Comparison with other cases

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1998. […] [T]he Appeals Chamber notes that, although sentences received by subordinates may be a factor to be considered when determining the sentence of a commander,[1] this should not derogate from the Trial Chamber’s primary responsibility concerning sentencing – that is, tailoring the penalties to fit the individual circumstances of the accused.[2] […]

[1]           See Strugar Appeal Judgement, paras 350-351.

[2]           [ainović et al. Appeal Judgement, para. 1837; Mrkšić and [ljivančanin Appeal Judgement, para. 415; D. Nikolić Judgement on Sentencing Appeal, paras 45-46. 

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Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

At para. 24, the Appeals Chamber recalled its finding in the Janković case:

Nothing in Rule 11bis of the Rules indicates that [a] Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it.[1]

[1] Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005, (“Janković Rule 11bis Appeal Decision”), para. 26. 

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Judgement on Sentencing Appeal - 08.03.2006 NIKOLIĆ Momir
(IT-02-60/1-A)

The Tribunal’s case-law indicates that although a previous decision on sentence may provide guidance if the case at hand relates to the same offence and was committed in similar circumstances, the guidance is only limited because of the overriding obligation to individualise the guilt (see Momir Nikolić Judgement on Sentencing Appeal, para. 38). So far, the Appeals Chamber has never engaged in an actual comparison but has simply highlighted the major differences (see, e.g., Kvočka Appeal Judgement, para. 696). In the present case, however, the similarities to the Obrenović case are striking (both cases are related to the crimes committed after the fall of the Srebrenica enclave, and both accused pleaded guilty to the crime of persecutions). Therefore, the Appeals Chamber scrutinised in detail the differences with respect to the number and type of crimes, the level of participation, as well as the aggravating and mitigating circumstances (paras 42-46). It held that the difference between the sentence of Momir Nikolić and Obrenović is justified (para. 47).

Momir Nikolić also compared his sentence to that of Vidoje Blagojević. As the latter case is on appeal, the Appeals Chamber decided that a comparison of sentences is not possible (para. 51).

See also Dragan Nikolić Judgement on Sentencing Appeal, para. 19.

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Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

348. The Appeals Chamber has held that sentences of like individuals in like cases should be comparable.[1]While similar cases do not provide a legally binding tariff of sentences, they can be of assistance in sentencing if they involve the commission of the same offences in substantially similar circumstances.[2] The relevance of previous sentences is however often limited as a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another.[3] This follows from the principle that the determination of the sentence involves the individualisation of the sentence so as to appropriately reflect the particular facts of the case and the circumstances of the convicted person.[4]

349. As a result, previous sentencing practice is but one factor among a host of others which must be taken into account when determining the sentence. Nonetheless, as held by the Appeals Chamber in Jelisić, a disparity between an impugned sentence and another sentence rendered in a like case can constitute an error if the former is out of reasonable proportion with the latter. This disparity is not in itself erroneous, but rather gives rise to an inference that the Trial Chamber must have failed to exercise its discretion properly in applying the law on sentencing:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences. Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules. But it is difficult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case.[6]

[1] Kvočka et al. Appeal Judgement, para. 681.

[2] Furundžija Appeal Judgement, para. 250. See also Čelebići Appeal Judgement, paras 721, 756-757; Jelisić Appeal Judgement, paras 96, 101; Kvočka et al. Appeal Judgement, para. 681.

[3] Kvočka et al. Appeal Judgement, para. 681. See also Čelebići Appeal Judgement, paras 719, 721; Furund‘ija Appeal Judgement, para. 250; Limaj et al. Appeal Judgement, para. 135, Blagojević and Jokić Appeal Judgement, para. 333, Momir Nikolić Judgement on Sentencing Appeal, para. 38, Musema Appeal Judgement, para. 387.

[4] Čelebići Appeal Judgement, paras 717, 821; Dragan Nikolić Judgement on Sentencing Appeal, para. 19; Babić Judgement on Sentencing Appeal, para. 32; Naletilić and Martinović Appeal Judgement, para. 615; Simić Appeal

Judgement, para. 238; Bralo Judgement on Sentencing Appeal, para. 33; Jelisić Appeal Judgement, para. 101.

