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

  1. #11

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #12

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #13

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  4. #14

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

صفحة 2 من 2 الأولىالأولى 12

المواضيع المتشابهه

  1. NEUMEISTER v. AUSTRIA - 1936/63 [1968] ECHR 1 (27 June 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 18
    آخر مشاركة: 07-19-2009, 12:51 AM
  2. X. v. THE FEDERAL REPUBLIC OF GERMANY - 2699/65 [1968] ECHR 9 (01 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 2
    آخر مشاركة: 07-19-2009, 12:37 AM
  3. TWENTY-ONE DETAINED PERSONS v. GERMANY - 3139/67 [1968] ECHR 15 (06 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:35 AM
  4. X. v. BELGIUM - 2568/65 [1968] ECHR 6 (06 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:27 AM
  5. WEMHOFF v. THE FEDERAL REPUBLIC OF GERMANY - 2122/64 [1964] ECHR 4 (02 July 1964)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-15-2009, 12:20 AM

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