Grounds for denying mitigation
|Appeal Judgement - 08.05.2012||
271. The Appeals Chamber notes that the Trial Chamber did not refer to Ntabakuze’s role as a superior in its discussion of the aggravating circumstances. In its discussion of mitigating factors, the Trial Chamber acknowledged that Ntabakuze was “at times following superior orders in executing [his]] crimes”, but concluded that mitigation was not warranted on this ground based, in part, on Ntabakuze’s “own senior status and stature in the Rwandan army”. Contrary to Ntabakuze’s submission, the Appeals Chamber does not consider that the Trial Chamber’s reliance on Ntabakuze’s senior status and stature to deny mitigation implies that it de facto counted them as aggravating circumstances. Grounds for denying mitigation do not, per se, constitute aggravating circumstances, and there is nothing in the Trial Judgement which suggests that the Trial Chamber considered them as such. The Appeals Chamber accordingly rejects Ntabakuze’s argument that the Trial Chamber relied on Ntabakuze’s role as a superior as an aggravating factor in sentencing.
 See [The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, Case No. ICTR-98-41-T, Judgement and Sentence, delivered in public and signed 18 December 2008, filed 9 February 2009 (“Trial Judgement”)], para. 2272.
 Trial Judgement, para. 2274.
 In his Reply Brief, Ntabakuze further argues that there was no evidence that he received or gave unlawful orders and that the Trial Chamber’s “serious misstatement of the facts” in this respect warrants reconsideration of the sentence imposed on him. See [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Ntabakuze Brief in Reply, 6 October 2009 (“Reply Brief”)], paras. 121, 122. The Appeals Chamber notes that this argument exceeds the scope of Ntabakuze’s appeal as defined in the Notice of Appeal and considers that, by raising this argument for the first time in his Reply Brief, Ntabakuze effectively prevented the Prosecution from making any submission on the issue. In these circumstances, the Appeals Chamber declines to consider this argument.
|ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)|
|Appeal Judgement - 18.03.2010||
194. The Appeals Chamber further considers that, contrary to the Prosecution’s assertion, the Trial Chamber was not obliged to accord “sufficient weight” to the absence of mitigating factors in this case, nor does the Prosecution cite any jurisprudence in support of this proposition. The Appeals Chamber considers that the Trial Chamber properly exercised its discretion when it examined the various mitigating factors advanced by the Appellant, and the submissions advanced by the Prosecution and concluded that “there [were] no mitigating factors that should be taken into account in the determination of the sentence.” The Appeals Chamber finds no discernible error in this approach. In light of the foregoing, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber abused its discretion by failing to accord sufficient weight to the absence of any mitigating factors in this case.
 Prosecution’s Appellant’s Brief [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Prosecutor’s Appellant’s Brief, filed on 28 January 2009], paras. 4, 18.
 Trial Judgement [The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T, Judgement, 2 December 2008], paras. 453-457.
 Trial Judgement, para. 458.