# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  WEMHOFF v. THE FEDERAL REPUBLIC OF GERMANY - 2122/64 [1964] ECHR 4 (02 July 1964)

## هيثم الفقى

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THE FACTS

Whereas the facts of the case may be summarised as follows:

The Applicant is a German citizen born in 1927 and living in Berlin.
He is represented by Dr. Dietrich Scheid, a lawyer practising in
Berlin, who is acting under a power-of-attorney dated 1st December
1963.

On 9th November 1961, the Applicant was arrested on suspicion of having
committed fraud and having been an accomplice in fraudulent
transactions. He was a customer of the August-Thyssen-Bank in Berlin
and had, allegedly, assisted a senior employee of the Bank, Mr Gericke,
in defrauding the Bank of 18 million DM.  During the investigation,
which was not completed until April 1964, the Applicant denied his
guilt, but fully co-operated with the authorities in their efforts to
examine and trace the transactions concerned.

On 20th March 1963, the District Court (Amtsgericht) of Tiergarten
ordered the detention of the Applicant to be continued on the grounds
that the investigation was very complicated and extensive (at the
time, the "dossier" consisted of 26 files), that the possibility of
the Applicant's escape could not be excluded (Fluchtgefahr) and that
his release might otherwise prejudice the investigation in the event
of his destroying evidence or influencing witnesses
(Verdunkelungsgefahr).

The Applicant, invoking the provisions of the Convention, lodged
an appeal which was rejected on 3rd May 1963 by the Regional Court
(Landgericht) of Berlin and by the Court of Appeal (Kammergericht)
of Berlin on 5th August 1963.  During these proceedings he offered
bail of 25,000 DM which was refused.  It appears that, at least, the
last decision was taken after a hearing of the Superior Public
Prosecutor ("nach Anh&Atilde;¶rung des Generalstaatsanwalts").  On 9th March
1964, a further complaint (Haftbeschwerde) was rejected by the Court
of Appeal of Berlin.

In April 1964 the investigation was completed and the indictment,
a document of 809 pages, was issued on 22nd April 1964, by the Regional
Court of Berlin, and consequently the Applicant was, at the time when
the present decision was taken, still detained pending trial.

The Applicant's lawyer has submitted a medico-psychiatric expertise
from a Dr Frenkel at Frankfurt, who concludes that the Applicant was
an addict of contergan (a drug related to thalidomide), his psychic
state having been seriously affected while he was serving a five-year
prison sentence following a conviction on political charges by a Court
in East Germany.  It results that Article 51 (1) of the Criminal Code
(non-responsibility) is applicable to the Applicant's case.

The Applicant's lawyer submits that, even if the Courts hold the
Applicant guilty and responsible, the sentence imposed upon him will
most probably be considerably reduced below the minimum fixed by law
in view of the above extraordinary circumstances.

He further submits that the Applicant had at the time of his arrest
a lucrative business and that he is now, after 32 months' imprisonment,
completely ruined.  He alleges that the Applicant could have been
brought to trial earlier and that there was no need for joining the
cases against him and the other accused persons.

The allegation made by the Applicant

Whereas the Applicant alleges violation of Article 5, paragraph (3)
and reserves the right to specify later the exact amount of damages
to be paid.

The submissions of the Parties

Whereas, in its observations of 10th June 1964 the Respondent
Government has submitted as follows:

On account of the extremely complex nature of the allegations against
the Applicant, very extensive investigations were required.  All
investigations were, however, carried out as fast as possible, and one
official at the Public Prosecutor's Office had been dealing with this
case exclusively.
Even so, the indictment was not issued until 22nd April 1964, and
it was foreseen that the trial would take place in November 1964.
It was submitted that the detention of the Applicant was justified
as he was under suspicion of having committed the very serious offenses
concerned, and there was considerable risk of his escaping if released.

This was even more probable as the Applicant is likely to be sentenced
to a very long term of penal servitude and to be held liable for
damages of 12.6 million DM.  It was further submitted that, since
August 1961, the Applicant had attempted to transfer money to
Switzerland and that the withdrawal of his passport would not be a
measure sufficient to prevent his going abroad.  The accuracy of Dr
Frenkel's conclusions was questioned and, in this respect, the
Government referred to another medico-psychiatric expertise by a Dr
Klaue in Berlin who found that the Applicant was fully responsible for
his actions and that, accordingly, Article 51 (1) and (2) of the Penal
Code was not applicable in his case.

