
Article 5 (3) (art. 5-3) of the Convention; he attaches to the present
judgment the statement of his dissenting opinion (Article 51 (2) of the
Convention and Rule 50 (2) of the Rules of Court) (art. 51-2).
Initialled: H. R.
Initialled: H. G.
INDIVIDUAL OPINION OF JUDGE TERJE WOLD
I. First I want to raise a procedural question which in my opinion
should be decided by the Court.
In his Application to the Commission of 9 January 1964 Wemhoff alleged
that 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,
had been violated. He claimed compensation for the damage suffered.
At that time Wemhoff was detained on remand, cf. Article 5 (1) (c)
(art. 5-1-c) of the Convention. But on 17 December 1965 Wemhoff
received his final conviction. He was sentenced to six years and six
months of penal servitude, and the period of detention on remand was
counted as part of the sentence. Under these circumstances, it is in
my opinion difficult to see that Wemhoff has in fact any actual legal
interest in regard to the question of whether or not he has been held
in detention on remand beyond a reasonable time.
It is in fact also difficult to imagine that he has any claim for
compensation. The whole time he has spent in detention has been
deducted from his sentence except the time of three months during the
period of his appeal to the Federal Court.
The Court should not lose sight of the fact that Wemhoff has been
found guilty of having committed very serious crimes, and his claim to
compensation for detention on remand seems to be manifestly
ill-founded, cf. Article 27 (2) (art. 27-2). His claim that his
rights in accordance with Article 5 (3) (art. 5-3) have been violated has,
therefore, a purely theoretical interest and constitutes in my opinion
no case before the European Court. However, as I am alone to hold
this opinion, I find it unnecessary to develop my point of view any
further.
II. In regard to the merits of the claim that Wemhoff has been
violated in the right he is granted in Article 5 (3) (art. 5-3), I
hold the following separate, concurring opinion:
In his Application to the Commission of 9 January 1964 Wemhoff 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. This Application
was declared admissible by the Commission on 2 July 1964. In
consequence the case before the Court is to decide if the detention of
Wemhoff lasted beyond a reasonable time.
The first question the Court has had to examine and resolve is the
exact length of time which in Wemhoff's case is relevant as a basis
for the consideration of the Court. This question has in our case two
aspects. The one concerns the general competence of the Court in a
case of this kind. The Application of Wemhoff is dated 9 January
1964. But his detention lasted in fact until 17 December 1965, when
the judgment became final. Has the Court competence to deal with this
latest period between 1964 and 1965 when in actual fact this latest
period is not formally dealt with in the complaint which was declared
admissible by the Commission? This is a question of the scope of the
case before the Court. We are dealing with a continued manner of
conduct on the part of the German authorities. It goes without saying
that Wemhoff, when claiming that he was detained beyond a reasonable
time, implied the whole period the provisional detention goes on and
until it ends. Any later date than 9 January 1964, the date of the
application, is therefore - once the complaint is raised - part and
parcel of the case. This applied to internal practice: it is the
situation at the time of the decision the national courts in cases of
this kind take into consideration. The same applies to the European
Court. The Commission has also in good sense followed this concept in
regard to the factual limitation of the case. The complaint goes back
to 1963, but the Commission has not hesitated to consider the
detention up till November 1964.
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The later factual development in regard to the detention was also
dealt with both by the Commission and during the procedure before the
Court. The President of the Commission recalled during the procedure
before the Court that Wemhoff's detention pending trial had been
prolonged beyond his appearance before the Regional Court, and he
requested the Court to decide on the lawfulness of the detention from
9 November 1961 - the date of the arrest - to 9 November 1964 or any
later date. I agree that the Court has full competence to decide upon
the lawfulness of the detention on remand for the full period until it
was brought to an end, although this of course does not depend upon
any formal request by the Commission, but upon the fact that the case
brought before the Court comprises the question of the lawfulness of
the detention as a whole.
The second aspect of the question - of which exact length of time is
relevant in Wemhoff's case - is a question of interpretation of
Article 5 (3) (art. 5-3): does the "reasonable" time-limit for trial
or release in Article 5 (3) (art. 5-3) mean the time until the
beginning of the trial, the end of the trial at first instance, or the
time of the final conviction after appeal? In this respect I hold the
following opinion. Certainly, the interpretation proposed by the
German Government and accepted in the Commission's Report, which gives
as the end of the period the appearance of the detained person before
the trial court, may be upheld by the English text. The word "trial"
undoubtedly refers to the proceedings before the court of first
instance, and the words "release pending trial" may be understood as
providing for release during these proceedings.
