Sentencing

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

313. The Appeals Chamber reiterates that, when assessing the gravity of a crime in the context of a conviction under Article 7(3) of the Statute, two matters must be taken into account:

(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and

(2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying crimes.[1]

Thus, in the context of a conviction under Article 7(3) of the Statute, the gravity of a subordinate’s crime remains, contrary to Hadžihasanović’s assertion, an “essential consideration” in assessing the gravity of the superior’s own conduct at sentencing.[2]

[1] Čelebići Appeal Judgement, para. 732 (emphasis added). See also para. 741 (“a consideration of the gravity of offences committed under Article 7(3) of the Statute involves, in addition to a consideration of the gravity of the conduct of the superior, a consideration of the seriousness of the underlying crimes” (emphasis added).

[2] Čelebići Appeal Judgement, para. 741.

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Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

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

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

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

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

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

[4] Musema Appeal Judgement, para. 382.

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ICTR Rule Rule 101(B)(i) ICTY Rule Rule 101(B)(i)
Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

328. The Appeals Chamber recognises that intelligence and good education have been considered to be possible aggravating factors.[1] This does not mean, however, that these factors should only be considered aggravating factors. The Appeals Chamber reiterates that whether certain factors going to a convicted person’s character constitute mitigating or aggravating factors depends largely on the particular circumstances of each case.[2] The Appeals Chamber previously underlined that “[c]aution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different”.[3] […].

[1] Brđanin Trial Judgement, para. 1114; Milan Simić Sentencing Judgement, paras 103-105.

[2] Babić Judgement on Sentencing Appeal, para. 49.

[3] Stakić Appeal Judgement, para. 416 (as to Milomir Stakić’s professional background). See also Babić Judgement on Sentencing Appeal, para. 49 (as to Milan Babić’s good character).

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ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)
Notion(s) Filing Case
Reasons for Appeal Judgement - 06.04.2000 SERUSHAGO Omar
(ICTR-98-39-A )

30. It is the settled jurisprudence of the ICTR that the requirement that the ‘the Trial Chambers shall have recourse to the general principle regarding prison sentences in the courts of Rwanda’ does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice. [...]

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Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

Šešelj contended that his sentence was disproportionate in comparison to previous sentences imposed in other contempt cases. He further submitted that the Trial Chamber erred in ordering him to withdraw from the web-site his book in which he disclosed confidential information before the Appeals Chamber delivered its judgement on his appeal. He asserted that both alleged errors individually justified setting the Trial Judgement aside.[1]

35. The Appeals Chamber notes that while the imposition of a sentence is necessarily dependent on a finding of guilt, the conviction itself stands entirely unaffected by the sentence eventually imposed. It finds no basis or precedent in the jurisprudence of the Tribunal for setting aside a conviction on the basis of sentence, or on the basis of an order accompanying a sentence. Šešelj provides no reasoned explanation for why it should do so. Accordingly, these two grounds of appeal against conviction are summarily dismissed.[2]

[1] Šešelj Appeal Judgement, para. 33, referring to Notice of Appeal and Appellant’s Brief Against the Judgment [sic] on Allegations of Contempt Pursuant to the Decision on the Prosecution’s Motion for Order Striking Appellant’s Notice of Appeal and Appeal Brief and Closing the Case Issued by the Appeals Chamber on 16 December 2009, filed in B/C/S on 12 January 2010 (confidential), paras 16, 17.

[2] The Appeals Chamber notes that it has already upheld the Trial Chamber’s order to remove the Book from the website, and dismissed Šešelj’s contention that the non-custodial order should be set aside. See Decision on Urgent Motions to Remove or Redact Documents Pertaining to Protected Witnesses, 16 December 2009 (confidential) […], pp. 3-5.

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

1998. […] [T]he Appeals Chamber notes that, although sentences received by subordinates may be a factor to be considered when determining the sentence of a commander,[1] this should not derogate from the Trial Chamber’s primary responsibility concerning sentencing – that is, tailoring the penalties to fit the individual circumstances of the accused.[2] […]

[1]           See Strugar Appeal Judgement, paras 350-351.

[2]           [ainović et al. Appeal Judgement, para. 1837; Mrkšić and [ljivančanin Appeal Judgement, para. 415; D. Nikolić Judgement on Sentencing Appeal, paras 45-46. 

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

2053. […] [T]he existence of mitigating circumstances does not automatically result in a reduction of sentence or preclude the imposition of a sentence of life imprisonment where the gravity of the offence so requires.[1] […]

[1]           Nizeyimana Appeal Judgement, para. 445; Ntabakuze Appeal Judgement, paras 267, 280; Niyitegeka Appeal Judgement, para. 267.

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Contempt Appeal Judgement - 28.11.2012 ŠEŠELJ Vojislav
(IT-03-67-R77.3-A)

23. The Appeals Chamber recalls that Rule 102(A) of the Rules provides that a sentence shall begin to run from the day it is pronounced; however, as soon as a notice of appeal is filed, the enforcement of the judgment is stayed until the appeal judgement has been delivered. Irrespective of whether the stay of proceedings is calculated from the first or second notice of appeal filed by Šešelj in Case No. IT-03-67-R77.2-A,[1] the sentence of 15 months’ imprisonment imposed on Šešelj in Case No. IT-03-67-R77.2 on 24 July 2009 was served before the Contempt Trial Judgement was rendered on 31 October 2011. Based on the plain text of Rule 102(A) of the Rules, the Appeals Chamber finds that Šešelj’s sentence in Case No. IT-03-67-R77.2 was stayed as soon as the first notice of appeal was filed on 18 August 2009, whether or not that notice was valid; hence, the calculation from the first notice of appeal is operative. Therefore, the Appeals Chamber finds that there was no sentence in Case No. IT-03-67-R77.2 at the time the Contempt Trial Judgement was rendered with which the sentence imposed by the Contempt Trial Chamber could run concurrently. As a newly imposed sentence cannot run concurrently with a sentence that has expired, the Appeals Chamber considers that Šešelj has not served any part of the 18-month sentence imposed by the Contempt Trial Chamber by virtue of having served the sentence imposed on him in Case No. IT-03-67-R77.2.

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2-A, Notice of Appeal Against the Judgement on Allegations of Contempt of 24 July 2009, 18 August 2009 (confidential). The English translation of the B/C/S original was filed on 25 August 2009. See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2-A, Notice of Appeal and Appellant’s Brief Against the Judgment [sic] on Allegations of Contempt Pursuant to the Decision on the Prosecution’s Motion for Order Striking Appellant’s Notice of Appeal and Appeal Brief and Closing the Case Issued by the Appeals Chamber on 16 December 2009, 12 January 2010 (confidential). The English translation of the B/C/S original was filed on 18 January 2010. 

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ICTR Rule Rule 77;
Rule 102(A)
ICTY Rule Rule 77;
Rule 102(A)
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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Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

320. […] the Appeals Chamber holds, proprio motu, Judge Liu dissenting, that the Trial Chamber erred when it assessed the gravity of the offence in light of its finding that “the manner in which Simba participated in the joint criminal enterprise did not evidence any particular zeal or sadism.”[1] The Appeals Chamber notes that the aforementioned factors are neither elements of the crime of genocide or extermination nor factors indicating the gravity of the crimes as such. The Appeals Chamber raises this issue proprio motu in order to clarify that zeal and sadism are factors to be considered, where appropriate, as aggravating factors rather than in the assessment of the gravity of an offence. Nonetheless, given the fact that the Appeals Chamber has already rejected the Prosecution’s claim that the Trial Chamber erred in not taking into account the Appellant’s sadism and zeal in aggravation on procedural grounds in the preceding paragraph, this error can not have any impact upon the Appellant’s sentence.

[1] Trial Judgement, para. 435.

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Review Judgement - 08.12.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

33. In the Mrkšić and Šljivančanin Appeal Judgement, the Appeals Chamber considered that the sentence of five years’ imprisonment imposed by the Trial Chamber on Šljivančanin for aiding and abetting torture did not “adequately reflect the level of gravity of the crimes committed by Šljivančanin”.[1] In particular, the Appeals Chamber noted that the torture was “characterized by extreme cruelty and brutality towards the [Prisoners], some of whom may have been previously injured as they had been taken from the Vukovar hospital”,[2] and referred to “the consequences of the torture upon the victims and their families, the particular vulnerability of the [P]risoners, and the very large number of victims”.[3] Based on the circumstances of the case, “including the seriousness of the crimes for which Šljivančanin was convicted” by the Trial Chamber as well as the entry of the Additional Conviction,[4] the Appeals Chamber proceeded to quash Šljivančanin’s original sentence of five years’ imprisonment and imposed, Judges Pocar and Vaz dissenting, a new sentence of 17 years’ imprisonment.[5] Because the Appeals Chamber has now vacated the Additional Conviction, which constituted a partial basis for the increase in Šljivančanin’s sentence, the Appeals Chamber must consider whether the sentence of 17 years’ imprisonment should be revised.

36. The Appeals Chamber considers that the reversal of the Additional Conviction represents a significant reduction in Šljivančanin’s culpability and calls for a revision in sentence. The Appeals Chamber observes, however, that Šljivančanin’s aiding and abetting the torture of the Prisoners was an extremely serious crime. In the circumstances of this case, the Appeals Chamber, Judge Pocar dissenting, reduces Šljivančanin’s sentence of 17 years’ imprisonment to ten years’ imprisonment.

Judge Meron and Judge Güney appended separate opinions. Judge Pocar appended a partially dissenting opinion.

[1] Mrkšić and [ljivančanin Appeal Judgement, paras 413, 417.

[2] Id., para. 412.

[3] Id., para. 413.

[4] Id., para. 419.

[5] Id., p. 170.

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

In sentencing the Appellant to life imprisonment, the Trial Chamber stated:

The then competent court (Rule 104 of the Rules) shall review this sentence and if appropriate suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation, if: (1) 20 years have been served calculated in accordance with Rule 101(C) from the date of Dr. Stakić’s deprivation of liberty for the purposes of these proceedings, this being the “date of review”[;] (2) In reaching a decision to suspend the sentence, the following considerations, inter alia, shall be taken into account: the importance of the legal interest threatened in case of recidivism; the conduct of the convicted person while serving his sentence; the personality of the convicted person, his previous history and the circumstances of his acts; the living conditions of the convicted person and the effects which can be expected as a result of the suspension[.][1]

The Appeals Chamber found that the Trial Chamber acted “ultra vires”[2] in imposing a review obligation on the Host State whereas Article 28 of the Statute, Rule 123 of the Rules, the Practice Direction on Pardon, Commutation of Sentence and Early Release,[3] and the Model Agreement for enforcing sentences[4] “each provide that eligibility of a convicted person for pardon, early release or commutation of sentence is determined by the law of the State in which the convicted person is serving his sentence”.[5] It also found that, by vesting the courts of the Host States with the power to suspend the sentence, the Trial Chamber removed the power of the President of the Tribunal[6] to make the final determination regarding the sentence.[7]

[1] Trial Judgement, pp. 253-254 (Disposition).

[2] Judgement, para. 393.

[3] 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, 7 April 1999. 

[4] “If, pursuant to the applicable national law of the requested State, the convicted person is eligible for pardon or commutation of the sentence, the requested State shall notify the Registrar accordingly.”

[5] Judgement, para. 392.

[6] Article 28 of the Statute, Rules 124 and 125 of the Rules, Practice Direction, paras 5-11.

[7] Judgement, para. 392.

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ICTR Statute Article 27 ICTY Statute Article 28 ICTR Rule Rule 124 ICTY Rule Rule 123 Other instruments Model Agreement for Enforcing Sentences (ICTY). 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 (ICTY).
Notion(s) Filing Case
Judgement on Sentencing Appeal - 08.03.2006 NIKOLIĆ Momir
(IT-02-60/1-A)

The Tribunal’s case-law indicates that although a previous decision on sentence may provide guidance if the case at hand relates to the same offence and was committed in similar circumstances, the guidance is only limited because of the overriding obligation to individualise the guilt (see Momir Nikolić Judgement on Sentencing Appeal, para. 38). So far, the Appeals Chamber has never engaged in an actual comparison but has simply highlighted the major differences (see, e.g., Kvočka Appeal Judgement, para. 696). In the present case, however, the similarities to the Obrenović case are striking (both cases are related to the crimes committed after the fall of the Srebrenica enclave, and both accused pleaded guilty to the crime of persecutions). Therefore, the Appeals Chamber scrutinised in detail the differences with respect to the number and type of crimes, the level of participation, as well as the aggravating and mitigating circumstances (paras 42-46). It held that the difference between the sentence of Momir Nikolić and Obrenović is justified (para. 47).

Momir Nikolić also compared his sentence to that of Vidoje Blagojević. As the latter case is on appeal, the Appeals Chamber decided that a comparison of sentences is not possible (para. 51).

See also Dragan Nikolić Judgement on Sentencing Appeal, para. 19.

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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

413. In light of the foregoing, the Appeals Chamber finds that there was a discernible error in the Trial Chamber’s exercise of discretion in imposing the sentence.[1] Even though the Trial Chamber did not err in its factual findings, considering the above findings of the Trial Chamber on the gravity of the crimes, and in particular the consequences of the torture upon the victims and their families, the particular vulnerability of the prisoners, and the very large number of victims, the Appeals Chamber finds that the sentence of five years’ imprisonment is so unreasonable that it can be inferred that the Trial Chamber must have failed to exercise its discretion properly.[2] The Appeals Chamber thus finds that a five years’ imprisonment sentence does not adequately reflect the level of gravity of the crimes committed by Šljivančanin.

[1] Cf. Aleksovski Appeal Judgement, para. 187.

