Plea agreement

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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Notion(s) Filing Case
Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

18. In the specific case of a sentencing judgement following a guilty plea, the Trial Chamber, pursuant to Rule 62bis(iv) of the Rules, must be satisfied that “there is a sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case”. A common procedure is that the parties enter negotiations and agree on the facts underlying the charges to which the accused will plead. The parties may also submit, pursuant to Rule 100(A) of the Rules, “any relevant information that may assist the Trial Chamber in determining an appropriate sentence”. On the basis of the facts agreed upon by the parties as well as the additional information provided by the parties pursuant to Rule 100(A) (including those facts presented during the sentencing hearing), the Trial Chamber exercises its discretion in determining the sentence. A Trial Chamber need not make explicit findings on facts agreed upon by the parties or on undisputed facts. The reference by a Trial Chamber to such facts is by itself indicative that it accepts those facts as true.

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

30. In exercising their discretion to impose a sentence, Trial Chambers must take into account the special context of a plea agreement as an additional factor. A plea agreement is a matter of considerable importance as it involves an admission of guilt by the accused. Furthermore, recommendation of a range of sentences or, as in the present case, a specific maximum sentence, reflects an agreement between the parties as to what in their view would constitute a fair sentence. The Appeals Chamber notes that Rule 62ter (B) of the Rules unambiguously states that Trial Chambers shall not be bound by any agreement between the parties. Nevertheless, in the specific context of a sentencing judgement following a plea agreement, the Appeals Chamber emphasises that Trial Chambers shall give due consideration to the recommendation of the parties and, should the sentence diverge substantially from that recommendation, give reasons for the departure.[1] Those reasons, combined with the Trial Chambers’ obligation pursuant to Article 23(2) of the Statute to render a Judgement “accompanied by a reasoned opinion in writing”, will facilitate a meaningful exercise of the convicted person’s right to appeal and allow the Appeals Chamber “to understand and review the findings of the Trial Chamber”.[2]

[1] Dragan Nikolić Judgement on Sentencing Appeal, para. 89.

[2] Ibid., citing Kunarac et al. Appeal Judgement, para. 41.

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

At para. 45, the Appeals Chamber found that the contribution to historical record “intrinsically falls within the value given to a guilty plea”:

45. With regard to the Appellant’s claim that the Trial Chamber failed to consider that he contributed to a “historical record”,[1] the Appeals Chamber notes that this factor, although not expressly mentioned by the Trial Chamber, intrinsically falls within the value given to a guilty plea. Indeed, such a contribution to help establish the truth is one of several reasons which have been given in the jurisprudence of the International Tribunal and the ICTR for the mitigating effect of a guilty plea.[2] As such, this factor is part of the substantial weight the Trial Chamber has attached to the Appellant’s guilty plea.[3]

[1] Appellant’s Brief, para. 120.

[2] Dragan Nikolić Judgement on Sentencing Appeal, para. 49. See also Serugendo Trial Judgement and Sentence, para. 55.

[3] Sentencing Judgement, paras 72 and 83.

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ICTR Rule Rule
101(B)(ii)
ICTY Rule Rule
101(B)(ii)
Notion(s) Filing Case
Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan
(IT-94-2-A)

51. The avoidance of a lengthy trial has been commended, as correctly noted by the Trial Chamber, with the first admission of guilt before the International Tribunal, in the Erdemović Sentencing Judgement:

[T]his voluntary admission of guilt which has saved the International Tribunal the time and effort of a lengthy investigation and trial is to be commended.[1]

Judge Cassese, in his Separate and Dissenting Opinion to the Erdemović Appeal Judgement, addressed in detail some of the benefits of a guilty plea in terms of the International Tribunal’s resources:

It is apparent from the whole spirit of the Statute and the Rules that, by providing for a guilty plea, the draftsmen intended to enable the accused (as well as the Prosecutor) to avoid a possible lengthy trial with all the attendant difficulties. These difficulties - it bears stressing - are all the more notable in international proceedings. Here, it often proves extremely arduous and time-consuming to collect evidence. In addition, it is imperative for the relevant officials of an international court to fulfil the essential but laborious task of protecting victims and witnesses. Furthermore, international criminal proceedings are expensive, on account of the need to provide a host of facilities to the various parties concerned (simultaneous interpretation into various languages; provision of transcripts for the proceedings, again in various languages; transportation of victims and witnesses from far-away countries; provision of various forms of assistance to them during trial, etc.). Thus, by pleading guilty, the accused undoubtedly contributes to public advantage.[2]

Following Erdemović, other Trial Chambers have also noted that a guilty plea before the commencement of the trial contributes to saving International Tribunal resources.[3] Nevertheless, the Appeals Chamber emphasises that it considers that the avoidance of a lengthy trial, while an element to take into account in sentencing, should not be given undue weight.