This restrictive interpretation does not commend itself, however. The
"trial" is a phase of the proceedings which lasts until judgment. The
trial (procès) must not therefore be understood in the sense of the
opening of the trial; the English text, moreover, does not say
"entitled to be brought to trial", but "to trial". The protection
secured to the accused may therefore also be understood as lasting
until the end of the "trial", that is to say, until judgment is given.
If the English text permits two interpretations, the French text on
the other hand allows only one, that is the second. It provides, in
effect, that a detained person who has not yet been sentenced must be
"jugé dans un délai raisonnable", in the absence of which he must be
released "pendant la procédure", which undoubtedly covers both the
proceedings before the trial court and also the investigation.
Taking both the French and the English texts into account, my
conclusion is that the period under consideration goes to the time
when the provisional detention is brought to an end either by release
or by a judgment which constitutes a new and independent basis for the
detention with the effect that the prisoner is no longer held on
remand in accordance with the provision of paragraph 1 (c) of
Article 5 (art. 5-1-c).
It remains to be determined whether the date of the "judgment" to be
taken into consideration in our case is that of the pronouncement of
judgment at first instance (7 April 1965) or that on which it became
final (17 December 1965).
In my opinion the protection provided by the Convention must be
considered as lasting until the final judgment, that is to say in this
case up until 17 December 1965. It is true that a conviction which is
not yet final may affect the evaluation of the reasonableness of the
continuation of the provisional detention during the period of time
which runs from the pronouncing of judgment in the first instance and
until the time when it becomes final, and the possibility therefore
cannot be excluded that even during this period, the detention may
lose its reasonable character.
In addition the final judgment of 17 December 1965 by the Federal
Court (Bundesgerichtshof) while rejecting Wemhoff's appeal, expressly
lays down that the time he "spent in detention" after the judgment of
7 April 1965 - in so far as it exceeded three months - was to be
counted as part of the sentence. This clearly shows that the
detention of Wemhoff on remand in accordance with Article 5 (1) (c)
(art. 5-1-c) continued until the final judgment, and I see no reason
why he should not have the protection of Article 5 (3) (art. 5-3) for
the whole of this period.
Furthermore, Article 5 (1) (a) (art. 5-1-a) referred to by the
majority, in my opinion only deals with a conviction which is "legally
in force" (rechtskräftig). That applies to judgments in the final
instance or to convictions against which no appeal is declared.
III. The second question of a more general character before the Court
regards the scope to be attributed to the term "reasonable" in
Article 5 (3) (art. 5-3). This is a question of great importance.
"Reasonable" is a legal standard used in the Convention as in many
national law provisions - also of a penal content. It goes without
saying that the German authorities, who have the direct knowledge of
all the details and implications of the Wemhoff case are in a better
position to evaluate whether a continued detention at any time is
reasonable or not. Nevertheless, when the case is brought before the
Court, the Court has to decide - both in regard to the facts and the
law - if Wemhoff has not been released "within a reasonable time". In
regard to the facts, the Court will have to rely upon the evidence
produced, and so far there is on the whole not any disputed point. In
regard to the law the Court will have to decide if the grounds given
for the detention of Wemhoff are relevant grounds which legally can be
taken into consideration in the Wemhoff case, and secondly the Court
will have to exercise control in regard to the question whether the
German authorities - when applying legally relevant grounds for
upholding the detention of Wemhoff - have applied not too severe a
yardstick of measurement in evaluating the requirements of the case,
when Wemhoff was not released earlier than his final conviction in
December 1965. The last part of the task is by far the most difficult
one. In my opinion the judgment of the German authorities should not
be reversed unless the Court is convinced that an abuse of power
(détournement de pouvoir) has taken place - or unless it is clear that
the yardstick of measurement has been too severe - that is to say
unreasonable.
