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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.
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