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"May it please the Court to decide:

(1) whether or not Article 5 (3) (art. 5-3) of the Convention has been
violated by the detention of Wemhoff from 9 November 1961 to
9 November 1964 or any later date;

(2) whether or not Article 6 (1) (art. 6-1) of the Convention has been
violated by the duration of the criminal proceedings against Wemhoff
between his arrest on 9 November 1961 or any later date and the
judgment of the Regional Court of Berlin on 7 April 1965 or any other
date."

15. The German Government, for its part, remarks that it shares the
Commission's opinion as to the absence of any violation of
Article 6 (1) (art. 6-1) of the Convention.

16. With regard to the interpretation of Article 5 (3) (art. 5-3)
of the Convention and its application to the present case, the
Government believes that the period to be considered is that which the
Commission takes into account in its Report, from arrest
(9 November 1961) to the opening of the case before the trial court,
the Regional Court of Berlin (9 November 1964).

According to the Government it is essential, at least in the present
case, not to rely on the French text ("le droit d'être jugée dans un
délai raisonnable ou libérée pendant la procédure"), which could
signify a longer period (up to the date of the judgment) than one
terminating on the date of the opening of the trial, as suggested by
the English version ("entitled to trial within a reasonable time or to
release pending trial"). It could therefore lead to a further
limitation of the sovereignty of the Contracting States. Moreover,
application of Article 5 (3) (art. 5-3) in the French version would
allow the accused to prolong the protection accorded by that provision
by making excessive use of procedural devices. The result would be an
undue prolongation of proceedings, with the danger that by the time
release was possible, the period would no longer be "reasonable".

17. In general terms the Government expresses considerable
reservations as to the method adopted by the Commission - that of
laying down seven "criteria" - while admitting that the answer depends
on the circumstances of the case. In its opinion, the Commission was
not objective, on its strict allocation of the facts to the same
criteria, as indeed some of the facts mentioned in relation to one of
the criteria would be equally relevant to others.

18. The Government also sets against the Commission's reasoning the
following considerations which, in its opinion, demonstrate the
absence of any violation of Article 5 (3) (art. 5-3) in the case of
the Applicant.

19. To the first criterion advanced by the Commission, namely, the
actual length of detention, the Government raises objections of
principle. In its opinion, the adjective "reasonable", qualifying the
noun "time", introduces a relative element; the absolute factor which
the actual length of detention represents cannot therefore serve as a
criterion for determining whether such a length of time is
"reasonable". Furthermore, the Government remarks that, in the
Commission's view, the Applicant's detention was "lawful" for the
whole of its length within the meaning of Article 5 (1) (c)
(art. 5-1-c) of the Convention; it adds that the Commission, in
evaluating the fifth criterion, admits that the complexity of the
investigation tends to justify the length of detention. The
Government therefore does not see how it is possible to consider as
"unreasonable" the length of the detention on remand in toto.
Moreover, the Commission has not indicated at what moment the
detention ceased, in its opinion, to be "reasonable".

20. Neither does the Government share the evaluation of the
Commission with respect to the second criterion. It emphasises that
the opinion of the Commission is based primarily on the possibility,
provided in Section 26 of the Criminal Code, of the conditional
release of a detained person. However, according to the Government,
that Section, whose application depends on the Court's discretion, can
operate only when the sentence has become final and, more precisely,
from the moment when the convicted person has already served
two-thirds of his sentence; it cannot therefore justify the conclusion
that the length of detention on remand has been "unreasonable".
Moreover, the German judicial authorities granted the Applicant
conditional freedom when he had served two-thirds of his sentence.
This decision, which dates from 20 October 1966, was able to be taken
so early because the length of detention on remand had been counted as
part of the sentence.

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.
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