Of course, it is useful that the Commission has sought to establish a
list of seven criteria which in cases of detention in accordance with
Article 5 (3) (art. 5-3) can be taken into consideration and
evaluated. I agree, however, with the majority opinion that the Court
cannot recommend this method of procedure. Firstly, the list can
never be complete, and in addition it is the grounds given for the
detention in each specific case, and not a list of grounds of a
general character set up, that the Court has to examine. There may
- true enough - be grounds for continued detention in a specific case,
which have not been specifically advanced by the authorities. In my
opinion the Court should, however, as a rule not base its decision on
such additional grounds, but limit itself to the grounds given by the
national authorities for upholding the detention and decide taking the
circumstances of the case into consideration if these grounds
constitute sufficient reasons for upholding the detention.
However, in addition to the grounds given for continued detention, it
must always be taken into consideration that the term "reasonable
time" is first and foremost directed to the authorities. Even if all
good reasons for detention exist, the person detained on remand is
entitled to release, if he is not tried within a "reasonable" time.
The authorities cannot hold a person in detention for an indefinite
time without proceeding with his case with all good speed, taking into
consideration that they are dealing with a person deprived of his
liberty, only waiting for trial.
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Having established this much, the Court is under a duty to examine
whether the requirements of good administration of justice justified
Wemhoff's being held in provisional detention from 9 November 1961
until the final judgment of 17 December 1965, that is to say for a
period of four years and ten days.
In my opinion, the reasons given by the German authorities are
relevant and pertinent, and taking the circumstances of the case into
consideration, the detention of Wemhoff has not extended beyond a
reasonable time. In my opinion this applies to the whole period of
detention until the final judgment of 17 December 1965.
In this regard I in the main adhere to the grounds given in the
majority opinion under paragraphs 13 to 15, which in my view are
sufficient.
IV. As regards Article 6 (1) (art. 6-1), in so far as it secures to
everyone a fair and public hearing within a reasonable time in the
determination of any criminal charge against him, I find it sufficient
to state that, having decided in the case of Wemhoff that no breach of
Article 5 (3) (art. 5-3) on the part of the German authorities can be
found, and having taken the whole period of Wemhoff's detention into
consideration, in consequence there has been no contravention of
Article 6 (1) (art. 6-1) of the Convention.
INDIVIDUAL OPINION OF JUDGE A. FAVRE
(Translation)
My opinion differs from that of the majority of the Chamber on the
interpretation of Article 5 (3) (art. 5-3) of the Convention
(paragraph 9 of the judgment).
It follows from this provision that a person who is detained with a
view to his explaining an offence, is entitled to trial within a
reasonable time or to release pending trial. The question here in
dispute concerns exclusively detention pending trial. What is in
issue is whether the word "trial" as used in Article 5 (3) (art. 5-3)
("procédure" in the French text) includes the final judgment or only
the judgment at first instance.
No one denies that the accused must benefit from the protection of the
Convention during every phase of the proceedings leading to the final
judgment. It seems natural and logical that this protection is secured
to him by the application of those rules of the Convention which
specifically govern arrest and detention on remand, rules which appear
in Article 5 (1) (c) and (3) (art. 5-1-c, art. 5-3).
The judgment draws a distinction relating to the legal nature of
detention on remand based on whether it is ordered or continued before
or after the judgment at first instance. Such a distinction has no
foundation in the Convention. In restricting the scope of
Article 5 (3) (art. 5-3) to the detention which lasts up until the
judgment at first instance, the judgment of the Court is not in
conformity with those correct principles which are stated in point 8.
When confronted with texts which, though being drafted in two
languages which are equally authoritative, do not exactly coincide,
the Court must adopt the meaning of the rule which best corresponds to
the purpose and object of the treaty. While the English text speaks
in paragraph 3 of "trial", a word which appears there with three
different meanings and whose scope may be disputed, as is to be seen
in the judgment, the French text is more clear since it provides in
unequivocal and very general terms that the person detained is
entitled "d'être jugée dans un délai raisonnable ou libérée pendant la
procédure".
The interpretation of this provision which most closely conforms with
common sense is that which its purpose requires; now this purpose is
to ensure the largest measure of protection to the accused who is
detained on remand for as long as the proceedings (procédure) last,
that is to say, until the final judgment.
The judgment of the Court is based on a belief that a narrow
interpretation of Article 5 (3) (art. 5-3) can be maintained by
considering that detention is justified, during appeal proceedings, by
the conviction which has been pronounced. The question may be left
open as to whether the provisions of Article 5 (1) (a) (art. 5-1-a)
are applicable when a conviction is not yet res judicata. However,
provisional detention may be ordered or continued during appeal
proceedings lodged by the prosecuting authority after an acquittal.
