Mitigating circumstances

Notion(s) Filing Case
Reasons for Appeal Judgement - 06.04.2000 SERUSHAGO Omar
(ICTR-98-39-A )

22. Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstances is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice. […]

23. Article 23(3) of the Statute outlines the factors which the Trial Chamber ought to take into account during sentencing. The factors are elaborated upon in Rules 101(B) and (C)[1] of the Rules. Although Rule 101(B)(ii) requires a Trial Chamber to consider any mitigating circumstances, the question of the due weight to be attached to any such circumstance is a matter of discretion for the Trial Chamber. The Trial Chamber’s decision in this regard may not be disturbed on appeal unless the Appellant shows the following: (a) the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have, taken into account in the weighing process involved in this exercise of the discretion; and, (b) if it did, that this resulted in a miscarriage of justice. […]

[1] NOTE: AT THE TIME OF THIS JUDGEMENT RULES 101(C) AND 101(D) PROVIDED:

(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.

(D) Credit shall be given to the convicted persons for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal.

ON 14 MARCH 2008 RULE 101 WAS AMENDED BY THE DELETION OF RULE 101(D) AND REVISION OF RULE 101(C) TO READ:

(C) Credit shall be given to the convicted persons for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal.

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ICTR Statute Article 23 ICTY Statute Article 24 ICTR Rule 101(B) ICTY Rule 101(B)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

293. The Prosecution submits that the Trial Chamber erred when it took into consideration, as an individual and mitigating factor, that the Prosecution had presented evidence during trial concerning allegations that it either had withdrawn or was not allowed to add to the indictment.[1] It argues that a reduction in the sentence for this reason would have required a finding that Setako was prejudiced by a specific pre-trial delay resulting from the Prosecution’s conduct.[2] The Prosecution submits that the Trial Chamber did not make such a finding and that this “flies in the face of fair trial principles” since the Prosecution needed to know how much delay it supposedly caused.[3] It further contends that the Trial Chamber itself contributed to the prolongation of the trial because, before and during trial, Setako requested the Trial Chamber to exclude all the evidence at issue, but the Trial Chamber did not act.[4] In the Prosecution’s view, the Trial Chamber could not “both allow […] the Prosecution [to] put in evidence over an objection and then later on fault the Prosecution for having put on that evidence.”[5]

295. In assessing Setako’s sentence, the Trial Chamber stated that “the Prosecution presented a substantial body of evidence based on allegations that it had either withdrawn from the Indictment, or which it was not allowed to add to it”.[6] While it noted that the trial had proceeded rapidly, the Trial Chamber considered that “this should be taken into account in sentencing.”[7]

296. The Appeals Chamber acknowledges that some of the evidence at issue was the subject of three Defence motions filed before trial requesting that the Prosecution be precluded from presenting evidence relating to pre-1994 allegations which the Trial Chamber deferred deciding upon until its final deliberations.[8] Nonetheless, the Appeals Chamber recalls that the Prosecution’s request to amend the 22 March 2004 Indictment in 2007 to add a count of conspiracy to commit genocide which would have been supported by pre-1994 allegations, was denied.[9] Accordingly, the Prosecution was well aware that the pre-1994 allegations were not permitted to form part of its case and it was therefore the Prosecution’s responsibility to limit the evidence it presented to the case it was permitted to pursue. Furthermore, as the Trial Chamber noted, the Prosecution presented evidence on a number of allegations which: (i) it had sought to add to the indictment but which were explicitly denied by the Trial Chamber;[10] (ii) it sought to have removed from the indictment;[11] (iii) it could have sought to add to the indictment but failed to do so;[12] or (iv) it explicitly stated it was not pursuing a conviction for.[13] The Appeals Chamber recalls that it is the Prosecution’s responsibility to know its case before proceeding to trial and to present its case accordingly.[14]

297. However, despite this, the Trial Chamber did not conclude that Setako’s right to a fair and expeditious trial had been violated by the presentation of the evidence at issue.[15] Instead, it decided to take into account this issue in sentencing, notwithstanding the fact that the trial “proceeded rapidly”.[16] In view of the fact that the Trial Chamber did not find that there was a violation of Setako’s fair trial rights, the Appeals Chamber finds that the Trial Chamber abused its discretion in considering this issue as a factor in the determination of Setako’s sentence. The Appeals Chamber will consider the impact of this error on the sentence, if any, in the section below.

[1] Prosecution Notice of Appeal, para. 27; Prosecution Appeal Brief, paras. 70-75; AT. 29 March 2011 pp. 45, 46.

[2] Prosecution Notice of Appeal, para. 27; Prosecution Appeal Brief, paras. 74, 75.

[3] AT. 29 March 2011 p. 46.

[4] Prosecution Appeal Brief, paras. 72, 73; AT. 29 March 2011 p. 46.

[5] AT. 29 March 2011 p. 46.

[6] Trial Judgement, para. 506, referring to Trial Judgement Section I.2.2 “Notice and Pre-1994 Events”.

[7] Trial Judgement, para. 506.

[8] Trial Judgement, paras. 26, 27, referring to Motion in Limine for Exclusion of Evidence, 28 May 2008; Setako Defence Addendum to Its Motion In Limine for Exclusion of Evidence, 22 August 2008; Urgent Motion In Limine for Exclusion of Evidence Irrelevant or Falling Outside the Scope of the Indictment, 25 August 2008.

[9] Trial Judgement, paras. 39, 40, referring to Decision of 18 September 2007.

[10] See Trial Judgement, paras. 42, 52, 56.

[11] See Trial Judgement, paras. 43, 44, 46.

[12] See Trial Judgement, paras. 60, 63.

[13] See Trial Judgement, para. 46.

[14] See Muvunyi II Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 27.

[15] See Trial Judgement, para. 506. See also Trial Judgement, Section I.2. “Preliminary Matters”.

[16] Trial Judgement, para. 506.

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

328. The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered as mitigating factors.[1] Consequently, under the jurisprudence of this Tribunal, “what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.”[2] The burden of proof which must be met by an accused with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[3] but proof on the balance of probabilities – the circumstance in question must exist or have existed “more probably than not”.[4] Once a Trial Chamber determines that certain evidence constitutes a mitigating circumstance, the decision as to the weight to be accorded to that mitigating circumstance also lies within the wide discretion afforded to the Trial Chamber at sentencing.[5]

[1] Kajelijeli Appeal Judgement, para. 294.

[2] Musema Appeal Judgement, para. 395.

[3] Delalić et al. Appeal Judgement, para. 763.

[4] Delalić et al. Appeal Judgement, para. 590.

[5] Niyitegeka Appeal Judgement, para. 266, referring to Musema Appeal Judgement, para. 396 and Kayishema and Ruzindana Appeal Judgement, para. 366; Kajelijeli Appeal Judgement, para. 294.

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

Momir Nikolić argued that the Trial Chamber is not allowed to substitute the Prosecution’s assessment of his co-operation with its own. The Prosecution submitted that Momir Nikolić had co-operated fully; the Trial Chamber had some reservations.

On the law, the Appeals Chamber disagreed with Momir Nikolić’s claim. It held: “The Appeals Chamber acknowledges that the Prosecution is in a position to accurately assess the co-operation of an accused. However, the evaluation of the extent and nature of the Appellant’s co-operation, and thus the weight, if any, to be given to this mitigating circumstance, is within the discretion of the Trial Chamber.” (para. 91).

However, the Appeals Chamber also held that if the Trial Chamber does not accept the evaluation of the Prosecution regarding the accused’s co-operation, it has to give sufficient reason why it does so, because of its obligation to provide a reasoned opinion under Article 23(2) of the Statute (para. 96). The Appeals Chamber therefore looked at whether the Trial Chamber gave sufficient reasons for its reservations regarding Momir Nikolić’s co-operation with the Prosecution.

The Appeals Chamber found several errors: the Trial Chamber stated that there were “numerous instances” where Momir Nikolić had been evasive in his testimony, but cited only to one such instance (para. 103); the Trial Chamber stated that he had told lies to the Prosecution before entering a plea agreement, but disregarded the fact that Momir Nikolić went back to the Prosecution on his own initiative, apologised, corrected his statement, and openly admitted to having rendered false confessions (para. 107); the Trial Chamber stated that Momir Nikolić’s testimony was not very detailed and that he should generally have been more open, but it had never asked for more details and it did not cite to any instance where the accused had failed to be more detailed or open (para. 113).

