European Court of Human Rights

 

INDIVIDUAL OPINION OF JUDGE TERJE WOLD

I. First I want to raise a procedural question which in my opinion should be decided by the Court.

In his Application to the Commission of 9 January 1964 Wemhoff alleged that his right under Article 5 (3) (art. 5-3) of the Convention to be brought to trial "within a reasonable time" or released pending trial, had been violated. He claimed compensation for the damage suffered. At that time Wemhoff was detained on remand, cf. Article 5 (1) (c) (art. 5-1-c) of the Convention. But on 17 December 1965 Wemhoff received his final conviction. He was sentenced to six years and six months of penal servitude, and the period of detention on remand was counted as part of the sentence. Under these circumstances, it is in my opinion difficult to see that Wemhoff has in fact any actual legal interest in regard to the question of whether or not he has been held in detention on remand beyond a reasonable time.

It is in fact also difficult to imagine that he has any claim for compensation. The whole time he has spent in detention has been deducted from his sentence except the time of three months during the period of his appeal to the Federal Court.

The Court should not lose sight of the fact that Wemhoff has been found guilty of having committed very serious crimes, and his claim to compensation for detention on remand seems to be manifestly ill-founded, cf. Article 27 (2) (art. 27-2). His claim that his rights in accordance with Article 5 (3) (art. 5-3) have been violated has, therefore, a purely theoretical interest and constitutes in my opinion no case before the European Court. However, as I am alone to hold this opinion, I find it unnecessary to develop my point of view any further.

 

II. In regard to the merits of the claim that Wemhoff has been violated in the right he is granted in Article 5 (3) (art. 5-3), I hold the following separate, concurring opinion:

In his Application to the Commission of 9 January 1964 Wemhoff alleged that the length of his detention on remand violated his right under Article 5 (3) (art. 5-3) of the Convention to be brought to trial within a reasonable time or released pending trial. This Application was declared admissible by the Commission on 2 July 1964. In consequence the case before the Court is to decide if the detention of Wemhoff lasted beyond a reasonable time.

The first question the Court has had to examine and resolve is the exact length of time which in Wemhoff’s case is relevant as a basis for the consideration of the Court. This question has in our case two aspects. The one concerns the general competence of the Court in a case of this kind. The Application of Wemhoff is dated 9 January 1964. But his detention lasted in fact until 17 December 1965, when the judgment became final. Has the Court competence to deal with this latest period between 1964 and 1965 when in actual fact this latest period is not formally dealt with in the complaint which was declared admissible by the Commission? This is a question of the scope of the case before the Court. We are dealing with a continued manner of conduct on the part of the German authorities. It goes without saying that Wemhoff, when claiming that he was detained beyond a reasonable time, implied the whole period the provisional detention goes on and until it ends. Any later date than 9 January 1964, the date of the application, is therefore - once the complaint is raised - part and parcel of the case. This applied to internal practice: it is the situation at the time of the decision the national courts in cases of this kind take into consideration. The same applies to the European Court. The Commission has also in good sense followed this concept in regard to the factual limitation of the case. The complaint goes back to 1963, but the Commission has not hesitated to consider the detention up till November 1964.

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.

Having established this much, the Court is under a duty to examine whether the requirements of good administration of justice justified Wemhoff’s being held in provisional detention from 9 November 1961 until the final judgment of 17 December 1965, that is to say for a period of four years and ten days.

In my opinion, the reasons given by the German authorities are relevant and pertinent, and taking the circumstances of the case into consideration, the detention of Wemhoff has not extended beyond a reasonable time. In my opinion this applies to the whole period of detention until the final judgment of 17 December 1965.

In this regard I in the main adhere to the grounds given in the majority opinion under paragraphs 13 to 15, which in my view are sufficient.

