Discretion to impose sentence

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Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

328. The Appeals Chamber recognises that intelligence and good education have been considered to be possible aggravating factors.[1] This does not mean, however, that these factors should only be considered aggravating factors. The Appeals Chamber reiterates that whether certain factors going to a convicted person’s character constitute mitigating or aggravating factors depends largely on the particular circumstances of each case.[2] The Appeals Chamber previously underlined that “[c]aution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different”.[3] […].

[1] Brđanin Trial Judgement, para. 1114; Milan Simić Sentencing Judgement, paras 103-105.

[2] Babić Judgement on Sentencing Appeal, para. 49.

[3] Stakić Appeal Judgement, para. 416 (as to Milomir Stakić’s professional background). See also Babić Judgement on Sentencing Appeal, para. 49 (as to Milan Babić’s good character).

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ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)
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Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard.  The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

[…]

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention.  The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

408.    Given the “considerable amount of discretion” vested in the Trial Chamber, the question arises as to what role the Appeals Chamber should play in the consideration of an appeal against sentence, that is in the instant case, the penalty imposed by the Trial Chamber on Akayesu. In this instance, this Appeals Chamber will follow the test which has recently been upheld by ICTY Appeals Chamber as the appropriate test:

The Appeals Chamber reiterates that “the appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.” Appeal proceedings are rather of a corrective nature and, […] they do not amount to a trial de novo

[…].

The test to be applied in relation to the issue as to whether a sentence should be revised is that moist recently confirmed in the Furundzija Appeal Judgment.  Accordingly, as a  general rule,  the Appelas Cahmber will not substitute its sentence for that of a Trial Chamber unless it believes that the Trial Chamber has committed an error in exercising its discretion or has failed to follow applicable law.” The Appeals Chamber will only intervene if it finds that the error was “discernible.”  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence, the Appeals Chamber will not intervene. [1]

409.    Consequently, before the Appeals Chamber is able to revise a sentence or substitute its own sentence for the one imposed by the Trial Chamber, it must be shown that the Trial Chamber ventured outside discretion in imposing sentence.

[1] Celebici Appeal Judgment, paras. 724 and 725, citing respectively (footnote omitted): Erdemovic Appeal Judgment, para .15; Tadic Decision (Additional Evidence ), paras. 41 and 42;  Furundzija Appeal Judgment, para. 239; Serushago Appeal against Sentence Judgment, para. 32; Tadic Appeal against Sentence, para. 22; and Aleksovski  Appeal Judgment, para. 187; Tadic Appeal against Sentence, para 20.    

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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

158. The Appeals Chamber reiterates that in assessing the individual circumstances of the accused, the Trial Chamber shall consider aggravating and mitigating circumstances.[1] The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered in mitigation. Rather, what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.[2] The Trial Chamber is endowed with a considerable degree of discretion in making this determination,[3] as well as in deciding how much weight, if any, to be accorded to the mitigating circumstances identified.[4]

[1] See supra [Bikindi’s Notice of Appeal] para. 140.

[2] See Milošević Appeal Judgement, para. 316, citing Simba Appeal Judgement, para. 328; Musema Appeal Judgement, para. 395.

[3] Milošević Appeal Judgement, para. 316, citing Hadžihasanović and Kubura Appeal Judgement, para. 325; Simić Appeal Judgement, para. 245; Čelebići Appeal Judgement, para. 780.

[4] Milošević Appeal Judgement, para. 316, citing Simić Appeal Judgement, para. 258; Kvočka et al. Appeal Judgement, para. 675; Simba Appeal Judgement, para. 328.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

716. The benefits of such a definitive list [of sentencing guidelines for future reference] are in any event questionable.  Both the Statute (Article 24) and the Rules (Rule 101) contain general guidelines for a Trial Chamber to take into account in sentencing.  These amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances (including substantial co-operation with the Prosecution), the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.[1]  Other than these general principles, no detailed guidelines setting out, for example, what particular factors may be taken into account in mitigation or aggravation of sentence are provided in either the Statute or the Rules.[2]