The Appeals Chamber concluded that these errors led the Trial Chamber to attach insufficient weight to the mitigating circumstance of his co-operation with the Prosecution (para. 114). 

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

391. The Appeals Chamber recalls its previous finding in Jelisić that it “will not substitute its sentence for that of a Trial Chamber unless the Trial Chamber […] has failed to follow applicable law”.[1] In the case at hand, the Trial Chamber committed such an error with respect to the scope of Strugar’s criminal liability from 12:00 a.m. to 7:00 a.m. on 6 December 1991. Although this legal error has not been found to have had an impact on the sentence, the criminal conduct for which the Trial Chamber convicted Strugar has changed, as it now also comprises his failure to prevent the unlawful shelling of the Old Town before it had ever begun. As such, taking into consideration this legal error of the Trial Chamber, the Appeals Chamber considers that it is resentencing Strugar for his failure to prevent and punish the unlawful shelling of the Old Town on 6 December 1991 and that it thus has the mandate to revise the sentence without remitting it to the Trial Chamber.[2]

392. With respect to the evidence relating to the deterioration of Strugar’s health since the Trial Judgement, the Appeals Chamber admits the relevant material before it[3] in evidence pursuant to Rules 89 and 98 of the Rules. Having considered this evidence the Appeals Chamber accepts that Strugar’s health has deteriorated since the rendering of the Trial Judgement and will take this into account as a mitigating circumstance in its revision of the sentence imposed on him.

[1] Jelisić Appeal Judgement, para. 99.

[2] See Vasiljević Appeal Judgement, para. 181 (with further references). The Appeals Chamber notes that neither party submits that the matter be be remitted to a Trial Chamber.

[3] Medical Report prepared by Dr. Falke as per the then Pre-Appeal Judge and submitted to the Appeals Chamber by the Deputy Registrar, 7 July 2005; Medical Report submitted to the Appeals Chamber by the Deputy-Regitrar, 17 August 2005; Confidential Annex to Defence Notice, 11 September 2006; Prosecutor v. Pavle Strugar, Case No. IT-01-42-Misc.1, Confidential Annexes to Defence Request for Providing Medical Aid, 10 May 2007; Annex to Defence Notice Relevant to Appeals Chamber’s Public “Order to the Defence of Pavle Strugar for Filing of Medical Report”, 27 June 2008 (confidential).

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

365. In order to be a factor in mitigation, the remorse expressed by an accused must be genuine and sincere.[1] The Appeals Chamber recalls that it has previously held that an accused can express sincere regrets without admitting his participation in a crime.[2] In such circumstances, remorse nonetheless requires acceptance of some measure of moral blameworthiness for personal wrongdoing, falling short of the admission of criminal responsibility or guilt. This follows from the ordinary meaning of the term remorse[3] as well as the approach taken in the few cases where expressions of remorse made by accused who maintained their innocence have been accepted in mitigation.[4]

366. However, beyond such expressions of remorse, an accused might also express sympathy, compassion or sorrow for the victims of the crimes with which he is charged. Although this does not amount to remorse as such, it may nonetheless be considered as a mitigating factor. The Appeals Chamber notes that such expressions of sympathy or compassion have been accepted as mitigating circumstances by Trial Chambers of both the ICTR and this Tribunal.[5]

[1] See Jokić Judgement on Sentencing Appeal, para. 89 (and sources cited therein).

[2] Vasiljević Appeal Judgement, para. 177.

[3] The Oxford English Dictionary defines remorse as “a feeling of compunction, or of deep regret and repentance, for a sin or wrong committed.”

[4] Blaškić Appeal Judgement, para. 705 (finding that “the integrity of the Trial Chamber’s conclusion that the Appellant has demonstrated remorse is in fact unchallenged by the contradiction putatively identified by the Trial Chamber.”); Blaškić Trial Judgement, para. 775 (“The Trial Chamber points out that, from the very first day of his testimony, Tihomir Blaškić expressed profound regret and avowed that he had done his best to improve the situation although this proved insufficient.”); Kunarac et al. Trial Judgement, para. 869 (“his statement that he felt guilty about the fact that FWS-75 was gang-raped while he was raping D.B. in an adjoining room may be interpreted as a statement of remorse, and is considered in mitigation.”); Čelebići Trial Judgement, para. 1279 (“The Trial Chamber does not consider Mr. Landžo’s belated partial admissions of guilt, or any expressions of remorse, to significantly mitigate, in the circumstances, the crimes committed by him. […] Mr. Landžo did address a written statement to the Trial Chamber after the end of his trial, stating that he was sorry for his conduct in the Čelebići prison-camp and that he wished to express his regrets to his victims and their families. Such expression of remorse would have been more appropriately made in open court, with these victims and witnesses present, and thus this ostensible, belated contrition seems to merely have been an attempt to seek concession in the matter of sentence.”).

[5] Brđanin Trial Judgement, para. 1139 (“throughout the trial there were a few instances when, through Defence counsel, he told witnesses that he felt sorry for what they had suffered. The Trial Chamber has no reason to doubt the sincerity of the Accused in offering his regret, and will take these instances into consideration as a mitigating factor for the purpose of sentencing the Accused.”); Orić Trial Judgement, para. 752 (“throughout the trial, there were a few instances when Defence counsel on his behalf expressed compassion to witnesses for their loss and suffering. The Trial Chamber does not doubt the sincerity of the Accused in expressing empathy with the victims for their loss and suffering, and has taken this sincerity into consideration as a mitigating factor.”); Stakić Trial Judgement, para. 922 (“The Trial Chamber considers as a mitigating factor Dr. Stakić’s behaviour towards certain witnesses. For example, on 27 June 2002, he directed his counsel not to cross-examine Nermin Karagić 'because of the suffering of this witness and his pretty bad mental state.’”); Akayesu Trial Judgement, para. 45 (“Akayesu expressed sympathy for the many victims of the genocide and of the war and he identified with the survival of the events of 1994.”); Musema Trial Judgement, para. 1005 (“The Chamber, amongst the mitigating circumstances, takes into consideration that Musema admitted the genocide against the Tutsi people in Rwanda in 1994, expressed his distress about the deaths of so many innocent people, and paid tribute to all victims of the tragic events in Rwanda.”); Musema Appeal Judgement, para. 396 (accepting the Trial Chamber’s findings on mitigating circumstances). 

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Notion(s) Filing Case
Appeal Judgement - 21.05.2007 MUHIMANA Mikaeli
(ICTR-95-1B-A)

The Appellant did not make any submission at trial concerning the mitigating circumstances in his case and the Trial Chamber found no mitigating circumstances. On appeal, he argued that the Trial Chamber was obliged to consider mitigating circumstances. The Appeals Chamber found:

231. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence.[1] The accused, however, bears the burden of establishing mitigating factors by a preponderance of the evidence.[2] The Appeals Chamber notes that the Appellant made no sentencing submissions at trial.[3] In such circumstances, the Trial Chamber’s determination that there were no mitigating circumstances was within its discretion and does not constitute a legal error. If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[4] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore the Appellant’s prerogative to identify any mitigating circumstances instead of directing the Trial Chamber’s attention to the record in general. The Appellant is simply advancing arguments on appeal that he failed to put forward at the trial stage, and the Appeals Chamber “does not consider itself to be the appropriate forum at which such material should first be raised”.[5]

232. In any event, the Appellant’s submissions fail to demonstrate that the Trial Chamber’s finding of “no mitigating circumstances” is unreasonable.[6] […]

[1] Kamuhanda Appeal Judgement, para. 354; Kajelijeli Appeal Judgement, para. 294.

[2] Kajelijeli Appeal Judgement, para. 294.

[3] Trial Judgement, para. 602.

[4] Kupreškić et al. Appeal Judgement, para. 414.

[5] Kamuhanda Appeal Judgement, para. 354, quoting Kvočka et al. Appeal Judgement, para. 674.

[6] Trial Judgement, para. 616.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1073. The Appeals Chamber observes at the outset that, in pleading the excessive length of the proceedings, the Appellant is in fact raising a substantive issue going to the regularity of the trial. However, inasmuch as the Appellant raises this issue in his appeal against sentence with a view to having it reduced, and a reduction of sentence is one of the remedies available to redress the alleged violation, the Appeals Chamber will examine these arguments in this section. Nevertheless, the Appeals Chamber notes that the length of the proceedings is not one of the factors that a Trial Chamber must consider, even as a mitigating circumstance, in the determination of the sentence.

