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.