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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 107. Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #III. Judicial proceedings
. -- PROCEDURE: VI. NOTIFICATION OF FINDINGS
[p.496] At the 1949 Diplomatic Conference, considerable improvements were made in the procedure for notifying findings and sentences, which was covered by Article 65
and Article 66, paragraph 1
, of the 1929 Convention (1). In its essential features, however, the new procedure is not very different from the 1929 system since it also provides for two kinds of communication:
(a) a summary communication in the case of all judgments and sentences;
(b) a detailed communication, to be made only if the prisoner of war is
finally convicted and sentenced.
PARAGRAPH 1. -- SUMMARY COMMUNICATION
1. ' First sentence. -- Purpose of the communication '
During the Second World War, the word "judgment" was variously interpreted by Detaining Powers, both as regards the kind of decision to be communicated (judicial investigation, dismissal of charges, etc.) and the scope of this communication.
It is necessary for the Protecting Power to be informed as soon as possible of any judgment relating to a prisoner of war, in order that it may carry out its duty of supervision (and in particular regarding appeal within the statutory time-limit). The assembling of the details specified in paragraph 2 below might take some time, and it is essential that the Protecting Power be informed without delay.
Provision is therefore made for a summary communication of all judgments and sentences and for a detailed communication only in [p.497] the cases specified in paragraph 2 below; it should be emphasized that the latter does not in any way relieve the Detaining Power of its obligation to send a summary communication.
The summary communication will include the wording of the judgment together with an indication as to whether the prisoner of war concerned has the right to appeal with a view to the quashing of the sentence or the re-opening of the trial. This provision was inserted at the 1949 Diplomatic Conference at the suggestion of several delegations, during the discussion of Article 106
, already referred to above (2). The wording of the French text ("le droit de recourir en appel, en cassation ou en revision") is exactly the same as in Article 106
; the English text, however, is not identical ("the right of appeal with a view to the quashing of the sentence or the re-opening of the trial", whereas Article 106
speaks of "the right of appeal or petition"). The omission of the words "or petition" is probably due to an oversight.
The present paragraph, like the corresponding provision in the 1929 Convention, merely states that the summary communication must be sent to the Protecting Power. In practice, during the Second World War this communication was sent to the representatives of that Power, and paragraph 3 of the present Article refers to this in more detail.
2. ' Second sentence. -- Communication to the prisoners'
Following a suggestion by a national Red Cross Society, the International Committee of the Red Cross proposed that the prisoners' representative should also be informed, and the Diplomatic Conference accepted the proposal. In some camps, the prisoners' representatives play an important part in the field of legal assistance (3), and they are often better placed than the Protecting Power to give a prisoner of war advice regarding his rights of appeal or petition. A similar provision is contained in Article 104, paragraph 3
3. ' Third sentence. -- Communication to the prisoner '
The Detaining Power need only inform the prisoner of war concerned if the sentence was not pronounced in his presence. This [p.498] refers to the case of legislations under which sentence may be pronounced without the accused being present, rather than to that of contumacy. It does not imply, however, that the accused may be tried in absentia (4).
4. ' Fourth sentence. -- Communication of the prisoner's decision
regarding his right of appeal '
The Protecting Power must be informed of the decision of the prisoner of war to use or to waive his right of appeal at the same time as it receives the communication referred to in the first sentence of the present paragraph, if the prisoner has taken a decision immediately after sentence has been pronounced. Otherwise, a separate communication must be sent, since the communication indicating the judgment and sentence pronounced upon the prisoner of war may not for any reason be delayed.
As soon as the Protecting Power is informed of the prisoner's decision to use or to waive the right of appeal, it will, if necessary, take the measures provided for in Article 105, paragraph 2
PARAGRAPH 2. -- DETAILED COMMUNICATION
At the 1949 Diplomatic Conference, certain delegations would have preferred that the detailed communication should be sent as soon as sentence was pronounced in the court of first instance; it was decided to retain this proposal only in the case of the death penalty, and that in all other cases it was preferable that the detailed notification should be sent only when the whole proceedings, including any appeals, were terminated (5). The present provision is nevertheless a marked improvement as compared with the 1929 Convention; Article 66, paragraph 1
, of the latter made provision for a detailed communication only in the case of the death sentence.