1074. The right to be tried without undue delay is provided in Article 20(4)(c) of the Statute. This right only protects the accused against undue delays.[3] Whether there was undue delay is a question to be decided on a case by case basis.[4] The following factors are relevant:

- the length of the delay;

- the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law);

- the conduct of the parties;

- the conduct of the authorities involved; and

- the prejudice to the accused, if any.[5]

1086. […] The precise remedy to be granted was thus left to the discretion of the Trial Chamber, since the Appeals Chamber could not anticipate at that time whether the Appellant would be found guilty or, a fortiori, what sentence he would receive. Hence the Appeals Chamber could not give the Trial Chamber more detailed instructions. Nor can the Appeals Chamber discern in what way the disposition of the Decision of 31 May 2000 in the Semanza case, as cited by the Appellant, was more precise than that of the Decision of 31 March 2000: the only difference is the express reference to Article 23 of the Statute in the Semanza decision.[6] Finally, the fact that the violation of the defendant’s rights was not treated as a mitigating circumstance did not constitute an error. What was important was that the sentence should be reduced in order to take account of the rights violation, and this was done.[7] The Appeals Chamber agrees with the Trial Chamber that the violation of the Appellant’s rights was not a mitigating circumstance in the true sense of the term.

1095. […] The Appeals Chamber agrees with the Trial Chamber that the remedy ordered in the Judgement did constitute a significant reduction of the sentence, which adequately compensated the Appellant for the violation of his fundamental rights. […]

Having set aside the convictions of Appellant Nahimana under Article 6(1) of the Statute for conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity), and having upheld his convictions under Article 6(3) of the Statute for direct and public incitement to commit genocide and persecution (crime against humanity), the Appeals Chamber reduced Nahimana’s sentence from life to 30 years of imprisonment.

Having set aside the convictions of Appellant Barayagwiza for conspiracy to commit genocide, convictions relating to RTLM broadcasts and those for direct and public incitement to commit genocide (under Article 6(1) of the Statute), and having upheld his convictions under Article 6(1) of the Statute for genocide (instigation), extermination (crime against humanity) and persecution (crime against humanity), the Appeals Chamber reduced Barayagwiza’s sentence from 35 to 32 years of imprisonment, noting that the sentence imposed by the Trial Chamber already reflected the reduction granted for various violations of his rights.

Having set aside the convictions of Appellant Ngeze for conspiracy to commit genocide, as well those with respect to Kangura publications under Article 6(1) for genocide and persecution (crimes against humanity), and those with respect to crimes in Gisenyi for genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity); and having upheld his convictions for direct and public incitement to commit genocide (Kangura), genocide (aiding and abetting) and extermination (aiding and abetting), the Appeals Chamber reduced Ngeze’s sentence from life to 35 years of imprisonment.

[1] As the Appeals Chamber notes infra, other remedies are possible, such as the termination of proceedings against the accused or the award of compensation (see infra, footnote 2451).

[2] See supra XVII.A.

[3] The Prosecutor v. Sefer Halilović, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 (“Halilović Decision”), para. 17.

[4] Halilović Decision, para. 17; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, para. 14; The Prosecutor v. Milan Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, para. 28. See also The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-PT, Decision on Defence Motion for Stay of Proceedings, 3 June 2005, paras. 19 et seq.

[5] The Prosecutor v. Prosper Mugiraneza, Case No. ICTR-99-50-AR73, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, 27 February 2004.

[6] See Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, point 6 of the Disposition:

DECIDES that for the violation of his rights, the Appellant is entitled to a remedy which shall be given when judgement is rendered by the Trial Chamber, as follows:

(a)        If he is found not guilty, the Appellant shall be entitled to financial compensation;

(b)        If he is found guilty, the Appellant’s sentence shall be reduced to take into account the violation of his rights, pursuant to Article 23 of the Statute.

[7] Judgement, para. 1107.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1108. The Appeals Chamber notes that, in general, the Tribunal and the ICTY do not accord great weight to the family situation of the accused, given the gravity of the crimes committed.[1] Therefore, even if the Trial Chamber had erred, such error could not have had any impact in this particular case, given the gravity of the crimes committed by the Appellant and the absence of exceptional family circumstances. […]

[1] Jokić Appeal Judgement, para. 62; Kunarac et al. Appeal Judgement, para. 413; Jelisić Trial Judgement, para. 124; Furundžija Trial Judgement, para. 284.

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 30.08.2005 JOKIĆ Miodrag
(IT-01-42/1-A)

47. The Appeals Chamber recalls that Trial Chambers are “required as a matter of law to take account of mitigating circumstances”.[1] The Appeals Chamber is not satisfied that the Trial Chamber wrongly departed from the “balance of probabilities” standard set out in the Čelebići Appeal Judgement. Having recalled the standard in question, the Trial Chamber stated that, in cases of plea agreements, it would primarily rely on the mitigating factors agreed to by the parties. In other words, the Trial Chamber logically relieved the Appellant from discharging the burden of establishing mitigating circumstances on the balance of probabilities with respect to those mitigating circumstances agreed upon by the parties. […]

[1] Serushago Sentencing Appeal Judgement, para. 22. See also Musema Appeal Judgement, para. 395.

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Judgement on Sentencing Appeal - 30.08.2005 JOKIĆ Miodrag
(IT-01-42/1-A)

54. The Appellant further submits that post-conflict conduct is a “separate and distinct mitigating circumstance” that should not be “commingled with remorse”.[1] In his view, the negotiated ceasefire and his political activities in the New Democratic Party should be characterised as steps taken by the Appellant “to improve the situation and alleviate suffering”, which is a mitigating circumstance “separate and distinct from remorse”.[2] He adds that to consider these factors “as remorse is an abuse of discretion which creates an injustice to the Appellant.”[3] The Appeals Chamber finds that this argument, advanced by the Appellant for the first time in his Brief in Reply, amounts to a new allegation. Nonetheless, the Appeals Chamber decides to exercise its discretionary power to briefly address the Appellant’s new argument. The Trial Chamber took the Appellant’s post-conflict conduct into account as a factor in mitigation[4] and considered it in its final determination, when it found that the Appellant’s remorse was a relevant mitigating circumstance “also shown by the conduct concomitant and posterior to the committed crimes.”[5] The Appeals Chamber finds that it was within the discretion of the Trial Chamber to consider the Appellant’s post-conflict conduct as an expression of his sincere remorse, instead of assessing his post-conflict conduct as a distinct mitigating circumstance. The Trial Chamber did not err in this respect.

[1] Brief in Reply, para. 19.

[2] Ibid.

[3] Ibid.

[4] Sentencing Judgement, paras 90-92.

[5] Ibid., para. 103.

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Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

267. […] As the Appeals Chamber stated in Musema, “[i]f a Trial Chamber finds that mitigating circumstances exist, it is not precluded from imposing a sentence of life imprisonment, where the gravity of the offence requires the imposition of the maximum sentence provided for.”[1] Proof of mitigating circumstances does not automatically entitle the Appellant to a “credit” in the determination of the sentence; rather, it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination. […]

[1] Musema Appeal Judgement, para. 396.

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Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

644.    As to Tolimir’s argument that it was the Trial Chamber’s duty to consider mitigating circumstances proprio motu […] Rule 86(C) of the Rules provides that sentencing submissions shall be addressed during closing arguments. Rule 85(A)(vi) of the Rules provides that a trial chamber will consider any relevant information that may assist it in determining an appropriate sentence.[1] Appeal proceedings are not the appropriate forum to raise such matters for the first time.[2] Therefore, it was incumbent on Tolimir to identify mitigating circumstances on the trial record in his final brief or during closing arguments.[3] Tolimir’s arguments in this regard are therefore dismissed.

[1] Rule 85(A)(vi) of the Rules.

[2] See Đorđević Appeal Judgement, para. 945. See also Kvočka et al. Appeal Judgement, para. 674.

[3] See Đorđević Appeal Judgement, paras 945-946. See also Bikindi Appeal Judgement, para. 165.