 

IV. As regards Article 6 (1) (art. 6-1), in so far as it secures to everyone a fair and public hearing within a reasonable time in the determination of any criminal charge against him, I find it sufficient to state that, having decided in the case of Wemhoff that no breach of Article 5 (3) (art. 5-3) on the part of the German authorities can be found, and having taken the whole period of Wemhoff’s detention into consideration, in consequence there has been no contravention of Article 6 (1) (art. 6-1) of the Convention.

 

INDIVIDUAL OPINION OF JUDGE A. FAVRE

(Translation)

My opinion differs from that of the majority of the Chamber on the interpretation of Article 5 (3) (art. 5-3) of the Convention (paragraph 9 of the judgment).

It follows from this provision that a person who is detained with a view to his explaining an offence, is entitled to trial within a reasonable time or to release pending trial. The question here in dispute concerns exclusively detention pending trial. What is in issue is whether the word "trial" as used in Article 5 (3) (art. 5-3) ("procédure" in the French text) includes the final judgment or only the judgment at first instance.

No one denies that the accused must benefit from the protection of the Convention during every phase of the proceedings leading to the final judgment. It seems natural and logical that this protection is secured to him by the application of those rules of the Convention which specifically govern arrest and detention on remand, rules which appear in Article 5 (1) (c) and (3) (art. 5-1-c, art. 5-3).

The judgment draws a distinction relating to the legal nature of detention on remand based on whether it is ordered or continued before or after the judgment at first instance. Such a distinction has no foundation in the Convention. In restricting the scope of Article 5 (3) (art. 5-3) to the detention which lasts up until the judgment at first instance, the judgment of the Court is not in conformity with those correct principles which are stated in point 8.

When confronted with texts which, though being drafted in two languages which are equally authoritative, do not exactly coincide, the Court must adopt the meaning of the rule which best corresponds to the purpose and object of the treaty. While the English text speaks in paragraph 3 of "trial", a word which appears there with three different meanings and whose scope may be disputed, as is to be seen in the judgment, the French text is more clear since it provides in unequivocal and very general terms that the person detained is entitled "d’être jugée dans un délai raisonnable ou libérée pendant la procédure".

The interpretation of this provision which most closely conforms with common sense is that which its purpose requires; now this purpose is to ensure the largest measure of protection to the accused who is detained on remand for as long as the proceedings (procédure) last, that is to say, until the final judgment.

The judgment of the Court is based on a belief that a narrow interpretation of Article 5 (3) (art. 5-3) can be maintained by considering that detention is justified, during appeal proceedings, by the conviction which has been pronounced. The question may be left open as to whether the provisions of Article 5 (1) (a) (art. 5-1-a) are applicable when a conviction is not yet res judicata. However, provisional detention may be ordered or continued during appeal proceedings lodged by the prosecuting authority after an acquittal. If there is a situation in which the accused deserves to benefit from the protection afforded by the Convention, this is it. Now the interpretation which is given by the judgment to the texts in issue denies him this protection. Does this mean that there is a lacuna in Article 5 (art. 5)? A correct interpretation of paragraph 3 would easily fill it as it would give complete effectiveness to this provision. As regards Article 6 (1) (art. 6-1) of the Convention, which is concerned with trial proceedings, it contains no reference nor allusion to detention. It is not therefore applicable to detention, which is governed only by Article 5 (art. 5).

Although the accused has formally benefited from the protection secured by Article 5 (3) (art. 5-3) up until the final judgment, this provision has been of no assistance to him for the reasons stated in the judgment, especially because of the danger of flight.

 

INDIVIDUAL DISSENTING OPINION OF JUDGE ZEKIA

I feel myself unable to subscribe to the view taken and to the conclusion arrived at by my eminent colleagues in this case regarding the alleged contravention of Article 5 (3) (art. 5-3) of the Convention by the Federal Republic of Germany.

A statement of facts and arguments advanced by the Parties having been embodied in the introductory part of the main judgment renders it unnecessary for me to repeat them.