[5] Krstić Appeal Judgement, para. 248.

[6] Jelisić Appeal Judgement, para. 96.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

186. The Appeals Chamber recalls that each case is examined on its own facts. Furthermore, “[j]ust as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated.” The Appeals Chamber notes that, in deciding Munyakazi’s sentence, the Trial Chamber correctly sought guidance from comparable cases which did not result in life sentences. The Prosecution has not demonstrated that the Trial Chamber committed a discernible error in doing so.

[1] Rukundo Appeal Judgement, para. 260.

[2] Rukundo Appeal Judgement, para. 260.

[3] Trial Judgement, para. 517, citing Simba Appeal Judgement, paras. 279-288, Semanza Appeal Judgement, paras. 388, 389, Kayishema and Ruzindana Appeal Judgement, paras. 191, 194, 352.

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Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

In considering whether the Trial Chamber should have given more weight to the sentence imposed on an accused who pleaded guilty to his involvement in the same criminal scheme, the Appeals Chamber held:

57. […] [W]hile sentences of like individuals in like cases should indeed be comparable,[1] trial chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[2] Comparison between cases is thus generally of limited assistance.[3]

[1] Milošević Appeal Judgement, para. 326, quoting Strugar Appeal Judgement, para. 348; Kvoćka et al. Appeal Judgement, para. 681.

[2] Ntabakuze Appeal Judgement, paras 264, 298.

[3] Milošević Appeal Judgement, para. 326.

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Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

96. […] The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.  But it is difficult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case.

101. [T]he Appeals Chamber considers that the sentence imposed by the Trial Chamber must be individualised and it is generally not useful to compare one case to another unless the cases relate to the same offence committed in substantially similar circumstances. […]

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Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

362. […] [A] review of the ICTR’s case law finds that those who, like the Appellant, have been convicted of genocide as a principal perpetrator have frequently been sentenced to life imprisonment.[1] In any case, the Trial Chamber is not bound by previous sentencing practices. […]

[1] These include a number of persons whose life sentences for genocide have been affirmed by the Appeals Chamber (Jean-Paul Akayesu, Jean Kambanda, Clément Kayishema, Alfred Musema, Eliezer Niyitegeka, Georges Rutaganda) and others whose appeals have not yet been decided (Mikaeli Muhimana, Ferdinand Nahimana, Emanuel Ndindabahizi, Hassan Ngeze). In other cases, Chambers have found that the convicted person’s conduct merited a sentence of life imprisonment, but that the sentence should be reduced on the basis of violations of his rights (Juvénal Kajelijeli and Jean-Bosco Barayagwiza; Barayagwiza’s appeal is pending). The Appeals Chamber of course expresses no view on cases presently under appeal.

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Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

394. In relation to the submission that the sentences imposed by the Trial Chamber are disproportionate to those imposed in other cases before the International Tribunals and do not reflect the gravity of the crimes, the Appeals Chamber recalls that, as a general principle, comparison to other cases in support of a move to have the sentence increased may indeed provide guidance if it relates to the same offence, in particular if the crimes were committed in substantially similar circumstances. However, such comparison may be of limited value given that each case has its own particular circumstances and that the aggravating and mitigating factors may dictate different results.[1] Ultimately, the decision as to the length of sentence is a discretionary one, turning on the circumstances of the case.[2]

[1] Čelibići Appeal Judgement, para 717.

[2] Krstić Appeal Judgement, para. 248.

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

32. As previously noted in the Dragan Nikolić case, the precedential effect of previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but “also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence”.[2] The reasons for this are clearly set out in the case law of the International Tribunal: (1) such comparison can only be undertaken where the offences are the same and committed in substantially similar circumstances;[3] and (2) a Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[4]

33. In the Jelisić case, in addressing the appellant’s arguments to the effect that he was given a sentence in excess of those rendered in other cases, the Appeals Chamber held the following:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.[5]

