Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena

17. The Appeals Chamber considers that the Trial Chamber’s power to suspend a sentence is inherent to its authority to impose one.[1] Such power is operative at the time of sentencing, and not thereafter, and for this reason is entirely distinct from the power to grant pardon or commutation.[2] The authority to grant pardon or commutation pursuant to Article 28 of the Statute and Rules 123 through 125 of the Rules is vested exclusively in the President and that power relates to a post-conviction change in the sentence, thus overriding the decision of the sentencing chamber in specific circumstances, where the detainee has already served part of a final sentence.[3]

18. […][T]he Appeals Chamber finds that the power to suspend a sentence must be distinguished from the power to issue a pardon, commutation of sentence, or early release. Such suspension of a sentence, either in full or in part, does not infringe the authority of the enforcing State to execute the sentence in accordance with the applicable law of that State. Similarly, it does not “effectively remove the power from the President of the Tribunal to make the final determination regarding the [execution of the] sentence” imposed by the Trial Chamber.[4] Rather, the decision to suspend the last eight months of Rašić’s sentence of 12 months’ imprisonment forms an integral part of the Trial Chamber’s judicial discretion in the determination of the sentence.

[1] Cf. Tadić Judgement in Sentencing Appeals, para. 28.

[2] The Appeals Chamber notes that, although they are distinct acts, the powers to grant, on the one hand, commutation or pardon and, on the other, early release are all governed by Article 28 of the Statute, Rule 125 of the Rules, and the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal, IT/146/Rev.3, 16 September 2010 (“Practice Direction”). The Appeals Chamber notes that the Prosecution does not stipulate which specific type of post-conviction release it submits the Trial Chamber granted, but the Appeals Chamber considers that this is of no consequence given that the identical decision making process for each type is governed by the same provisions.

[3] Cf. Practice Direction.

[4] Stakić Appeal Judgement, para. 392.

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