[2] Bralo Judgement on Sentencing Appeal, para. 9; Galić Appeal Judgement, para. 394; Momir Nikolić Judgement on Sentencing Appeal, para. 95; Babić Judgement on Sentencing Appeal, para. 44.

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Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

348. The Appeals Chamber has held that sentences of like individuals in like cases should be comparable.[1]While similar cases do not provide a legally binding tariff of sentences, they can be of assistance in sentencing if they involve the commission of the same offences in substantially similar circumstances.[2] The relevance of previous sentences is however often limited as a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another.[3] This follows from the principle that the determination of the sentence involves the individualisation of the sentence so as to appropriately reflect the particular facts of the case and the circumstances of the convicted person.[4]

349. As a result, previous sentencing practice is but one factor among a host of others which must be taken into account when determining the sentence. Nonetheless, as held by the Appeals Chamber in Jelisić, a disparity between an impugned sentence and another sentence rendered in a like case can constitute an error if the former is out of reasonable proportion with the latter. This disparity is not in itself erroneous, but rather gives rise to an inference that the Trial Chamber must have failed to exercise its discretion properly in applying the law on sentencing:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences. Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules. But it is difficult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case.[6]

[1] Kvočka et al. Appeal Judgement, para. 681.

[2] Furundžija Appeal Judgement, para. 250. See also Čelebići Appeal Judgement, paras 721, 756-757; Jelisić Appeal Judgement, paras 96, 101; Kvočka et al. Appeal Judgement, para. 681.

[3] Kvočka et al. Appeal Judgement, para. 681. See also Čelebići Appeal Judgement, paras 719, 721; Furund‘ija Appeal Judgement, para. 250; Limaj et al. Appeal Judgement, para. 135, Blagojević and Jokić Appeal Judgement, para. 333, Momir Nikolić Judgement on Sentencing Appeal, para. 38, Musema Appeal Judgement, para. 387.

[4] Čelebići Appeal Judgement, paras 717, 821; Dragan Nikolić Judgement on Sentencing Appeal, para. 19; Babić Judgement on Sentencing Appeal, para. 32; Naletilić and Martinović Appeal Judgement, para. 615; Simić Appeal

Judgement, para. 238; Bralo Judgement on Sentencing Appeal, para. 33; Jelisić Appeal Judgement, para. 101.

[5] Krstić Appeal Judgement, para. 248.

[6] Jelisić Appeal Judgement, para. 96.

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

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

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

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

185. The Appeals Chamber recalls that the determination of the gravity of the crime requires consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crimes. […]

[1] Rukundo Appeal Judgement, para. 243; Kordić and Čerkez Appeal Judgement, para. 1061. See also Nahimana et al. Appeal Judgement, para. 1038. 

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

186. The Appeals Chamber recalls that each case is examined on its own facts. Furthermore, “[j]ust as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated.” The Appeals Chamber notes that, in deciding Munyakazi’s sentence, the Trial Chamber correctly sought guidance from comparable cases which did not result in life sentences. The Prosecution has not demonstrated that the Trial Chamber committed a discernible error in doing so.

[1] Rukundo Appeal Judgement, para. 260.

[2] Rukundo Appeal Judgement, para. 260.

[3] Trial Judgement, para. 517, citing Simba Appeal Judgement, paras. 279-288, Semanza Appeal Judgement, paras. 388, 389, Kayishema and Ruzindana Appeal Judgement, paras. 191, 194, 352.

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

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

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

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

[1] Sentencing Judgement, para. 18.

[2] Sentencing Judgement, para. 18.

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

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

In considering whether the Trial Chamber should have given more weight to the sentence imposed on an accused who pleaded guilty to his involvement in the same criminal scheme, the Appeals Chamber held:

57. […] [W]hile sentences of like individuals in like cases should indeed be comparable,[1] trial chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[2] Comparison between cases is thus generally of limited assistance.[3]

[1] Milošević Appeal Judgement, para. 326, quoting Strugar Appeal Judgement, para. 348; Kvoćka et al. Appeal Judgement, para. 681.

[2] Ntabakuze Appeal Judgement, paras 264, 298.

[3] Milošević Appeal Judgement, para. 326.

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

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

29. In this context, the Appeals Chamber further considers the Prosecution’s argument that the Trial Chamber erroneously found that Rašić’s health problems were serious enough to warrant the imposition of a suspended sentence.[1] In support of this argument, the Prosecution refers to the Milan Simić case in which the trial chamber neither mitigated nor suspended Milan Simić’s sentence, although his health problems required “complete nursing care on a daily basis”.[2] The Appeals Chamber recalls that while “sentences of like individuals in like cases should be comparable”,[3] trial chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[4] Comparison between cases is thus generally of limited assistance.[5] The Appeals Chamber finds that the Milan Simić case bears no relevance for the present case. There are too many variables in both cases to be able to transpose the sentencing considerations from the former to the latter. In particular, Milan Simić was convicted of two counts of torture as crimes against humanity,[6] while Rašic was not convicted of any of the Statute’s core crimes. In these circumstances, the Prosecution has failed to show that the Trial Chamber erred in considering that Rašić’s health problems were serious enough to warrant a partial suspension of her sentence.

30. Further, the Trial Chamber did not err in taking into consideration Rašić’s conditions at the UNDU.[7] The Appeals Chamber notes that to date, no person convicted of contempt was transferred from the UNDU to an enforcing State to serve his or her sentence. Moreover, given the length of the sentence (12 months) and the length of time for which she had already been detained at the time of the Sentencing Judgement (84 days), the Appeals Chamber is satisfied that it was not unreasonable for the Trial Chamber to consider that Rašić would serve the remainder of her sentence at the UNDU. In these circumstances, the Prosecution has not shown that the Trial Chamber erred in taking into account Rašić’s detention conditions at the UNDU.

31. With respect to the Prosecution’s argument that Rašić’s confinement in the UNDU is not truly solitary, the Appeals Chamber notes that the Trial Chamber considered the ex parte medical reports of Dr. Vera Petrović (“Petrović Reports”)[8] concerning Rašić’s health condition.[9] In these reports, Dr. Petrović made observations about Rašić’s mental health condition at the UNDU.[10] While the Prosecution argues that Rašić was able to socialise “for 10 hours each weekday and for eight hours each day on Saturdays and Sundays” with other detainees in the UNDU to an extent that her confinement cannot be considered “quasi-solitary”,[11] the Appeals Chamber finds that the Prosecution does not show an error in the Trial Chamber’s finding. The Trial Chamber based its decision to impose a suspended sentence on Rašić’s “perception of her detention and the practical impact upon her well-being”.[12] The Prosecution does not show that the Trial Chamber ventured outside its scope of discretion when it relied on how Rašić perceived her confinement, on the basis of the Petrović Reports. Furthermore, the Appeals Chamber notes that the Trial Chamber based the suspension of the sentence not only on Rašić’s perception of her detention but also on “Rašić’s comparably young age and that this is the first time she is sentenced to a prison sentence.”[13]

[1] Prosecution Appeal Brief, para. 18.

[2] Prosecution Appeal Brief, para. 18, quoting M. Simić Sentencing Judgement, para. 100.

[3] Milošević Appeal Judgement, para. 326, quoting Strugar Appeal Judgement, para. 348; Kvočka et al. Appeal Judgement, para. 681.

[4] Ntabakuze Appeal Judgement, paras 264, 298.

[5] Milošević Appeal Judgement, para. 326 and references cited therein.

[6] M. Simić Sentencing Judgement, para. 34.

[7] Sentencing Judgement, para. 31.

[8] Medical Reports of Dr. Vera Petrović on Jelena Rasić dated 26 January 2012 and 1 February 2012, annexed to Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Registrar’s Submission of Medical Reports, 6 February 2012 (confidential). The ex parte status of the Petrović Reports was lifted on 6 March 2012 by the Trial Chamber. See Sentencing Judgement, para. 34.

[9] Sentencing Judgement, para. 31. See also T. 73 (7 February 2012).

[10] “There was a short period of time when she was almost overcome by panic, at the very beginning, during the weekend, given that she was alone and in isolation (due to Detention Unit rules) for a longer period.” See Petrović Reports, p. 6. “Her mental state is that of a moderate depressive reaction. She has a difficult time dealing with isolation on the floor where she stays, although she does realise that the management of the detention unit has done everything possible to reduce these feelings.” See Petrović Reports, p. 8.

[11] Prosecution Reply Brief [Prosecution Reply to Jelena Rašić’s Response Brief, 30 March 2012], para. 12.

[12] Sentencing Judgement, para. 31 (emphasis added). See also T. 72 (7 February 2012).

[13] Sentencing Judgement, para. 31. 

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

28. In the Appeals Chamber’s view, the Prosecution’s submission that the Trial Chamber erroneously mitigated Rasic’s sentence by partially suspending it on the basis of her health condition[1] is misguided as it relies again on a conflation of suspension and mitigation. The Trial Chamber considered that the effect that detention could have on Rašić’s psychological well-being did not constitute a mitigating factor.[2] It held, however, that this constituted a relevant consideration, among others, to partially suspend “the execution of the sentence”.[3] Regardless of whether Rašić will serve the remainder of eight months in detention, her sentence of 12 months’ imprisonment remains unaffected. Therefore, the partial suspension of Rašić’s sentence by the Trial Chamber [4] does not equate to a reduction of her sentence, and the Prosecution’s submission in this respect is dismissed.

[1] See Prosecution Appeal Brief [Prosecution Appeal Brief, 16 March 2012 (public with confidential annex)], para. 14. The Appeals Chamber is satisfied that, contrary to Rašić’s assertion, the Prosecution explicitly opposed at trial her argument that “her detention resemble[d] a de facto solitary confinement”. See Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Prosecution Response to Urgent Motion for Provisional Release, 27 October 2010 (confidential), para. 2, referring to Prosecutor v. Jelena Rašić, Case No. It-98-32/1-R77.2, Urgent Motion for Provisional Release, 26 October 2012 (confidential) (“26 October 2010 Provisional Release Motion”), paras 16-18. Thus, Rašić’s argument that the Prosecution has waived its right to object to the qualification of her detention conditions as quasi-solitary is dismissed.

[2] Sentencing Judgement [Written Reasons for Oral Sentencing Judgement, 6 March 2012], para. 30.

[3] Sentencing Judgement, paras 30-31. The Appeals Chamber notes that the Trial Chamber’s reference to “the execution of the sentence” is misleading, as the execution of a sentence lies within the authority of the President and the enforcing state. However, the Appeals Chamber finds that this reference does not constitute an error of law, as the Trial Chamber’s partial suspension of Rašić’s sentence did not infringe the authority of the President and the enforcing state in this respect, as the suspended sentence was an integral part of its judicial discretion in the determination of Rašić’s sentence (see supra paras 17-18).

[4] T. 72-73 (7 February 2012); Sentencing Judgement, para. 31. 

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

591. The Appeals Chamber holds the view that a penalty must reflect the totality of the crimes committed by a person and be proportionate to both the seriousness of the crimes committed and the degree of participation of the person convicted. The gravity of the crime is a key factor that the Trial Chamber considers in determining the sentence.[1] […]

[1] Musema Appeal Judgement, para. 382.  See also, Celebici Appeal Judgement, para. 847.

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

The factors that a Trial Chamber is obliged to take into account in sentencing a defendant are set out in Article 23 of the Statute and in Rule 101 of the Rules. They are:

(1) the general practice regarding prison sentences in the courts of Rwanda. However, Trial Chambers are not obliged to conform to that practice but need only to take account of it;[1]

(2) the gravity of the offences (i.e. the gravity of the crimes of which the accused has been convicted, and the form or degree of responsibility for these crimes). It is well established that this is the primary consideration in sentencing;[2]

(3) the individual circumstances of the accused, including aggravating and mitigating circumstances. Aggravating circumstances must be proved by the Prosecutor beyond reasonable doubt;[3] the accused bears the burden of establishing mitigating factors based on the most probable hypothesis (or according to the term of art used in certain jurisdictions, “on a balance of probabilities”).[4] While the Trial Chamber is legally required to take into account any mitigating circumstances, what constitutes a mitigating circumstance and the weight to be accorded thereto is a matter for the Trial Chamber to determine in the exercise of its discretion.[5] In particular, the existence of mitigating circumstances does not automatically imply a reduction of sentence or preclude the imposition of a sentence of life imprisonment;[6]

(4) the extent to which any sentence imposed on the defendant by a court of any State for the same act has already been served.

The Appeals Chamber further recalls that credit shall be given for any period of detention of the defendant prior to final judgement.[7]

[1] Jokić Appeal Judgement, para. 38; D. Nikolić Appeal Judgement, para. 69; Kordić and Čerkez Appeal Judgement, para. 1085; Čelebići Appeal Judgement, paras. 813, 816; Serushago Appeal Judgement, para. 30.

[2] Muhimana Appeal Judgement, paras. 233, 234; Ndindabahizi Appeal Judgement, para. 138; Gacumbitsi Appeal Judgement, para. 204; Kamuhanda Appeal Judgement, para. 357;  Musema Appeal Judgement, para. 382; Kayishema and Ruzindana Appeal Judgement, para. 352; Čelebići Appeal Judgement, paras. 731, 847-849; Aleksovski Appeal Judgement, para. 182.

[3] Kajelijeli Appeal Judgement, para. 294; Blaškić Appeal Judgement, paras. 686, 688; Čelebići Appeal Judgement, para. 763.

[4] Muhimana Appeal Judgement, para. 231; Babić Appeal Judgement, para. 43; Kajelijeli Appeal Judgement, paras. 294, 299; Blaškić Appeal Judgement, para. 697; Čelebići Appeal Judgement, para. 590.