[1] Erdemović 1998 Sentencing Judgement, para. 16.

[2] Separate and Dissenting Opinion of Judge Cassese to the Erdemović Appeal Judgement, para. 8, cited with approval at para. 80 of the Todorović Sentencing Judgement.

[3] Todorović Sentencing Judgement, para. 81. See also Sikirica Sentencing Judgement, para. 149; Plavšić  Sentencing Judgement, para. 73; Banović Sentencing Judgement, para. 68; Jokić Sentencing Judgement, para. 77.

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan
(IT-94-2-A)

89. As previously stated, in exercising their discretion to impose a sentence, Trial Chambers must take into account the following factors: the gravity of the offence and the individual circumstances of the convicted person, the general practice regarding prison sentences in the courts of the former Yugoslavia, and aggravating and mitigating circumstances.[1] The special context of a plea agreement raises an additional factor that must be taken into account. A plea agreement is a matter of considerable importance as it involves an admission by the accused of his guilt. Furthermore, recommendation of a range of sentences or, as in the present case, a specific sentence, reflects an agreement between the parties as to what, in their view, would constitute a fair sentence. The Appeals Chamber notes that Rule 62ter(B) of the Rules unambiguously states that Trial Chambers shall not be bound by any agreement between the parties. Nevertheless, in the specific context of a sentencing judgement following a plea agreement, the Appeals Chamber emphasises that Trial Chambers shall give due consideration to the recommendation of the parties and, should the sentence diverge substantially from that recommendation, give reasons for the departure. Those reasons, combined with the Trial Chamber’s obligation pursuant to Article 23(2) of the Statute to render a Judgement “accompanied by a reasoned opinion in writing”, will facilitate a meaningful exercise of the convicted person’s right to appeal and allow the Appeals Chamber “to understand and review the findings of the Trial Chamber”.[2]

[1] Čelebići Appeal Judgement, para. 716. In addition, Trial Chambers are obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10(3) of the Statute and in Rule 101(B)(iv).

[2] Kunarac Appeal Judgement, para. 41.

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

61. The Appeals Chamber holds that the conditions for accepting a plea agreement are firstly that the person pleading guilty must understand the consequence of his or her actions, and secondly that no pressure must have been brought to bear upon that person to sign the plea agreement. This position is reflected in the separate opinion of Judges McDonald and Vohrah in Erdemović, which stated that a voluntary plea requires two elements, namely that “an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty” and “the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentences.”[1]

[1] “Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah”, Erdemović, para. 10.

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ICTR Rule Rule 62(B) ICTY Rule Rule 62 bis
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

75. The Appeals Chamber agrees with the parties that the standard for determining whether a guilty plea is informed is that articulated by Judges McDonald and Vohrah in Erdemović such that the accused must understand the nature of a guilty plea and the consequences of pleading guilty in general, the nature of the charges against him, and the distinction between any alternative charges and the consequences of pleading guilty to one rather than the other.[1]

[1] “Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah”, Erdemović, paras. 14-19.

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ICTR Rule Rule 62 (B) ICTY Rule Rule 62 bis
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

84. The Appeals Chamber notes that, as articulated by Judges McDonald and Vohrah in the Erdemović case, “[w]hether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.”[1] This Appeals Chamber agrees with this statement.

[1] Erdemović, “Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah”, para. 31.

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ICTR Rule Rule 62(B) ICTY Rule Rule 62 bis
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

55. The Appeals Chamber notes that the Appellant had several opportunities to raise any issues of fact on the basis of which he now alleges that his guilty plea was invalid, but failed to do so until after receiving a life sentence for the guilty plea. In the absence of a satisfactory explanation of his failure to raise the validity of the guilty plea in a timely manner before the Trial Chamber, the Appeals Chamber could find that the Appellant has waived his right to later assert that his guilty plea was invalid.  However, as this is the Chamber of last resort for the Appellant facing life imprisonment on the basis of his guilty plea, and as the issues raised in this case are of general importance to the work of the Tribunal, the Appeals Chamber deems it important to consider the question of the validity of the guilty plea.

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Notion(s) Filing Case
Appeal Judgement - 10.10.1997 ERDEMOVIĆ Dražen
(IT-96-22-A)

18. The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah, unanimously finds that the Appellant’s plea was voluntary.

