Aggravating circumstances

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

320. The Appeals Chamber recalls that a position of authority does not in and of itself attract a harsher sentence.[1] Further, in the context of a conviction under Article 7(3) of the Statute, use of the superior’s position of authority as an aggravating circumstance would be inappropriate since it is itself an element of criminal liability.[2] Nor would a high level of authority, to echo the Prosecution’s distinction, necessarily attract greater responsibility were it to be considered. Rather, it is the superior’s abuse of that level of authority which could be taken into consideration at sentencing.[3] […].

321. In any event, the principle of graduation upon which the Prosecution relies is not absolute. Indeed, the ICTR Appeals Chamber in Musema qualified its statement that sentences should be graduated by noting that this principle “is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence”.[4] The Prosecution’s contention that Hadžihasanović must receive a harsher sentence based on his high level of authority is not substantiated by the practice of the International Tribunal.

[1] Stakić Appeal Judgement, para. 411; Babić Judgement on Sentencing Appeal, para. 80.

[2] See Naletilić and Martinović Appeal Judgement, para. 626; Miodrag Jokić Judgement on Sentencing Appeal, para. 30.

[3]  See Galić Appeal Judgement, para. 412 (discussing the abuse of a high level of authority in the context of the mode of liability of ordering).

[4] Musema Appeal Judgement, para. 382.

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Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

82. The Appeals Chamber recalls that the charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the Indictment so as to provide notice to the accused.[1] By the same token, for sentencing purposes, a Trial Chamber may only consider in aggravation circumstances pleaded in the Indictment.[2]

[1] Gacumbitsi Appeal Judgement, para. 49; Simić et al. Appeal Judgement, para. 20.

[2] Delalić et al. Appeal Judgement, para. 763 (“The Appeals Chamber agrees that only those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”); Kunarac et al. Trial Judgement, para. 850 (“Only those circumstances directly related to the commission of the offence charged and to the offender himself when he committed the offence, such as the manner in which the offence was committed, may be considered in aggravation. In other words, circumstances not directly related to an offence may not be used in aggravation of an offender’s sentence for that offence. To permit otherwise would be to whittle away the purpose and import of an indictment.”).

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Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

284. […] Turning to the question of whether the Trial Chamber erred in taking his stature into account as an aggravating circumstance, the Appeals Chamber recalls that it is settled in the jurisprudence of the Tribunal and the ICTY that a superior position in itself does not constitute an aggravating factor. Rather, it is the abuse of such position which may be considered as an aggravating factor.[1]

285. A review of the Trial Chamber’s findings on this point reveals that it not only took into account the Appellant’s stature, but also the influence he derived from his stature[2] and the use he made of his influence by lending encouragement and approval to the participants in the killings.[3] The Appeals Chamber finds that the Trial Chamber thus implicitly found that the Appellant abused his position and influence in order to facilitate the commission of the crimes. Accordingly, the Appeals Chamber finds no discernable error in the Trial Chamber’s findings. Therefore this sub-ground of appeal is dismissed.

309. The Trial Chamber found that the influence the Appellant derived from his stature made it likely that others would follow his example, and that this was an aggravating factor.[4] The Appeals Chamber recalls that the Trial Chamber implicitly found that the Appellant abused this influence.[5]

310. This interpretation is supported by the Trial Chamber’s findings that the Appellant participated in the attack against Murambi Technical School and Kaduha Parish by lending encouragement and approval to the attackers and that, since the Appellant was a respected national figure in Rwandan society and well-known in his native region (Gikongoro), the assailants at those places would have viewed his presence during the attacks as approval of their conduct, particularly after his invocation of government support.[6] In so doing, the Trial Chamber did not distinguish between his formal or de facto authority and influence, but limited itself to established facts. The Trial Chamber therefore did fully take into account as aggravating factors the Appellant’s stature in Rwanda society, as well as the abuse of the influence he derived from it.

[1] Stakić Appeal Judgement, para. 411, quoting Kayishema and Ruzindana Appeal Judgement, paras 358–359; Babić Sentencing Appeal Judgement, para. 80; Kamuhanda Appeal Judgement, para. 347; Aleksovski Appeal Judgement, para. 183; Ntakirutimana Appeal Judgement, para. 563; Krstić Trial Judgement, para. 709.