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

284. The Appeals Chamber notes that, in determining the sentence, the Trial Chamber expressly took into account Ntabakuze’s family situation and his lengthy public service to his country as a military officer, as well as his social, educational, and professional background.[1] The Trial Chamber, however, concluded that the gravity of the crimes and the aggravating factors greatly outweighed these mitigating factors.[2] The Appeals Chamber recalls that in general only little weight is afforded to the family situation of the convicted person in the absence of exceptional family circumstances.[3] Similarly, the lack of a previous criminal record and a purported likelihood of successful rehabilitation are common characteristics among many convicted persons which are accorded little weight, if any, in mitigation in the absence of exceptional circumstances.[4] As for Ntabakuze’s “exemplary” military career, the Appeals Chamber also considers that it was in the Trial Chamber’s discretion not to accord this factor any mitigating value in the absence of particular reasons for doing so. Ntabakuze does not submit that exceptional circumstances obliged the Trial Chamber to accord special value to any of the factors listed above.

[1] Trial Judgement, para. 2273, referring to ibid., paras. 58-63.

[2] Trial Judgement, para. 2275.

[3] Nahimana et al. Appeal Judgement, para. 1108, referring to Jokić Judgement on Sentencing Appeal, para. 62. See also Kunarac et al. Appeal Judgement, para. 413.

[4] See Ntagerura et al. Appeal Judgement, para. 439.

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

289. The Appeals Chamber notes that Ntabakuze did not make any explicit sentencing submission at trial regarding this argument.[1] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments. It was therefore Ntabakuze’s responsibility to identify all mitigating circumstances he wished to have considered at the time.[2] Ntabakuze failed to do so. In view of the lack of specific pleadings at trial, the Appeals Chamber finds no error in the Trial Chamber not expressly considering whether this factor should have been taken into consideration in mitigation.[3] Ntabakuze’s argument in this respect is therefore rejected.

[1] Ntabakuze mentions Witness DM-25 in his Closing Brief as proof of his good character without arguing, as a mitigating factor, that he saved Witness DM-25’s life and the lives of others. See [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Major Aloys Ntabakuze Amended Final Trial Brief, public redacted version, 5 October 2007 (“Ntabakuze Closing Brief”)], para. 2598. Similarly, Ntabakuze referred to Witness DM-25 during his closing arguments when arguing the merits of the case, albeit without any mention that the witness’s testimony should serve as an argument for mitigation. See Closing Arguments, T. 30 May 2007 p. 44.

[2] See, e.g., Setako Appeal Judgement, para. 286; Rukundo Appeal Judgement, para. 255; Muhimana Appeal Judgement, para. 231.

[3] The Appeals Chamber observes that the Trial Chamber explicitly referred to Witness DM-25’s testimony in its summary of Ntabakuze’s submissions on his good character, which allows for the conclusion that the Trial Chamber was mindful of Witness DM-25’s entire testimony when deciding upon the sentence. See Trial Judgement, para. 2262.

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

296. […] The Appeals Chamber reiterates that in most cases the good character of a convicted person carries little weight in the determination of the sentence.[1] Ntabakuze does not submit any argument demonstrating a discernible error in the Trial Chamber’s assessment. His contention in this respect is therefore rejected.

[1] See, e.g., Seromba Appeal Judgement, para. 235, citing Semanza Appeal Judgement, para. 398; Nahimana et al. Appeal Judgement, para. 1069, citing Babić Judgement on Sentencing Appeal, para. 50; Kajelijeli Appeal Judgement, para. 301.

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

292. The Appeals Chamber recalls that expressions of sincere regret, sympathy, compassion, or sorrow for the victims of the crimes with which an accused is charged may be considered as mitigating factors.[1] In light of the possible impact genuine regret may have on a sentence, the Appeals Chamber considers that the fact that the Trial Chamber expressly referred to other particular factors while not expressly mentioning Ntabakuze’s statement of regret allows for the conclusion that it failed to consider Ntabakuze’s submission. The Appeals Chamber finds that the Trial Chamber should have considered whether this factor constituted a mitigating circumstance, and, if so, whether it should have been accorded any weight. In order to establish whether this error invalidates the Trial Chamber’s determination of the sentence, the Appeals Chamber turns to examine Ntabakuze’s alleged expression of regret.

293. In his Closing Brief, Ntabakuze expressed his eagerness “to be given the chance to work together with his countrymen, without distinction, to reconstruct and reconcile the nation”.[2] He also expressly referred to his testimony at trial during which he stated that he strongly condemned the massacres of Tutsi refugees throughout Rwanda, calling them a “terrible tragedy”, expressed his sadness for the victims, and, while denying his involvement in the massacres, stated: “I regret that I could not have done more to stop [the massacres] […] personally, and using my troops. […] It is regrettable, it is a terrible situation, it is a very sad tragedy […]”.[3]

294. The Appeals Chamber considers that Ntabakuze’s expression of regret should have been considered as a mitigating factor in sentencing by the Trial Chamber,[4] and that the Trial Chamber erred in failing to consider it as such. However, the Appeals Chamber does not find that this error invalidates the sentence imposed by the Trial Chamber, as it considers that the gravity of the crimes for which Ntabakuze was convicted at trial and the aggravating factors identified by the Trial Chamber greatly outweighed this mitigating factor. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

[1] Nchamihigo Appeal Judgement, para. 396, citing Strugar Appeal Judgement, paras. 365, 366 (stating that such expressions of sympathy or compassion have been accepted as mitigating circumstances by Trial Chambers of both the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the Tribunal); Vasiljević Appeal Judgement, para. 177.

[2] Ntabakuze Closing Brief, para. 477. See also ibid., para. 2598.

[3] Ntabakuze Closing Brief, para. 477, citing Ntabakuze, T. 21 September 2006 pp. 61, 62. See also Exhibit DNT235 (“Report by Ntabakuze”), Conclusion at p. 48:

I was not involved in the massacres which plunged my country into mourning in 1994. I strongly condemn these massacres from the bottom of my heart. I feel very sad to talk about the tragedy. So many people died for nothing. It is painful, regrettable and shocking. There is no single family in Rwanda that has not lost their loved ones. Some of them were acquaintances, friends and even relatives to me. I feel sorry for all of them not only because the[y] were my countrymen but because they were human beings whose live [sic]] should have been respected and protected. War is a dirty business and definitely no one won it. The country has been destroyed. It is a very sad situation. I regret that I could not have done more personally and with the troops under my command to prevent and stop the killing of civilians.

I would like to take this opportunity to pay my due respect in the memory of all Rwandans from all ethnic groups and various regions and of all foreigners who died in the Rwandan tragedy. I would like also to pay my respect before the suffering of the survivors, of the orphans, widows and before all the handicapped because of this insane war that destroyed Rwanda since 1990. I pay my respect to all these thousands souls while wishing to all sons and girls of Rwanda to reject forever the axe of hate and war in order to rebuild a reconciled and democratic nation, to make a land of peace and happiness for all Rwandans and for all inhabitants of Rwanda without distinction. I would be very happy to be able to give my modest contribution to this worthy work of the children of God.

[4] The Appeals Chamber recalls that sincere regret can be expressed without admitting participation in a crime. The Appeals Chamber has previously found that remorse nonetheless requires acceptance of some measure of moral blameworthiness for personal wrongdoing, falling short of the admission of criminal responsibility or guilt. See Strugar Appeal Judgement, para. 365; Vasiljević Appeal Judgement, para. 177.

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

398. The Appeals Chamber is of the view that it was within the Trial Chamber’s discretion to take into account as mitigation in sentencing the Appellant’s previous good character and accomplishments as bourgmestre. Precedent does not support the Prosecution’s position that “being a successful academic, politician or administrator is irrelevant” as a mitigating factor in crimes of genocide and crimes against humanity. Notwithstanding, the Appeals Chamber notes that in most cases the accused’s previous good character is accorded little weight in the final determination of determining the sentence.[1] […]

[1] Niyitegeka Appeal Judgement, paras 264-266; Kupreškić et al. Appeal Judgement, paras 428-430.

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

177.  Previous case-law from the Trial Chambers of the Tribunals states that in order for remorse to be considered as a mitigating factor it has to be sincere.[1]  The Appeals Chamber is of the view that an accused can express sincere regrets without admitting his participation in a crime, and that that is a factor which may be taken into account.

[1] See Todorović Sentencing Judgement, para 89; Erdemović Second Sentencing Judgement, p. 16; Blaškić Trial Judgement, para 775; Serushago Sentencing Judgement, paras 40-41; Ruggiu Trial Judgement, paras 69-72; Simić Sentencing Judgement, para. 92; Banović Sentencing Judgement, para 70. 

