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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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