[2] Trial Judgement, para. 439.

[3] Trial Judgement, para. 433.

[4] Trial Judgement, para. 439, referring to its previous factual findings on the Appellant’s stature in Rwandan society (see Trial Judgement, paras 54-60).

[5] See above Chapter II, Section K, para. 285.

[6] Trial Judgement, paras 400, 403. The Trial Chamber thus did not regard as an aggravating circumstance the fact that the Appellant encouraged and approved of the attacks, as these were elements of the crime, but rather took into account the fact that he abused his influence by doing so.

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Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

Again, pursuant to relevant findings in the Stakić Appeal Judgement, the Appeals Chamber in the Simić case found proprio motu that the Trial Chamber erred in the exercise of its discretion in finding that the Appellant’s professional background as a medical doctor constituted an aggravating circumstance. See paragraphs 270-274.

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Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution 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. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

[1] Trial Judgement, para. 915.

[2] Kayishema and Ruzindana Trial Judgement, para. 26.

[3] Ntakirutimana Trial Judgement, para. 153.

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Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution 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. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

[1] Trial Judgement, para. 915.

[2] Kayishema and Ruzindana Trial Judgement, para. 26.

[3] Ntakirutimana Trial Judgement, para. 153.

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

170. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing. […]

[1] Renzaho Appeal Judgement, para. 615; Rukundo Appeal Judgement, para. 250; Seromba Appeal Judgement, para. 230; Ndindabahizi Appeal Judgement, para. 136. See also Dragomir Milošević Appeal Judgement, para. 302; Simba Appeal Judgement, para. 284.

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

65. The Appeals Chamber finds that Rašić has failed to show that the Trial Chamber erroneously relied on her position as an “officer of justice” as an aggravating circumstance. […]

66. Similarly, the Appeals Chamber finds that Rašić has failed to show that the Trial Chamber’s finding that she was an “officer of justice” is not supported by the evidence. Again, the Appeals Chamber finds that this argument effectively turns on semantics as opposed to substance. The Trial Chamber used this term to describe the obligations of “any professional involved in the proceedings before the Tribunal”, including members of defence teams.[1] It took into account that, as a member of Milan Lukić’s defence team, Rašić held a “position of trust”, and that she was “obligated to act conscientiously with full respect of the law and applicable rules”.[2]

67. The specific obligation to fully respect the applicable law is contained in the disciplinary regime applicable to members of a defence team. Pursuant to Article 35 (i) and (v) of the Code of Professional Conduct for Counsel, members of a defence team display professional misconduct if they: (i) violate the Rules; or (ii) engage in conduct which is prejudicial to the proper administration of justice before the Tribunal.[3]

[1] Sentencing Judgement, para. 18.

[2] Sentencing Judgement, para. 18.

[3] Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 Rev. 3, 22 July 2009 (“Code of Professional Conduct for Counsel”). See also Articles 34 and 40 of the Code of Professional Conduct for Counsel.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

2038. The Appeals Chamber recalls that prolonged and systematic involvement in criminal conduct may be considered as an aggravating circumstance.[1] […]

[1]           D. Milošević Appeal Judgement, para. 304; Martić Appeal Judgement, para. 340; Hadžihasanović and Kubura Appeal Judgement, paras 350-353; Kunarac et al. Appeal Judgement, para. 356. 

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Notion(s) Filing Case
Appeal Judgement - 16.12.2013 NDAHIMANA Grégoire
(ICTR-01-68-A)

231. It is well-established that a large number of victims is not an element of the crime of genocide. The Appeals Chamber also recalls that, with respect to extermination as a crime against humanity, “a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination.” The Appeals Chamber further recalls that extermination is the act of killing on a “large scale”, and that “large scale” does not suggest a strict numerical approach with a minimum number of victims. While extermination as a crime against humanity has been found in relation to the killing of thousands of persons, it has also been found in relation to fewer killings, such as the killings of approximately 60 individuals and less. In the present case, the Trial Chamber found that the attacks on Nyange Church resulted “in the death of approximately 2,000 Tutsi men, women and children.” The Appeals Chamber considers that the extent of the killings at Nyange Church on 15 and 16 April 1994 exceeded that required for extermination, and that the number of victims could therefore be taken into consideration as an aggravating circumstance in the determination of the sentence. The Appeals Chamber accordingly rejects Ndahimana’s contention that the Trial Chamber engaged in impermissible double-counting in considering the number of victims of the attacks on NyangeChurch as an aggravating factor.

