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Commentary - Art. 103. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
    [p.477] ARTICLE 103. -- PROCEDURE: II. CONFINEMENT AWAITING TRIAL
    (DEDUCTION FROM SENTENCE, TREATMENT)


    PARAGRAPH 1. -- GENERAL PRINCIPLES

    1. ' First sentence. -- Investigations '

    Under Article 82, paragraph 1 , judicial investigations relating to a prisoner of war must be conducted in accordance with the laws, regulations and orders in force in the armed forces of the Detaining Power; questioning, the hearing of witnesses, examination by experts, etc. must take place in accordance with those rules, and in this instance the Convention cannot in any way be substituted for the provisions of national legislation. The application of the principle of assimilation should ensure that prisoners of war receive humane treatment as required by the Convention. In order, however, to prevent certain instances of abuse such as occurred during the Second World War, the present provision enjoins the authorities concerned to conduct investigations "as rapidly as circumstances permit". The fact that prisoners of war are involved may well make certain procedures more difficult; it was nevertheless desirable to permit some flexibility, in order not to give any semblance of justification for hasty investigation.
    The text adds "and so that his trial shall take place as soon as possible". At first sight, this recommendation may seem superfluous since the purpose of the investigations is to prepare the trial. The words clearly demonstrate the intention of the authors of the Convention to keep the period of investigation as short as possible and [p.478] to protect the prisoner of war during that time from any vexatious or other measures not directly intended to expedite the opening of the trial. In this connection, one should bear in mind the rule that the police authorities are not competent to conduct the investigations and there must be absolute separation between the police and the judicial authorities.

    2. ' Second sentence. -- Confinement awaiting trial, prohibition '

    This provision sets forth the principle that a prisoner of war may not be confined while awaiting trial (1) unless a member of the armed forces of the Detaining Power would be so treated in similar circumstances.
    The principle is, however, subject to an important reservation already referred to: that of the interests of national security. The phrase "or if it is essential to do so in the interests of national security" is very general and may give the Detaining Power wide discretion, according to whether the national legislation extends or on the other hand restricts the use of confinement while awaiting trial. Such confinement must nevertheless be resorted to only in exceptional cases when the interests of national security are concerned; it may therefore only be applied when investigations have already been commenced regarding a prisoner of war, and there must therefore be a valid justification.

    3. ' Third sentence. -- Maximum duration '

    This provision gave rise to some discussion during the 1949 Diplomatic Conference. Some delegations thought that it should be possible, as an exceptional measure, to extend the maximum of three months in the case of prisoners of war accused of offences against the laws and customs of war, on the grounds that it was more difficult to ensure a fair trial for them during the war than after the end of hostilities. It should be noted that there is nothing in the Convention to prevent them from being tried later or even, in the interim, from being placed in separate camps in order to preclude any possibility [p.479] of their obtaining false evidence (2). Recourse will be had to this solution in particular where, during the period of three months, the accused prisoner of war has not been in a position to furnish proof or evidence which might establish his innocence.
    The accused must be released as soon as the charges against him have been withdrawn. Where appropriate, he must be able to appeal in accordance with Article 106 .

    PARAGRAPH 2. -- DEDUCTION FROM SENTENCE

    Many penal codes provide that the time spent in confinement while awaiting trial must be deducted in full from the period of imprisonment to which the convicted person is sentenced, to the extent, of course, that the accused did not himself bring about his detention or its prolongation by his own conduct or attitude after the offence or during the investigations. The present paragraph therefore corresponds to a rule which has been adopted by most national legislations. As is pointed out by the author already quoted, "it is a requirement of justice, since, in actual fact, loss of liberty, even in the form of confinement while awaiting hearing, is felt as a penalty and, as regards the hardship it causes, has the same features even though it is not one" (3). This deduction is therefore compulsory and must be made at the time of sentencing by the court. It is also desirable that an accused person wrongly detained while awaiting trial, or whose confinement has been wrongly prolonged, should obtain compensation.

    PARAGRAPH 3. -- CONDITIONS OF APPLICATION

    The present paragraph specifies that prisoners of war who are confined while awaiting trial must enjoy all the guarantees conferred by Articles 97 and 98 on prisoners of war undergoing disciplinary punishment (i.e. as regards premises and the general conditions of detention). Reference should therefore be made to the commentary on those Articles. In addition, one should bear in mind the principle [p.480] that confinement while awaiting trial is merely a measure of security and it must not represent for the accused person a penalty more severe than a disciplinary punishment. Solitary confinement, for which provision is sometimes made in national legislation in cases of exceptional gravity and for the needs of the investigation, is therefore excluded. It should also be remembered that prisoners confined while awaiting trial may not be placed with convicted persons.


    * (1) [(1) p.478] "Confinement while awaiting trial is a measure
    of precaution and security during the enquiries,
    investigations and procedure which must precede any
    trial". (GRAVEN: ' Les conditions d'une réglementation
    satisfaisante de la détention préventive, Revue
    internationale du droit pénal, ' 1950, p. 191.);

    (2) [(1) p.479] The period of three months is, moreover, a
    maximum which must only be reached in exceptional cases,
    for confinement awaiting hearing must remain only a
    security measure. "This measure is therefore only
    justified if the law is obliged to make certain of the
    presence of the person accused for the purpose of
    investigation, questioning and confrontation." (GRAVEN,
    ibid.) Its significance as a security factor is "the
    criterion of its extent as well as its justification.";

    (3) [(2) p.479] GRAVEN, op. cit., p. 203;