|Contempt Appeal Judgement - 16.11.2012||
17. The Appeals Chamber considers that the Trial Chamber’s power to suspend a sentence is inherent to its authority to impose one. Such power is operative at the time of sentencing, and not thereafter, and for this reason is entirely distinct from the power to grant pardon or commutation. The authority to grant pardon or commutation pursuant to Article 28 of the Statute and Rules 123 through 125 of the Rules is vested exclusively in the President and that power relates to a post-conviction change in the sentence, thus overriding the decision of the sentencing chamber in specific circumstances, where the detainee has already served part of a final sentence.
18. […][T]he Appeals Chamber finds that the power to suspend a sentence must be distinguished from the power to issue a pardon, commutation of sentence, or early release. Such suspension of a sentence, either in full or in part, does not infringe the authority of the enforcing State to execute the sentence in accordance with the applicable law of that State. Similarly, it does not “effectively remove the power from the President of the Tribunal to make the final determination regarding the [execution of the] sentence” imposed by the Trial Chamber. Rather, the decision to suspend the last eight months of Rašić’s sentence of 12 months’ imprisonment forms an integral part of the Trial Chamber’s judicial discretion in the determination of the sentence.
 Cf. Tadić Judgement in Sentencing Appeals, para. 28.
 The Appeals Chamber notes that, although they are distinct acts, the powers to grant, on the one hand, commutation or pardon and, on the other, early release are all governed by Article 28 of the Statute, Rule 125 of the Rules, and the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal, IT/146/Rev.3, 16 September 2010 (“Practice Direction”). The Appeals Chamber notes that the Prosecution does not stipulate which specific type of post-conviction release it submits the Trial Chamber granted, but the Appeals Chamber considers that this is of no consequence given that the identical decision making process for each type is governed by the same provisions.
 Cf. Practice Direction.
 Stakić Appeal Judgement, para. 392.
|Decision on Early Release - 24.08.2006||
The ICTR Appeals Chamber held that the decision of the President of the Tribunal on early release are final and cannot be subject to appeal:
3. The Appeals Chamber cannot identify any legal basis for its consideration of this appeal. Article 27 of the Statute of the Tribunal places the ultimate decision on pardon and commutation of sentences in the exclusive discretion of the President of the Tribunal upon consultation with the Judges of the Tribunal. The Tribunal’s Statute and Rules of Procedure and Evidence do not provide for appellate review of such a decision. Finally, Article 10 of the Tribunal’s Practice Direction concerning the appropriate procedure for determination of applications for pardon, commutation, or early release of persons convicted by the Tribunal makes clear that the President’s decision is final and not subject to appeal.
 See Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Criminal Tribunal for Rwanda, 10 May 2000, para. 10 (“The decision of the President shall be final, and is thus not subject to appeal”).
|ICTR Statute Article 27 ICTY Statute Article 28 ICTR Rule Rule 124 ICTY Rule Rule 123|
|Judgement on Sentencing Appeal - 04.02.2005||
97. The Appeals Chamber notes that the Trial Chamber, by imposing a sentence of 23 years, clearly – although not expressly – entered into a calculation to reflect the practice of the International Tribunal of granting early release after the convicted person has served two-thirds of his sentence: the term of 15 years clearly amounts to two-thirds of the sentence it effectively rendered. The Appeals Chamber considers that the Trial Chamber mechanically – not to say mathematically – gave effect to the possibility of an early release. By doing so, it attached too much weight to the possibility of an early release. As a consequence, the Appeals Chamber (Judge Shahabuddeen dissenting) finds that a reduction of sentence shall be granted.
(See also Judge Shahabuddeen’s Dissenting Opinion)
 Prosecutor v. Miroslav Tadić, Case No. IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić, 24 June 2004, para. 4: “[…] the eligibility for pardon or commutation of sentence in the enforcement states generally ‘starts at two-thirds of the sentence served’. It has been a consistent practice of this Tribunal to apply this standard when determining the eligibility of persons imprisoned at the UNDU for pardon or commutation of sentence.”
|Appeal Judgement - 22.03.2006||
In sentencing the Appellant to life imprisonment, the Trial Chamber stated:
The then competent court (Rule 104 of the Rules) shall review this sentence and if appropriate suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation, if: (1) 20 years have been served calculated in accordance with Rule 101(C) from the date of Dr. Stakić’s deprivation of liberty for the purposes of these proceedings, this being the “date of review”[;] (2) In reaching a decision to suspend the sentence, the following considerations, inter alia, shall be taken into account: the importance of the legal interest threatened in case of recidivism; the conduct of the convicted person while serving his sentence; the personality of the convicted person, his previous history and the circumstances of his acts; the living conditions of the convicted person and the effects which can be expected as a result of the suspension[.]
The Appeals Chamber found that the Trial Chamber acted “ultra vires” in imposing a review obligation on the Host State whereas Article 28 of the Statute, Rule 123 of the Rules, the Practice Direction on Pardon, Commutation of Sentence and Early Release, and the Model Agreement for enforcing sentences “each provide that eligibility of a convicted person for pardon, early release or commutation of sentence is determined by the law of the State in which the convicted person is serving his sentence”. It also found that, by vesting the courts of the Host States with the power to suspend the sentence, the Trial Chamber removed the power of the President of the Tribunal to make the final determination regarding the sentence.
 Trial Judgement, pp. 253-254 (Disposition).
 Judgement, para. 393.
 Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal, IT/146, 7 April 1999.
 “If, pursuant to the applicable national law of the requested State, the convicted person is eligible for pardon or commutation of the sentence, the requested State shall notify the Registrar accordingly.”
 Judgement, para. 392.
 Article 28 of the Statute, Rules 124 and 125 of the Rules, Practice Direction, paras 5-11.
 Judgement, para. 392.
|ICTR Statute Article 27 ICTY Statute Article 28 ICTR Rule Rule 124 ICTY Rule Rule 123 Other instruments Model Agreement for Enforcing Sentences (ICTY). Practice Direction on the Procedure for the Determination of Applications for Pardon Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal (ICTY).|