[1] See, e.g., Ndindabahizi Appeal Judgement, para. 135.

[2] Ndindabahizi Appeal Judgement, para. 135.

[3] See, e.g., Lukić and Lukić Appeal Judgement, para. 536; Bagosora and Nsengiyumva Appeal Judgement, para. 394; Rukundo Appeal Judgement, para. 185.

[4] Lukić and Lukić Appeal Judgement, para. 537, referring to Stakić Appeal Judgement, para. 260 and Ntakirutimana Appeal Judgement, para. 516.

[5] See Lukić and Lukić Appeal Judgement, paras. 537, 544, fns. 1564-1567, and references contained therein. See also Bagosora and Nsengiyumva Appeal Judgement, para. 398.

[6] Trial Judgement, para. 854. 

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

The Appeals Chamber found:

135.  […] the Trial Chamber did not err in considering the large number of victims at Gitwa Hill as an aggravating circumstance relevant to the sentence. As to the conviction for genocide, there need not be a large number of victims to enter a genocide conviction. As for extermination, the actus reus requires “killing on a large scale”.[1] While this does not “suggest a numerical minimum”,[2] a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination. In the present case, there is no indication that, in considering aggravating circumstances, the Trial Chamber looked at only those killings required for extermination when it specifically cited the fact that “thousands” of people were killed.[3]

 

[1] Ntakirutimana Appeal Judgement, para. 516.

[2] Ntakirutimana Appeal Judgement, para. 516.

[3] Trial Judgement, para. 508(ii).

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

2046. Finally, the Appeals Chamber recalls that obstructing justice has been identified as one of the factors that may be considered as an aggravating circumstance.[1] […]

[1]           Čelebići Appeal Judgement, paras 789-790.

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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

336. It is true that the Trial Chamber found “that the evidence of the Accused’s influence in this case [did] not sufficiently demonstrate that he was a superior in some formal or informal hierarchy with effective control over the known perpetrators.”[1]  But that finding is not inconsistent with the finding that his “prominence and influence made it more likely that others would follow his negative example.”[2] […] The question of criminal responsibility as a superior is analytically distinct from the question of whether an accused’s prominent status should affect his or her sentence.  It was within the Trial Chamber’s competence and reasonable for it to conclude that the Appellant did not hold a hierarchical position sufficient to render him liable for criminal responsibility as a superior while also finding that his influence was substantial enough to constitute an aggravating factor.

[1] Trial Judgement, para. 417.

[2] Ibid., para. 573.

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Appeal Judgement - 25.02.2004 VASILJEVIĆ Mitar
(IT-98-32-A)

161. Verbal abuse has not been used previously at the International Tribunal as an aggravating factor. The Statute and the Rules provide the Trial Chambers with a wide of discretion in determining the sentence and in considering factors in aggravation.  In the view of the Appeals Chamber, verbal abuse can be taken into account as an aggravating factor by Trial Chambers.  

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

250. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing.[1] The Appeals Chamber considers that Rukundo has not demonstrated that it was unreasonable for the Trial Chamber to conclude that, as a military chaplain and priest, he would be viewed as a person of influence. Furthermore, a review of the Trial Chamber’s findings on this point reveals that it not only took into account Rukundo’s influence but also the use to which he put that influence.

[1] Seromba Appeal Judgement, para. 230; Simba Appeal Judgement, para. 284; Ndindabahizi Appeal Judgement, para. 136. See also Dragomir Milošević Appeal Judgement, para. 302.