19. […] [T]he majority of the Appeals Chamber finds that the guilty plea of the Appellant was not equivocal. […]

20. […] The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah, finds that the guilty plea of the Appellant was not informed and accordingly remits the case to a Trial Chamber other than the one which sentenced the Appellant in order that he be given an opportunity to replead. […]

The Joint Separate Opinion of Judge McDonald and Judge Vohrah found that for a guilty plea to be entered, certain pre-conditions must be satisfied:

 8. […]  It follows, therefore, that certain pre-conditions must be satisfied before a plea of guilty can be entered. In our view, the minimum  re-conditions are as follows:

a)     The guilty plea must be voluntary.  It must be made by an accused who is mentally fit to understand the consequences of pleading guilty and who is not affected by any threats, inducements or promises.

b)     The guilty plea must be informed, that is, the accused must understand the nature of the charges against him and the consequences of pleading guilty to them.  The accused must know to what he is pleading guilty;

c)     The guilty plea must not be equivocal.  It must not be accompanied by words amounting to a defence contradicting an admission of criminal responsibility;

10. […] Voluntariness involves two elements.  Firstly, an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty.  […] Secondly, the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentence. 

13. […] Although it appears that the Appellant did not in his reply address the question whether he was promised anything for his plea, in the absence of any suggestion that the plea was improperly solicited, we would find that the Appellant pleaded guilty voluntarily whilst he was mentally competent to comprehend the consequences of his so pleading.

14. The fact that the Appellant was mentally competent to comprehend the consequences of pleading guilty does not necessarily mean that the plea was “informed”.  Indeed, all common law jurisdictions insist that an accused who pleads guilty must understand the nature and consequences of his plea and to what precisely he is pleading guilty[1].  […] In respect of the present case, an informed plea would require that the Appellant understand (a)   the nature of the charges against him and the consequences of pleading guilty generally; and (b) the nature and distinction between the alternative charges and the consequences of pleading guilty to one rather than the other.

15. […] We feel unable to hold with any confidence that the Appellant was adequately informed of the consequences of pleading guilty by the explanation offered during the initial hearing.  It was not clearly intimated to the Appellant that by pleading guilty, he would lose his right to a trial, to be considered innocent until proven guilty and to assert his innocence and his lack of criminal responsibility for the offences in any way.  It was explained to the Appellant that, if he pleaded not guilty he would have to contest the charges, whereas, if he pleaded guilty he would be given the opportunity of explaining the circumstances under which the offence was committed.

16.        Moreover, it appears to us that defence counsel consistently advanced arguments contradicting the admission of guilt and criminal responsibility implicit in a guilty plea.  If the defence had truly understood the nature of a guilty plea, it would not have persisted in its arguments which were obviously at odds with such a plea. […]  

19. […] With respect, the difference between a crime against humanity and a war crime was not adequately explained to the Appellant by the Trial Chamber at the initial hearing nor was there any attempt to explain the difference to him at any later occasion when the Appellant reaffirmed his plea.  […]

We have, accordingly, no doubt that the misapprehension regarding the true distinction between the two alternative charges led the Appellant to plead guilty to the more serious of the two charges, that is, the charge alleging the crime against humanity. 

26. […] There is nothing on the record to show that anyone, either defence counsel or the Trial Chamber, had explained to the Appellant that a crime against humanity is a more serious crime and that if he had pleaded guilty to the alternative charge of a war crime he could expect a correspondingly lighter punishment. […]

31. Whether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.  The Appellant pleaded guilty but claimed that he acted under duress.  It follows therefore that we must now examine whether duress can constitute a complete defence to the killing of innocent persons.

[1] United States Federal Rules of Criminal Procedure, Rule 11(c)(1) which provides that the court must “address the defendant personally in open court and inform the defendant of, and determine that the defendant understands . . . the nature of the charges to which the plea is offered” and inform the defendant personally of the possible consequences of the plea such as the maximum penalty provided by law.  See also Halsbury’s Laws of England, (Butterworths, London, 4th ed., 1990), vol. 11(2), p. 823.;  Malaysian Code of Criminal Procedure, Chapter XIX, section 173(b): “If the accused pleads guilty to a charge . . .  the plea shall be recorded and he may be convicted thereon: provided that before a plea of guilty is recorded the Court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit, without qualification, the offence alleged against him”.

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ICTR Rule Rule 62(B) ICTY Rule Rule 62 bis