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

282. The Appeals Chamber considers that the fact that Ntabakuze was acquitted of all charges against him pursuant to Article 6(1) of the Statute and was solely convicted pursuant to Article 6(3) of the Statute is not subject to consideration as a mitigating factor. The form of liability is not an individual circumstance of the accused but the objective definition of his participation in the criminal conduct. Further, failure to prevent or punish subordinates’ crimes constitutes the culpable conduct under Article 6(3) of the Statute and the absence of conviction under Article 6(1) of the Statute does not reduce that culpability.[1] The Appeals Chamber finds that the Trial Chamber was therefore correct in not considering in mitigation the fact that Ntabakuze was not convicted pursuant to Article 6(1) of the Statute and, accordingly, rejects Ntabakuze’s argument in this respect.

[1] Čelebići Appeal Judgement, para. 737. Cf. also Ntawukulilyayo Appeal Judgement, para. 236. Moreover, the Appeals Chamber notes that the Prosecution did not charge Ntabakuze pursuant to Article 6(1) of the Statute for the crimes for which he was ultimately convicted. See [The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Amended Indictment, 12 August 1999; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Cases Nos. ICTR-97-34-I & ICTR-97-30-I, Amended Indictment, 13 August 1999 (“Indictment”)], references to paragraphs 6.36 and 6.37 under the respective counts on pp. 45, 47-53; Trial Judgement, para. 2005. 

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

255. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence.[1] However, the accused bears the burden of establishing mitigating factors by a preponderance of the evidence.[2] If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[3] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore Rukundo’s prerogative to identify any mitigating circumstances at the time. The Appeals Chamber notes that Rukundo made no sentencing submissions at trial.[4] This in itself would suffice for the Appeals Chamber to dismiss his argument.

[1] See also Nchamihigo Appeal Judgement, para. 387; Muhimana Appeal Judgement, para. 231.

[2] Muhimana Appeal Judgement, para. 231; Kajelijeli Appeal Judgement, para. 294.

[3] Muhimana Appeal Judgement, para. 231; See also Nahimana et al. Appeal Judgement, para. 1103.

[4] Rukundo Final Trial Brief; T. 20 February 2008.

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

43. Neither the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence. Rule 101(B)(ii) of the Rules only states that in determining a sentence, a Trial Chamber shall take into account “any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction”.[1] Factors that have previously been taken into account by the International Tribunal as evidence in mitigation include: (1) co-operation with the Prosecution;[2] (2) the admission of guilt or a guilty plea;[3] (3) the expression of remorse;[4] (4) voluntary surrender;[5] (5) good character with no prior criminal convictions;[6] (6) comportment in detention;[7] (7) personal and family circumstances;[8] (8) the character of the accused subsequent to the conflict;[9] (9) duress[10] and indirect participation;[11] (10) diminished mental responsibility;[12] (11) age;[13] and (12) assistance to detainees or victims.[14] Poor health is to be considered only in exceptional or rare cases.[15] This list is not exhaustive and Trial Chambers are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[16] They are not required to “articulate every step” of their reasoning in reaching particular findings,[17] and failure to list in a judgement “each and every circumstance” placed before them and considered “does not necessarily mean that [they] either ignored or failed to evaluate the factor in question.”[18] For instance, a Trial Chamber’s express reference to the parties' written submissions concerning mitigating circumstances is prima facie evidence that it was cognisant of these circumstances and took them into account.[19] The standard of proof with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[20] but proof on a balance of probabilities: the circumstance in question must have existed or exists “more probably than not”.[21]

44. Proof of mitigating circumstances “does not automatically entitle [an] [a]ppellant to a ‘credit’ in the determination of the sentence; it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination”.[22]  An appellant challenging the weight given by a Trial Chamber to a particular mitigating factor thus bears “the burden of demonstrating that the Trial Chamber abused its discretion”.[23] The Appellant has 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.[24]

[1] As stated in the Serushago Sentencing Appeal Judgement, Trial Chambers are “required as a matter of law to take account of mitigating circumstances.” See para. 22; see also Musema Appeal Judgement, para. 395.

[2] Jokić Sentencing Judgement, paras 95-96; Todorović Sentencing Judgement, para. 88; Rule 101(B)(ii).

[3] Jelisić Appeal Judgement, para. 122; Jokić Sentencing Judgement, para. 76.

[4] Jokić Sentencing Judgement, para. 89; Erdemović 1998 Sentencing Judgement, para. 16(iii).

[5] Jokić Sentencing Judgement, para. 73.

[6] Erdemović 1998 Sentencing Judgement, para. 16(i); Kupreškić et al. Appeal Judgement, para. 459.

[7] Jokić Sentencing Judgement, para. 100; Dragan Nikolić Sentencing Judgement, para. 268.

[8] Kunarac et al. Appeal Judgement, paras 362 and 408.

[9] Jokić Sentencing Judgement, paras 90-91 and 103.

[10] Erdemović 1998 Sentencing Judgement, para. 17 (stating that duress “may be taken into account only by way of mitigation.”).

[11] Krstić Appeal Judgement, para. 273.

[12] Čelebići Appeal Judgement, para. 590.

[13] Jokić Sentencing Judgement, para. 100.

[14] Sikirica et al. Sentencing Judgement, paras 195 and 229.

[15] Simić et al. Trial Judgement, para. 98. All the above mentioned mitigating circumstances have been mentioned at para. 696 of the Blaskić Appeal Judgement.

[16] Čelebići Appeal Judgement, para. 780.

[17] Ibid., para. 481.

[18] Kupreškić et al. Appeal Judgement, para. 458.

[19] Ibid., para. 430.

[20] Čelebići Appeal Judgement, para. 763.

[21] Ibid., para. 590.

[22] Niyitegeka Appeal Judgement, para. 267.

[23] Kayishema and Ruzindana Appeal Judgement, para. 366; Niyitegeka Appeal Judgement, para. 266. A Trial Chamber’s decision may be disturbed on appeal “if an appellant shows that the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have taken into account, in the weighing process involved in this exercise of the discretion.” Čelebići Appeal Judgement, para. 780.

[24] See Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.1, Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment, 25 April 2005, para. 7. See also Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, 1 November 2004, para. 9; Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 1 February 2002, paras 5-6.

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

48. The paragraphs of the Sentencing Judgement at issue under this ground of appeal read as follows:

The Tribunal has jurisdiction over crimes committed during the armed conflict in the former Yugoslavia, where ordinary citizens were involved in horrendous events. The Trial Chamber is of the view that the prior good character of a convicted person (understood against a common standard of behaviour) does not as such count in mitigation, although in exceptional circumstances, for which there is no evidence in this case, it may.[1]

The Trial Chamber does not accept that this proposed ground of mitigation should be given any effect in this case.[2]

49. The Appeals Chamber notes that, while it is correct to say that good character has been recognised as a mitigating circumstance in most cases, this is not a constant practice but instead varies with the circumstances; e.g., in the Tadić Sentencing Judgement, the Trial Chamber noted that the Accused was “a law abiding citizen and seemingly enjoyed the respect of his community” and “was an intelligent, responsible and mature adult […] capable of compassion towards and sensitivity for his fellows” but noted that this, “if anything, aggravates more than it mitigates: for such a man to have committed these crimes requires an even greater evil will on his part than for a lesser man.”[3]

50. Even when personal factors or circumstances – including prior good character – have been considered as mitigating circumstances, they have been given little weight in mitigation. In the Furundžija Trial Judgement, the Trial Chamber acknowledged that the accused had “no previous conviction and [was] the father of a young child” but noted that “this might be said of many accused persons and cannot be given significant weight in a case of this gravity”.[4] The same approach was taken in the Jelisić Trial Judgement.[5] The statement of the Trial Chamber in the present case to the effect that the International Tribunal “has jurisdiction over crimes committed during the armed conflict in the former Yugoslavia, where ordinary citizens were involved in horrendous events” – read in conjunction with the limitation that the prior good character of a convicted person would in isolation only count in mitigation in exceptional circumstances – follows the same line of reasoning.

[1] Sentencing Judgement, para. 91 (emphasis added, footnote omitted).

[2] Ibid., para. 92 (emphasis added).

[3] Tadić Judgement in Sentencing Appeals, para. 59.

[4] Furundžija Trial Judgement, para. 284.

[5] Jelisić Trial Judgement, para. 124: “Among the mitigating circumstances set out by the Defence, the Trial Chamber will consider the age of the accused. He is now 31 years old and, at the time of the crimes, was 23. The Trial Chamber also takes into account the fact that the accused had never [been] convicted of a violent crime and that he is the father of a young child. Nonetheless, as indicated by the Trial Chamber hearing the Furundžija case, many accused are in that same situation and, in so serious a case, the Judges cannot accord too great a weight to considerations of this sort.” See also Banović Sentencing Judgement, para. 75: “[M]any accused share these personal factors and, in the Trial Chamber’s view, the weight to be accorded to them is limited”.

