Treaties, States Parties and Commentaries
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Commentary of 1958 

This provision, which supplements the preceding Article , did not appear in the Stockholm Draft; it was introduced by the Diplomatic Conference. It gives expression in terms of the law of occupation to a rule which is generally recognized in penal codes. It is of particular significance in occupied territory where the preliminary investigation in penal proceedings must often be carried out under difficult circumstances, which may involve delays and consequently extend the period spent under arrest.
The phrase "under arrest awaiting trial or punishment" must be taken to mean confinement before the preliminary investigation is concluded as well as confinement after its conclusion, before sentence is pronounced.
The words "in all cases" at the beginning of the Article show clearly that the Diplomatic Conference intended the deduction from the sentence of periods spent under arrest to be an absolute and binding rule, admitting of no exception, whatever the behaviour of the protected person under arrest may have been. If the prison sentence awarded is less than the period spent under arrest, the person sentenced must be released immediately. If the accused person is only fined, the judge, in imposing the fine, will be able to take due account of the period spent under arrest.
Certain countries where the option of deducting the period spent under arrest does not exist will have to adapt the law of their country [p.348] to meet this point. This has already been done by Switzerland, which has included in its federal law on penal procedure a general reservation covering all provisions of the Geneva Conventions which did not conform to that law (Article 214).