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Commentary - Art. 72. Part III : Status and treatment of protected persons #Section III : Occupied territories
    [p.356] ARTICLE 72. -- PENAL PROCEDURE: II. RIGHT OF DEFENCE (1)


    The rules laid down in this Article are based closely on the provisions of Article 105 of the Third Convention.

    PARAGRAPH 1. -- EVIDENCE. -- COUNSEL FOR THE DEFENCE

    The calling and examination of witnesses is one of the main means of defence. The wording of the Article indicates clearly that the accused may use all other methods of proof such as the production of documents or other written evidence. In addition to this right, he has the not less important one of being assisted by a "qualified" advocate or counsel of his own choice.
    With regard to the relationship between the accused and his advocate or counsel, the words used ("the necessary facilities") are the same in the corresponding provisions of the Third Convention (Article 105 ). The defending counsel must be given by the judicial authorities concerned all the facilities and freedom of action necessary for preparing the defence. Above all, he must be allowed to study the written evidence in the case, to visit the accused and interview him without witnesses and to get in touch with persons summoned as witnesses.
    [p.357] It will not always be easy for these rules to be observed during an occupation, in view of the psychological atmosphere, but they must nevertheless be observed srupulously in all circumstances and in all places.
    Article 105 of the Third Convention instructs the Detaining Power that the prisoner of war should be advised of his rights "in due time before the trial" (2). There is no such provision in respect of civilians accused by an Occupying Power, but an obligation to do the same in their case may be deduced by analogy, in view of the similarity between the two situations and the general spirit of the text.

    PARAGRAPH 2. -- DEFENDING COUNSEL OR
    ADVOCATE EX OFFICIO

    If the accused fails to choose a defending advocate or counsel, and the Protecting Power has been unable to provide him with one (3), the Occupying Power must itself provide the advocate or counsel. However, this obligation is restricted to cases where the accused is faced with a serious charge. The Convention does not go into detail as to what should be understood by "serious charge", but, obviously, this idea covers penal prosecution which may involve sentence of death or a minimum of two years imprisonment and in this case Article 71 provides that the Protecting Power should be notified Finally, the Article lays down the rule that the defending counsel shall not be imposed on the prisoner against his will. He always has the right to refuse the help of a counsel in whom he has no confidence and of conducting his defence himself.
    The defending counsel or advocate nominated by the Protecting Power or the Occupying Power, must enjoy all the rights and prerogatives necessary for preparing the defence under the same conditions as a defending counsel or advocate chosen by the accused himself.

    PARAGRAPH 3. -- INTERPRETER

    The right to call on the services of an interpreter applies during the preliminary investigations as well as during the hearing in court. [p.358] If the accused at any time considers that the interpreter, through lack of either professional skill or objectivity, is no longer deserving of his confidence, he can enter an objection or ask for his replacement.
    Thus the description of the penal procedure to be followed confirms the principle already stated with regard to penal legislation proclaimed by the Occupying Power, by virtue of which such legislation must be published in the language of the people of the occupied territory (Article 65 ).


    Notes: (1) [(1) p.356] For the background to this Article, see
    ' Final Record ', Vol. I, p. 123; Vol. II-A, pp. 674-675,
    770, 834; Vol. II-B, p. 438;

    (2) [(1) p.357] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. I, p. 267;

    (3) [(2) p.357] The Protecting Power must be given reasonable
    time for this purpose. Article 105 of the Third Convention
    envisages a period of at least one week and the same
    length of time should be considered as a minimum in the
    case of civilians. The defending counsel may be either an
    officer in the army of occupation or an advocate or
    counsel from the occupied territory itself;