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

The Appellant argued that taken “either separately or in amalgamation”, the mitigating circumstances before the Trial Chamber should have attracted a lesser sentence (see Judgement on Sentencing Appeal, para. 66). At footnote 215, the Appeals Chamber found:

The Appeals Chamber will not address the issue of whether, taken “in amalgamation”, the mitigating factors referred to by the Appellant were properly weighed by the Trial Chamber. An appellant can only succeed in challenging a Trial Chamber’s decision regarding the weight afforded to a mitigating circumstance by demonstrating that the Trial Chamber committed a discernible error concerning a specific factor. As correctly stated at para. 675 of the Kvočka Appeal Judgement, “[m]ere recital of mitigating factors without more does not suffice to discharge this burden”.

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

74. The Appeals Chamber finds that the Appellant’s argument that he surrendered knowing that he “would be facing a prison sentence” has no merit as this might equally be said of every accused having surrendered and pled guilty before the International Tribunal for the serious crimes referred to in the Statute. […].

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

55. The Appeals Chamber notes that an accused’s conduct after committing a crime is relevant in that it reveals how aware he was of the wrongfulness of his actions and his intention to “make amends” by, among other things, facilitating the task of the International Tribunal.[1] In the instant case, the Trial Chamber acknowledged that conduct subsequent to the crime had been accepted in other cases before the International Tribunal, “where the convicted person acted immediately after the commission of the crime to alleviate the suffering of victims.”[2]  In support of such assertion, the Trial Chamber referred to the Plavšić case.[3] Since the Trial Chamber was not satisfied that conclusive evidence had been proffered to show that the Appellant alleviated the suffering of victims after the commission of the crime of persecution or at the end of the armed conflict, it held that his post-conflict conduct did not amount to a mitigating circumstance[4] and found that such conduct concerned matters which had already been considered, such as cooperation and acceptance of responsibility.[5]

56. The Appeals Chamber notes, however, that the Trial Chamber in the Plavšić case in fact gave significant weight as a factor in mitigation to Biljana Plavšić’s post-conflict conduct, namely her contribution to the advancement of the Dayton Agreement and her attempt to remove obstructive officials from office,[6] because “she made a considerable contribution to peace in the region” without reference to the alleviation of the suffering of victims.[7] The Appeals Chamber thus considers that the Sentencing Judgement incorrectly interpreted the Plavšić Trial Chamber’s assessment of Biljana Plavšić’s “post-conflict conduct.”

59. The Appeals Chamber is satisfied that the Appellant attempted to further peace after the commission of the crime of persecution. The Appeals Chamber finds that the Trial Chamber erred in law in categorically refusing to take these attempts to further peace into account as a mitigating factor on the basis that they did not directly alleviate the suffering of the victims.

61. The Appeals Chamber notes that in light of the mandate of the International Tribunal under Chapter VII of the UN Charter, an attempt to further peace in the former Yugoslavia is in general relevant as a mitigating circumstance. […].

[1] Blaškić Trial Judgement, para. 773. See also Blaškić Appeal Judgement, para. 696, where the Appeals Chamber held that the factors taken into account as evidence in mitigation include, inter alia, the character of the accused subsequent to the conflict.

[2] Sentencing Judgement, para. 94 (footnote omitted).

[3] Sentencing Judgement, para. 94: “For instance, in the Plavšić case, the Trial Chamber accepted Biljana Plavšić’s post-conflict conduct as a mitigating factor because after the cessation of hostilities she had demonstrated considerable support for the 1995 General Framework Agreement for Peace in Bosnia-Herzegovina (Dayton Agreement) and had attempted to remove obstructive officials from office in order to promote peace.”

[4] Sentencing Judgement, paras 95 and 96.

[5] Sentencing Judgement, para. 95.

[6] Plavšić Sentencing Judgement, paras 85-93.

[7] Ibid., para. 94.

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

194. The Appeals Chamber further considers that, contrary to the Prosecution’s assertion,[1] 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[2] and concluded that “there [were] no mitigating factors that should be taken into account in the determination of the sentence.”[3] 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.

[1] 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.

[2] Trial Judgement [The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T, Judgement, 2 December 2008], paras. 453-457.

[3] Trial Judgement, para. 458.

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

165. […][W]hilst a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence, it is the accused who bears the burden of establishing mitigating factors by a preponderance of the evidence.[1] It was the Appellant’s prerogative to address sentencing submissions during closing arguments and to identify any mitigating circumstances in the trial record.[2] Having failed to specifically refer, in his Final Trial Brief or Closing Arguments, to the Defence evidence adduced during trial that he assisted several Tutsis in a camp in Mugunga after the genocide as a mitigating circumstance, the Appellant cannot raise it for the first time on appeal.[3] The Trial Chamber was not under an obligation to seek out information that Counsel did not put before it at the appropriate time.[4] The Appellant’s arguments in this respect are dismissed.

[1] Muhimana Appeal Judgement, para. 231.

[2] Karera Appeal Judgement, para. 388, referring to Rule 86(C) of the Rules.

[3] Nahimana et al. Appeal Judgement, para. 1049, citing Muhimana Appeal Judgement, para. 231; Bralo Appeal Judgement, para. 29; Kamuhanda Appeal Judgement, para. 354; Deronjić Appeal Judgement, para. 150; Babić Appeal Judgement, para. 62.

[4] Karera Appeal Judgement, para. 388; Kupreškić et al. Appeal Judgement, para. 414.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

344. […] With respect to the Prosecution’s submission that an accused’s cooperation must be “substantial” in order to be credited, the Appeals Chamber has previously affirmed that a Trial Chamber may consider less-than-substantial cooperation as a mitigating factor as long as it accords it less weight.[1] The Prosecution does not demonstrate error in the weight accorded by the Trial Chamber to Jokić’s cooperation with the Prosecution. […]

[1] See, e.g., Vasiljević Appeal Judgement, para. 180.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

342. […] Mere compliance with the law is not ordinarily a factor in assessing an accused’s good character, but the Appeals Chamber has noted that a Trial Chamber, in the exercise of its discretion, may credit an accused for fully complying with certain obligations, such as the terms and conditions of an accused’s provisional release,[1] or may permissibly credit an accused for preventing the commission of crimes.[2]

[1] See, e.g., Miodrag Jokić Sentencing Appeal Judgement, para. 82.

[2] See, e.g., Kupreškić et al. Appeal Judgement, para. 430 (permitting the Trial Chamber’s consideration that Josipović stopped soldiers from killing a Muslim civilian woman). 

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

328. The Appeals Chamber holds that the Trial Chamber permissibly considered Blagojević’s participation in de-mining activities under the broad category of post-conflict conduct that goes to the character of the accused. In the Babić Sentencing Appeal, the Appeals Chamber observed that “[n]either the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence.”[1] In that case, the Appeals Chamber provided a non-exhaustive list of twelve factors that have been taken into account in connection with mitigation. Notably, the Babić Appeals Chamber placed remorse within the broader context of the “character of the accused after the conflict”.[2] The Appeals Chamber did not specify how other post-conflict conduct – distinguishable from remorse – could evidence the character of the accused in mitigation of a sentence. Leaving such considerations to the Trial Chambers, the Appeals Chamber recognized that they are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[3] In the present case, the Trial Chamber considered that Blagojević’s active engagement in planning, managing, and organizing a system of de-mining in the army of the Republika Srpska was a relevant mitigating circumstance, without placing it under the rubric of remorse.[4]

330. The Appeals Chamber […] considers that conduct of an accused that promotes reconciliation in the former Yugoslavia may be considered as a mitigating circumstance whether or not it is directly connected to the harm the accused caused. The Appeals Chamber observes that the Plavsić and Miodrag Jokić cases do not stand for a different proposition. In the Plavsić Sentencing Judgement, the Trial Chamber credited Biljana Plavsić for “ensuring that the Dayton Agreement was accepted and implemented in Republika Srpska.”[5] In the case of Miodrag Jokić, the Trial Chamber credited him for post-war “participat[ion] in political activities programmatically aimed at promoting a peaceful solution to the conflicts in the region.”[6] Similarly, the Trial Chamber here credited Blagojević for taking a leadership role in implementing one aspect of the Dayton Peace Accords, as previous Trial Chambers, cited by the Prosecution, have credited convicted persons for implementing that agreement.

