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Under the common law system, after a person has been charged he is not
bound to say anything or assist the prosecution in any way in the
investigation, unless after he is duly cautioned, he elects to say
something. In the Continental system interrogation and confrontation
of the man in custody are a normal procedural feature and the case is
prepared during his detention.

While in the former system sufficient evidence to build up a prima
facie case against the suspected person is normally expected to be
available before he is charged and is taken into custody, in the
latter case, i.e. Continental system, it appears that the
availability of such evidence at an early stage is not essential.
Information to the satisfaction of the judicial officials seems to be
sufficient for the arrest and detention of a suspect.

As a consequence of these basic divergences inherent in the two
systems, suspected persons are, as a rule, kept in detention
considerably longer on the Continent than in the case of those in
England or other countries where the system of common law prevails.

If in England you keep an accused person - even in an exceptionally
difficult case - over six months without having been brought before a
trial court, the repercussions caused not only among the judicial
circles but also on the public would be great. A Writ of Habeas
Corpus would certainly lie if the man was not committed for trial
before the next assizes which periodically sits three times a year.
What about if you keep an unconvicted person for three years and over?
Surely this will be described as shocking.

It might be remarked that we are not here concerned with the
Englishman or with the common law system. Let the suspect or the
criminal in England enjoy the greater protection and liberty that
common law accords him. Furthermore, Article 60 (art. 60) of the
Convention saves rights and liberties enjoyed by individuals in their
country if such rights and liberties are over and above those
guaranteed by the Convention.

Of course, we are primarily interested with the interpretation and the
application of the relevant Articles of the Convention, but in our
search for the proper understanding of the scope and extent of the
words "reasonable time" occurring in Article 5 (3) (art. 5-3) it is
permissible, in my view, to examine the meaning attached to such words
in judicial practice in a neighbouring country signatory of the
Convention.

Moreover, the text of the Convention - especially articles relating to
the right of liberty and security of person - is so much in harmony
with the common law of England that one really wonders whether Section
I of the Convention did not follow the pattern of the common law. The
presumption of innocence to which a man charged with a criminal
offence is entitled until he is found guilty by a competent court, is
one of the basic principles of the English criminal law and this
principle has been introduced into the Convention by Article 6 (2)
(art. 6-2).

My point is not to draw a comparison between the common law and
Continental systems governing criminal procedure. These systems being
different in nature, one accusatorial and the other inquisitorial, may
as a result cause a suspected person to be kept longer or shorter in
accordance with the prevailing system in the country he lives in. My
intention is neither to touch on the merits or demerits of either
system. My digression from the track is to emphasise the fact that
- if in England, a Member of the Council of Europe - the concept of
"reasonable time" regarding the period of detention of an unconvicted
person awaiting his trial does not allow us to stretch the time beyond
six months even in an exceptionally difficult and complicated case,
could we say that in the Continent in a similar case, the period of
detention might be six times longer and yet it could be considered as
reasonable and therefore compatible with the Convention?

The Convention has aimed at setting a common standard as to the right
to liberty and safety of persons for the people living in the
territories of the member States of the Council of Europe. The
difference of standards therefore in such countries cannot be
substantially a great one. Coming from a country where the system of
common law obtains, I might unwittingly have been influenced by this
system.

The point I am driving at is this: the High Contracting Parties who
have signed the Convention, which is a multilateral and legislative
instrument or treaty, intended to secure to everyone within their
jurisdiction rights and freedoms enumerated in the Convention, one of
which is the right to liberty as specified by Article 5 (art. 5).
Furthermore, the same Parties resolved - as it appears in the preamble
of the Convention - to take the first steps to the collective
enforcement of certain rights stated in the Universal Declaration
because they are "Likeminded and have a common heritage of political
traditions, ideals, freedom and the rule of law".

From the above it may fairly be inferred that the Governments
signatories of the Convention, intended amongst other things, to set a
common standard of right to liberty, the scope of which could not
differ so vastly from one country to another.

I have said in the outset of my judgment that it was very difficult to
obtain a consensus of judicial opinion at the level of international
courts of justice on the point at issue.

I respectfully suggest that the following might serve as guiding
principles in understanding and assessing in a general way the notion
of "reasonable time" under Article 5 (3) (art. 5-3).

A. The Convention, by Articles 1, 2, 5, 6, 7 and 8 (art. 1,
art. 2, art. 5, art. 6, art. 7, art. 8) deals extensively with the
right to liberty and security of person. It demands that a man
arrested should promptly be brought before a judge (Article 5 (3))
(art. 5-3), and that the legality of his detention should be speedily
decided by a court and his release ordered if the detention is not
lawful (Article 5 (4)) (art. 5-4).

Article 6 (2) (art. 6-2) reads: "Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law". This is a fundamental provision. It clearly implies that until
a man is proved guilty, he is entitled to be treated as innocent.
This should constantly be borne in mind in dealing with persons kept
in custody pending trial.

The tenor and import of these Articles points to the requirement of
being strict in respect of time in depriving a man of his liberty.
It follows that derogation from such rights should be for limited
periods. It is absurd to deprive a man of his liberty for a period of
three years and over and to assert on the other hand that by virtue of
Article 6 (2) (art. 6-2) he is entitled to be presumed innocent.

B. I quote hereunder from Resolution (65) 11 of the Committee of
Ministers, referring to Article 5 (1) and (3) (art. 5-1, art. 5-3)
of the Convention. Although the Committee is not discharging judicial
functions, nevertheless they are representatives of the High
Contracting Parties and as the ascertainment of the intention of the
signatories of the Convention is of great help in the interpretation
of the Articles contained therein, it is permissible, in my view, to
quote the relevant part of the Resolution in question.

Resolution (65) 11 reads:

"(a) Remand in custody should never be compulsory. The judicial
authority should make its decision in the light of the facts and
circumstances of the case;

(b) Remand in custody should be regarded as an exceptional measure;

(c) Remand in custody should be ordered only when it is strictly
necessary. In no event should it be applied for punitive ends".

I want to lay stress on the words "strictly necessary" contained in
paragraph (c).

C. The security of a State, the enforcement of the law of the country
and public order and interest do require a certain amount of sacrifice
of the right to liberty of a citizen. On the other hand, in a
democratic society the right to liberty is one of the valuable
attributes cherished by the people living therein. One has to strike
a fair and just balance between the interest of the State and the
right to liberty of the subject.

If a man, presumably innocent, is kept in custody for years, this is
bound to ruin him. It is true in the case of Wemhoff that the trial
ended with a conviction, but it might have ended with an acquittal as
well. By detaining a man too long before he is tried, you throw him
into despair and the will and desire of a despairing man to defend his
innocence is materially impaired.

I believe that in all systems of law there exist always ways and means
of avoiding unreasonably long delayed trials. In a case for instance,
where a series of offences has been committed by a man along with
other persons, surely there is a procedural device to sever the case
of one person from others and/or to limit the charges against him to
certain offences if by not doing so the man has to be detained for a
very long time. The legal authorities might continue or discontinue
proceedings against the man for a remaining offence or offences later
on. Long unreasonable delays in trials will thus be averted.

For the reasons I have endeavoured to explain, I find that there is a
contravention of Article 5 (3) (art. 5-3) of the Convention on the
part of the Federal Republic of Germany for keeping Wemhoff in custody
awaiting his trial for an unreasonably long time.
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