full explanation and justification for keeping the person in custody (e.g. the facts
of the case, the reasons for suspicion against the detainee, the allegations
against him or her).
The State Party carrying out the preliminary investigation must immediately issue
a report to the aforementioned States (i.e. Article 5 §1 States) and inform them
of whether it intends to exercise its jurisdiction.
The State which initiates an investigation has a duty to provide up-to-date information to other States entitled to exercise jurisdiction. It must also provide these
other States with any information pertinent to the case and clearly indicate to
other States whether it intends to commence prosecution in its own law courts.
II. INDIVIDUAL ANALYSIS OF ARTICLES 1–16 OF THE CONVENTION
2. ANALYSIS OF SUBSTANTIVE PROVISIONS
Article 7
44
1. The State Party in the territory under whose jurisdiction a person alleged
to have committed any offence referred to in article 4 is found shall in
the cases contemplated in article 5, if it does not extradite him, submit
the case to its competent authorities for the purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the
case of any ordinary offence of a serious nature under the law of that
State. In the cases referred to in article 5, paragraph 2, the standards of
evidence required for prosecution and conviction shall in no way be less
stringent than those which apply in the cases referred to in article 5,
paragraph 1.
3. Any person regarding whom proceedings are brought in connection with
any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.
Features: Obligation to commence criminal proceedings or to extradite
offender, standard of evidence, due process and right to a fair trial
Interpretation
§ 1. States Parties are obliged to prosecute suspected torturers present in an area
under their jurisdiction, unless the suspected torturers are to be extradited to a
State which has jurisdiction over the crime under Article 5 and which intends to
prosecute them itself. This is called the principle of aut dedere aut judicare,
meaning “either extradite or prosecute”.152 Failure to fulfil this obligation is
a violation of international law.153 As the main purpose of the Convention is to
ensure that there are no safe havens for torturers, Article 7 §1 is a key component in achieving the primary aim of the Convention.
The Convention does not establish a system of priority among States with jurisdiction. Instead, it leaves the decision of whether to extradite or prosecute with
the State under whose jurisdiction a suspect is located.154
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