[5] Zelenović Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 430; Niyitegeka Appeal Judgement, para. 266; Musema Appeal Judgement, paras. 395, 396; Kupreškić et al. Appeal Judgement, para. 430; Čelebići Appeal Judgement, para. 775; Kambanda Appeal Judgement, para. 124.

[6] Muhimana Appeal Judgement, para. 234; Kajelijeli Appeal Judgement, para. 299; Niyitegeka Appeal Judgement, para. 267; Musema Appeal Judgement, para. 396.

[7] Rule 101(D) of the Rules.

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

1042. The Appeals Chamber notes that, under Rule 87(C) of the Rules, “if the Trial Chamber finds the accused guilty on one or more of the counts contained in the indictment, it shall also determine the penalty to be imposed in respect of each of the counts”. However, the Appeals Chamber has held that Trial Chambers may impose a single sentence in respect of multiple convictions in the following circumstances:

Where the crimes ascribed to an accused, regardless of their characterisation, form part of a single set of crimes committed in a given geographic region during a specific time period, it is appropriate for a single sentence to be imposed for all convictions, if the Trial Chamber so decides. [1]

1043. The Appeals Chamber has further held that, when the acts of the accused are linked to the systematic and widespread attack which occurred in 1994 in Rwanda against the Tutsi, this requirement is fulfilled and a single sentence for multiple convictions can be imposed.[2] The Appeals Chamber reaffirms the position stated in the Kambanda Appeal Judgement. In the present case, since the acts of the Appellants were all linked to the genocide of the Tutsi in Rwanda in 1994, the Trial Chamber could impose a single sentence. The Appellants’ appeals on this point are therefore rejected.

[1] Kambanda Appeal Judgement, para. 111.

[2] Judgement, para. 112.

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

1057. […] Secondly, the Appeals Chamber is of the opinion that, in view of the gravity of the crimes in respect of which the Tribunal has jurisdiction, the two main purposes of sentencing are retribution and deterrence; the purpose of rehabilitation should not be given undue weight.[1] […]

[1] Stakić Appeal Judgement, para. 402; Deronjić Appeal Judgement, paras. 136-137; Kordić and Čerkez Appeal Judgement, para. 1079; ]elibići Appeal Judgement, para. 806; Aleksovski Appeal Judgement, para. 185.

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

1060. […] Furthermore, although there is no pre-established hierarchy between crimes within the jurisdiction of the Tribunal,[1] and international criminal law does not formally identify categories of offences, it is obvious that, in concrete terms, some criminal behaviours are more serious than others. As recalled above, the effective gravity of the offences committed is the deciding factor in the determination of the sentence:[2] the principle of gradation or hierarchy in sentencing requires that the longest sentences be reserved for the most serious offences.[3] […]

[1] Stakić Appeal Judgement, para. 375.

[2] See supra XVII. A.

[3] As recognized by the Trial Chamber; see Judgement, para. 1097.

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

1063. The Appeals Chamber recalls that, while the Trial Chamber must take account of the general practice regarding sentences in the Rwandan courts,[1] it is well established in the jurisprudence that the Trial Chamber is not bound by that practice.[2] The Trial Chamber is therefore “entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts”.[3]

[1] Article 23(1) of the Statute; Rule 101(B)(iii) of the Rules.

[2] Semanza Appeal Judgement, paras. 377, 393; Akayesu Appeal Judgement, para. 420; Serushago Appeal Judgement, para. 30. See also Stakić Appeal Judgement, para. 398; D. Nikolić Appeal Judgement, para. 69; Čelebići Appeal Judgement, para. 813;

[3] Semanza Appeal Judgement, para. 393. See also Krstić Appeal Judgement, para. 262.

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

1112. The Appeals Chamber notes that, pursuant to Rule 101(D) of the Rules, the Chambers are obliged to give credit for any period during which a convicted person was held in provisional detention. Even though the sentence imposed here was life imprisonment, the Trial Chamber should have made it clear that Appellant Ngeze would be credited with the time spent in detention between his arrest and conviction, as this could have an effect on the application of any provisions for early release.

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Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

The Trial Chamber convicted Jelisić of counts alleging violations of the laws or customs of war and crimes against humanity, to which he pleaded guilty. After the Prosecution presented its case on the remaining count of genocide, the Trial Chamber acquitted him pursuant to Rule 98bis(B) of the Rules. See paras. 1–5. Jelisić asserts that the sentence he received for the counts to which he pleaded guilty erroneously took into account the Prosecution’s evidence given at the trial for genocide. See para. 85. The Appeals Chamber held: 

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty.  The important point is that in considering evidence for the purpose of sentencing, the Trial Chamber should afford the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced by the cross-appellant himself. 

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Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

96. […] The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.  But it is difficult and unhelpful to lay down a hard and fast rule on the point; there are a number of variable factors to be considered in each case.

101. [T]he Appeals Chamber considers that the sentence imposed by the Trial Chamber must be individualised and it is generally not useful to compare one case to another unless the cases relate to the same offence committed in substantially similar circumstances. […]

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Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

114. Two sub-issues are involved. First, does [Article 24(1) of the Statute] require a Trial Chamber to have recourse to the general practice regarding prison sentences of the courts in entities emerging from the dissolution of the former Yugoslavia?  It appears to the Appeals Chamber that the answer is no, because courts in entities emerging from the dissolution of the former Yugoslavia are not “courts of the former Yugoslavia” within the meaning of Article 24(1) of the Statute.

115. The second sub-issue is whether paragraph 1 of Article 24 of the Statute requires the Trial Chamber to consider the position in each of the constituent republics of the former Yugoslavia.  As has been seen, that provision provides that “the Trial Chambers shall have regard to the general practice regarding prison sentences in the courts of the former Yugoslavia”.[1]  The state representing the former Yugoslavia was the Socialist Federal Republic of Yugoslavia (“the SFRY”).  The courts of the former Yugoslavia were bound by the law of the SFRY.  In the Delalić appeal judgement, it was to that law that the Appeals Chamber looked.[2]

116. No doubt, the Tribunal may be informed in an appropriate case by the sentencing practices of the courts of one or more of the constituent republics of the former Yugoslavia where it has reason to believe that such specific consideration would aid it in appreciating “the general practice [...] in the courts of the former Yugoslavia”. The latter phrase is obviously to be taken as a whole; individual divergences from the norm in particular republics do not show the “general practice”.  There was no reason in this case to undertake a full-scale consideration of the position in each of the several republics which constituted the former Yugoslavia.

117. In passing, the Appeals Chamber notes that, in keeping with the settled jurisprudence, the cross-appellant correctly recognised that “general practice” provides general guidance and does not bind a Trial Chamber to act exactly as a court of the former Yugoslavia would. […]

[1] Aleksovski appeal judgement, para. 178, p. 73.  See also inter alia, Kupreškić trial judgement, 14 January 2000, para. 841, p. 314, Prosecutor v. Anto Furundžija, Case No.: IT-95-17/1-T, Judgement, 10 December 1998 (“the Furundžija trial judgement”), para. 240, pp. 91-92, Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-T, 3 March 2000 (“the Blaškić trial judgement”), para. 760, pp. 248-249.

[2] Delalić appeal judgement, para. 814, p. 292.

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ICTR Statute Article 23(1) ICTY Statute Article 24(1)
Notion(s) Filing Case
Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

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Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

357. The principle of individualization requires that each sentence be pronounced on the basis of the individual circumstances of the accused and the gravity of the crime.[1] The gravity of the crime is a key factor that the Trial Chamber considers in determining the sentence.[2] The Trial Chamber in this case was cognizant of this obligation:

In sentencing Kamuhanda, the Chamber will take into account the gravity of the offences pursuant to Article 23 of the Statute and Rule 101 of the Rules, the individual circumstances of Kamuhanda, aggravating and mitigating circumstances as well as the general sentencing practice of the Tribunal.[3]

While arguing that the Trial Chamber “totally disregarded”[4] this obligation, the Appellant does not draw the attention of the Appeals Chamber to any specific error. He merely argues, without supporting his assertion, that a sentence of life in prison “may only be justified if the wrong occasioned by the crime is such that, in the interest of public law and order, the accused cannot be released even after several years”.[5] Domestic courts in some countries have held that an accused should be given the possibility of release, even if he is sentenced to imprisonment for the remainder of his life. As the German Federal Constitutional Court stated the argument: “One of the preconditions of a humane penal system is that, in principle, those convicted to life sentences stand a chance of being freed again.”[6] The Appeals Chamber considers that, whatever its merits in the context of domestic legal systems, where it may apply “in principle”, this view is inapplicable in a case such as this one which involves extraordinarily egregious crimes. […]

[1] Čelebići Case Appeal Judgement, para. 717. Ntakirutimana Appeal Judgement, para. 551.

[2] See Musema Appeal Judgement, para. 382; Čelebići Case Appeal Judgement, para. 847.

[3] Trial Judgement, para. 755, in part (citations omitted).

[4] Appeal Brief [Appeal Brief – Pursuant to Rule 111 of the Rules of Procedure and Evidence, 19 October 2004], para. 511.

[5] Appeal Brief, para. 513. The original French text reads as follows: “[L’emprisonnement à vie] ne peut valablement se justifier que si le trouble inhérent au crime commis, rend à jamais incompatible avec les nécessités de l’ordre public, la libération de l’accusé même après plusieurs années.”

[6] BVerfGE 45, 187 [228, 229].

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Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

362. […] [A] review of the ICTR’s case law finds that those who, like the Appellant, have been convicted of genocide as a principal perpetrator have frequently been sentenced to life imprisonment.[1] In any case, the Trial Chamber is not bound by previous sentencing practices. […]

[1] These include a number of persons whose life sentences for genocide have been affirmed by the Appeals Chamber (Jean-Paul Akayesu, Jean Kambanda, Clément Kayishema, Alfred Musema, Eliezer Niyitegeka, Georges Rutaganda) and others whose appeals have not yet been decided (Mikaeli Muhimana, Ferdinand Nahimana, Emanuel Ndindabahizi, Hassan Ngeze). In other cases, Chambers have found that the convicted person’s conduct merited a sentence of life imprisonment, but that the sentence should be reduced on the basis of violations of his rights (Juvénal Kajelijeli and Jean-Bosco Barayagwiza; Barayagwiza’s appeal is pending). The Appeals Chamber of course expresses no view on cases presently under appeal.

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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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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

38. Under Sub-rule 101(D)[1] the Appellant is entitled to credit for the time spent in custody in the Federal Republic of Germany only for the period pending his surrender to the International Tribunal.  However, the Appeals Chamber recognises that the criminal proceedings against the Appellant in the Federal Republic of Germany emanated from substantially the same criminal conduct as that for which he now stands convicted at the International Tribunal.  Hence, fairness requires that account be taken of the period the Appellant spent in custody in the Federal Republic of Germany prior to the issuance of the Tribunal’s formal request for deferral.

[1] NOTE: UNDER THE AMENDMENT OF 1 AND 13 DECEMBER 2000 OF THE RULES OF PROCEDURE AND EVIDENCE, RULE 101(D) BECAME RULE 101(C), BUT ITS CONTENT WAS NOT ALTERED.

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard.  The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

[…]

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention.  The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

69. The Appeals Chamber has taken account of the arguments of the parties and the authorities to which they refer, inclusive of previous judgments of the Trial Chambers and the Appeals Chamber of the International Tribunal.  After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime.  The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.  […]  

See also at pp. 35-56 the Separate Opinions of Judge Shahabuddeen and Judge Cassese

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

28. Neither the Statute nor the Rules provide guidance for judicial discretion with respect to the recommendation of a minimum sentence.  The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules.  However, the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness.

[…]

31. […] the Trial Chamber’s recommendation that the ten-year minimum sentence begins to run “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later raises legitimate concerns. Such a condition could suggest to prospective appellants that the exercise of the right to appeal could result in enhanced penalties.  The consequential discouragement of appeals may deprive the Appeals Chamber of the opportunity to hear appeals on substantial questions of law.

32. Accordingly, the Appeals Chamber finds that the Trial Chamber erred insofar as it ordered that the recommended minimum term take as its starting point the final determination of any appeal.   […]

See also paras. 29–30.

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

48. In determining the sentences to be imposed on the Appellant, the Trial Chamber took into account, as one of the relevant factors, the principle of deterrence.  The Appeals Chamber accepts that this is a consideration that may legitimately be considered in sentencing, a proposition not disputed by the Appellant.  Equally, the Appeals Chamber accepts that this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal. […]

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

21. […]  The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken unto account by the Trial Chambers for the purpose of sentencing, the wording of the Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system. […]  

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

280. The Appeals Chamber recalls that the well-established principle of gradation in sentencing holds that leaders and planners should bear heavier criminal responsibility than those further down the scale, subject to the proviso that the gravity of the offence is the primary consideration for a trial chamber in imposing a sentence.[1] Thus, although Kanyarukiga was convicted as a planner, the primary consideration remained the gravity of his offences.

281. The determination of the gravity of the offence requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. The Appeals Chamber notes that the Trial Chamber expressly considered the very serious nature of the crimes committed, their scale, and the fact that Kanyarukiga participated in planning them.[3] In particular, the Trial Chamber observed that the destruction of the Nyange church on 16 April 1994 resulted in the deaths of over 2,000 Tutsi civilians and that the crimes “were grave and resulted in overwhelming human suffering”.[4]

[1] Kalimanzira Appeal Judgement, para. 236. See also Setako Appeal Judgement, para. 280; Nshogoza Appeal Judgement, para. 98. See also Article 23 of the Statute [Statute of the International Criminal Tribunal for Rwanda].