In this last case, the communication is of special importance in view of Article 101
above, which states that the death sentence may not be carried out before the expiration of a period of six months after the notification.
[p.499] The 1929 text stated that the communication should set forth "in detail the nature and circumstances of the offence" (Article 66, paragraph 1
The present Article is more explicit and specifies that the following must be included:
(1) ' The precise wording of the finding and sentence: ' The Stockholm
draft referred to "the motives and wording of the judgment". During
the Second World War the Protecting Power had in too many cases been
notified of a judgment without any precise indication of the motives
which prompted it. As the representative of the International
Committee of the Red Cross pointed out at the 1949 Diplomatic
Conference, the knowledge of such motives is of great importance,
especially in the case of the death sentence (6). The words "motives
and wording" were subsequently replaced by the expression "precise
wording", that is to say the full text, in accordance with the normal
judicial procedure of many countries (7).
(2) ' Summarized report of any preliminary investigation and of the
trial, emphasizing in particular the elements of the prosecution and
the defence: ' The text proposed by the Government Experts mentioned
the judgment and the grounds adduced (8), but the 1949 Diplomatic
Conference decided not to mention it, in order to take account of
Anglo-Saxon procedure, and in its stead referred to the elements of
the prosecution and the defence (9).
(3) ' Notification, where applicable, of the establishment where the
sentence will be served: ' This provision obviously applies only in
the case of a sentence involving confinement. It will enable the
Protecting Power to carry out its right of inspection, in accordance
with Article 126
. A similar provision is contained in Article 104,
second paragraph, sub-paragraph (2
), referring to prisoners of war
confined while awaiting trial.
In the case of the death sentence, the 1929 Convention specified in Article 66, paragraph 1
, that the communication regarding the [p.500] judgment and sentence must be sent to the Protecting Power "for transmission to the Power in whose armed forces the prisoner served".
The drafters of the 1949 text considered that clause unnecessary; this in no way implies that the Protecting Power is not authorized to transmit this information to the Power on which the prisoner of war depends; on the contrary, it is clearly its duty to do so.
PARAGRAPH 3. -- ADDRESS TO WHICH THE COMMUNICATIONS MUST BE SENT
The communications referred to in the present Article must be sent to the Protecting Power at the address previously indicated by it; this provision is similar to that contained in the second sentence of Article 104, paragraph 1
, and it is of great importance in the case of the death sentence. Article 101
states that the six months period which must elapse between pronouncement of the death penalty and its execution is to run from the date on which the detailed notification is received at the address previously indicated by the Protecting Power.
The address will normally be that of the representative of the Protecting Power who is accredited to the Detaining Power. The requirement concerning the indication of an address may seem superfluous since the Protecting Power has agencies and consulates which are well known. The reason for including it is twofold. In the first place, communications must be centralized at a single address and, secondly, during the Second World War some Protecting Powers were obliged, because of their extensive duties, to open a special office for the protection of foreign interests, which was sometimes completely separate from the building in which their regular diplomatic offices were situated.
* (1) [(1) p.496] See below, p. 738;
(2) [(1) p.497] See also ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 330,
518-519 and 524;
(3) [(2) p.497] See the commentary on Article 80, paragraph 1,
(4) [(1) p.498] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 512;
(5) [(2) p.498] Ibid., p. 572;
(6) [(1) p.499] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A. p. 513;
(7) [(2) p.499] Ibid., p. 519;
(8) [(3) p.499] See ' Report on the Work of the Conference of
Government Experts, ' p. 229;
(9) [(4) p.499] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 572;