If there is a situation in which the accused deserves to benefit from
the protection afforded by the Convention, this is it. Now the
interpretation which is given by the judgment to the texts in issue
denies him this protection. Does this mean that there is a lacuna in
Article 5 (art. 5)? A correct interpretation of paragraph 3 would
easily fill it as it would give complete effectiveness to this
provision. As regards Article 6 (1) (art. 6-1) of the Convention,
which is concerned with trial proceedings, it contains no reference
nor allusion to detention. It is not therefore applicable to
detention, which is governed only by Article 5 (art. 5).
Although the accused has formally benefited from the protection
secured by Article 5 (3) (art. 5-3) up until the final judgment, this
provision has been of no assistance to him for the reasons stated in
the judgment, especially because of the danger of flight.
INDIVIDUAL DISSENTING OPINION OF JUDGE ZEKIA
I feel myself unable to subscribe to the view taken and to the
conclusion arrived at by my eminent colleagues in this case regarding
the alleged contravention of Article 5 (3) (art. 5-3) of the
Convention by the Federal Republic of Germany.
A statement of facts and arguments advanced by the Parties having been
embodied in the introductory part of the main judgment renders it
unnecessary for me to repeat them.
Wemhoff, the Applicant, was arrested and kept in custody without
interruption for three years and five months until the conclusion of
his trial, which ended with a conviction.
His detention started on 9 November 1961 and continued up to the end
of his trial on 7 April 1965.
He was convicted and sentenced to six years and six months. The
period of detention on remand has been counted as part of the sentence
passed on him.
Wemhoff was charged with committing frauds and breaches of trust and
akin offences. The charges levelled against him comprised a great
number of financial transactions, other persons were also involved.
The case possessed ramifications both in Germany and abroad.
In the instant case, this Court, inter alia, is called upon to decide
whether the detention of Wemhoff for a period of three years and five
months prior to the announcement of the judgment by the trial court
was in conformity with Article 5 (3) (art. 5-3) of the Convention.
The answer to this depends whether the duration of his detention was a
reasonable one within the meaning of Article 5 (3) (art. 5-3) referred
to. Section 3 reads: "Everyone arrested or detained ... shall be
brought promptly before a judge ... and shall be entitled to trial
within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial".
Although several applications were made by the Applicant for grant of
bail during his long detention all were turned down mainly on the
grounds of the danger of absconding and suppression of evidence.
Although I am not in full agreement with the reasons given for the
refusal of bail, this is not a matter, however, which I need enter
into for the purpose of my judgment. Because whether Wemhoff was
rightly or wrongly refused bail, during his long term of detention,
this would not absolve the legal or judicial authorities from the
obligation to conclude his trial within a reasonable time. The crux
of the case is therefore the ascertainment of the extent of the
"reasonable time" specified in Article 5 (3) (art. 5-3) in relation to
the facts and accompanying circumstances of the case we are dealing
with.
This is by no means an easy problem to solve. The Commission has
established its jurisprudence in the matter by resorting to the seven
criteria system as explained in the main judgment. This Court did not
follow this method but laid stress on "the reasons given by the
national authorities as justifying the continuation of detention" and
to the examination of whether such reasons "are relevant and
persuasive to decide if detention was unreasonably prolonged or not".
My approach to the problem is in a somewhat different way. No doubt
certain criteria and considerations pertaining to the nature of the
offences alleged to have been committed, and to the conduct of the
person suspected of committing them as well as the criminal procedure
designed to operate the law enforcement machinery of a country are of
paramount importance in deciding whether a man should be arrested and
kept in custody and if he is already in custody how long his detention
would last prior to the completion of his trial, nevertheless, there
is a time-limit beyond which depriving a man of his liberty is not
permissible. The decisive factor in this respect is the judicial
concept of reasonableness. In the absence of any provision in the law
or constitution of a country precisely indicating the maximum length
of time an unconvicted person can be confined to detention prior to
the end of his trial, it falls, in the first instance, on the national
courts and ultimately on this Court in exercising their jurisdiction
to designate the principles indicating when such detention exceeded
the limit and became unreasonable under Article 5 (3) (art. 5-3).