[1] Babić Sentencing Appeal Judgement, para. 43.

[2] Babić Sentencing Appeal Judgement, para. 43, citing Miodrag Jokić Sentencing Judgement, paras. 90, 92 (finding that Miodrag Jokić’s “post-conflict conduct” “reflect[ed] his sincere remorse”).

[3] Babić Sentencing Appeal Judgement, para. 43, quoting Čelebići Appeal Judgement, para. 780.

[4] The Appeals Chamber notes that remorse is not mentioned in the operative paragraphs considering Blagojević’s de-mining activities. See Trial Judgement, paras. 858-860.

[5] Plavsić Sentencing Judgement, para. 94.

[6] Miodrag Jokić Sentencing Judgement, para. 91.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

344. […] Nor does the Prosecution demonstrate error in the weight accorded by the Trial Chamber to Jokić’s voluntary surrender. The Prosecution argues that an accused is under an obligation to surrender to the International Tribunal,[1] but this does not mean that doing so may not be considered in mitigation,[2] as the Trial Chamber did here. Although voluntary surrender is not cooperation with the Prosecution per se, it is cooperation with the International Tribunal, and the Trial Chamber could consider it a mitigating circumstance. Therefore, the Appeals Chamber dismisses this sub-ground of the appeal. […]

[1] Prosecution Appeal Brief, para. 6.54 (stating that an accused is required to submit themselves to the Tribunal pursuant to an Indictment).

[2] See Blaškić Appeal Judgement, para. 701 fn. 1512, citing Kunarac et al. Trial Judgement, para. 868 (stating “That an accused may be said to be under an obligation to surrender to the International Tribunal does not mean that doing so should not be considered in mitigation”).

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Judgement on Sentencing Appeal - 02.04.2007 BRALO Miroslav
(IT-95-17-A)

At para. 53, the Appeals Chamber recalled the applicable law when additional evidence is admitted on appeal, and specified that findings pertaining to mitigating circumstances are reached “on a balance of probabilities”:

53. In light of the above, the Appeals Chamber will now determine whether the Trial Chamber correctly assessed the evidence before it when evaluating the Appellant’s cooperation. The Appeals Chamber will then assess the value, if any, of the additional evidence admitted on appeal, and itself determine whether this material, when considered together with the materials before the Trial Chamber, warrants, on a balance of probabilities,[1] a finding of substantial cooperation and a reduction of sentence.

See also para. 8 and footnote 23.

[1] See supra para. 8 and fn. 23.

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ICTR Rule Rule
101(B)(ii)
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101(B)(ii)
Notion(s) Filing Case
Judgement on Sentencing Appeal - 02.04.2007 BRALO Miroslav
(IT-95-17-A)

The Appeals Chamber noted that, although cooperation with the Prosecution is the only mitigating factor referred to expressly in the Rules, “substantial cooperation” is not defined, and it is for the Trial Chamber to assess the extent and the nature of the accused’s cooperation. The Appeals Chamber considered that the assessment of whether or not the cooperation is “substantial” “primarily depends on the specific circumstances of each case and that substantial cooperation does not solely rest on one specific act of an accused but must be assessed as a whole”. The qualification of an accused’s cooperation as “substantial” will depend on the quantity and the quality of the information provided. See paragraph 51.

52. The Appeals Chamber stresses that the assessment of the quality of the provided information primarily depends on its “actual content”. In this regard, the provision of new information, “heard for the first time before this Tribunal”, has to be seen as particularly valuable. Special weight has previously also been given to the provision of unique and corroborative information to the Prosecution, as well as the identification of new crimes and perpetrators and of previously unknown mass graves. However, the content of the information is not the only criteria to be taken into account in the assessment of the quality of the information. Such quality […] will also depend on the earnestness of the accused in providing it.[2] […] Further, while the actual use by the Prosecution in other proceedings before the International Tribunal of information provided by an accused is not […] in itself proof of the quality of the submitted information, such use has to be seen […] as a significant indication of the value of this information.

On the earnestness of an accused’s cooperation, see also para. 63.

At para. 63, the Appeals Chamber also considered the determination within a plea agreement of any cooperation to be provided by an accused as significant indication of an accused’s willingness to cooperate with the Prosecution:

63. […] Although such specification is not mandatory, its inclusion is a significant indication of an accused’s willingness to cooperate with the Prosecution. It establishes clear obligations on the part of the accused, which can then be considered by a Trial Chamber when assessing the accused’s cooperation.

[1] Jelisić Appeal Judgement, para. 124.

[2] See Blaškić, Trial Judgement, para. 774: “The earnestness and the degree of co-operation with the Prosecutor decides whether there is a reason to reduce the sentence on this ground.”

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101(B)(ii)
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101(B)(ii)
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Judgement on Sentencing Appeal - 02.04.2007 BRALO Miroslav
(IT-95-17-A)

In light of the confidential nature of the use made of the information provided by the Appellant, the Appeals Chamber considered that, “where the Trial Chamber must evaluate an accused’s cooperation based on information solely in the possession of the Prosecution”, it must be established “whether the Trial Chamber has sufficiently assessed the evidence provided on an ex parte basis in order to protect the rights of the accused, where the accused himself does not have the opportunity to do so”. See para. 56.

The Appeals Chamber then detailed the practice to be followed by the Prosecution and the Trial Chambers in such cases:

57. […] the better practice is to first check whether the documents in question could be disclosed inter partes in order to allow the accused to himself comment on the Prosecution’s submissions.[1] This may in certain instances necessitate an application to another Chamber for a variation in protective measures. Where it is not possible for such documents to be submitted inter partes, it is within a Trial Chamber’s discretion to rely on the Prosecution’s ex parte assessment of the accused’s cooperation, as the Trial Chamber did in the instant case. In this event, the Appeals Chamber emphasises that the Prosecution must provide sufficient explanations in its assessment as to why it considers the information given by an accused valuable or not. The Trial Chamber should then evaluate the nature and extent of the accused’s cooperation and set out a reasoned opinion in writing.[2] Under the circumstances, such reasoned opinion is the Appellant’s only guide as to whether his right to a fair trial has been preserved.

61. […] The Appeals Chamber refers in this context to the approach taken in the Dragan Nikolić case, where the Trial Chamber requested the Prosecution at the Sentencing Hearing to provide documents that “would enable [it] to review them in camera in order to assess if the Accused’s co-operation with the Prosecution could be regarded as being substantial”. The Trial Chamber then gave a substantive account of its analysis of the provided documents, before concluding that it could not itself assess them and therefore accepting the Prosecution’s assessment that the Accused’s co-operation was substantial.

62. The Appeals Chamber is convinced that, in order to provide a transparent assessment of the Appellant’s cooperation, a similar approach would have been appropriate in the present case, in particular in light of the reassurances given to the Appellant at the Sentencing Hearing.

[1] Dragan Nikolić Judgement on Sentencing Appeal, paras 61-63.

[2] Momir Nikolić Judgement on Sentencing Appeal, para. 96: “Only a reasoned opinion, one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute, allows the Appeals Chamber to carry out its function pursuant to Article 25 of the Statute by understanding and reviewing findings of a Trial Chamber.” (footnote omitted). See also Kordić and Čerkez Appeal Judgement, para. 385; Kunarac et al. Appeal Judgement, para. 41.

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101(B)(ii)
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101(B)(ii)
Notion(s) Filing Case
Judgement on Sentencing Appeal - 02.04.2007 BRALO Miroslav
(IT-95-17-A)

Bralo claimed that his cooperation went beyond mere cooperation with the Prosecution and argued that he actually cooperated “with the wider aims of the International Tribunal itself”. At para. 37, the Appeals Chamber found:

37. […] While the jurisprudence of the International Tribunal has consistently identified cooperation under Rule 101(B)(ii) of the Rules primarily as cooperation with the Prosecution,[1] cooperation is not to be “construed narrowly and singularly”,[2] and Trial Chambers accordingly have the discretion to take other forms of cooperation into account by examining them under different headings: what matters is that Trial Chambers fulfil their obligation under Rule 101(B)(ii) to consider all mitigating circumstances before them.[3]

[1] See Momir Nikolić Judgement on Sentencing Appeal, paras 86 ff; Jokić Judgement on Sentencing Appeal, para. 88; Dragan Nikolić Judgement on Sentencing Appeal, paras 61 ff.

