Burden of the accused
|Reasons for Appeal Judgement - 06.04.2000||
22. Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstances is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice. […]
23. Article 23(3) of the Statute outlines the factors which the Trial Chamber ought to take into account during sentencing. The factors are elaborated upon in Rules 101(B) and (C) of the Rules. Although Rule 101(B)(ii) requires a Trial Chamber to consider any mitigating circumstances, the question of the due weight to be attached to any such circumstance is a matter of discretion for the Trial Chamber. The Trial Chamber’s decision in this regard may not be disturbed on appeal unless the Appellant shows the following: (a) the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have, taken into account in the weighing process involved in this exercise of the discretion; and, (b) if it did, that this resulted in a miscarriage of justice. […]
 NOTE: AT THE TIME OF THIS JUDGEMENT RULES 101(C) AND 101(D) PROVIDED:
(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.
(D) Credit shall be given to the convicted persons for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal.
ON 14 MARCH 2008 RULE 101 WAS AMENDED BY THE DELETION OF RULE 101(D) AND REVISION OF RULE 101(C) TO READ:
(C) Credit shall be given to the convicted persons for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal.
|ICTR Statute Article 23 ICTY Statute Article 24 ICTR Rule 101(B) ICTY Rule 101(B)|
|Appeal Judgement - 21.05.2007||
The Appellant did not make any submission at trial concerning the mitigating circumstances in his case and the Trial Chamber found no mitigating circumstances. On appeal, he argued that the Trial Chamber was obliged to consider mitigating circumstances. The Appeals Chamber found:
231. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence. The accused, however, bears the burden of establishing mitigating factors by a preponderance of the evidence. The Appeals Chamber notes that the Appellant made no sentencing submissions at trial. In such circumstances, the Trial Chamber’s determination that there were no mitigating circumstances was within its discretion and does not constitute a legal error. If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time. Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore the Appellant’s prerogative to identify any mitigating circumstances instead of directing the Trial Chamber’s attention to the record in general. The Appellant is simply advancing arguments on appeal that he failed to put forward at the trial stage, and the Appeals Chamber “does not consider itself to be the appropriate forum at which such material should first be raised”.
232. In any event, the Appellant’s submissions fail to demonstrate that the Trial Chamber’s finding of “no mitigating circumstances” is unreasonable. […]
 Kamuhanda Appeal Judgement, para. 354; Kajelijeli Appeal Judgement, para. 294.
 Kajelijeli Appeal Judgement, para. 294.
 Trial Judgement, para. 602.
 Kupreškić et al. Appeal Judgement, para. 414.
 Kamuhanda Appeal Judgement, para. 354, quoting Kvočka et al. Appeal Judgement, para. 674.
 Trial Judgement, para. 616.
|ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)|