[2] Munyakazi Appeal Judgement, para. 185; Nshogoza Appeal Judgement, para. 98; Rukundo Appeal Judgement, para. 243; Mrkšić and Šljivančanin Appeal Judgement, para. 375.

[3] Trial Judgement, paras. 674, 675.

[4] Trial Judgement, para. 675.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1838. The Appeals Chamber notes that, in determining the term of imprisonment, the Trial Chamber did not consider it appropriate to distinguish between Ojdanić and Lazarević, who were sentenced to 15 years of imprisonment for aiding and abetting crimes, or to discriminate among Šainović, Pavković, and Lukić, who were each sentenced to 22 years of imprisonment for their participation in the JCE.[1] However, although the Trial Chamber acknowledged that the crimes attributed to each individual were not entirely identical,[2] it failed to indicate whether it considered these differences in sentencing. […]

1839. Moreover, it is not apparent whether the Trial Chamber individually evaluated the mitigating and aggravating factors as well as the different role and participation of each of the Appellants in determining their respective sentences. For example, the Trial Chamber assessed the mitigating and aggravating factors in relation to each[3] and identified differences in the conduct and roles of Šainović, Pavković, and Lukić in executing the common purpose of the JCE.[4] Nonetheless, it imposed identical sentences on the three, simply because they were convicted on the basis of the same mode of liability.[5] The Appeals Chamber considers that, in light of the Trial Chamber’s obligation to individualise penalties in accordance with the circumstances of the accused and the gravity of the crime,[6] the Trial Chamber erred in declining to individualise the sentences it imposed.

[1] Trial Judgement, vol. 3, para. 1205.

[2] See Trial Judgement, vol. 3, para. 1173 (“The Trial Chamber has determined, regarding some of the crimes in the Indictment, that they were committed, but that they were not attributable to some or all of the Accused”).

[3] Trial Judgement, vol. 3, paras 1180-1204.

[4] See Trial Judgement, vol. 3, paras 285-477 (Šainović), 636-790 (Pavković), 936-1140 (Lukić).

[5] Trial Judgement, vol. 3, paras 1205, 1208, 1210, 1212.

[6] Bralo Judgement on Sentencing Appeal, para. 9, referring to Galić Appeal Judgement, para. 393; M. Nikolić Judgement on Sentencing Appeal, para. 8; Jokić Judgement on Sentencing Appeal, para. 8; Deronjić Judgement on Sentencing Appeal, para. 8; Babić Judgement on Sentencing Appeal, para. 7; D. Nikolić Judgement on Sentencing Appeal, para. 9; Čelebići Appeal Judgement, para. 717.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1837.  At the outset, the Appeals Chamber notes that the Prosecution’s appeal focuses on the failure to individualise sentences based on the gravity component.[1] The Appeals Chamber recalls that trial chambers have an “overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case”.[2] Thus, gravity is not considered in isolation, but in conjunction with aggravating, mitigating, and other factors in determining the sentence.

[1] See supra, fn. 5965.

[2] D. Nikolić Judgement on Sentencing Appeal, para. 19 (emphasis added) (internal references omitted). 

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1834. The Appeals Chamber recalls that trial chambers are vested with broad discretion in determining an appropriate sentence[1] and that it is incumbent on parties to present all information relevant to sentencing at trial.[2] The Appeals Chamber will only intervene where a trial chamber has abused its discretion.[3] The Appeals Chamber notes that in its Closing Brief and closing arguments, the Prosecution requested “sentences raging from 20 years to life imprisonment” with regard to all the Appellants, irrespective of the modes of liability charged.[4] The Prosecution cannot seek to have a more severe sentence imposed on appeal where, as here, the Trial Chamber, by exercising its discretion, imposed a sentence within the Prosecution’s requested range. Thus, the Appeals Chamber dismisses the Prosecution’s arguments concerning Šainović, Pavković, and Lukić who were sentenced to 22 years of imprisonment.[5] However, as Lazarević was sentenced to 15 years of imprisonment, below the 20-year minimum sought by the Prosecution, the Appeals Chamber will examine whether the Trial Chamber erred in its assessment of the gravity of his crimes.[6]

[1] Boškoski and Tarčulovski Appeal Judgement, para. 204; D. Milošević Appeal Judgement, para. 297.

[2] See Rules 86(C) and 101 (B) of the Rules [ICTY Rules of Procedure and Evidence]. See also Ntabakuze Appeal Judgement, para. 289.

[3] See supra, para. 1798.

[4] Prosecution’s Closing Brief [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Final Trial Brief, 15 July 2008 (confidential); public redacted version filed on 29 July 2008], para. 1100. See also Prosecution’s Closing Argument, 20 Aug 2008, T. 26947.

[5] See Trial Judgement, vol. 3, paras 1208, 1210, 1212.

[6] See Trial Judgement, vol. 3, para. 1211; Prosecution’s Closing Brief, para. 1100.

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Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

99. The Appeals Chamber considers, Judges Robinson and Güney dissenting, that the Trial Chamber properly considered the particular circumstances surrounding Nshogoza’s specific conduct. The Trial Chamber did not merely focus on contempt as an inherently grave offence, but addressed the gravity of the particular way in which Nshogoza committed contempt. It found that, by breaching the Kamuhanda Protective Measures Order, Nshogoza “undermined the authority of the Kamuhanda Trial Chamber, as well as confidence in the effectiveness of protective measures, and the administration of justice.”[1] The Trial Chamber did not merely focus on Nshogoza’s defiance of the authority of the Tribunal, but considered more specifically that his conduct “may also have the effect of dissuading witnesses from testifying before it.”[2] The Appeals Chamber does not deem that it was necessary for the Trial Chamber to have found that Witnesses GAA and A7/GEX lost confidence in their protective measures or that other witnesses were dissuaded from appearing before the Tribunal for it to consider that a breach of a protective measures order may have the effect of dissuading witnesses from testifying before the Tribunal.

[1] Trial Judgement, para. 219.

[2] Trial Judgement, para. 219.

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

394. In relation to the submission that the sentences imposed by the Trial Chamber are disproportionate to those imposed in other cases before the International Tribunals and do not reflect the gravity of the crimes, the Appeals Chamber recalls that, as a general principle, comparison to other cases in support of a move to have the sentence increased may indeed provide guidance if it relates to the same offence, in particular if the crimes were committed in substantially similar circumstances. However, such comparison may be of limited value given that each case has its own particular circumstances and that the aggravating and mitigating factors may dictate different results.[1] Ultimately, the decision as to the length of sentence is a discretionary one, turning on the circumstances of the case.[2]

[1] Čelibići Appeal Judgement, para 717.

[2] Krstić Appeal Judgement, para. 248.

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

377. […] Following the Krstić Appeal Judgement, the Trial Chamber in this case was […] entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts.[1]

380. […] Although his sentence may have been more severe in Rwandan courts, the Trial Chamber acted within its discretion when it imposed a lesser sentence. […]

[1] Krstić Appeal Judgement, paras 262, 270.

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

280. Before turning to Ntabakuze’s specific arguments, the Appeals Chamber recalls that while a Trial Chamber has the obligation to consider any mitigating circumstances when determining the appropriate sentence, it enjoys a considerable degree of discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to that factor.[1] Accordingly, the existence of mitigating circumstances does not automatically imply a reduction of sentence[2] or preclude the imposition of a sentence of life imprisonment where the gravity of the offence so requires.[3]

305. […] In the same vein, the fact that Ntabakuze was the first person before the Tribunal to be sentenced to life imprisonment solely based on superior responsibility does not have any bearing on the reasonableness of the Trial Chamber’s findings on the matter. The Appeals Chamber emphasises that a sentence of life imprisonment is provided for in Rule 101(A) of the Rules irrespective of the mode of liability of which an accused is convicted. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

308. Rule 101(C) of the Rules states that “[c]]redit shall be given to the convicted person 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”. As already held by the Appeals Chamber, this provision does not affect the ability of a Chamber to impose the maximum sentence, as provided in Rule 101(A) of the Rules.[4] The Appeals Chamber therefore dismisses Ntabakuze’s contention that the sentence imposed by the Trial Chamber deprived him of the benefit of any credit based on the period already spent in detention.

[1] See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 424; Bikindi Appeal Judgement, para. 158. See also Munyakazi Appeal Judgement, para. 174.

[2] Nahimana et al. Appeal Judgement, para. 1038; Kajelijeli Appeal Judgement, para. 299; Niyitegeka Appeal Judgement, para. 267.

[3] See, e.g., Ntawukulilyayo Appeal Judgement, fn. 581; Renzaho Appeal Judgement, para. 612; Niyitegeka Appeal Judgement, para. 267.

[4] Karera Appeal Judgement, para. 397.

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Rule 101(C)
ICTY Rule Rule 101(A);
Rule 101(C)
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 NTABAKUZE Aloys
(ICTR-98-41A-A)

298. The Appeals Chamber recalls that while sentences of like individuals in like cases should indeed be comparable,[1] Trial Chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[2] Comparison between cases is thus generally of limited assistance.[3] Any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual,[4] and often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results for every individual.[5] In the same vein, the Appeals Chamber considers that materially different criminal behaviour of different convicted persons may, by measure of its specific gravity, warrant a coincidentally similar punishment.

299. The Appeals Chamber acknowledges that Bagosora and Nsengiyumva were convicted by the Trial Chamber pursuant to Article 6(1) of the Statute.[6] However, it considers that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[7] It also observes that Ntabakuze was convicted on counts of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for events where a substantial number of Tutsi refugees were brutally slaughtered. As to Ntabakuze’s degree of participation in the crimes, it is worth noting that the Trial Chamber found that the massacres for which Ntabakuze was held accountable were “organised military operations which, in such a disciplined and elite unit, only would have occurred following Ntabakuze’s orders or with his authorisation”.[8] Further, the Appeals Chamber notes that the Trial Chamber emphasised the gravity of the Nyanza massacre – an incident for which Bagosora and Nsengiyumva were not convicted – as “one of the most notorious early massacres of the genocide”.[9]

300. In these circumstances, the Appeals Chamber, mindful of the difference in the number and nature of convictions between Ntabakuze on the one hand, and Bagosora and Nsengiyumva on the other hand, finds that Ntabakuze does not demonstrate that the sentence imposed on him by the Trial Chamber was out of reasonable proportion with those it imposed on Bagosora and Nsengiyumva.[10] Ntabakuze’s argument in this respect is therefore rejected.

[1] Milošević Appeal Judgement, para. 326, citing Strugar Appeal Judgement, para. 348; Kvočka et al. Appeal Judgement, para. 681.

[2] See supra, para. 264.

[3] See, e.g., Muvunyi Appeal Judgement of 1 April 2011, para. 72; Rukundo Appeal Judgement, para. 263; Milošević Appeal Judgement, para. 326; Nahimana et al. Appeal Judgement, paras. 1046, 1066; Muhimana Appeal Judgement, para. 232.

[4] Simba Appeal Judgement, para. 336; Strugar Appeal Judgement, para. 348.

[5] See, e.g., Milošević Appeal Judgement, para. 326; Nahimana et al. Appeal Judgement, para. 1046, citing Čelebići Appeal Judgement, para. 719.

[6] The Appeals Chamber notes that these convictions were overturned on appeal. See Bagosora and Nsengiyumva Appeal Judgement, para. 742.

[7] Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 740.

[8] Trial Judgement, para. 2268. See also ibid., paras. 2062, 2065, 2067.

[9] Trial Judgement, para. 2268.

[10] The Appeals Chamber notes that the life sentences imposed on Bagosora and Nsengiyumva by the Trial Chamber were set aside on appeal as a result of the reversal of a number of their convictions. Bagosora and Nsengiyumva were sentenced on appeal to 35 and 15 years of imprisonment, respectively. See Bagosora and Nsengiyumva Appeal Judgement, para. 742.

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

313. The Appeals Chamber has affirmed Ntabakuze’s convictions pursuant to Article 6(3) of the Statute for genocide, extermination and persecution as crimes against humanity, and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II based on the participation of members of the Para-Commando Battalion in the killings perpetrated at Nyanza hill on 11 April 1994 and at IAMSEA around 15 April 1994.

314. The Appeals Chamber recalls, however, that it has reversed Ntabakuze’s convictions pursuant to Article 6(3) of the Statute for preventing the refugees killed at Nyanza hill from seeking sanctuary on 11 April 1994 and, Judges Pocar and Liu dissenting, for the killings perpetrated in Kabeza on 7 and 8 April 1994. It has also found that the Trial Chamber erred in holding Ntabakuze responsible as a superior for the criminal conduct of militiamen. In addition, the Appeals Chamber has reversed Ntabakuze’s convictions for murder as a crime against humanity.

315. The Appeals Chamber, Judges Pocar and Liu dissenting, considers that the reversal of Ntabakuze’s convictions for preventing the refugees killed at Nyanza hill from seeking sanctuary and for the killings perpetrated in Kabeza on 7 and 8 April 1994 results in a reduction of his overall culpability which calls for a reduction of his sentence.