717. Trial Chambers exercise a considerable amount of discretion (although it is not unlimited) in determining an appropriate sentencing.  This is largely because of the over-riding obligation to individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime.  To achieve this goal, Trial Chambers are obliged to consider both aggravating and mitigating circumstances relating to an individual accused.  The many circumstances taken into account by the Trial Chambers to date are evident if one considers the sentencing judgements which have been rendered.[3]  As a result, the sentences imposed have varied, from the imposition of the maximum sentence of imprisonment for the remainder of life,[4] to imprisonment for varying fixed terms (the lowest after appeal being five years[5]).  Although certain of these cases are now under appeal, the underlying principle is that the sentence imposed largely depended on the individual facts of the case and the individual circumstances of the convicted person.[6]

718. The Appeals Chamber accordingly concludes that it is inappropriate for it to attempt to list exhaustively the factors that it finds should be taken into account by a Trial Chamber in determining sentence.

See also paragraph 780.

[1]    It is also obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10(3) of the Statute (Rule 101(B)(iv).

[2]    This was also the case with the implementing legislation for the post-World War II trials (including the International Military Tribunals held at Nuremberg and Tokyo). Article 27 of the Nuremberg Charter provided simply that  “the Tribunal shall have the right to impose upon a Defendant on conviction, death or such other punishment as shall be deemed by it to be just” (Emphasis added).  A similar provision is found in Article 16 of the Charter of the International Military Tribunal for the Far East.

[3]    See e.g.: Prosecutor v Tadić, Sentencing Judgement, Case No IT-94-1-Tbis-R117, 11 Nov 1999 para 19 (reference to willingness to commit crimes, awareness and enthusiastic support for the attacks); Prosecutor v Tadić, Sentencing Judgement, Case No IT-94-1-T, 14 July 1997, paras 56-58 (reference in general to cruel and willing manner in which crimes carried out);  Blaškić Judgement, paras 783-787 (reference to motive, number of victims, effect of the crime upon victims). Remorse has been considered in for example, the Blaškić Judgement  at para 775 and Prosecutor v Jelisić, Case No IT-95-10-T, 14 Dec 1999 para 127.

[4]    No sentences of imprisonment for the remainder of life have been imposed by this Tribunal.  However, they have been by the ICTR.  See Kambanda Appeal Judgement; Prosecutor v Rutaganda, Judgement and Sentence, Case No ICTR-96-3-T, 6 Dec 1999;  Prosecutor v Musema, Judgement and Sentence, Case No ICTR-96-13-T, 27 Jan 2000; Prosecutor v Kayishema, Sentence, Case No ICTR-95-1-T, 21 May 2000; and Prosecutor v Akayesu, Sentence, Case No ICTR-96-4-T, 2 Oct 1998.

[5]    In the case of Dra‘en Erdemović.  The sentence of 2 ½ years originally imposed by the Trial Chamber on Zlatko Aleksovski was revised by the Appeals Chamber to seven years.  Other fixed terms include Goran Jelisić, who received 40 years, Tihomir Blaškić, who received 45 years, Anto Furund‘ija, who received ten years (maximum sentence), Duško Tadić, who received 20 years (maximum sentence) and Omar Serushago, who received 15 years.

[6]    Blaškić Judgement, para 765: “The factors taken into account in the various Judgements of the two International Tribunals to assess the sentence must be interpreted in the light of the type of offence committed and the personal circumstances of the accused.  This explains why it is appropriate to identify the specific material circumstances directly related to the offence in order to evaluate the gravity thereof and also the specific personal circumstances in order to adapt the sentence imposed to the accused’s character and potential for rehabilitation.  Notwithstanding this, in determining the sentence, the weight attributed to each type of circumstance, depends on the objective sought by international justice.” Prosecutor v Akayesu, Sentence, Case No ICTR-96-4-T, 2 Oct 1998, para 20:  “It is a matter, as it were, of individualising the penalty.”  Prosecutor v Rutaganda, Judgement and Sentence, Case No ICTR-96-3-T, 6 Dec 1999, para 457; Furund‘ija Appeal Judgement, para 249:  “In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness.”; Prosecutor v Musema, Case No ICTR-96-13-T, 27 Jan 2000, para 987.

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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

[1] Mrkšić and Šljivančanin Appeal Judgement, para. 352; Strugar Appeal Judgement, para. 336; Hadžihasanović and Kubura Appeal Judgement, para. 302.