Wemhoff, the Applicant, was arrested and kept in custody without interruption for three years and five months until the conclusion of his trial, which ended with a conviction.

His detention started on 9 November 1961 and continued up to the end of his trial on 7 April 1965.

He was convicted and sentenced to six years and six months. The period of detention on remand has been counted as part of the sentence passed on him.

Wemhoff was charged with committing frauds and breaches of trust and akin offences. The charges levelled against him comprised a great number of financial transactions, other persons were also involved. The case possessed ramifications both in Germany and abroad.

In the instant case, this Court, inter alia, is called upon to decide whether the detention of Wemhoff for a period of three years and five months prior to the announcement of the judgment by the trial court was in conformity with Article 5 (3) (art. 5-3) of the Convention. The answer to this depends whether the duration of his detention was a reasonable one within the meaning of Article 5 (3) (art. 5-3) referred to. Section 3 reads: "Everyone arrested or detained ... shall be brought promptly before a judge ... and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".

Although several applications were made by the Applicant for grant of bail during his long detention all were turned down mainly on the grounds of the danger of absconding and suppression of evidence. Although I am not in full agreement with the reasons given for the refusal of bail, this is not a matter, however, which I need enter into for the purpose of my judgment. Because whether Wemhoff was rightly or wrongly refused bail, during his long term of detention, this would not absolve the legal or judicial authorities from the obligation to conclude his trial within a reasonable time. The crux of the case is therefore the ascertainment of the extent of the "reasonable time" specified in Article 5 (3) (art. 5-3) in relation to the facts and accompanying circumstances of the case we are dealing with.

This is by no means an easy problem to solve. The Commission has established its jurisprudence in the matter by resorting to the seven criteria system as explained in the main judgment. This Court did not follow this method but laid stress on "the reasons given by the national authorities as justifying the continuation of detention" and to the examination of whether such reasons "are relevant and persuasive to decide if detention was unreasonably prolonged or not".

My approach to the problem is in a somewhat different way. No doubt certain criteria and considerations pertaining to the nature of the offences alleged to have been committed, and to the conduct of the person suspected of committing them as well as the criminal procedure designed to operate the law enforcement machinery of a country are of paramount importance in deciding whether a man should be arrested and kept in custody and if he is already in custody how long his detention would last prior to the completion of his trial, nevertheless, there is a time-limit beyond which depriving a man of his liberty is not permissible. The decisive factor in this respect is the judicial concept of reasonableness. In the absence of any provision in the law or constitution of a country precisely indicating the maximum length of time an unconvicted person can be confined to detention prior to the end of his trial, it falls, in the first instance, on the national courts and ultimately on this Court in exercising their jurisdiction to designate the principles indicating when such detention exceeded the limit and became unreasonable under Article 5 (3) (art. 5-3).

It may not be difficult to arrive at a uniformity of thought or practice on such matters in a particular country or in countries where the provisions dealing with relevant points (arrest, detention, investigation, etc.) of the criminal procedure are substantially the same. But it is very difficult in a court or courts at international level to form consensus of judicial opinion on demarcating the bounds of reasonableness, even roughly, which Article 5 (3) (art. 5-3) contemplates. However, in the course of time this might become possible.

The legal system of a country, governing the provisions of the criminal law and procedure relating to pre-trial proceedings - such as preliminary enquiries, investigation and arraignment - as well as the presentation of a case to the court and the power of the court itself in reopening investigations, has a lot to do with the time taken in the conclusion of a trial. In a country where the common law system is followed the time taken in bringing the accused before a trial court and having him tried is relatively much shorter than the time needed for such a trial under the continental system.

In the former case it is the police and the prosecution who conduct the enquiries and collect the evidence. They present the case to a court either for trial or - in indictable offences - for preliminary enquiries for the purpose of committal before the Assizes. Under the latter system the investigation is carried out by a judge and the trial of the accused is started after judicial investigations are closed and after the decision is taken for remitting the case before trial.

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.