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

302. The Appeals Chamber recalls that the sentence must reflect the gravity of the offences.[1] The determination of the gravity of the offences requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. Further, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates, i.e. the gravity of the crimes committed by the direct perpetrator(s).[3]

303. Regarding Ntabakuze’s degree of responsibility by virtue of his conviction pursuant to Article 6(3) of the Statute, the Appeals Chamber observes that the Statute does not accord any “lesser” form of individual criminal responsibility to superior responsibility. While the Appeals Chamber also acknowledges that, in appropriate cases, a conviction under Article 6(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 6(1) conviction,[4] it reiterates its view that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[5] The Appeals Chamber also recalls the well-established principle of gradation in sentencing, which holds that leaders and planners should bear heavier criminal responsibility than those further down the scale.[6]

305. In light of the foregoing, the Appeals Chamber finds no abuse of discretion in the Trial Chamber’s holding that the gravity of the crimes committed by Ntabakuze warranted similar treatment to those who planned or ordered atrocities as well as the most senior authorities.[7] In the same vein, the fact that Ntabakuze was the first person before the Tribunal to be sentenced to life imprisonment solely based on superior responsibility does not have any bearing on the reasonableness of the Trial Chamber’s findings on the matter. The Appeals Chamber emphasises that a sentence of life imprisonment is provided for in Rule 101(A) of the Rules irrespective of the mode of liability of which an accused is convicted. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

[1] Stakić Appeal Judgement, para. 380; Muhimana Appeal Judgement, para. 234; Ndindabahizi Appeal Judgement, para. 138.

[2] See, e.g., Munyakazi Appeal Judgement, para. 185; Rukundo Appeal Judgement, para. 243; Stakić Appeal Judgement, para. 380; Aleksovski Appeal Judgement, para. 182.

[3] Čelebići Appeal Judgement, para. 732.

[4] Milošević Appeal Judgement, para. 334. Cf. Strugar Appeal Judgement, paras. 353, 354.

[5] See supra, para. 300.

[6] Kalimanzira Appeal Judgement, para. 236.

[7] See Trial Judgement, para. 2270.

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

236. The Appeals Chamber considers that Ntawukulilyayo’s participation in the Kabuye hill massacre constituted his culpable conduct and the fact that he was not found guilty of other crimes or that his criminal conduct was limited in time did not reduce that culpability. […]

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

Footnote 581. […] The Appeals Chamber recalls […] that it has held on several occasions that even where mitigating circumstances exist, a Trial Chamber is not precluded from imposing a life sentence where the gravity of the offence so requires. See Renzaho Appeal Judgement, para. 612; Karera Appeal Judgement, para. 390; Niyitegeka Appeal Judgement, para. 267. […]

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

243. The Appeals Chamber recalls that it has found that the Trial Chamber erred in convicting Ntawukulilyayo of ordering genocide for the killings perpetrated at Kabuye hill. It has nonetheless found no error in the Trial Chamber’s finding that Ntawukulilyayo aided and abetted genocide by instructing the refugees who had gathered at Gisagara market to move to Kabuye hill, and by transporting soldiers to the hill who participated in the attack there.

244. The reversal of Ntawukulilyayo’s conviction for ordering genocide removes the only direct form of responsibility by which he was found to have participated in the Kabuye hill killings. The Appeals Chamber notes that aiding and abetting is a mode of responsibility which has generally warranted lower sentences than forms of direct participation such as committing or ordering.[1] The Appeals Chamber therefore considers that the reversal of Ntawukulilyayo’s conviction for ordering genocide calls for a reduction of his sentence. It notes, nonetheless, that Ntawukulilyayo remains convicted of an extremely serious crime.

245. Taking into account the particular circumstances of this case, the mitigating and aggravating circumstances as found by the Trial Chamber, as well as the form and degree of Ntawukulilyayo’s participation in the crime, the Appeals Chamber reduces Ntawukulilyayo’s sentence of 25 years of imprisonment to 20 years of imprisonment.

[1] See Blagojević and Jokić Appeal Judgement, para. 334; Simić Appeal Judgement, para. 265; Gacumbitsi Appeal Judgement, para. 201 (“The Trial Chamber properly stated the legal principles on which the Prosecution relies. After noting that the crimes committed were very serious, it stated that ‘the penalty should, first and foremost, be commensurate with the gravity of the offence’ and that ‘[s]econdary or indirect forms of participation are generally punished with a less severe sentence.’” (internal citations omitted)); Semanza Appeal Judgement, para. 388 (“The Appeals Chamber recently held in Krstić that ‘aiding and abetting is a form of responsibility which generally warrants lower sentences than responsibility as a co-perpetrator.’ The Appeals Chamber endorses this reasoning to the extent that a higher sentence is likely to be imposed on a principal perpetrator vis-à-vis an accomplice in genocide and on one who orders rather than merely aids and abets exterminations.”); Krstić Appeal Judgement, para. 268; Vasiljević Appeal Judgement, para. 102 (“[a]iding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime.”).

 

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

260. The Appeals Chamber is not persuaded by the Prosecution’s assertion that the Gacumbitsi Appeal Judgement stands for the proposition that where an accused is convicted for genocide and his participation is that of a primary perpetrator or a leader, the sentence ought to be imprisonment for life, except where there are significant mitigating circumstances. The Gacumbitsi Appeal Judgement merely noted that in most of the other cases in which those convicted for genocide have received less than a life sentence, there were significant mitigating circumstances.[1] It made no statement that this was a generalized rule to be followed. Rather, it recalled that the sentence should first and foremost be commensurate with the gravity of the offences and the degree of liability of the convicted person.[2] Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.

261. Furthermore, with respect to the Prosecution’s submission that the Trial Chamber erred in limiting life sentences to certain senior authorities and lower level authorities who committed crimes with particular zeal, the Appeals Chamber considers that the Prosecution misconstrues the Trial Judgement. The Trial Chamber did not limit the imposition of life sentences to these two groups of perpetrators. It merely noted that these were instances in which life sentences had been imposed.[3]

[1] Gacumbitsi Appeal Judgement, para. 204.

[2] Gacumbitsi Appeal Judgement, para. 204.

[3] Trial Judgement, para. 605.

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Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

185. […] While the Appeals Chamber accepts the general importance of deterrence as a consideration in sentencing for international crimes, it concurs with the statement in Prosecutor v. Tadić that “this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal”.[1] An equally important factor is retribution.  This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.  This factor has been widely recognised by Trial Chambers of this International Tribunal as well as Trial Chambers of the International Criminal Tribunal for Rwanda.[2]  Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question[3] and show “that the international community was not ready to tolerate serious violations of international humanitarian law and human rights”.[4]

[1] Ibid.[Tadi} Sentencing Appeal Judgement], para. 48.

[2] “Sentencing Judgement”, Prosecutor v. Erdemović, Case No.: IT-96-22-T, 24 Dec. 1996, para. 64; “Judgement”, Prosecutor v. Delalić et al., Case No.: IT-96-21-T, 16 Nov. 1998, para. 1234;  “Judgement”, Prosecutor v. Furundžija, Case No.: IT-95-17/1-T, 10 Dec. 1998, para. 288;  “Judgement and Sentence”, Prosecutor v. Kambanda, Case No.: ICTR 97-23-S, 4 Sept. 1998, para. 28;  “Sentence”, Prosecutor v. Akayesu, Case No.: ICTR-96-4-S, 2 Oct. 1998, para. 19;  Sentence, Prosecutor v. Serushago, Case No.: ICTR-98-39-S, 5 Feb. 1999, para. 20;  “Judgement and Sentence”, Prosecutor v. Rutaganda, Case No.: ICTR-96-3-T, 6 Dec. 1999, para. 456;  “Judgement and Sentence”, Prosecutor v. Musema, Case No.: ICTR-96-13-T, 27 Jan. 2000, para. 986.

[3] “Sentencing Judgement”, Prosecutor v. Erdemović, 24 Dec. 1996, paras. 64-65.

[4] “Judgement”, Prosecutor v. Kambanda, 4 Sept.1998, para. 28.

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Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

182. […] Consideration of the gravity of the conduct of the accused is normally the starting point for consideration of an appropriate sentence.  The practice of the International Tribunal provides no exception.  The Statute provides that in imposing sentence the Trial Chambers should take into account such factors as the gravity of the offence.[1]  This has been followed by Trial Chambers.  Thus, in the ^elebi}i Judgement, the Trial Chamber said that “[t]he most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence”.[2]  In the Kupreški} Judgement, the Trial Chamber stated that “[t]he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused.  The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime”.[3]  The Appeals Chamber endorses these statements. 

[1] Article 24(2) of the Statute.

[2] ^elebi}i Judgement, para. 1225.

[3] Kupreški} Judgement, para. 852.

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ICTR Statute Article 23 ICTY Statute Article 24
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Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

32. As previously noted in the Dragan Nikolić case, the precedential effect of previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but “also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence”.[2] The reasons for this are clearly set out in the case law of the International Tribunal: (1) such comparison can only be undertaken where the offences are the same and committed in substantially similar circumstances;[3] and (2) a Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[4]

33. In the Jelisić case, in addressing the appellant’s arguments to the effect that he was given a sentence in excess of those rendered in other cases, the Appeals Chamber held the following:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.[5]

In the present case, the Appellant is not alleging that his case falls within a pattern or a line of sentences passed in similar circumstances for the same offences. He only refers to one case which in his view bears some similarities with his own. The finding of the Appeals Chamber in Jelisić was concerned with a comparison with a “line of sentences” and not with a comparison with one single case. Furthermore, the Appeals Chamber emphasises that, as a general principle, comparisons with other cases as an attempt to persuade the Appeals Chamber to either increase or reduce the sentence are of limited assistance: the differences are often more significant than the similarities and the mitigating and aggravating factors dictate different results.[6] In this case, even assuming that the two cases were so similar as to be meaningfully comparable, the Appellant’s sentence is not so out of reasonable proportion with Plavšić’s sentence so as to suggest capriciousness or excessiveness. The Appeals Chamber will therefore not engage in a comparison between these two cases. In light of the foregoing, this part of the Appellant's second ground of appeal is dismissed.

 

[1] Dragan Nikolić Judgement on Sentencing Appeal, para. 19 quoting Čelebići Appeal Judgement, para. 821.

[2] Ibid.

[3] Čelebići Appeal Judgement, para. 720.

[4] Ibid., para. 717.

[5] Jelisić Appeal Judgement, para. 96.

[6] Čelebići Appeal Judgement, para. 719. Dragan Nikolić Judgement on Sentencing Appeal, para. 15.

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

428. The Appeals Chamber recalls that it has reversed Nsengiyumva’s convictions for the killing of Alphonse Kabiligi, as well as the killings at Nyundo Parish, MudendeUniversity, and Bisesero. It has also set aside the finding that Nsengiyumva was responsible for ordering the Gisenyi town killings pursuant to Article 6(1) of the Statute, finding him, Judges Meron and Robinson dissenting, criminally responsible as a superior instead. Consequently, Nsengiyumva’s role as a superior, as well as the large number of Tutsi victims during the course of the attacks at Nyundo Parish, MudendeUniversity, and Bisesero can no longer be held against him as aggravating factors. In addition, the Appeals Chamber has reversed Nsengiyumva’s conviction for murder as a crime against humanity.

429. The Appeals Chamber considers that the reversal of nearly all of Nsengiyumva’s convictions represents a significant reduction in his culpability and calls for a revision of his sentence. The Appeals Chamber notes, however, that Nsengiyumva remains guilty of genocide, extermination, and persecution as crimes against humanity, as well as violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II for the killings perpetrated in Gisenyi town on 7 April 1994. These are extremely serious crimes.

430. Therefore, the Appeals Chamber sets aside Nsengiyumva’s sentence of imprisonment for the remainder of his life and, Judges Meron and Robinson dissenting, sentences him to a term of 15 years of imprisonment.

739. The Appeals Chamber recalls that it has vacated all of Bagosora’s convictions for murder as a crime against humanity under Count 4 of the Bagosora Indictment.[1] It has also reversed Bagosora’s convictions pursuant to Article 6(1) of the Statute for the killing of Augustin Maharangari, and his convictions pursuant to Article 6(3) of the Statute for the killing of Alphonse Kabiligi, the killings of the Belgian peacekeepers murdered before his visit to Camp Kigali, and the killings in Gisenyi town, at Nyundo Parish, and at Mudende University. Furthermore, the Appeals Chamber has set aside the finding that Bagosora was responsible under Article 6(1) of the Statute for ordering crimes committed at Kigali area roadblocks. It has nonetheless found him responsible as a superior pursuant to Article 6(3) of the Statute for those crimes. Finally, the Appeals Chamber has reversed, Judge Pocar dissenting, Bagosora’s conviction for crimes against humanity (other inhumane acts) pursuant to Article 6(3) of the Statute for the defilement of the corpse of Prime Minister Agathe Uwilingiyimana.

740. The Appeals Chamber considers that the fact that Bagosora is no longer found guilty pursuant to Article 6(1) of the Statute does not reduce his culpability. The Appeals Chamber stresses in this regard that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute. However, the Appeals Chamber, Judges Pocar and Liu dissenting, considers that the reversal of Bagosora’s convictions for the killings of the peacekeepers murdered before his visit to Camp Kigali, Augustin Maharangari, Alphonse Kabiligi, and the killings perpetrated in Gisenyi town, at Nyundo Parish, and at Mudende University, as well as for the defilement of the corpse of the Prime Minister result in a reduction of his overall culpability which calls for a reduction of his sentence.

741. The Appeals Chamber, Judges Pocar and Liu dissenting, therefore grants Bagosora’s Sixth Ground of Appeal, sets aside his sentence of imprisonment for the remainder of his life, and sentences him to a term of 35 years of imprisonment.

[1] The Appeals Chamber has affirmed Bagosora’s conviction for murder under Count 5 for the killing of the peacekeepers. See supra, paras. 630, 634.

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

158. The Appeals Chamber reiterates that in assessing the individual circumstances of the accused, the Trial Chamber shall consider aggravating and mitigating circumstances.[1] The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered in mitigation. Rather, what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.[2] The Trial Chamber is endowed with a considerable degree of discretion in making this determination,[3] as well as in deciding how much weight, if any, to be accorded to the mitigating circumstances identified.[4]

[1] See supra [Bikindi’s Notice of Appeal] para. 140.