Whereas in his reply of 15th June 1964 to the Government's
observations, the Applicant's lawyer has made the following
submissions:

Even if the Applicant were under strong suspicion of having committed
the offenses concerned, this could not justify his detention on remand
for a period of nearly three years.  Under Article 5, paragraph (3)
of the Convention, he was entitled to trial within a reasonable time
or to release pending trial.  Consequently, when the trial was delayed
beyond a reasonable time because extensive investigations were
required, he was entitled to release.  When interpreting the word
"reasonable", it must be considered that, as an important matter of
principle, no-one should be deprived of his liberty except following
conviction by a court.  Detention on remand was to be considered a
"special sacrifice" (Sonderopfer) required from persons, whether guilty
or not, for the maintenance of an effective administration of justice.
Such detention was only justified in so far as it was not in excess of
a measure which could reasonably be imposed even on an innocent person.

In his opinion, this matter should also be considered in the light of
Article 6, paragraph (2), of the Convention, according to which
everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.  He concluded that the
Applicant's detention for nearly three years constituted a clear
violation of the Convention.
The length of the Applicant's detention could not be justified by
the extraordinarily complex nature of the case against him.
Otherwise the guarantees provided by the Convention would be
ineffective in regard to certain persons, which would be contrary to
the idea of respect for the individual as reflected in the Convention.
The investigations in the case were not even carried out with
sufficient speed, and in this respect, it was submitted, inter alia,
that, as in many other big cases, more than one person could easily
have been put in charge of the investigations.

Finally, the Applicant's lawyer expressed serious doubts as to the
Minister's statement that the trial was likely to take place
in November 1964.

THE LAW

Whereas Article 5, paragraph (3) (Art. 5-3), provides that:

"Everyone arrested or detained in accordance with the provisions
of paragraph (1) (c) of this Article (Art. 5-1-c) ... shall be entitled
to trial within a reasonable time or to release pending trial ...";

and whereas Article 6, paragraph (1) (Art. 6-1) provides that:

"In the determination ... any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time
...".

Whereas it is not disputed that the Applicant was arrested and detained

on 9th November 1961 on suspicion of being concerned with certain
offenses of fraud and is still held in detention pending his trial;
that his various applications during this period for release from
detention on bail were rejected by the competent Courts;  and the
charges against him were finally formulated on 22nd April 1964 and
apparently served on the Applicant shortly afterwards;

Whereas the Applicant alleges that the delay pending trial exceeding
31 months and his detention during that period without being released
on bail constitute violations of the requirements of the above
Articles;

Whereas the Respondent Government has submitted that the delay is
justified in view of the complexity of the charges against him and
of the necessity of carrying out very extensive investigations;
that such investigations have been carried out with the greatest
possible expedition in the circumstances;  that, further, the
Applicant's detention during that period was necessary in order to
prevent his escape, of which there was a very real risk;

Whereas the Commission was called upon to examine a similar issue
in Application No. 343/57 (Nielsen v. Denmark - Yearbook II, page 412)
in which the Applicant was detained for 29 months pending trial;

Whereas, although it rejected this part of the Application for
non-exhaustion of domestic remedies in accordance with Articles 26 and
27, paragraph (3) (Art. 26, 27-3) of the Convention, the Commission
held that "having regard to the very long period of time which elapsed
before the Applicant was brought to trial in the present case and to
the general circumstances of the case, the Commission does not consider
that the Applicant's complaint of an alleged violation of his right to
trial within a reasonable time, under Article 5, paragraph (3), and
Article 6, paragraph (1) (Art. 5-3, 6-1), can be said to be manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2)";

Whereas Article 27, paragraph (2) (Art. 27-2) of the Convention, in
requiring the Commission to declare inadmissible any application from
an individual which it considers to be "manifestly ill-founded", does
not permit the Commission to reject an application whose lack of
foundation can not be so described (see Applications Nos. 1474/62 and
1769/63 - Collection of Decisions, Volume 11, pages 50 and 59 - and
Application No. 1727/62 - ibid. Volume 12, page 29);

Whereas in the present case the Commission has carried out a
preliminary examination of the information and arguments submitted to
the Commission by the parties regarding the Applicant's complaint that
he was not brought to trial within a reasonable time, nor released from
detention during the period concerned, within the meaning of Articles
5, paragraph (3) and 6, paragraph (1) (Art. 5-3, 6-1);

Whereas the Commission finds that these complaints are of such
complexity that their determination should depend upon an examination
of the merits of the case;

Whereas they cannot be regarded as manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas they cannot be declared inadmissible on that ground;

For these reasons, and without in any way prejudging the merits of
the case, the Commission declares admissible and accepts the
Application.

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