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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.
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