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.