Notice of trial of protected prisoners of war and internees to be served on protecting power and others
4. (1) The court before which -

(a) a protected prisoner of war is brought up for trial for any offence; or

(b) a protected internee is brought up for trial for an offence for which that court has power to sentence him or her to imprisonment for a term of two years or more,

may not proceed with the trial until it is proved to the satisfaction of the court that a notice containing the particulars mentioned in subsection (2), so far as they are known to the prosecutor, has been served not less than three weeks previously on the protecting power (if there is a protecting power) and, if the accused is a protected prisoner of war, on the accused and the prisoner’s representative.

(2) The particulars contemplated in subsection (1) are -

(a) the full name, date of birth and description of the protected prisoner of war or protected internee who is brought up for trial, including his or her profession or trade (if any), and, if the accused is a protected prisoner of war, his or her rank and his or her army, regimental, personal or serial number;

(b) the place of detention, internment or residence;

(c) the offence with which such prisoner or internee is charged; and

(d) the court before which the trial is to take place and the time and place appointed for the trial.

(3) For the purposes of this section, a document purporting -

(a) to be signed on behalf of the protecting power or by the prisoner’s representative or by the person accused, as the case may be; and

(b) to be an acknowledgment of the receipt by such power, representative or person on a specified date of a notice described in the document as a notice under this section,

is, unless the contrary is shown, sufficient evidence that the notice required by subsection (1) was served on such power, representative or person on that date.

(4) In this section “prisoner’s representative”, in relation to a particular protected
prisoner of war at a particular time, means the person by whom the functions of prisoners’ representative within the meaning of Article 79 of the Third Convention were exercisable in relation to such prisoner at the camp or place at which such prisoner was, at or last before that time, detained as a protected prisoner of war.

(5) A court which adjourns a trial for the purpose of enabling the requirements of this section to be complied with may, notwithstanding anything to the contrary in any other law contained, remand the accused for the period of the adjournment.


Legal representation of prisoners of war
5. (1) The court before which a protected prisoner of war (in this section
referred to as an accused) is brought up for trial for an offence may not proceed with the trial unless -

(a) the accused is represented by a legal practitioner as defined in section 1 of the Legal Practitioners Act, 1995 (Act No. 15 of 1995); and

(b) it is proved to the satisfaction of the court that a period of not less than 14 days has elapsed since instructions for the representation of the accused at the trial were first given to the legal practitioner who is representing the accused,

and, if the court adjourns the trial for the purpose of enabling the requirements of this
subsection to be complied with, then, notwithstanding anything to the contrary in any
other law contained, the court may remand the accused for the period of the adjournment.

(2) In the absence of a legal practitioner accepted by an accused as representing him or her, the legal practitioner instructed for that purpose on behalf of the protecting power is, without prejudice to the requirements of paragraph (b) of subsection (1), regarded for the purposes of that subsection as representing the accused.

(3) If the court adjourns a trial in terms of subsection (1) by reason that the accused is not represented by a legal practitioner, the court must direct that a legal practitioner be assigned to watch over the interests of the accused at any further proceedings in connection with the offence, and at any such further proceedings, in the absence of a legal practitioner either accepted by the accused as representing him or her or instructed as mentioned in subsection (2), the legal practitioner assigned in terms of this subsection is, without prejudice to the requirements of paragraph (b) of subsection (1), regarded for the purposes of the last-mentioned subsection as representing the accused.

(4) The Legal Aid Act, 1990 (Act No. 29 of 1990), applies with the necessary changes in relation to the manner in which a legal practitioner must be assigned in terms of this section and in relation to the remuneration payable to any such legal practitioner on the completion of his or her duties.


Appeals by protected prisoners of war and internees
6. Where a protected prisoner of war or a protected internee has been sentenced
to imprisonment for a term of two years or more, the time allowed within which such prisoner or internee may give notice of appeal or notice of his or her application for leave to appeal to the High Court or the Supreme Court of Namibia, as the case may be, must, notwithstanding anything to the contrary in any other law contained, be not less than the period extending from the date of his or her conviction or, in the case of an appeal against sentence, of his or her sentence to the expiration of 10 days after the date on which he or she receives a notice in writing given by the officer or other person in charge of the prison or place in which he or she is confined or interned that the protecting power has been notified of his or her conviction and sentence.


Reduction of sentence and custody for protected prisoners of war and internees
7. (1) Notwithstanding anything to the contrary in any other law contained, when a protected prisoner of war or a protected internee is convicted of an offence and sentenced to a term of imprisonment, the court must, in fixing the term of imprisonment in respect of the offence, deduct from the term which it would otherwise have fixed any period during which the convicted person was in custody in connection with that offence, either on remand or after committal for trial (including the period of the trial), before the day on which the sentence imposed on the convicted person takes effect.

(2) The Minister of Justice may, where he or she is satisfied that a protected prisoner of war accused of an offence has been in custody in connection with that offence, either on remand or after committal for trial (including the period of the trial), in a place other than a camp or place in which protected prisoners of war are detained, for an aggregate period of not less than three months, direct that such prisoner must be transferred from that custody to the custody of an officer of the Namibian Defence Force and thereafter remain in military custody at a camp or place in which protected prisoners of war are detained, and be brought before the court at the time appointed by the remand or committal order.

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.