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Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

80. […] The Appeals Chamber notes that, contrary to the Defence’s assertion, the position of an accused in “high political offices” has been considered as an aggravating factor for the purposes of sentencing even where an accused’s leadership of a joint criminal enterprise is not at issue.[1]  Several cases before the International Tribunal in which the mode of liability of joint criminal enterprise was not at issue illustrate that a Trial Chamber has the discretion to take into account, as an aggravating circumstance, the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] A high rank in the military or political field does not, in itself, merit a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence.[3]  Consequently, what matters is not the position of authority taken alone, but that position coupled with the manner in which the authority is exercised.[4] For instance, in the Aleksovski case, the Appeals Chamber considered that the superior responsibility of the appellant, who was a prison warden, “seriously aggravated [his] offences, [as] [i]nstead of preventing it, he involved himself in violence against those whom he should have been protecting”.[5] In Ntakirutimana, the ICTR Appeals Chamber concurred with the Trial Chamber that the abuse of the appellant’s personal position in the community was an aggravating circumstance.[6] 

81. In the present case, the Trial Chamber did not hold that the Appellant’s position as a regional political leader in itself constituted an aggravating circumstance. The Trial Chamber thoroughly considered the Appellant’s behaviour as a regional political leader and stressed that it considered his leadership position as an aggravating circumstance because he used his authority to enlist resources of the SAO Krajina to further the joint criminal enterprise, made inflammatory speeches during public events and in the media which prepared the ground for the Serb population to accept that their goals could be achieved through acts of persecution, and amplified the consequences of the campaign of persecutions by allowing it to continue.[7] Therefore, the Appeals Chamber considers that the Trial Chamber correctly found that the Appellant’s leadership position was an aggravating circumstance.

[1] Brđanin Trial Judgement, para. 1099. Having found that a joint criminal enterprise was not an appropriate mode of liability to describe the individual criminal responsibility of Brđanin, the Trial Chamber found that his position of authority at the highest level of the political hierarchy and the abuse of such authority constituted an aggravating factor of considerable weight.  

[2] See Aleksovski Appeal Judgement, para. 183; Čelebići Appeal Judgement, para. 745; Kupreškić Appeal Judgement, para. 451.

[3] Krstić Trial Judgement, para. 709.

[4] Kayishema and Ruzindana Appeal Judgement, paras 358 - 359.

[5] Aleksovski Appeal Judgement, para. 183.

[6] Ntakirutimana Appeal Judgement, para. 563.

[7] Sentencing Judgement, para. 61.

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

324. The Appeals Chamber recalls that a Trial Chamber “shall take into account […] any aggravating circumstances”,[1] which may include the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] What matters is not the position of authority taken alone, but that position coupled with the manner in which the authority was exercised: abuse of superior position may be considered an aggravating factor.[3]

[1] Rules, Rule 101 (emphasis added).

[2] See Naletilić and Martinović Appeal Judgement, para. 613; Kupreškić et al. Appeal Judgement, para. 451.

[3] Stakić Appeal Judgement, para. 411. See also Kayishema and Ruzindana Appeal Judgement, paras. 358-359; Babić Sentencing Appeal Judgement, para. 80; Kamuhanda Appeal Judgement, para. 347; Aleksovski Appeal Judgement, para. 183; Ntakirutimana Appeal Judgement, para. 563, Krstić Trial Judgement, para. 709.

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Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

726. Instead of revising the sentence of the Trial Chamber, the Appeals Chamber will substitute its own reasoned sentence for that of a Trial Chamber on the basis of its own findings, a function which the Appeals Chamber considers that it may perform in this case without remitting the case to the Trial Chamber.

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Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

693. […] The law relating to aggravating factors as applied by the International Tribunal is clear. Where an aggravating factor is present and yet is not an element of the crime, that factor may be considered in aggravation of sentence. However, where an aggravating factor for the purposes of sentencing is at the same time an element of the offence, it cannot also constitute an aggravating factor for the purposes of sentencing.[1]

[1] Vasiljević Appeal Judgement, para. 172-173 (see above, together with Todorović Sentencing Judgement, para. 57).