In the present case, the Appellant is not alleging that his case falls within a pattern or a line of sentences passed in similar circumstances for the same offences. He only refers to one case which in his view bears some similarities with his own. The finding of the Appeals Chamber in Jelisić was concerned with a comparison with a “line of sentences” and not with a comparison with one single case. Furthermore, the Appeals Chamber emphasises that, as a general principle, comparisons with other cases as an attempt to persuade the Appeals Chamber to either increase or reduce the sentence are of limited assistance: the differences are often more significant than the similarities and the mitigating and aggravating factors dictate different results.[6] In this case, even assuming that the two cases were so similar as to be meaningfully comparable, the Appellant’s sentence is not so out of reasonable proportion with Plavšić’s sentence so as to suggest capriciousness or excessiveness. The Appeals Chamber will therefore not engage in a comparison between these two cases. In light of the foregoing, this part of the Appellant's second ground of appeal is dismissed.

 

[1] Dragan Nikolić Judgement on Sentencing Appeal, para. 19 quoting Čelebići Appeal Judgement, para. 821.

[2] Ibid.

[3] Čelebići Appeal Judgement, para. 720.

[4] Ibid., para. 717.

[5] Jelisić Appeal Judgement, para. 96.

[6] Čelebići Appeal Judgement, para. 719. Dragan Nikolić Judgement on Sentencing Appeal, para. 15.

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Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

333. The Appeals Chamber has noted that the precedential effect of sentences rendered by the International Tribunal is very limited because: (1) comparisons between sentences can only be undertaken where the offences are the same and committed in substantially similar circumstances; and (2) each Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[1] See paras 334-335 for the specific comparison criteria used in this case.

[1] See Babić Sentencing Appeal Judgement, para. 32 (internal citations omitted); Čelebići Appeal Judgement, paras. 717, 720, 821.

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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

721. [W]hile the Appeals Chamber does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.  On the other hand, it reiterates that, in determination of sentence, “due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.”[1]

See also paragraphs 719-720.

756. Public confidence in the integrity of the administration of criminal justice (whether international or domestic) is a matter of abiding importance to the survival of the institutions which are responsible for that administration.  One of the fundamental elements in any rational  and fair system of criminal justice is consistency in punishment.  This is an important reflection of the notion of equal justice.  The experience of many domestic jurisdictions over the years has been that such public confidence may be eroded if these institutions give an appearance of injustice by permitting substantial inconsistencies in the punishment of different offenders, where the circumstances of the different offences and of the offenders being punished are sufficiently similar that the punishments imposed would, in justice, be expected to be also generally similar.

757. This is not to suggest that a Trial Chamber is bound to impose the same sentence in the one case as that imposed in another case simply because the circumstances between the two cases are similar.  As the number of sentences imposed by the Tribunal increase, there will eventually appear a range or pattern of sentences imposed in relation to persons where their circumstances and the circumstances of their offences are generally similar.  When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it, in order only to ensure that the sentence it imposes does not produce an unjustified disparity which may erode public confidence in the integrity of the Tribunal’s administration of criminal justice.

758.    At the present time, there does not exist such a range or pattern of sentences imposed by the Tribunal.  The offences which the Tribunal tries are of such a nature that there is little assistance to be gained from sentencing patterns in relation to often fundamentally different offences in domestic jurisdictions, beyond that which the Tribunal gains from the courts of the former Yugoslavia in accordance with Article 24 of the Tribunal’s Statute.  At the present time, therefore, in order to avoid any unjustified disparity, it is possible for the Tribunal to have regard only to those sentences which have been imposed by it in generally similar circumstances as to both the offences and the offenders.  It nevertheless must do so with considerable caution.  As the Appeals Chamber discusses further below[2] comparisons with sentences imposed in other cases will be of little assistance unless the circumstances of the cases are substantially similar.  However, in cases involving similar factual circumstances and similar convictions, particularly where the sentences imposed in those other cases have been the subject of consideration in the Appeals Chamber, there should be no substantial disparity in sentence unless justified by the circumstances of particular accused.

See also paragraph 798.

[1]    Furund‘jia Appeal Judgement, para 237.

[2]    Infra, at para 798.

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Notion(s) Filing Case
Appeal Judgement - 08.05.2012 NTABAKUZE Aloys
(ICTR-98-41A-A)

298. The Appeals Chamber recalls that while sentences of like individuals in like cases should indeed be comparable,[1] Trial Chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[2] Comparison between cases is thus generally of limited assistance.[3] Any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual,[4] and often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results for every individual.[5] In the same vein, the Appeals Chamber considers that materially different criminal behaviour of different convicted persons may, by measure of its specific gravity, warrant a coincidentally similar punishment.

