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

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

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had withdrawn this sum when his offences came to light.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

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

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

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

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

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

"We ask this Court to find:

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

AS TO THE LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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