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

783. Neither the Statute nor the Rules of this Tribunal expressly provide that an inference can be drawn from the failure of an accused to give evidence.  At the same time, neither do they state that silence should not “be a consideration in the determination of guilt or innocence”.[1]  Should it have been intended that such adverse consequences could result, the Appeals Chamber concludes that an express provision and warning would have been required under the Statute, setting out the appropriate safeguards.  Therefore, it finds that an absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules, reflecting what is now expressly stated in the Rome Statute.  Similarly, this absolute prohibition must extend to an inference being drawn in the determination of sentence.  The Trial Chamber would have committed an error should it be shown that it relied on Mucić’s failure to give oral testimony as an aggravating factor in determining his sentence.[2]

See also paragraphs 781-782.

[1]    Article 67(1)(g) of the ICC Statute.

[2]    See Carolina v Pearce 395 US 711, where it was found that due process is violated where the sentencing court punishes’ a convicted person for his exercise of a procedural right in the criminal justice process. However a defendant must be able to show that by reference to the sentencing record, the judge in fact sentenced vindictively seeking to punish for the exercise of a procedural right.

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

787. Reference to the jurisprudence of the Tribunal and ICTR, [1] and to guidelines and practice of national jurisdictions,[2] illustrates that it is established practice that trial courts exercise a broad discretion in the factors they may consider on sentence. This indicates that all information relevant to an accused’s character may be considered.  As accepted by the Supreme Court of the United States, “modern concepts individualising punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial”.[3]  Therefore there is a relevant distinction in the role of a fact-finder at trial and a sentencing judge, who is not restrained by the same rules.  Rather, it is essential that the sentencing judge is in “possession of the fullest information possible concerning the defendant’s life and characteristics”.[4] 

788. The Trial Chambers of the Tribunal and the ICTR have consistently taken evidence as to character into account in imposing sentence.  The Appeals Chamber notes that factors such as conduct during trial proceedings, ascertained primarily through the Trial Judges’ perception of an accused, have also been considered in both mitigation and aggravation of sentence.[5]  […] This behaviour is relevant to a Trial Chamber’s determination of, for example, remorse for the acts committed or, on the contrary, total lack of compassion.[6] 

[1]    See e.g., Prosecutor v Kambanda, Judgement and Sentence, Case No ICTR 97-23-S, 4 Sept 1998 at para 30; Prosecutor v Akayesu, Sentence, Case No ICTR-96-4-T, 2 Oct 1998, para 21. Prosecutor v Kayishema and Ruzindana, Sentence, Case No ICTR-95-1-T, 21 May 1999, para 3: “These enumerated circumstances, [contained in the Statute and the Rules] however, are not necessarily mandatory or exhaustive. It is a matter of individualising the penalty considering the totality of the circumstances.”

[2]    See e.g.: In the former Yugoslavia, Article 41(1) of the SFRY Penal Code 1990.  In the United Kingdom, the Magistrates Association Sentencing Guidelines issued in 1993 guide the Magistrates in setting out aggravating and mitigating factors in relation to specific offences.  As in the United Kingdom, sentencing in the United States is assisted by Pre-Sentence Reports prepared by probation officers, who enjoy wide discretion in the information to include and present before the court. In Williams v. New York, 337 U.S. 241, (1949) it was noted that “the modern probation report draws on information concerning every aspect of a defendant’s life.” (p 250).  It upheld what is described as “real offence” sentencing or, sentencing that goes beyond the elements of the offence and considers the gravity of the accused’s conduct.  It found that courts do not violate due process by considering unrelated criminal conduct, even if it did not result in a criminal conviction.  See also United States v Grayson, 438 U.S. 41, where it was found that in a system of discretionary sentencing, it is proper and even necessary to consider the defendant’s whole person and personality, as manifested by his conduct at trial and his testimony under oath.  See also 18 UCSA, para 3553(1) which provides that the court should consider “the nature and circumstances of the offence and the history and characteristics of the defendant” and para 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offence which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence”.  In Canada, s 726.1 of the Canadian Criminal Code provides: In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.  In Denmark, See ss 80, 84 and 85 of the Danish Criminal Code.

