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2. In order to facilitate such evaluation the Commission believes
that it is in general necessary to examine an individual case
according to the seven following "criteria" or "elements":

(i) The actual length of detention.

In this respect, the Commission does not indicate in its Report when
it considers the "reasonable time" mentioned in Article 5 (3)
(art. 5-3) to begin and to end in abstracto. During the oral
proceedings before the Court, however, the Principal Delegate of the
Commission stated the problems which the Commission thinks arise in
this matter. Whereas the English version ("entitled to trial within a
reasonable time or to be released pending trial") would permit the
interpretation that the period referred to ends with the opening of
the case before the trial court, the French version ("être jugée dans
un délai raisonnable, ou libérée pendant la procédure") would cover a
longer period, ending at the date on which judgment is pronounced.
The Commission has not stated any definite opinion on this question,
but at the hearing its Principal Delegate expressed a clear preference
in favour of the interpretation based on the French text, the meaning
of which is, unlike the English version, clear and unequivocal and
also more favourable to the individual. In particular, the delegate
of the Commission rejected the argument of the German Government that
the English version should be accepted for the simple reason that it
limits the sovereignty of States to a lesser degree.

The Commission emphasised the importance which it attaches to the
Court's settling this question of interpretation.

(ii) The length of detention on remand in relation to the nature of
the offence, the penalty prescribed and to be expected in the case of
conviction and any legal provisions making allowance for such a period
of detention in the execution of the penalty which may be imposed. On
this point the Commission remarked that the length of detention on
remand may vary according to the nature of the offence concerned and
the penalty prescribed and to be expected. However, in determining
the relation between the penalty and the length of detention, it is
necessary to take into account the presumption of innocence as
guaranteed by Article 6 (2) (art. 6-2) of the Convention. If the
length of detention should approach too closely the length of the
sentence to be expected in case of conviction, the principle of
presumption of innocence would not be fully observed;

(iii) material, moral or other effects on the detained person.

(iv) the conduct of the accused:

(a) Did he contribute to the delay or expedition of the investigation
or trial?

(b) Was the procedure delayed as a result of applications for release
pending trial, appeals or other remedies resorted to by him?

(c) Did he request release on bail or offer other guarantees to appear
for trial?

(v) difficulties in the investigation of the case (its complexity in
respect of facts or number of witnesses or co-accused, need to obtain
evidence abroad, etc.).

(vi) the manner in which the investigation was conducted:

(a) the system of investigation applicable;

(b) the conduct by the authorities of the investigation (the diligence
shown by them in dealing with the case and the manner in which they
organised the investigation).

(vii) the conduct of the judicial authorities concerned:

(a) in dealing with the applications for release pending trial;

(b) in completing the trial.

3. The Commission argues that a rational scheme of this kind makes
possible in each case a "coherent interpretation without any
appearance of arbitrariness". The Commission remarks, however, that
the conclusion in any particular case will be the outcome of an
overall evaluation of all the elements. Even if examination of some
of the criteria leads to the conclusion that the length of detention
is reasonable, the application of other criteria may lead to a
contrary conclusion. The final and determining conclusion will
therefore depend on the relative weight and importance of the
criteria, but this in no way precludes one single criterion from
having decisive importance in some cases.

The Commission adds that it has endeavoured to cover, through the
aforementioned criteria, all the situations of fact which it is
usually possible to find in cases of detention on remand, but that the
list should not be considered exhaustive, there being exceptional
situations, other than those submitted to the Court for decision in
the case in question, which might justify the examination of other
criteria.

4. In this case the Commission ascertained the facts in the light of
the said criteria and proceeded to their legal evaluation by the same
method of interpretation.

Certain of the facts established by the Commission seemed to it
important in the light of several criteria. There will be found below
a summary of the Commission's opinion on these various points.

5. With regard to application of the first criterion, that is to say
the length of Wemhoff's detention on remand, the Commission takes into
account the period from 9 November 1961 (the date of his arrest) to
9 November 1964 (the date of the opening of the trial before the
Regional Court). According to the Commission the actual length of
this detention (three years) seems to warrant the conclusion that it
exceeded a "reasonable" period.

6. As regards the second criterion mentioned above, the Commission is
of the opinion that its application in the present case seems to
justify the same conclusion. It remarks that here it has taken into
consideration both the possibility of the Applicant's provisional
release under Section 26 of the Criminal Code, and the fact that the
length of detention has been counted as part of the sentence imposed.
The Commission accepts that this last measure constitutes an element
comparable to an "extenuating circumstance", but states that it in no
way changes the distinctive nature of detention on remand which, not
being in accordance with Article 5 (3) (art. 5-3), remains a violation
of the Convention, even if in the execution of the sentence finally
imposed, account has been taken of the period of detention.

7. Application of the third criterion, in the opinion of the
Commission, likewise leads to the conclusion that the length of
detention was excessive, in view of the prejudicial effects of the
detention on the Applicant's family life; his long detention is said
to have destroyed his marriage and injured his close relations with
his parents.
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