[2] Simić Sentencing Judgement, para. 111: “[C]o-operation should not be construed narrowly and singularly. Rather, co-operation with the Prosecution can be found to exist where a defendant, through his or her actions, facilitated the timely presentation of the Prosecution’s case, as was the case when Milan Simić agreed to the use of video-link, thereby waiving his right to be present for his trial, as enshrined in Article 21(4)(d) of the Statute.”

[3] Deronjić Judgement on Sentencing Appeal, para. 149.

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

777. As a matter of law, a Trial Chamber is obliged to take account of mitigating circumstances in imposing sentence.[1]  However, the weight to be attached is a matter within its discretion.  […]

[1]    Article 24 of the Statute and Rule 101 of the Rules.  Rule 101 (B) provides inter alia: “In determining sentence, the Trial Chamber shall take into account…(ii) any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction.”

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

After recalling that “proof of active participation by a superior in the criminal acts of subordinates adds to the gravity of the superior’s failure to prevent or punish those acts and may therefore aggravate the sentence”,[1] the Appeals Chamber found that:

737. It must also be recognised, however, that absence of such active participation is not a mitigating circumstance.  Failure to prevent or punish subordinate crimes is the relevant culpable conduct and lack of active participation in the crimes does not reduce that culpability.

[1]    Čelebići Appeal Judgement, para. 736, referring to Alekovski Appeal Judgement, para. 183.

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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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Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

388. The Appellant made no sentencing submissions during closing arguments. In such circumstances, the Trial Chamber was not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[1] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore the Appellant’s prerogative to identify any mitigating circumstances instead of directing the Trial Chamber’s attention to the record in general.

[1] Kupreškić et al. Appeal Judgement, para. 414.

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

66. The weight to be attached to co-operation as a mitigating factor is within the discretion of Trial Chambers, which can decide, after assessing the importance to give to this factor, to give it no weight, to give it “substantial” weight within the meaning of Rule 101(B)(ii), or to give it more “modest” weight in mitigation.[1] The Appellant in the present case only argues that the evidence clearly and unambiguously showed that his cooperation was substantial, and that this, combined with the risk to which he exposed himself by co-operating, should have led the Trial Chamber to accord “greater weight than merely ‘some importance’”.[2]  In the absence of a demonstration that the Trial Chamber committed an error in assessing the importance of his cooperation, the Appeals Chamber dismisses the Appellant’s argument in that regard.

[1] In the Vasiljević Appeal Judgement, at para. 180, the Appeals Chamber accepted the Trial Chamber’s conclusion that Rule 101(B)(ii) shall not be interpreted as entailing that only “substantial” cooperation can be taken into account in mitigation and that, to the contrary, more “modest” cooperation can be given some weight in mitigation. Paragraph 299 of the Vasiljević Trial Judgement reads: “The Trial Chamber is not satisfied that the statement given by the Accused in the present case represented ‘substantial’ co-operation pursuant to Rule 101(B)(ii), but it does not interpret Rule 101(B)(ii) as excluding the fact that a statement was made from the matters which may be taken into account in mitigation unless such co-operation is ‘substantial’. Nevertheless, the co-operation which was given by the Accused was indeed modest, and it has been given very little weight.”

[2] Appellant’s Brief, para. 155: “It is our respectful submission that if it was clear and unambiguous on the evidence and the submissions of the parties, as we submit it was, that the Appellant’s co-operation was substantial, then given, for example, not just the substance of that assistance but also the risk to which any Defendant exposes himself by cooperating with the [Office of the Prosecutor] in this way (which, we say, in the context of the society from which the Appellant comes means exposing himself to the very real risk of serious personal harm or death), co-operation is a factor to be accorded considerably greater weight than merely ‘some importance’”.

lack'>ć Sentencing Judgement, para. 50, and Dragan Nikolić Sentencing Judgement, para.184.

 

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

463. There is no provision in the Statute or the Rules that specifically permits the Appeals Chamber to take into account post-conviction substantial co-operation with the Prosecution.[1]  What is clear, however, is that appellate proceedings are not intended to permit a de novo review of sentence, with Article 25 clearly limiting appeals to allegations of errors of law or fact invalidating the decision or occasioning a miscarriage of justice respectively.  The instant case clearly does not fall within either category, as it is not alleged that the Trial Chamber erred in any way.  However, the Appeals Chamber notes that Rule 101(B)(ii) requires the Trial Chamber to take into account “any mitigating circumstances including the substantial co-operation with the Prosecution by the convicted person before or after conviction.”[2]  In light of the Rule, the Appeals Chamber considers that, in appropriate cases, co-operation between conviction and appeal could be a factor that the Appeals Chamber too may consider in order to reduce sentence.  This will of course depend on the circumstances of each case and the degree of co-operation rendered.  In the present case, the interests of justice demand that this factor be taken into account.

[1] It is noted that there is precedent to suggest that post-conviction behaviour is not relevant to assessment of sentence on appeal.  In a pre-appeal hearing decision in the case of Jelisić, the Appeals Chamber accepted that a report from the detention unit as to the appellant’s post-sentencing behaviour was unavailable at the time of the trial but that “the Defendant’s post-sentence behaviour could be neither relevant to any issue before the Trial Chamber nor capable of being considered by it and therefore cannot show that the Trial Chamber committed any error in the exercise of its discretion.”  On this basis, the evidence was rejected. Prosecutor v Jelisić, Case No.: IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 November 2000.

[2] Emphasis added.

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

674. […] As regards additional mitigating evidence that was available, though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised.[1] Rule 85(A)(vi) provides that a Trial Chamber will consider “any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment”. In this regard, the following passage from Kupreškić should be reiterated:

If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time.[2]

[1] Čelebići Appeal Judgement, para. 790.

[2] Kupreškić et al. Appeal Judgement, para. 414.

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

707. The Appeals Chamber now turns to Žigić’s submission that his extreme consumption of alcohol should be considered a mitigating circumstance. The jurisprudence of this Tribunal is clear that voluntary intoxication is not a mitigating factor.[1] In this regard, the Trial Chamber correctly stated:

[W]hen mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic’s contention that an intentionally procured diminished mental state could result in a mitigated sentence.[2]

[1] Simić Sentencing Judgement, para. 74; Todorović Sentencing Judgement, para. 94, footnote 98.

[2] Trial Judgement, para. 706.

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

In considering whether an Appellant’s surrender while incarcerated could be considered as voluntary and thus as a mitigating factor in sentencing, the Appeals Chamber found that given that the lack of cooperation between the authorities of Republika Srpska and the International Tribunal during the period under consideration may have impacted upon the likelihood of extradition, the voluntary surrender could be considered a mitigating factor (para. 712).  However, the fact of incarceration meant that this mitigating factor would not be given much weight (para. 713).

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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

143. With respect to the Prosecution’s submission that Haradin Bala’s subordinate role was counted twice when assessing the gravity of the crimes and when determining the factors in mitigation, the Appeals Chamber recalls that double-counting for sentencing purposes is impermissible.[1] The Trial Chamber found in the section on the gravity of the offence that “Haradin Bala was not in a position of command“ and that his role was “that of a guard”.[2] Similarly, in the section on the “aggravating and mitigating circumstances”, the Trial Chamber held that Haradin Bala “was not a person with any commanding or authoritative role in the establishment of the camp, and essentially performed duties assigned to him, as essentially a ‘simple man’.”[3] Consequently, the Trial Chamber erred in considering twice in mitigation Haradin Bala’s subordinate role.

144. […] If the error is so slight as to be harmless, the Appeals Chamber may affirm the same sentence as imposed by the Trial Chamber: such is the case here. The Appeals Chamber has carefully reviewed the Trial Chamber’s reasoning and believes that the Trial Chamber’s double-counting error was, in fact, so insignificant that the Trial Chamber would have arrived at the same sentence of thirteen years even if it had not fallen into error.

[1] Deronjić Judgement on Sentencing Appeal, para. 107.

[2] Trial Judgement, para. 726.

[3] Trial Judgement, para. 732.

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Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 599-601: mere facilitation by an accused of his transfer to the International Tribunal cannot be considered voluntary surrender. Nevertheless, the underlying rationale for treating voluntary surrender in mitigation also applies to an indictee’s facilitation of the transfer process. The Appeals Chamber found that Martinović facilitated his transfer. As such, this factor should have been considered in mitigation, and the Trial Chamber erred in finding that it “cannot” be considered. 

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ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)