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

  1. #1

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

    [align=left]
    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:
    [/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. #2

    افتراضي

    [align=left]
    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.
    [/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. #3

    افتراضي

    [align=left]
    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).
    [/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. #4

    افتراضي

    [align=left]
    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.
    [/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

  5. #5

    افتراضي

    [align=left]
    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.
    [/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

  6. #6

    افتراضي

    [align=left]
    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.
    [/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

  7. #7

    افتراضي

    [align=left]
    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:
    [/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

  8. #8

    افتراضي

    [align=left]
    "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.
    [/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

  9. #9

    افتراضي

    [align=left]
    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.
    [/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

  10. #10

    افتراضي

    [align=left]
    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.
    [/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

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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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