299. The Appeals Chamber acknowledges that Bagosora and Nsengiyumva were convicted by the Trial Chamber pursuant to Article 6(1) of the Statute.[6] However, it considers that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[7] It also observes that Ntabakuze was convicted on counts of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for events where a substantial number of Tutsi refugees were brutally slaughtered. As to Ntabakuze’s degree of participation in the crimes, it is worth noting that the Trial Chamber found that the massacres for which Ntabakuze was held accountable were “organised military operations which, in such a disciplined and elite unit, only would have occurred following Ntabakuze’s orders or with his authorisation”.[8] Further, the Appeals Chamber notes that the Trial Chamber emphasised the gravity of the Nyanza massacre – an incident for which Bagosora and Nsengiyumva were not convicted – as “one of the most notorious early massacres of the genocide”.[9]

300. In these circumstances, the Appeals Chamber, mindful of the difference in the number and nature of convictions between Ntabakuze on the one hand, and Bagosora and Nsengiyumva on the other hand, finds that Ntabakuze does not demonstrate that the sentence imposed on him by the Trial Chamber was out of reasonable proportion with those it imposed on Bagosora and Nsengiyumva.[10] Ntabakuze’s argument in this respect is therefore rejected.

[1] Milošević Appeal Judgement, para. 326, citing Strugar Appeal Judgement, para. 348; Kvočka et al. Appeal Judgement, para. 681.

[2] See supra, para. 264.

[3] See, e.g., Muvunyi Appeal Judgement of 1 April 2011, para. 72; Rukundo Appeal Judgement, para. 263; Milošević Appeal Judgement, para. 326; Nahimana et al. Appeal Judgement, paras. 1046, 1066; Muhimana Appeal Judgement, para. 232.

[4] Simba Appeal Judgement, para. 336; Strugar Appeal Judgement, para. 348.

[5] See, e.g., Milošević Appeal Judgement, para. 326; Nahimana et al. Appeal Judgement, para. 1046, citing Čelebići Appeal Judgement, para. 719.

[6] The Appeals Chamber notes that these convictions were overturned on appeal. See Bagosora and Nsengiyumva Appeal Judgement, para. 742.

[7] Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 740.

[8] Trial Judgement, para. 2268. See also ibid., paras. 2062, 2065, 2067.

[9] Trial Judgement, para. 2268.

[10] The Appeals Chamber notes that the life sentences imposed on Bagosora and Nsengiyumva by the Trial Chamber were set aside on appeal as a result of the reversal of a number of their convictions. Bagosora and Nsengiyumva were sentenced on appeal to 35 and 15 years of imprisonment, respectively. See Bagosora and Nsengiyumva Appeal Judgement, para. 742.

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Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

326. Regarding the comparison with the sentence imposed on Galić on appeal, the Appeals Chamber recalls that “sentences of like individuals in like cases should be comparable”.[1] However, similar cases do not provide “a legally binding tariff of sentences”.[2] While the Appeals Chamber does not discount the assistance that may be drawn from previous decisions, such assistance is often limited, as each case contains a multitude of variables.[3] Differences between cases are often more significant than similarities and different mitigating and aggravating circumstances might dictate different results.[4]

[1] Strugar Appeal Judgement, para. 348, referring to Kvočka et al. Appeal Judgement, para. 681.

[2] Strugar Appeal Judgement, para. 348, referring to Jelisić Appeal Judgement, para. 96; D. Nikolić Judgement on Sentencing Appeal, para. 16.

[3] Strugar Appeal Judgement, para. 348: “a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another”. See also, e.g., Blagojević and Jokić Appeal Judgement, para. 333; Stakić Appeal Judgement, para. 381; Kvočka et al. Appeal Judgement, para. 681; Čelebići Appeal Judgement, para. 721; Nahimana et al. Appeal Judgement, para. 1046.