It may not be difficult to arrive at a uniformity of thought or
practice on such matters in a particular country or in countries where
the provisions dealing with relevant points (arrest, detention,
investigation, etc.) of the criminal procedure are substantially the
same. But it is very difficult in a court or courts at international
level to form consensus of judicial opinion on demarcating the bounds
of reasonableness, even roughly, which Article 5 (3) (art. 5-3)
contemplates. However, in the course of time this might become
possible.
The legal system of a country, governing the provisions of the
criminal law and procedure relating to pre-trial proceedings - such as
preliminary enquiries, investigation and arraignment - as well as the
presentation of a case to the court and the power of the court itself
in reopening investigations, has a lot to do with the time taken in
the conclusion of a trial. In a country where the common law system
is followed the time taken in bringing the accused before a trial
court and having him tried is relatively much shorter than the time
needed for such a trial under the continental system.
In the former case it is the police and the prosecution who conduct
the enquiries and collect the evidence. They present the case to a
court either for trial or - in indictable offences - for preliminary
enquiries for the purpose of committal before the Assizes. Under the
latter system the investigation is carried out by a judge and the
trial of the accused is started after judicial investigations are
closed and after the decision is taken for remitting the case before
trial.
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Under the common law system, after a person has been charged he is not
bound to say anything or assist the prosecution in any way in the
investigation, unless after he is duly cautioned, he elects to say
something. In the Continental system interrogation and confrontation
of the man in custody are a normal procedural feature and the case is
prepared during his detention.
While in the former system sufficient evidence to build up a prima
facie case against the suspected person is normally expected to be
available before he is charged and is taken into custody, in the
latter case, i.e. Continental system, it appears that the
availability of such evidence at an early stage is not essential.
Information to the satisfaction of the judicial officials seems to be
sufficient for the arrest and detention of a suspect.
As a consequence of these basic divergences inherent in the two
systems, suspected persons are, as a rule, kept in detention
considerably longer on the Continent than in the case of those in
England or other countries where the system of common law prevails.
If in England you keep an accused person - even in an exceptionally
difficult case - over six months without having been brought before a
trial court, the repercussions caused not only among the judicial
circles but also on the public would be great. A Writ of Habeas
Corpus would certainly lie if the man was not committed for trial
before the next assizes which periodically sits three times a year.
What about if you keep an unconvicted person for three years and over?
Surely this will be described as shocking.
It might be remarked that we are not here concerned with the
Englishman or with the common law system. Let the suspect or the
criminal in England enjoy the greater protection and liberty that
common law accords him. Furthermore, Article 60 (art. 60) of the
Convention saves rights and liberties enjoyed by individuals in their
country if such rights and liberties are over and above those
guaranteed by the Convention.
Of course, we are primarily interested with the interpretation and the
application of the relevant Articles of the Convention, but in our
search for the proper understanding of the scope and extent of the
words "reasonable time" occurring in Article 5 (3) (art. 5-3) it is
permissible, in my view, to examine the meaning attached to such words
in judicial practice in a neighbouring country signatory of the
Convention.
Moreover, the text of the Convention - especially articles relating to
the right of liberty and security of person - is so much in harmony
with the common law of England that one really wonders whether Section
I of the Convention did not follow the pattern of the common law. The
presumption of innocence to which a man charged with a criminal
offence is entitled until he is found guilty by a competent court, is
one of the basic principles of the English criminal law and this
principle has been introduced into the Convention by Article 6 (2)
(art. 6-2).
My point is not to draw a comparison between the common law and
Continental systems governing criminal procedure. These systems being
different in nature, one accusatorial and the other inquisitorial, may
as a result cause a suspected person to be kept longer or shorter in
accordance with the prevailing system in the country he lives in. My
intention is neither to touch on the merits or demerits of either
system. My digression from the track is to emphasise the fact that
- if in England, a Member of the Council of Europe - the concept of
"reasonable time" regarding the period of detention of an unconvicted
person awaiting his trial does not allow us to stretch the time beyond
six months even in an exceptionally difficult and complicated case,
could we say that in the Continent in a similar case, the period of
detention might be six times longer and yet it could be considered as
reasonable and therefore compatible with the Convention?
The Convention has aimed at setting a common standard as to the right
to liberty and safety of persons for the people living in the
territories of the member States of the Council of Europe. The
difference of standards therefore in such countries cannot be
substantially a great one. Coming from a country where the system of
common law obtains, I might unwittingly have been influenced by this
system.