[2] See Milošević Appeal Judgement, para. 316, citing Simba Appeal Judgement, para. 328; Musema Appeal Judgement, para. 395.

[3] Milošević Appeal Judgement, para. 316, citing Hadžihasanović and Kubura Appeal Judgement, para. 325; Simić Appeal Judgement, para. 245; Čelebići Appeal Judgement, para. 780.

[4] Milošević Appeal Judgement, para. 316, citing Simić Appeal Judgement, para. 258; Kvočka et al. Appeal Judgement, para. 675; Simba Appeal Judgement, para. 328.

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

145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […]

146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […]

148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5]

[1] Bikindi’s Appellant’s Brief, para. 109, citing Nahimana et al. Appeal Judgement, para. 678. See also AT. [Transcript page from Appeal hearings held on 30 September 2009 in Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A] 30 September 2009 pp. 72, 73.

[2] Mrkšić and [ljivančanin Appeal Judgement, para. 375, quoting D. Nikolić Sentencing Appeal Judgement, para. 46; Stakić Appeal Judgement, para. 375. See also Nahimana et al. Appeal Judgement, para. 1060.

[3] See supra [Bikindi’s Appellant’s Brief] para. 141.

[4] See, e.g., Organic Law No. 33bis/2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes, of 6 September 2003 (“Organic Law No. 33bis/2003”), Article 2.

[5] See Organic Law No. 33bis/2003, Article 17(3). The Appeals Chamber observes that whilst it would have been preferable for the Trial Chamber to also refer to Organic Law No. 33bis/2003 in its discussion on the Rwandan law relating to the offence of genocide, its failure to do so does not impact the validity of the Trial Chamber’s overall assessment of Rwanda’s sentencing practice.

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

154. The Appeals Chamber considers that, pursuant to Article 23 of the Statute and Rule 101 of the Rules, the Trial Chamber was not obliged to take into account the sentencing practice of national jurisdictions other than Rwanda. […]

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

142. [the Trial Chamber sentenced Blagojević to 18 years] The Appeals Chamber has reversed Blagojević’s conviction for complicity in genocide on the basis that his knowledge of the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town were insufficient, without knowledge of the mass killings, to allow a reasonable trier of fact to find genocidal intent beyond reasonable doubt. However, the Appeals Chamber has upheld Blagojević’s convictions for aiding and abetting murder as a violation of the laws or customs of war, and aiding and abetting murder, persecutions, and other inhumane acts (forcible transfer) as crimes against humanity. The Appeals Chamber proceeds with the adjustment of Blagojević’s sentence in light of its findings, and in accordance with the requirements of the Statute and the Rules. In light of the circumstances of this case, as well as the gravity of the crimes for which Blagojević is responsible, the Appeals Chamber, taking into account the principle of proportionality, considers that the sentence imposed by the Trial Chamber should be reduced to fifteen years. […]

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

333. The Appeals Chamber has noted that the precedential effect of sentences rendered by the International Tribunal is very limited because: (1) comparisons between sentences can only be undertaken where the offences are the same and committed in substantially similar circumstances; and (2) each Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[1] See paras 334-335 for the specific comparison criteria used in this case.

[1] See Babić Sentencing Appeal Judgement, para. 32 (internal citations omitted); Čelebići Appeal Judgement, paras. 717, 720, 821.

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

339. The Appeals Chamber recalls that “the governing criterion in sentencing is that the sentence should reflect the totality of the offender's conduct (the ‘totality’ rinciple), and that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate.”[1] […]

[1] Mucić et al. Sentencing Appeal Judgement, para. 21.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

212. […] the Appeals Chamber recalls that the Trial Chamber was not bound by FYROM sentencing practices in general or Article 40 of the 1996 FYROM Criminal Code in particular..[1] […]

[1] See Dragan Nikolić Judgement on Sentencing Appeal, para. 84; Tadić Judgement on Sentencing Appeal, para. 21.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

220. The Appeals Chamber finds the fact that the FYROM granted amnesty to others involved in the FYROM-NLA conflict to be irrelevant in the present case, as the Tribunal is not bound by any act of the FYROM granting amnesty to those involved in the FYROM-NLA conflict under Article 24 of the Statute or Rule 101 of the Rules.[1] The Appeals Chamber also notes that the relevant legislature of the FYROM contains a provision that those who committed criminal acts falling within the jurisdiction of the Tribunal are excluded from the grant of amnesty.[2] Hence, Tarčulovski does not show any alleged error of the Trial Chamber in failing to consider whether such amnesty could have had an impact on his sentence.

[1] The Appeals Chamber notes that while the Trial Chamber must consider the sentencing practices in the former Yugoslavia, it is not bound to strict adherence to these practices, which only provide guidance. See Krajišnik Appeal Judgement, para. 749; Hadžihasanović and Kubura Appeal Judgement, para. 335; Galić Appeal Judgement, paras 400-405. See also Prosecution Response Brief, para. 180.

[2] See Ex. P83, Law on Amnesty, Article 1. See also Trial Judgement, paras 238, 243 and 247.

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ICTY Statute Article 24
Notion(s) Filing Case
Judgement on Sentencing Appeal - 02.04.2007 BRALO Miroslav
(IT-95-17-A)

At para. 85, the Appeals Chamber considered the potential impact of mitigating circumstances on the sentence:

85. With regard to the proper method for calculating the impact on a sentence of mitigating circumstances, the Appeals Chamber considers that any modification of sentence needs to be assessed in light of all the circumstances of the case and cannot be limited to a simple mathematical diminution of the sentence otherwise to be imposed. As noted above, the Trial Chamber correctly weighed all circumstances of the case before imposing its final sentence. The Appeals Chamber will only amend a sentence when the sentence 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”.[1] As the ICTR Appeals Chamber has held, it can only use its prerogative to substitute a new sentence “when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal”.[2]

[1] Babić Judgement on Sentencing Appeal, para. 44, Momir Nikolić Judgement on Sentencing Appeal, para. 95; Galić Appeal Judgement, paras 394 and 444.

[2] Gacumbitsi Appeal Judgement, para. 205. See also Galić Appeal Judgement, paras 442 and 455.

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

716. The benefits of such a definitive list [of sentencing guidelines for future reference] are in any event questionable.  Both the Statute (Article 24) and the Rules (Rule 101) contain general guidelines for a Trial Chamber to take into account in sentencing.  These amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances (including substantial co-operation with the Prosecution), the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.[1]  Other than these general principles, no detailed guidelines setting out, for example, what particular factors may be taken into account in mitigation or aggravation of sentence are provided in either the Statute or the Rules.[2]

717. Trial Chambers exercise a considerable amount of discretion (although it is not unlimited) in determining an appropriate sentencing.  This is largely because of the over-riding obligation to individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime.  To achieve this goal, Trial Chambers are obliged to consider both aggravating and mitigating circumstances relating to an individual accused.  The many circumstances taken into account by the Trial Chambers to date are evident if one considers the sentencing judgements which have been rendered.[3]  As a result, the sentences imposed have varied, from the imposition of the maximum sentence of imprisonment for the remainder of life,[4] to imprisonment for varying fixed terms (the lowest after appeal being five years[5]).  Although certain of these cases are now under appeal, the underlying principle is that the sentence imposed largely depended on the individual facts of the case and the individual circumstances of the convicted person.[6]

718. The Appeals Chamber accordingly concludes that it is inappropriate for it to attempt to list exhaustively the factors that it finds should be taken into account by a Trial Chamber in determining sentence.

See also paragraph 780.

[1]    It is also 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 (Rule 101(B)(iv).

[2]    This was also the case with the implementing legislation for the post-World War II trials (including the International Military Tribunals held at Nuremberg and Tokyo). Article 27 of the Nuremberg Charter provided simply that  “the Tribunal shall have the right to impose upon a Defendant on conviction, death or such other punishment as shall be deemed by it to be just” (Emphasis added).  A similar provision is found in Article 16 of the Charter of the International Military Tribunal for the Far East.

[3]    See e.g.: Prosecutor v Tadić, Sentencing Judgement, Case No IT-94-1-Tbis-R117, 11 Nov 1999 para 19 (reference to willingness to commit crimes, awareness and enthusiastic support for the attacks); Prosecutor v Tadić, Sentencing Judgement, Case No IT-94-1-T, 14 July 1997, paras 56-58 (reference in general to cruel and willing manner in which crimes carried out);  Blaškić Judgement, paras 783-787 (reference to motive, number of victims, effect of the crime upon victims). Remorse has been considered in for example, the Blaškić Judgement  at para 775 and Prosecutor v Jelisić, Case No IT-95-10-T, 14 Dec 1999 para 127.

[4]    No sentences of imprisonment for the remainder of life have been imposed by this Tribunal.  However, they have been by the ICTR.  See Kambanda Appeal Judgement; Prosecutor v Rutaganda, Judgement and Sentence, Case No ICTR-96-3-T, 6 Dec 1999;  Prosecutor v Musema, Judgement and Sentence, Case No ICTR-96-13-T, 27 Jan 2000; Prosecutor v Kayishema, Sentence, Case No ICTR-95-1-T, 21 May 2000; and Prosecutor v Akayesu, Sentence, Case No ICTR-96-4-T, 2 Oct 1998.

[5]    In the case of Dra‘en Erdemović.  The sentence of 2 ½ years originally imposed by the Trial Chamber on Zlatko Aleksovski was revised by the Appeals Chamber to seven years.  Other fixed terms include Goran Jelisić, who received 40 years, Tihomir Blaškić, who received 45 years, Anto Furund‘ija, who received ten years (maximum sentence), Duško Tadić, who received 20 years (maximum sentence) and Omar Serushago, who received 15 years.

[6]    Blaškić Judgement, para 765: “The factors taken into account in the various Judgements of the two International Tribunals to assess the sentence must be interpreted in the light of the type of offence committed and the personal circumstances of the accused.  This explains why it is appropriate to identify the specific material circumstances directly related to the offence in order to evaluate the gravity thereof and also the specific personal circumstances in order to adapt the sentence imposed to the accused’s character and potential for rehabilitation.  Notwithstanding this, in determining the sentence, the weight attributed to each type of circumstance, depends on the objective sought by international justice.” Prosecutor v Akayesu, Sentence, Case No ICTR-96-4-T, 2 Oct 1998, para 20:  “It is a matter, as it were, of individualising the penalty.”  Prosecutor v Rutaganda, Judgement and Sentence, Case No ICTR-96-3-T, 6 Dec 1999, para 457; Furund‘ija Appeal Judgement, para 249:  “In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness.”; Prosecutor v Musema, Case No ICTR-96-13-T, 27 Jan 2000, para 987.

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

721. [W]hile the Appeals Chamber does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.  On the other hand, it reiterates that, in determination of sentence, “due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.”[1]

See also paragraphs 719-720.

756. Public confidence in the integrity of the administration of criminal justice (whether international or domestic) is a matter of abiding importance to the survival of the institutions which are responsible for that administration.  One of the fundamental elements in any rational  and fair system of criminal justice is consistency in punishment.  This is an important reflection of the notion of equal justice.  The experience of many domestic jurisdictions over the years has been that such public confidence may be eroded if these institutions give an appearance of injustice by permitting substantial inconsistencies in the punishment of different offenders, where the circumstances of the different offences and of the offenders being punished are sufficiently similar that the punishments imposed would, in justice, be expected to be also generally similar.

757. This is not to suggest that a Trial Chamber is bound to impose the same sentence in the one case as that imposed in another case simply because the circumstances between the two cases are similar.  As the number of sentences imposed by the Tribunal increase, there will eventually appear a range or pattern of sentences imposed in relation to persons where their circumstances and the circumstances of their offences are generally similar.  When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it, in order only to ensure that the sentence it imposes does not produce an unjustified disparity which may erode public confidence in the integrity of the Tribunal’s administration of criminal justice.

758.    At the present time, there does not exist such a range or pattern of sentences imposed by the Tribunal.  The offences which the Tribunal tries are of such a nature that there is little assistance to be gained from sentencing patterns in relation to often fundamentally different offences in domestic jurisdictions, beyond that which the Tribunal gains from the courts of the former Yugoslavia in accordance with Article 24 of the Tribunal’s Statute.  At the present time, therefore, in order to avoid any unjustified disparity, it is possible for the Tribunal to have regard only to those sentences which have been imposed by it in generally similar circumstances as to both the offences and the offenders.  It nevertheless must do so with considerable caution.  As the Appeals Chamber discusses further below[2] comparisons with sentences imposed in other cases will be of little assistance unless the circumstances of the cases are substantially similar.  However, in cases involving similar factual circumstances and similar convictions, particularly where the sentences imposed in those other cases have been the subject of consideration in the Appeals Chamber, there should be no substantial disparity in sentence unless justified by the circumstances of particular accused.

See also paragraph 798.

[1]    Furund‘jia Appeal Judgement, para 237.

[2]    Infra, at para 798.

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

724. The Appeals Chamber reiterates that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.”[1]  Appeal proceedings are rather of a “corrective nature” and, contrary to Land‘o’s submissions, they do not amount to a trial de novo.[2]  Therefore, to the extent that the parties simply resubmit arguments presented at trial without pointing to a particular error, this misconceives the purpose of appellate review on sentence. 