[4] See, e.g., Limaj et al. Appeal Judgement, para. 135, citing D. Nikolić Judgement on Sentencing Appeal, para. 19. 

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan
(IT-94-2-A)

At paras 13 to 18, the Appeals Chamber recalled its previous case-law that there is no sentencing scale at the ICTY. It then stated:

19. The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances,[2] when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime,[3] with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo,[4] and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[5]

See also Limaj Appeal Judgement, para. 135.

[1] Čelebići Appeal Judgement, para. 821.

[2] Ibid., para. 720.

[3] Ibid., para. 717.

[4] Furundžija Appeal Judgement, para. 40; Čelebići Appeal Judgement, para. 203.

[5] Tadić Judgement in Sentencing Appeals, para. 22. See also Blaskić Appeal Jugdement, para. 680. See supra para. 9.

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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

681. Sentences of like individuals in like cases should be comparable and, in this regard, the Appeals Chamber “does not discount the assistance that may be drawn from previous decisions rendered”.[1] Indeed, the Appeals Chamber has observed that a sentence may be considered “capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences”.[2] The underlying question is whether the particular offences, the circumstances in which they were committed, and the individuals concerned can truly be considered “like”. Any given case contains a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual. Often, too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another. Hence the Appeals Chamber has previously stated that:

While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant that the similarities, and the mitigating and aggravating factors dictate different results.[3]

Thus, while comparison with other sentences may be of assistance, such assistance is often limited.[4] For these reasons, previous sentences imposed by the Tribunal and the ICTR are but one factor to be taken into account when determining the sentence.[5]

[1] Čelebići Appeal Judgement, para. 721.

[2] Jelisić Appeal Judgement, para. 96.

[3] Čelebići Appeal Judgement, para. 719. See also Furund‘ija Appeal Judgement, para. 250.

[4] Čelebići Appeal Judgement, para. 721.

[5] Krstić Appeal Judgement, para. 248. 

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Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

135. The Appeals Chamber recalls its findings in Dragan Nikolić on the question of guidance that may be provided by previous sentences rendered before the International Tribunal:

The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited” but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances, when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo, and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[1]

[1] Dragan Nikolić Judgement on Sentencing Appeal, para. 19 (internal quotations omitted).

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

238. Finally, the Appeals Chamber is not persuaded by the Prosecution’s reading of the Gacumbitsi Appeal Judgement and its relevance to this case. Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of a sentence of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.[1]

[1] Gacumbitsi Trial Judgement, paras. 224, 325. The Trial Chamber found that Gacumbitsi had exhibited particular sadism and that there were no significant mitigating circumstances. He was found to be a “primary player” and “a leader in the commune who used his power to commit the brutal massacre and rape of thousands.” See Gacumbitsi Appeal Judgement, para. 204. The Appeals Chamber noted that, although not every individual convicted of genocide or extermination has been sentenced to life imprisonment, Gacumbitsi’s case was not comparable to the cases where a fixed term of imprisonment has been imposed. See Gacumbitsi Appeal Judgement, paras. 204, 205, n. 446.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

237. The Appeals Chamber notes that the practice of the Tribunal with regard to sentencing is still in its early stages.  Several sentences have been handed down by different Trial Chambers but these are now subject to appeal.  Only three final sentencing judgements have been delivered: one by a Trial Chamber established for sentencing purposes following a successful appeal by the accused in Erdemović,[1] and the others by the Appeals Chamber in Tadić and Aleksovski,[3] each of which has resulted in a revision of the sentence imposed by the original Trial Chamber.  It is thus premature to speak of an emerging “penal regime”,[4] and the coherence in sentencing practice that this denotes.  It is true that certain issues relating to sentencing have now been dealt with in some depth; however, still others have not yet been addressed.  The Chamber finds that, at this stage, it is not possible to identify an established “penal regime”.  Instead, due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.

[1] Second Erdemović Sentencing Judgement.

[2] Tadić Sentencing Appeals Judgement.

[3] Aleksovski Appeals Judgement.

[4] Even including a decision from the ICTR Appeals Chamber (Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, 6 Apr. 2000, which affirmed the sentence imposed by a Trial Chamber), the number of final sentencing decisions from two Tribunals is limited to four. 

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