[3]    Williams v New York, 337 U.S. 241, (1949), p 247.

[4]    William New York, 337 U.S. 241, (1949), p 247.

[5]    For example, in the Blaškić Judgement, para 780: “…the Trial Chamber must take note of the exemplary behaviour of the accused throughout the trial, whatever the judgement as to his statements as a witness.”  In Prosecutor v Kayishema and Ruzindana, Sentence, Case No ICTR-95-1-T, 21 May 1999, para 17, the Trial Chamber noted: “The Prosecution cited one aggravating factor, Ruzindana’s behaviour after the criminal act, and notably the fact that Ruzindana smiled or laughed as survivors testified during trial.”

[6]    In the Second Erdemović Sentencing Judgement, para 16, the Trial Chamber considered remorse and compassion as mitigating factors. 

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

302. […] [T]he Appeals Chamber recalls that it is settled jurisprudence of this Tribunal that while a position of authority, even at a high level, does not automatically warrant a harsher sentence, the abuse of such may indeed constitute an aggravating factor.[1] The Appeals Chamber further reiterates, Judge Liu dissenting, that this holds true in the context of a conviction under Article 7(1) of the Statute, including the mode of responsibility for planning and ordering crimes.[2] Before arriving at its conclusion, the Trial Chamber in the instant case specifically took into account Milošević’s high rank within the VRS, the ensuing special responsibility to uphold the standards of international humanitarian law, and the fact that he was highly respected by the SRK staff.[3] In this regard, the Appeals Chamber recalls that whereas the mode of liability of ordering requires that the person giving the order has a position of authority, the abuse of such authority may still be considered an aggravating factor in sentencing.[4] The Trial Chamber was mindful of the fact that the superior position per se does not constitute an aggravating factor and did not consider Milošević’s authority to give orders to that effect.[5] Rather, it took into account the particularly high level of Milošević’s authority and the high esteem of his soldiers in assessing whether his conduct amounted to an abuse of his superior position. Milošević has failed to demonstrate any error in this regard.

303. […] In addition, the Appeals Chamber recalls that the superior’s abuse of his position of a high level of authority may also be taken into consideration for a conviction under Article 7(3) of the Statute.[6]

[1] See, e.g., Martić Appeal Judgement, para. 350; Hadžihasanović and Kubura Appeal Judgement, para. 320; Blagojević and Jokić Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 411; M. Nikolić Appeal Judgement, para. 61. Moreover, the Appeals Chamber recalls that where responsibility under both Article 7(1) and Article 7(3) is alleged under the same counts, and where the legal requirements pertaining to both of these modes of responsibility have been established, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing (Blaškić Appeal Judgement, paras 91, 727).

[2] Naletilić and Martinović Appeal Judgement, paras 613, 626; Blagojević and Jokić Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 411; Blaškić Appeal Judgement, para. 91.

[3] Trial Judgement, para. 999.

[4] Galić Appeal Judgement, para. 412.

[5] Trial Judgement, para. 996, fn. 3202.

[6] Hadžihasanović and Kubura Appeal Judgement, para. 320. The Appeals Chamber notes that in Naletilić and Martinović, the Appeals Chamber found that the Trial Chamber erred in finding that Martinović’s and Naletilić’s respective superior positions constituted aggravating factors for their convictions under Article 7(3) (Naletilić and Martinović Appeal Judgement, paras 613, 626). However, the Appeals Chamber emphasizes that this finding was not concerned with the abuse of such position as is the case in the present instance.

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

306. […] [T]he Appeals Chamber observes that the language of the Trial Judgement may be read to conclude that certain factors were taken into account twice by the Trial Chamber in its assessment of the gravity of the crimes and the aggravating circumstances.[1] Where established, such double-counting amounts to a legal error since “factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.”[2] […]

309. The Appeals Chamber is not convinced by the Prosecution’s argument that relying on different aspects of the same fact is permissible. In weighing a fact, either as an aspect of the gravity of the crime or as an aggravating circumstance, the Trial Chamber is required to consider and account all of its aspects and implications on the sentence in order to ensure that no double-counting occurs. The Appeals Chamber thus finds that the said facts could only be taken into consideration once – either as factors relevant to the gravity of the crimes or as aggravating circumstances.