725. The test to be applied in relation to the issue as to whether a sentence should be revised is that most recently confirmed in the Furund‘ija Appeal Judgement.[3]  Accordingly, as a general rule, the Appeals Chamber will not substitute its sentence for that of a Trial Chamber unless “it believes that the Trial Chamber has committed an error in exercising its discretion, or has failed to follow applicable law.”[4]  The Appeals Chamber will only intervene if it finds that the error was “discernible”.[5]  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence,[6] the Appeals Chamber will not intervene. […]

[1]    Prosecutor v Dra‘en Erdemović, Case No IT-96-22-A, Judgement, 7 Oct 1997, para 15.

[2]    Prosecutor v Duško Tadić, Case No IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 Oct 1998, paras 41 - 42.

[3]    Furund‘jia Appeal Judgement, para 239.

[4]    Serushago Sentencing Appeal Judgement, para 32.  See also Aleksovski Appeal Judgement, para 187 and Tadić Sentencing Appeal Judgement, paras 20-22.

[5]    Tadić Sentencing Appeal Judgement, para. 22. Aleksovski Appeal Judgement, para 187.

[6]    Tadić Sentencing Appeal Judgement, para. 20. 

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

771. Rule 101(C) of the Rules of Procedure and Evidence provided at the time relevant to the Trial proceedings in this case that:

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

The choice as to concurrent or consecutive sentencing is therefore a matter within the Trial Chamber’s discretion.  Rule 101(C) has now been removed from the Rules but the discretion of the Trial Chamber in relation to concurrent or consecutive sentencing is preserved in the amended Rule 87(C), which provides that the Trial Chamber will indicate whether separate sentences imposed in respect of multiple convictions shall be served consecutively or concurrently.[1]  However, it is clear that this discretion must be exercised by reference to the fundamental consideration, referred to above, that the sentence to be served by an accused must reflect the totality of the accused’s criminal conduct.  In this respect, the Appeals Chamber agrees with the Prosecution submission that a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes.

[1]    These amendments to the Rules derive from Revision 19, effective 19 January 2001.

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

745. Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence.  This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count.  Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).[1]  The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence. […]

[1]    This observation applies only if the two types of responsibility are not independently charged under different counts, with separate sentences imposed on each.  A different situation may arise of two separate counts against an accused, one alleging Article 7(1) responsibility for direct or accessory participation in a particular criminal incident, and another alleging Article 7(3) responsibility for failure to prevent or punish subordinates for their role in the same incident.  If convictions and sentences are entered on both counts, it would not be open to aggravate the sentence on the Article 7(3) charge on the basis of the additional direct participation, nor the sentence on the Article 7(1) charge on the basis of the accused’s position of authority, as to do so would impermissibly duplicate the penalty imposed on the basis of the same conduct.

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

732. […] As a practical matter, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates.  A failure to prevent or punish murder or torture committed by a subordinate must be regarded as being of greater gravity than a failure to prevent or punish an act of plunder, for example.[1]

See also paragraph 741.

735. It would be incorrect to state that, as a matter of law, responsibility for criminal conduct as a superior is less grave than responsibility as the subordinate perpetrator. […]

[1]    Mucić contends that the Prosecution’s approach indicates that it mischaracterises the offences of a superior as being the “same crime” as that of the subordinate upon which the superior’s offence is based: [Čelebići Case, Response of the Appellant Zdravko Mucić to the Prosecution’s Fourth Ground of Appeal Brief, 17 Sep 1999], para 10.  The Prosecution Brief does contain some references which could be understood in this way: e.g., para 5.24.  The Appeals Chamber’s conclusion, however, is not based on any such reasoning but simply recognises the inevitable relationship between the gravity of the superior’s failure to prevent or punish criminal conduct and the criminal conduct to which that failure relates.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
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816. […] Trial Chambers are not bound by the practice of courts in the former Yugoslavia in reaching their determination of the appropriate sentence for a convicted person.  This principle applies to offences committed both before and after the Tribunal’s establishment. The Appeals Chamber can therefore see no reason why it should constitute a retrospective increase in sentence to impose a sentence greater than what may have been the maximum sentence available under domestic law in the former Yugoslavia at the time the offences were committed.

817. All of this is, however, subject to the proviso that any sentence imposed must always be, as stated by the Trial Chamber, “founded on the existence of applicable law”.[1]  “[T]he governing consideration for the operation of the nullem crimen sine lege principle is the existence of a punishment with respect to the offence.”[2]  There can be no doubt that the maximum sentence permissible under the Rules (“imprisonment for […] the remainder of a convicted person’s life”[3]) for crimes prosecuted before the Tribunal, and any sentence up to this, does not violate the principle of nulla poena sine lege.[4]  There can be no doubt that the accused must have been aware of the fact that the crimes for which they were indicted are the most serious violations of international humanitarian law, punishable by the most severe penalties.[5]

See also paragraphs 813-814.

[1]    [Čelebići] Trial Judgement, para 1210.

[2]    [Čelebići] Trial Judgement, para 1212.  See also the Nuremberg Judgement which found that it is “a principle of justice above all; where there can be do doubt that the defendants knew that they were committing a wrong condemned by the international community, it is not unjust to punish them despite the lack of highly specified international law.”  1 Trial of the Major War Criminals Before the International Military Tribunal, 218-223 (1947).  See Nuremberg Judgement, at 49.  Affirmed in Report of the Sixth Committee, UN GAOR, 1st Sess, pt. 2, 55th Plen mtg at 1144, U.N.Doc. A/236 (1946), GA Res. 95, UN Doc A/64/Add.1 (1946).

[3]    Rule 101(A) of the Rules.

[4]    The European Court of Human Rights has held that as long as the punishment is accessible and foreseeable, then the principle cannot be breached: SW v The United Kingdom and CR v The United Kingdom, Judgement of 22 November 1995, Series A, Vol 335-B, paras 34-36 and 43.

[5]    For example, it is noteworthy that the judgements rendered at Nuremberg and Tokyo and the other successor tribunals provide clear authority for custodial sentences up to and including life imprisonment (Nineteen defendants were convicted before the Nuremberg Tribunal, out of which seven received sentences of imprisonment ranging from ten years to life imprisonment).  Similarly, sentences in national jurisdictions of up to life imprisonment for crimes of the nature being prosecuted before the Tribunal are clearly recognised as being available.

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

397. The Appeals Chamber […] dismisses the Appellant’s claim that the sentence deprived him of the benefit of any credit based on the period already spent in detention. Rule 101(C) of the Rules states that “[c]redit shall be given to the convicted person 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”. This provision does not affect the ability of a Chamber to impose the maximum sentence, as provided by Rule 101(A) of the Rules.

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Judgement on Sentencing Appeal - 08.04.2003 MUCIĆ et al. (Čelebići)
(IT-96-21-Abis)

12.     Where the nature of the error demonstrated is such that the Appeals Chamber is replacing the sentence with another which, in its view, the original Trial Chamber should have imposed, further evidence will not ordinarily be admitted.[1]  Such a course was followed by the Appeals Chamber in Prosecutor v Aleksovski,[2] in which the prosecution successfully argued that the sentence imposed by the Trial Chamber was manifestly inadequate because it gave insufficient weight to the gravity of the accused’s conduct and failed to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7.1 of the Statute. Without hearing the parties further and without further evidence, the Appeals Chamber was able to revise the sentence imposed by increasing it.

13.     In Prosecutor v Kupreškić,[3] the Appeals Chamber had admitted additional evidence in the appeal by the appellant Vladimir Šantić against his conviction.  It reduced the sentence imposed upon that appellant because (i) the Trial Chamber in sentencing him had erroneously taken into account a fact which had not been established, (ii) the additional evidence on conviction demonstrated that Šantić had now, at least in part, accepted his guilt, and (iii) he had provided substantial co-operation to the prosecution after his conviction.  The Appeals Chamber stressed the absence of any de novo review, and it did not suggest that the appellant’s late acceptance of his guilt would have been admissible had it not become apparent from evidence otherwise admissible in the appeal.  The last consideration (co-operation after conviction) is expressly made relevant to sentencing by Rule 101(B)(ii), despite the absence of a de novo review of sentence.  The Appeals Chamber held that evidence of such co-operation was thereby made admissible, in appropriate cases, in a sentence appeal.[4]  The Appeals Chamber also held that, as all relevant information was already before it, it was unnecessary to remit the matter to a Trial Chamber,[5] having earlier stated that it had power to remit to a Trial Chamber the hearing of additional evidence which had been tendered pursuant to Rule 115.[6]  No other evidence falling within Rule 101(B) was adduced before the Appeals Chamber.

[1]   No distinction need be drawn between the term “revise” in Article 25 and the concept of re-sentencing.

[2]   Prosecutor v Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000 (“Aleksovski Appeal Judgment”), paras 187, 190.

[3]   Prosecutor v Kupreškić et al, IT-95-16-A, Appeal Judgment, 23 Oct 2001 (“Kupreškić Appeal Judgment”), paras 463 465.

[4]   Kupreškić Appeal Judgment, para. 463.  Rule 101(B) relevantly provides:  “In determining the sentence, the Trial Chamber shall take into account […] such factors as […] any mitigating circumstances including substantial cooperation with the Prosecutor by the convicted person before or after conviction […].”  None of the appellants has suggested that he wished to tender evidence of co-operation with the Prosecutor.

[5]   Kupreškić Appeal Judgment, para. 462.

[6]   Kupreškić Appeal Judgment, para. 70.

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

The Trial Chamber sentenced Milošević to 33 years of imprisonment.

333. The Appeals Chamber recalls that it overturned Milošević’s convictions for planning the crimes of terror, murder and inhumane acts on the basis that his responsibility for ordering the relevant crimes pursuant to Article 7(1) of the Statute fully encompasses his criminal conduct and does not warrant a separate conviction for planning the same crimes.[1] In this context, where the findings with respect to Milošević’s criminal conduct and the seriousness of the crimes remain undisturbed, the Appeals Chamber finds that no reduction of sentence is warranted.

334. In addition, the Appeals Chamber has vacated Milošević’s convictions under Article 7(1) with respect to crimes committed through sniping incidents and replaced them with convictions pursuant to Article 7(3) of the Statute.[2] The Appeals Chamber acknowledges that in appropriate cases, a conviction under Article 7(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 7(1) conviction.[3] However, in this particular case, the Appeal Chamber finds that its conclusions with respect to the form of Milošević’s responsibility for the crimes at stake do not in any way diminish his active and central role in the commission of the crimes.[4] Indeed, Milošević did more than merely tolerate the crimes as a commander; in maintaining and intensifying the campaign of shelling and sniping the civilian population in Sarajevo throughout the Indictment period, he provided additional encouragement to his subordinates to commit the crimes against civilians. Therefore, no reduction of sentence is warranted on this basis either.

335. [The Appeals Chamber reversed Milošević’s convictions for three shelling incidents] […] Although these findings do not change the fact that the entire population of Sarajevo was the victim of the crime of terror committed under Milošević’s command, they do involve fewer victims of the crimes of murder and other inhumane acts imputable to Milošević under counts 5 and 6 of the Indictment. The Appeals Chamber thus finds that these reversals have an impact, although limited, on Milošević’s overall culpability.

337. Taking into account the particular circumstances of this case, the gravity of the crimes for which Milošević’s convictions have been upheld, and the quashing of the convictions outlined above, the Appeals Chamber concludes that Milošević’s sentence should be reduced to a term of imprisonment of 29 years.

[1] See supra, Section XI.A.2.(b), para. 274.

[2] See supra, Section XI.A.2.(d), para. 281.

[3] Cf. Strugar Appeal Judgement, paras 353-354.

[4] Cf. Hadžihasanović and Kubura Appeal Judgement, para. 320, referring to Aleksovski Appeal Judgement, para. 183, where the Appeals Chamber held as follows:

[…] As warden of a prison he took part in violence against the inmates. The Trial Chamber recognised the seriousness of these offences but stated that his participation was relatively limited. In fact, his superior responsibility as a warden seriously aggravated the Appellant’s offences. Instead of preventing it, he involved himself in violence against those whom he should have been protecting, and allowed them to be subjected to psychological terror. He also failed to punish those responsible. […] The combination of these factors should, therefore, have resulted in a longer sentence and should certainly not have provided grounds for mitigation. 

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

326. Regarding the comparison with the sentence imposed on Galić on appeal, the Appeals Chamber recalls that “sentences of like individuals in like cases should be comparable”.[1] However, similar cases do not provide “a legally binding tariff of sentences”.[2] While the Appeals Chamber does not discount the assistance that may be drawn from previous decisions, such assistance is often limited, as each case contains a multitude of variables.[3] Differences between cases are often more significant than similarities and different mitigating and aggravating circumstances might dictate different results.[4]

[1] Strugar Appeal Judgement, para. 348, referring to Kvočka et al. Appeal Judgement, para. 681.

[2] Strugar Appeal Judgement, para. 348, referring to Jelisić Appeal Judgement, para. 96; D. Nikolić Judgement on Sentencing Appeal, para. 16.

[3] Strugar Appeal Judgement, para. 348: “a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another”. See also, e.g., Blagojević and Jokić Appeal Judgement, para. 333; Stakić Appeal Judgement, para. 381; Kvočka et al. Appeal Judgement, para. 681; Čelebići Appeal Judgement, para. 721; Nahimana et al. Appeal Judgement, para. 1046.

[4] See, e.g., Limaj et al. Appeal Judgement, para. 135, citing D. Nikolić Judgement on Sentencing Appeal, para. 19. 

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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
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297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant 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.[2]

[1] Mrkšić and Šljivančanin Appeal Judgement, para. 352; Strugar Appeal Judgement, para. 336; Hadžihasanović and Kubura Appeal Judgement, para. 302.

