ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 74. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 74. -- PENAL PROCEDURE: IV. ASSISTANCE BY
    THE PROTECTING POWER (1)


    [p.360] PARAGRAPH 1. -- ATTENDANCE AT COURT HEARINGS

    The representatives of the Protecting Power shall have the right to be present at the hearings of any court trying a person under their protection. They therefore have this right in every case whether it is a serious one, involving notification under Article 71 , or not.
    However, there is a proviso attached to this rule in order to take into account the security needs of the Occupying Power. As an exception and for serious reasons, the hearing can take place ' in camera , a fact of which the Protecting Power must be informed. It is possible also that access to the Court may be forbidden to representatives of the Protecting Power only during part of a trial, when matters involving military secrets are being dealt with.
    In obliging the Occupying Power to notify the Protecting Power of the place and date of the opening of the hearing, this provision supplements Article 71 , which envisages notification only for cases which may lead to sentence of death or imprisonment for two years or over. This clause will enable the Protecting Power to be present not only in serious cases (except where its presence during the proceedings might jeopardize military security), but also in cases of lesser importance (2).

    PARAGRAPH 2. -- COMMUNICATION OF SENTENCES

    On the other hand, it is laid down that only judgments involving a sentence of death or imprisonment for two years or more should be communicated to the Protecting Power. This is a logical counterpart to Article 71 .
    The judgment must be communicated whether the representatives of the Protecting Power have been present at the hearings or not.
    An indication of the place where the sentence is to be served in case of imprisonment or internment is necessary to allow the Protecting Power to exercise its right under Articles 76 and 143 of the Convention to visit those detained (or interned).
    In the case of sentences involving penalties less severe than two years imprisonment, the paragraph makes it clear that they must be recorded by the Court. They are not, therefore, communicated to the Protecting Power (3), but the representatives of the Protecting Power will have the right to examine the records.
    [p.361] Thus the Protecting Power will be able to take cognizance of all sentences on protected persons and to make sure that the provisions of the Convention have been respected.
    In the case of sentence of death or imprisonment for two years or more, the time limit allowed for appeal shall begin only when the Protecting Power has had the sentence communicated to it.
    Nothing is said concerning less serious cases. The Convention therefore relies on the good faith of the authorities involved, but obviously the moment from which the time limit for appeals must run should not be fixed before the protected person has been advised of the sentence, if it is pronounced in his absence.


    Notes: (1) [(2) p.359] See ' Final Record, ' Vol. I, p. 124; Vol.
    II-A, pp. 675, 770, 810, 835, 859: vol. II-B, pp. 155,
    196, 439; Vol. III, p. 144;

    (2) [(1) p.360] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' vol. II-A, p. 835;

    (3) [(2) p.360] The Stockholm Draft envisaged the
    communication of all judgments to the Protecting Power.
    See ' Final Record, ' Vol. I, p. 124;