The point I am driving at is this: the High Contracting Parties who
have signed the Convention, which is a multilateral and legislative
instrument or treaty, intended to secure to everyone within their
jurisdiction rights and freedoms enumerated in the Convention, one of
which is the right to liberty as specified by Article 5 (art. 5).
Furthermore, the same Parties resolved - as it appears in the preamble
of the Convention - to take the first steps to the collective
enforcement of certain rights stated in the Universal Declaration
because they are "Likeminded and have a common heritage of political
traditions, ideals, freedom and the rule of law".
From the above it may fairly be inferred that the Governments
signatories of the Convention, intended amongst other things, to set a
common standard of right to liberty, the scope of which could not
differ so vastly from one country to another.
I have said in the outset of my judgment that it was very difficult to
obtain a consensus of judicial opinion at the level of international
courts of justice on the point at issue.
I respectfully suggest that the following might serve as guiding
principles in understanding and assessing in a general way the notion
of "reasonable time" under Article 5 (3) (art. 5-3).
A. The Convention, by Articles 1, 2, 5, 6, 7 and 8 (art. 1,
art. 2, art. 5, art. 6, art. 7, art. 8) deals extensively with the
right to liberty and security of person. It demands that a man
arrested should promptly be brought before a judge (Article 5 (3))
(art. 5-3), and that the legality of his detention should be speedily
decided by a court and his release ordered if the detention is not
lawful (Article 5 (4)) (art. 5-4).
Article 6 (2) (art. 6-2) reads: "Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law". This is a fundamental provision. It clearly implies that until
a man is proved guilty, he is entitled to be treated as innocent.
This should constantly be borne in mind in dealing with persons kept
in custody pending trial.
The tenor and import of these Articles points to the requirement of
being strict in respect of time in depriving a man of his liberty.
It follows that derogation from such rights should be for limited
periods. It is absurd to deprive a man of his liberty for a period of
three years and over and to assert on the other hand that by virtue of
Article 6 (2) (art. 6-2) he is entitled to be presumed innocent.
B. I quote hereunder from Resolution (65) 11 of the Committee of
Ministers, referring to Article 5 (1) and (3) (art. 5-1, art. 5-3)
of the Convention. Although the Committee is not discharging judicial
functions, nevertheless they are representatives of the High
Contracting Parties and as the ascertainment of the intention of the
signatories of the Convention is of great help in the interpretation
of the Articles contained therein, it is permissible, in my view, to
quote the relevant part of the Resolution in question.
Resolution (65) 11 reads:
"(a) Remand in custody should never be compulsory. The judicial
authority should make its decision in the light of the facts and
circumstances of the case;
(b) Remand in custody should be regarded as an exceptional measure;
(c) Remand in custody should be ordered only when it is strictly
necessary. In no event should it be applied for punitive ends".
I want to lay stress on the words "strictly necessary" contained in
paragraph (c).
C. The security of a State, the enforcement of the law of the country
and public order and interest do require a certain amount of sacrifice
of the right to liberty of a citizen. On the other hand, in a
democratic society the right to liberty is one of the valuable
attributes cherished by the people living therein. One has to strike
a fair and just balance between the interest of the State and the
right to liberty of the subject.
If a man, presumably innocent, is kept in custody for years, this is
bound to ruin him. It is true in the case of Wemhoff that the trial
ended with a conviction, but it might have ended with an acquittal as
well. By detaining a man too long before he is tried, you throw him
into despair and the will and desire of a despairing man to defend his
innocence is materially impaired.
I believe that in all systems of law there exist always ways and means
of avoiding unreasonably long delayed trials. In a case for instance,
where a series of offences has been committed by a man along with
other persons, surely there is a procedural device to sever the case
of one person from others and/or to limit the charges against him to
certain offences if by not doing so the man has to be detained for a
very long time. The legal authorities might continue or discontinue
proceedings against the man for a remaining offence or offences later
on. Long unreasonable delays in trials will thus be averted.
For the reasons I have endeavoured to explain, I find that there is a
contravention of Article 5 (3) (art. 5-3) of the Convention on the
part of the Federal Republic of Germany for keeping Wemhoff in custody
awaiting his trial for an unreasonably long time.
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