[1] Trial Judgement, paras 991-994, 999-1001.

[2] M. Nikolić Judgement on Sentencing Appeal, para. 58; Deronjić Judgement on Sentencing Appeal, para. 106.

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

The Trial Chamber had found that the Appellant encouraged attackers to kill Tutsi women married to Hutu men without convicting the Appellant on this basis because it found that there was insufficient evidence to establish that his conduct directly and substantially contributed to the killing of these Tutsi women, or their children.[1] However, the Trial Chamber considered that the Appellant’s encouragement of the killing of Tutsi women who were married to Hutu could be considered as an aggravating factor.[2] The Appeals Chamber found in para. 141 that “[t]here was no contradiction in the Trial Chamber’s findings in this respect”. In the present case, the question of further aggravation of the sentence of life imprisonment needed not to be addressed.

[1] Trial Judgement, para. 474.

[2] See Trial Judgement, para. 508(iii).

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Judgement on Sentencing Appeal - 20.07.2005 DERONJIĆ Miroslav
(IT-02-61-A)

The Appellant argued that the vulnerability of the victims cannot be considered as an aggravating circumstance because it is not directly related to the offender himself. The Appeals Chamber rejected this argument and held that:

124. […] The statement by the Kunarac et al. Trial Chamber that aggravating circumstances must relate “to the offender himself” is not to be taken as a rule that such circumstances must specifically pertain to the offender’s personal characteristics. Rather, it simply reflects the general principle of individual responsibility that underlies criminal law: a person cannot be held responsible for an act unless something he himself has done or failed to do justifies holding him responsible. […] Here, not only was the Appellant aware of his victims’ defencelessness and took advantage of it, but he exacerbated it through Milutin Milošević’s statements making false promises of safety on his behalf, which he accepted.[1] There is no question that this factor “relates to the offender himself”.

[1] Sentencing Judgement, para. 209 referring to Appellant’s Testimony, T.159.

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Judgement on Sentencing Appeal - 20.07.2005 DERONJIĆ Miroslav
(IT-02-61-A)

The Appeals Chamber confirmed that “factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.[1]” (para. 106).  It noted that at Section IX. A. of the Sentencing Judgement, the Trial Chamber addressed the gravity of the offence together with the factors considered in aggravation.  However, the Appeals Chamber found that “the Trial Chamber indeed distinguished between aggravating circumstances on the one hand and the gravity of the offence on the other, albeit considering them under the same heading.” (para. 107).

[1] See Krnojelac Trial Judgement, para. 517; Plavšić Sentencing Judgement, para. 58; Banović Sentencing Judgement, para. 53; Obrenović Sentencing Judgement, para. 101; Češić Sentencing Judgement, para. 53.

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Judgement on Sentencing Appeal - 20.07.2005 DERONJIĆ Miroslav
(IT-02-61-A)

The Appellant argued that the vulnerability of the victims is already “subsumed in the overall gravity of the offence” and cannot be considered as an aggravating factor (para. 126).  The Appeals Chamber held the following:

127. While it is correct to say that the civilian status of the population against which the attack is directed is an element of crimes against humanity[1] and that therefore such status cannot be taken into account as an aggravating circumstance,[2] the Appeals Chamber notes that the issue before it is not whether the intrinsic vulnerability of civilians can be taken into account but rather whether there are additional elements amounting to particular circumstances showing that the victims were subjected to a special vulnerability.[3] In the present case, not only had the civilians been disarmed and denied any warning about their fate, but moreover had been deceived by a statement on the Appellant’s behalf into believing they were safe. These facts are not inherent in the population’s civilian status.

Accordingly, the Appeals Chamber accepted the Trial Chamber’s finding that “the exacerbated vulnerability and defencelessness of the victims was an aggravating circumstance.” (para. 128). 

[1] Blaškić Appeal Judgement, para. 107: “The Appeals Chamber considers that both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity.”