[2] See, e.g., Mrkšić and Šljivančanin Appeal Judgement, para. 353; Martić Appeal Judgement, para. 326; Strugar Appeal Judgement, paras 336-337. 

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

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

[1] Article 24 of the Statute and Rule 101(A) of the Rules.

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ICTR Statute Article 23 ICTY Statute Article 24 ICTR Rule Rule 101(A) ICTY Rule Rule 101(A)
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Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Prosecution argued that the Trial Chamber committed an error by failing to impose a sentence reflecting the gravity of the crimes and of the Appellant’s degree of criminal culpability, and submits that the Trial Chamber should have considered the Appellant as one of the most serious offenders, deserving the highest penalty available at the Tribunal (para. 200).

The Appeals Chamber held that it was an abuse of discretion for the Trial Chamber to issue a sentence of only thirty years under the circumstances of the case:

205. The Appeals Chamber is, as noted above, fully cognizant of the margin of discretion to which Trial Chambers are entitled in sentencing. This discretion is not, however, unlimited. It is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal. This is such a case. The Appeals Chamber concludes that in light of the massive nature of the crimes and the Appellant’s leading role in them, as well as the relative insignificance of the purported mitigating factors, the Trial Chamber ventured outside its scope of discretion by imposing a sentence of only thirty years’ imprisonment. The Appeals Chamber therefore upholds this sub-ground of the Prosecution’s appeal.

Based on this and other errors, it quashed the sentence and entered a life sentence.

See paras 200-206.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

335.    The Appeals Chamber notes that a Trial Chamber is required, as a matter of law, under both the Statute and the Rules, to take into account aggravating and mitigating circumstances. Therefore, if it fails to do so, it commits an error of law. Article 23(2) of the Statute provides, inter alia, that in imposing sentence, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

336.    Rule 101(B) of the Rules is binding in that the Trial Chamber “shall take into account” the factors listed. Therefore, if it does not, it will be committing an error of law. The Appeals Chamber must first examine whether or not the Trial Chamber considered these factors.[1] Second, it must consider whether or not it properly took them into account.[2]

337.    In considering the issue of whether a sentence should be revised, the Appeals Chamber notes that the degree of discretion conferred on a Trial Chamber is very broad. As a result, the Appeals Chamber will not intervene in the exercise of this discretion, unless it finds that there was a “discernible error”[3] or that the Trial Chamber has failed to follow the applicable law.[4] In this regard, it confirms that the weighing and assessing of the various aggravating and mitigating factors in sentencing is a matter primarily within the discretion of the Trial Chamber. Therefore, as long as a Trial Chamber does not venture outside its “discretionary framework”[5] in imposing a sentence, the Appeals Chamber shall not intervene.

338.    The burden rests on the Appellants to “show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules.”[6]

[…]

352.    […] The Appeals Chamber recalls that the degree of discretion conferred on a Trial Chamber in the area of sentencing is broad, and that the gravity of the offence is the primary consideration in imposing sentence.[7] Furthermore, as noted above, a Trial Chamber must consider the individual circumstances of the accused, as well as the aggravating and mitigating factors; weighing these factors is a task primarily within its discretion. The Appeals Chamber will not intervene in this exercise unless there has been an abuse of discretion. […]

See also paras. 363 and 366.

[1] Kambanda Appeal Judgement, para. 122.

[2] Ibid., paras. 122 and 123.

[3] Aleksovski Appeal Judgement, para. 187.

[4] Serushago Sentencing Appeal Judgement, para. 32. See also Aleksovski Appeal Judgement, para. 187, and Tadić Sentencing Appeal Judgement, paras. 20 and 22.

[5] Tadić Sentencing Appeal Judgement, para. 20.  See also Čelebići Appeal Judgement, para. 775 (“…a decision as to the weight to be accorded to such acts in mitigation of sentence lies within the discretion of the Trial Chamber. In the absence of a finding that the Trial Chamber abused its discretion in imposing a sentence outside its discretionary framework as provided by the Statute and Rules, this argument must fail.”) (citing Kambanda Appeal Judgement, para. 124).

[6] Kambanda Appeal Judgement, para. 115.

[7] Čelebići Appeal Judgement, para. 731.

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ICTR Statute Article 23(2) ICTY Statute Article 24(2) ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)