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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 106. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
. -- PROCEDURE: V. APPEALS
[p.493] Article 64
of the 1929 Convention recognized the right of prisoners of war to appeal against any sentence against them, though the text was less detailed (1).
This clause was considered inadequate by the International Committee of the Red Cross which had acquired considerable experience in regard to assistance to prisoners of war under prosecution, particularly in France. At the Conference of Government Experts, the International Committee stressed the advisability of specifying the procedures of appeal, in particular appeal for fresh trial, which is particularly useful to prisoners of war sentenced for offences committed before captivity; at the time of trial these men are very often not in a position to adduce evidence in their favour. The text adopted by the 1949 Conference is therefore clearer and more detailed than the corresponding provision in the 1929 Convention.
1. ' First sentence. -- Form of appeals '
Here there is a divergence between the English and French texts. Whereas the former refers to "... the right of appeal or petition ... with a view to the quashing or revising of the sentence or the reopening of the trial", the latter uses the wording "... le droit ... de recourir en appel, en cassation ou en revision...". The reason is that under Anglo-Saxon legislation there is no judicial procedure for appeal in penal matters, but before becoming final the sentence must be confirmed by the military high command. The phrase "right of petition" refers to this.
Prisoners of war have the right to appeal or petition "in the same manner as the members of the armed forces of the Detaining Power". It would not seem, however, that the drafters of the Convention intended by this wording to give prisoners of war access to certain means of appeal which are available only to nationals of the country concerned (2).
What happens when an appeal is made not by the prisoner of war but by the prosecution? At the 1949 Diplomatic Conference, some delegations were in favour of including the following sentence in order to take account of this possibility: "In no case may the sentence pronounced against a prisoner of war be made more severe on appeal or petition by the prosecution" (3). It was finally decided [p.494] to delete this sentence, however, lest it cause courts to pass maximum sentences in the first instance (4). Since the Convention makes no ruling on the matter, it must be assumed that the prosecution may appeal or petition provided the procedure followed is in accordance with the legislation of the Detaining Power.
Lastly, it will be noted that the Article makes no mention of appeals for pardon or reprieve. This does not mean that convicted prisoners of war, their defending advocates or even the Protecting Power may not submit an appeal for mercy to the authority which under the national legislation is empowered to grant a pardon or reprieve. The Convention deals only with the legal procedure for appeal.
2. ' Second sentence. -- Information of the prisoner of war '
This provision supplements sub-paragraph (3) of the second paragraph of Article 104
and Article 105, paragraph 4
, which provide respectively that the notification of proceedings must mention the legal provisions applicable, and that the prisoner of war concerned must be given "the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power". The latter documents will normally include the legal provisions applicable to appeal or petition. The present clause is nevertheless an important one since it provides an additional safeguard which is clearly stated and leaves no room for doubt.
At the 1949 Diplomatic Conference, however, some delegations considered that the Article was not complete and that it should make provision for informing the Protecting Power (5) and also for the applicability in the case of petition or appeal of the rights and means of defence specified in Article 105
(6). The first proposal was accepted by the Diplomatic Conference but it was decided to include it in Article 107, paragraph 1
, to which reference will be made below. The Conference considered that the second suggestion was not necessary, it being understood, however, that the provisions of Article 105
were fully applicable in case of appeal or petition.
Apart from the obligations incumbent on the Detaining Power to apply the same rules to prisoners of war as in the case of members of its own armed forces, attention should be drawn to the following [p.495] Articles which, if not respected, would give grounds for appeal or petition:
"non bis in idem"; Article 99, paragraph 2
prohibition of coercion; Article 99, paragraph 3
rights of defence; Article 100, paragraphs 2 and 3
conditions for pronouncement of the death
penalty; Article 101
delay in execution of the death penalty; Article 103, paragraph 2
deduction from sentence of period of confinement awaiting trial; Article 104, paragraph 4
failure to respect the provisions of Article 104
concerning notification of proceedings; Article 105
rights of defence.
This list is not exhaustive, but merely indicates the most important provisions. In addition to the cases quoted above, any failure on the part of the Detaining Power to respect provisions applicable to members of its own armed forces would also constitute grounds for appeal or petition.
* (1) [(1) p.493] See below, p. 737;
(2) [(2) p.493] See ' Report on the Work of the Conference of
Government Experts, ' p. 228;
(3) [(3) p.493] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 515;
(4) [(1) p.494] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 516;
(5) [(2) p.494] Ibid., p. 317;
(6) [(3) p.494] Ibid., p. 515, and Vol. III, pp. 84-85;