[2] See Blaškić Appeal Judgement, para. 693: “where an aggravating factor for the purposes of sentencing is at the same time an element of the offence, it cannot also constitute an aggravating factor for the purposes of sentencing.” See also Vasiljević Appeal Judgement, paras 172-173.

[3] Mrđa Sentencing Judgement, para. 46 referring to Banović Sentencing Judgement, para. 50, and Dragan Nikolić Sentencing Judgement, para.184.

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Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan
(IT-94-2-A)

27. The Appeals Chamber emphasises that while the Statute and the Rules do oblige Trial Chambers to take into account both the aggravating and the mitigating circumstances of a case, the determination of what can constitute an aggravating or a mitigating factor and what weight has to be attached to those is within their discretion.[1] A Trial Chamber’s decision may therefore only be disturbed on appeal if the Appellant shows that the Trial Chamber either erred in the weighing process involved in the exercise of its discretion by taking into account what it ought not to have, or erred by failing to take into account what it ought to have taken into account.[2]

28. The apparent enjoyment an accused may derive from his criminal act has already been considered as an aggravating factor by the International Tribunal.

[1] Čelebići Appeal Judgement, paras 716-717.

[2] Ibid., para. 780.

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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber held the following:

412. While the mode of liability of ordering necessarily entails that the person giving the order has a position of authority,[1] the level of authority may still play a role in sentencing as it is not an element of the mode of liability of “ordering” that an accused is high in the chain of command and thus wields a high level of authority.[2] […]

[1] Kordić and Čerkez Appeal Judgement, para. 28.

[2] The Appeals Chamber has previously considered that the level of authority may affect the sentence. See Tadić Sentencing Appeal Judgement, para. 56.

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Appeal Judgement - 08.05.2012 NTABAKUZE Aloys
(ICTR-98-41A-A)

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.[1] 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”.[2] 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.[3] 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.

[1] 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.

[2] Trial Judgement, para. 2274.

[3] 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.

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ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

350.    […] The particularly gruesome manner in which the victim, Beatrice, was killed, is an aggravating circumstance. The fact that this act of killing also supported a conviction for the crime of genocide, because it was part of the policy of genocide within Kibuye préfecture, does not prevent a separate finding that the manner in which it was carried out gave rise to an aggravating circumstance. 

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ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

351.    […] The zeal with which a crime is committed may be viewed as an aggravating factor. […]

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

361.    […] [P]erpetrating a crime in a manner which brings about irreparable harm to the victims and their families may also be considered an aggravation. When an individual commits a crime, there are differing degrees of physical and psychological harm to the victim which may result. Some types of harm are more severe than others. Certain forms of physical harm, for instance, are irreparable, particularly in the case of mutilation. The Trial Chamber found that Kayishema’s acts inflicted irreparable harm not only to the victims, but also to their families. This constituted an aggravating circumstance to be taken into account in sentencing. […]

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

357.    The Appeals Chamber finds that the fact that the Accused held a position of authority or leadership may constitute an aggravating factor in sentencing. In the Kambanda Appeal Judgement, this Chamber, in affirming the sentence imposed by the Trial Chamber, expressly noted the Trial Chamber finding that “the aggravating circumstances surrounding the crimes negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post at the time he committed the said crimes.”[1] Furthermore, in the Aleksovski Appeal Judgement, ICTY Appeals Chamber maintained that the Appellant’s “superior responsibility as a warden seriously aggravated the Appellant’s offences, [and that] instead of preventing it, he involved himself in violence against those whom he should have been protecting …”.[2]

358.    The Appeals Chamber would interpret the existing jurisprudence on this point as follows: Article 6(3) imposes liability on a superior if he knew or had reason to know that his subordinate was about to commit such acts or had done so, and had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators. The mere fact that an accused has command authority is not an aggravating circumstance in sentencing, in respect of Article 6(3) charge; that goes only to conviction. However, a finding that superior responsibility lies because of such failure to prevent or punish does not preclude a further finding that the manner in which an accused exercises his command can be an aggravating circumstance in relation to sentencing. […]

[1] Kambanda Trial Judgement, para. 62.

[2] Aleksovski Appeal Judgement, para. 183.

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