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The later factual development in regard to the detention was also
dealt with both by the Commission and during the procedure before the
Court. The President of the Commission recalled during the procedure
before the Court that Wemhoff's detention pending trial had been
prolonged beyond his appearance before the Regional Court, and he
requested the Court to decide on the lawfulness of the detention from
9 November 1961 - the date of the arrest - to 9 November 1964 or any
later date. I agree that the Court has full competence to decide upon
the lawfulness of the detention on remand for the full period until it
was brought to an end, although this of course does not depend upon
any formal request by the Commission, but upon the fact that the case
brought before the Court comprises the question of the lawfulness of
the detention as a whole.

The second aspect of the question - of which exact length of time is
relevant in Wemhoff's case - is a question of interpretation of
Article 5 (3) (art. 5-3): does the "reasonable" time-limit for trial
or release in Article 5 (3) (art. 5-3) mean the time until the
beginning of the trial, the end of the trial at first instance, or the
time of the final conviction after appeal? In this respect I hold the
following opinion. Certainly, the interpretation proposed by the
German Government and accepted in the Commission's Report, which gives
as the end of the period the appearance of the detained person before
the trial court, may be upheld by the English text. The word "trial"
undoubtedly refers to the proceedings before the court of first
instance, and the words "release pending trial" may be understood as
providing for release during these proceedings.

This restrictive interpretation does not commend itself, however. The
"trial" is a phase of the proceedings which lasts until judgment. The
trial (procès) must not therefore be understood in the sense of the
opening of the trial; the English text, moreover, does not say
"entitled to be brought to trial", but "to trial". The protection
secured to the accused may therefore also be understood as lasting
until the end of the "trial", that is to say, until judgment is given.

If the English text permits two interpretations, the French text on
the other hand allows only one, that is the second. It provides, in
effect, that a detained person who has not yet been sentenced must be
"jugé dans un délai raisonnable", in the absence of which he must be
released "pendant la procédure", which undoubtedly covers both the
proceedings before the trial court and also the investigation.

Taking both the French and the English texts into account, my
conclusion is that the period under consideration goes to the time
when the provisional detention is brought to an end either by release
or by a judgment which constitutes a new and independent basis for the
detention with the effect that the prisoner is no longer held on
remand in accordance with the provision of paragraph 1 (c) of
Article 5 (art. 5-1-c).

It remains to be determined whether the date of the "judgment" to be
taken into consideration in our case is that of the pronouncement of
judgment at first instance (7 April 1965) or that on which it became
final (17 December 1965).

In my opinion the protection provided by the Convention must be
considered as lasting until the final judgment, that is to say in this
case up until 17 December 1965. It is true that a conviction which is
not yet final may affect the evaluation of the reasonableness of the
continuation of the provisional detention during the period of time
which runs from the pronouncing of judgment in the first instance and
until the time when it becomes final, and the possibility therefore
cannot be excluded that even during this period, the detention may
lose its reasonable character.

In addition the final judgment of 17 December 1965 by the Federal
Court (Bundesgerichtshof) while rejecting Wemhoff's appeal, expressly
lays down that the time he "spent in detention" after the judgment of
7 April 1965 - in so far as it exceeded three months - was to be
counted as part of the sentence. This clearly shows that the
detention of Wemhoff on remand in accordance with Article 5 (1) (c)
(art. 5-1-c) continued until the final judgment, and I see no reason
why he should not have the protection of Article 5 (3) (art. 5-3) for
the whole of this period.

Furthermore, Article 5 (1) (a) (art. 5-1-a) referred to by the
majority, in my opinion only deals with a conviction which is "legally
in force" (rechtskräftig). That applies to judgments in the final
instance or to convictions against which no appeal is declared.

III. The second question of a more general character before the Court
regards the scope to be attributed to the term "reasonable" in
Article 5 (3) (art. 5-3). This is a question of great importance.
"Reasonable" is a legal standard used in the Convention as in many
national law provisions - also of a penal content. It goes without
saying that the German authorities, who have the direct knowledge of
all the details and implications of the Wemhoff case are in a better
position to evaluate whether a continued detention at any time is
reasonable or not. Nevertheless, when the case is brought before the
Court, the Court has to decide - both in regard to the facts and the
law - if Wemhoff has not been released "within a reasonable time". In
regard to the facts, the Court will have to rely upon the evidence
produced, and so far there is on the whole not any disputed point. In
regard to the law the Court will have to decide if the grounds given
for the detention of Wemhoff are relevant grounds which legally can be
taken into consideration in the Wemhoff case, and secondly the Court
will have to exercise control in regard to the question whether the
German authorities - when applying legally relevant grounds for
upholding the detention of Wemhoff - have applied not too severe a
yardstick of measurement in evaluating the requirements of the case,
when Wemhoff was not released earlier than his final conviction in
December 1965. The last part of the task is by far the most difficult
one. In my opinion the judgment of the German authorities should not
be reversed unless the Court is convinced that an abuse of power
(détournement de pouvoir) has taken place - or unless it is clear that
the yardstick of measurement has been too severe - that is to say
unreasonable.

Of course, it is useful that the Commission has sought to establish a
list of seven criteria which in cases of detention in accordance with
Article 5 (3) (art. 5-3) can be taken into consideration and
evaluated. I agree, however, with the majority opinion that the Court
cannot recommend this method of procedure. Firstly, the list can
never be complete, and in addition it is the grounds given for the
detention in each specific case, and not a list of grounds of a
general character set up, that the Court has to examine. There may
- true enough - be grounds for continued detention in a specific case,
which have not been specifically advanced by the authorities. In my
opinion the Court should, however, as a rule not base its decision on
such additional grounds, but limit itself to the grounds given by the
national authorities for upholding the detention and decide taking the
circumstances of the case into consideration if these grounds
constitute sufficient reasons for upholding the detention.

However, in addition to the grounds given for continued detention, it
must always be taken into consideration that the term "reasonable
time" is first and foremost directed to the authorities. Even if all
good reasons for detention exist, the person detained on remand is
entitled to release, if he is not tried within a "reasonable" time.
The authorities cannot hold a person in detention for an indefinite
time without proceeding with his case with all good speed, taking into
consideration that they are dealing with a person deprived of his
liberty, only waiting for trial.
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