[2] See, e.g., Mrkšić and Šljivančanin Appeal Judgement, para. 353; Martić Appeal Judgement, para. 326; Strugar Appeal Judgement, paras 336-337. 

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

775. It is well established that, at the Tribunal and at the ICTR, retribution and deterrence are the main objectives of sentencing.[1] As to retribution, the Appeals Chamber has explained that “[t]his is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes”;[2] retribution should be seen as  

an objective, reasoned and measured determination of an appropriate punishment which properly reflects the […] culpability of the offender, having regard to the international risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.[3] 

Thus, retribution has to be understood in the more modern sense of “just desert” and the punishment has to be proportional to the gravity of the crime and the guilt of the accused.[4] The Trial Chamber was clearly aware of these principles.[5]

776. With respect to deterrence, a sentence should be adequate to discourage an accused from recidivism (individual deterrence) as well as to ensure that those who would consider committing similar crimes will be dissuaded from doing so (general deterrence).[6] Whether a sentence provides sufficient deterrence cannot be divorced from the gravity of the criminal conduct at hand. In other words, if the sentence is too lenient in comparison to the gravity of the criminal conduct, then it will not properly achieve the objective of deterrence.[7]

77. Thus, both retribution and deterrence include a reference to proportionality with the criminal conduct. Further, the Appeals Chamber is of the view that a sentence proportional to the gravity of the criminal conduct will necessarily provide sufficient retribution and deterrence. As recognised by the Prosecution, “a Trial Chamber’s duty is to impose punishment proportionate to the gravity of the crimes and the individual culpability of the accused. In this way, the sentencing principles of retribution and deterrence are met.”[8] The Appeals Chamber concludes that the Prosecution’s assertions with respect to the objectives of retribution and deterrence in fact collapse into its arguments that the sentence imposed was not proportionate to the gravity of Krajišnik’s conduct. The Appeals Chamber will now consider those arguments.

See also “De novo sentence on appeal” under “Other issues of particular interest” below.

[1] Nahimana et al. Appeal Judgement, para. 1057; Stakić Appeal Judgement, para. 402; Deronjić Judgement on Sentencing Appeal, paras 136-137; Kordić and Čerkez Appeal Judgement, para. 1074; Čelebići Appeal Judgement, para. 806. In the case at hand, the Trial Chamber duly noted that the objective of rehabilitation was less important than those of retribution and deterrence: Trial Judgement, para. 1138. 

[2] Aleksovski Appeal Judgement, para. 185.

[3] Kordić and Čerkez Appeal Judgement, para. 1075, citing R. v. M. (C.A.), [1996] 1 S.C.R. 500, para. 80 (emphasis in original).

[4] Kordić and Čerkez Appeal Judgement, para. 1075, citing with approval Erdemović 1996 Sentencing Judgement, para. 65.

[5] Trial Judgement, para. 1135.

[6] Dragan Nikolić Judgement on Sentencing Appeal, para. 45; Kordić and Čerkez Appeal Judgement, paras 1076-1078. The Trial Chamber duly took notice of these principles: Trial Judgement, paras 1136-1137.

[7] Similarly, a sentence should not be disproportionately severe in comparison to the criminal conduct at hand just to ensure maximum deterrence, as this would be unfair and contrary to the basic principle that an accused must be punished solely on the basis of his or her wrongdoing. It is in this sense that the Appeals Chamber has stated that the objective of deterrence should not be given undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal: Kordić and Čerkez Appeal Judgement, para. 1078; Dragan Nikolić Judgement on Sentencing Appeal, para. 46; Čelebići Appeal Judgement, para. 801; Aleksovski Appeal Judgement, para. 185; Tadić Judgement on Sentencing Appeal, para. 48.  

[8] Prosecution’s Appeal Brief, para. 15.

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
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Although the Appeals Chamber has quashed the majority of Krajišnik’s convictions, it decided not to remand the case for retrial and to determine the appropriate sentence for the remaining convictions itself (paras 797-801). In so doing, the Appeals Chamber took into account the following factors: retribution, deterrence, rehabilitation, individual and affirmative prevention, the general practice regarding prison sentences in the courts of the former Yugoslavia, the gravity of the crime(s) of the totality of an accused’s conduct, and the individual circumstances of an accused (paras 802-817).

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

At paras 13 to 18, the Appeals Chamber recalled its previous case-law that there is no sentencing scale at the ICTY. It then stated:

19. The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances,[2] when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime,[3] with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo,[4] and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[5]

See also Limaj Appeal Judgement, para. 135.

[1] Čelebići Appeal Judgement, para. 821.

[2] Ibid., para. 720.

[3] Ibid., para. 717.

[4] Furundžija Appeal Judgement, para. 40; Čelebići Appeal Judgement, para. 203.

[5] Tadić Judgement in Sentencing Appeals, para. 22. See also Blaskić Appeal Jugdement, para. 680. See supra para. 9.

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Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan
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21. With regard to the Appellant’s submission that the Trial Chamber violated the principle of proportionality, the Appellant’s argument is that the Trial Chamber did so by equating his offences and the position in which he was placed “to that of the likes of the ICTR Defendants”.[1] The Appellant referred to paragraph 126 of the Sentencing Judgement, whereby the Trial Chamber indeed made clear that it would adhere to this principle. The Appeals Chamber finds that the principle of proportionality, in the Trial Chamber’s consideration, means that the punishment must be “proportionate to the moral blameworthiness of the offender”[2] and requires that “other considerations such as deterrence and societal condemnation of the acts of the offender” be taken into account.[3] The principle of proportionality referred to by the Trial Chamber by no means encompasses proportionality between one’s sentence and the sentence of other accused. As correctly noted by the Trial Chamber, the principle of proportionality implies that “[a] sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender”.[4] It appears that the Appellant misunderstands what the principle of proportionality encompasses.[5]

[1] Appellant's Brief, para. 117.

[2] Canadian Supreme Court decision in R. v. Martineau (R. v. Martineau, [1990] 2 S.C.R. 633, p. 645), cited at footnote 161 of the Sentencing Judgement.

[3] Canadian Supreme Court decision in R. v. Arkell (R. v. Arkell, [1990] 2 S.C.R. 695, p. 704), cited at footnote 161 of the Sentencing Judgement.

[4] Sentencing Judgement, para. 144, referring to para. 414 of the Akayesu Appeal Judgement.

[5] Asked by the Presiding Judge, at the Appeal Hearing, whether his reference to the principle of proportionality involved proportionality with sentences in other cases and proportionality between the circumstances of the crimes and the sentence rendered, Counsel for the Appellant replied that the principle encompasses both. However, he made no submission in respect of the latter.

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Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan
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At paras 44-47, the Appeals Chamber endorsed the definition of individual deterrence retained in the Trial Judgement and discussed the effects of such factor on sentencing:

44. At paragraphs 134 and 135 of the Sentencing Judgement, the Trial Chamber held:

134. Individual and general deterrence has an important function in principle and serves as an important goal of sentencing.[1]

135. Individual deterrence refers to the specific effect of the sentence upon the accused which should be adequate to discourage him from re-offending once the sentence has been served and he has been released. The Trial Chamber finds, however, that individual deterrence has no relevance in this case.

45. The Appeals Chamber adheres to the definition of individual deterrence provided by the Trial Chamber.[2] The rationale behind individual deterrence is that the sentence should be adequate to discourage an accused from recidivism after the sentence has been served and he has been released. The rationale behind general deterrence is very similar: “the penalties imposed by the International Tribunal must […] have sufficient deterrent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so.”[3]

46. The Appeals Chamber reiterates that the principle of deterrence is “a consideration that may legitimately be considered in sentencing”[4] but that, in any case, “this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal”.[5] While it is undisputed that the element plays “an important role in the functioning of the Tribunal”,[6] the Trial Chamber’s duty remains to tailor the penalty to fit the individual circumstances of the accused and the gravity of the crime.[7] By doing so, Trial Chambers contribute to the promotion of and respect for the rule of law and respond to the call from the international community to end impunity, while ensuring that the accused are punished solely on the basis of their wrongdoings and receive a fair trial.

47. The Appeals Chamber therefore does not see how the Trial Chamber erred in the exercise of its discretion in imposing the sentence in this case. The Trial Chamber did consider the principle of deterrence as a fundamental principle to take into consideration when imposing a sentence[8] and correctly understood the scope of individual deterrence.[9] The Appeals Chamber considers that the Trial Chamber, in finding that individual deterrence does not apply, could have briefly referred to the reasons why it does not, so as to inform the Appellant, but was under no obligation to do so. Furthermore, it seems that the Appellant misunderstood the effect of the principle of deterrence at sentencing. He alleges that he was entitled to “benefit” from individual deterrence and treats this argument under his ground of appeal related to the alleged error of the Trial Chamber in its consideration of the mitigating factors. As shown above, individual deterrence is not a mitigating factor; it instead is a sentencing factor which, when relevant, is considered in imposing a penalty to enhance, but not to reduce, a sentence. A finding of a Trial Chamber that individual deterrence does not apply cannot therefore prejudice an accused.

[1] Stakić Trial Judgement, para. 900.

[2] This definition has also been adopted in the Deronjić Sentencing Judgement, para. 145.

[3] Todorović Sentencing Judgement, para. 30.

[4] Tadić Judgement in Sentencing Appeals, para. 48 (emphasis added).

[5] Ibid., cited with approval in the Aleksovski Appeal Judgement, para. 185.

[6] Čelebići Appeal Judgement, para. 800, citing with emphasis paragraph 72 of the Tadić Jurisdiction Decision, which reads: “In adopting resolution 827, the Security Council established the International Tribunal with the stated purpose of bringing to justice persons responsible for serious violations of international humanitarian law in the former Yugoslavia, thereby deterring future violations and contributing to the re-establishment of peace and security in the region.”

[7] Čelebići Appeal Judgement, para. 717.

[8] Sentencing Judgement, para. 132.

[9] Ibid., para. 135.

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

80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle [of lex mitior] applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction”,[1] and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply.[2] The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal. 

81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide. 

82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person’s life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges.

83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment. 

84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia.[3]  It has merely to take it into consideration.  Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal’s judges.  In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal’s statute, States could then prevent their citizens from being properly sentenced by this Tribunal.  This is not compatible with the International Tribunal’s primacy enshrined in Article 9(2) of the Statute and its overall mandate.

85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported.

[1] Ibid., para. 163.

[2] Ibid., paras 164-165.

[3] See Tadić Sentencing Appeal Judgement, para. 21. See supra para. 69.

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

97. The Appeals Chamber notes that the Trial Chamber, by imposing a sentence of 23 years, clearly – although not expressly – entered into a calculation to reflect the practice of the International Tribunal of granting early release after the convicted person has served two-thirds of his sentence:[1] the term of 15 years clearly amounts to two-thirds of the sentence it effectively rendered. The Appeals Chamber considers that the Trial Chamber mechanically – not to say mathematically – gave effect to the possibility of an early release. By doing so, it attached too much weight to the possibility of an early release. As a consequence, the Appeals Chamber (Judge Shahabuddeen dissenting) finds that a reduction of sentence shall be granted.

(See also Judge Shahabuddeen’s Dissenting Opinion)

[1] Prosecutor v. Miroslav Tadić, Case No. IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić, 24 June 2004, para. 4: “[…] the eligibility for pardon or commutation of sentence in the enforcement states generally ‘starts at two-thirds of the sentence served’. It has been a consistent practice of this Tribunal to apply this standard when determining the eligibility of persons imprisoned at the UNDU for pardon or commutation of sentence.” 

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

[1] Article 24 of the Statute and Rule 101(A) of the Rules.

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ICTR Statute Article 23 ICTY Statute Article 24 ICTR Rule Rule 101(A) ICTY Rule Rule 101(A)
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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

253. Guilt or innocence is a question to be determined prior to sentencing.  In the event that an accused is convicted, or an Appellant’s conviction is affirmed, his guilt has been proved beyond reasonable doubt.  Thus a possibility of innocence can never be a factor in sentencing.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

The Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.                                                        

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1]  In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3]  In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement.  In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from  both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter.  It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes. 

[1] Notably the Tadić Sentencing Judgement and the Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997.

[2] Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, para. 20.

[3] Although the Tadić Sentencing Appeal Judgement was pronounced prior to the oral hearings in this case, counsel for the Appellant did not change this line of argument.

[4] Tadić Sentencing Appeals Judgement, para. 69 (emphasis added). Further argument in support of this view was set out in the Separate Opinion of Judge Shahabuddeen in that same judgement.  See also Prosecutor v. Duško Tadić, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robinson, in which Judge Robinson expressed the view that there is no basis for “the conclusion that, as a matter of principle, crimes against humanity are more serious violations of international humanitarian law than war crimes” (ibid., p.10) and Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li, in which Judge Li stated “that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another”.  Ibid., para. 19.

[5] Aleksovski Appeals Judgement,  para. 111.  See also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, para. 92.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

249.    In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness.  While acts of cruelty that fall within the meaning of Article 3 of the Statute will, by definition, be serious, some will be more serious than others. […]  

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

380. The factors that a Trial Chamber is obliged to take into account in sentencing a convicted person are provided for in Article 23 of the Statute and Rule 101 of the Rules.  Those factors are: the general practice regarding prison sentences in the courts of Rwanda;  the gravity of the offence; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; and 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.  This list is not exhaustive;  it was held by the Appeals Chamber of ICTY that it is inappropriate for it “to attempt to list exhausitively the factors that  […] should be taken into account by a Trial Chamber in determining sentence”.[1]

[1] Čelebići Appeal Judgement, para. 718;  Furundžija Appeal Judgement, para. 238.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

381.   In Tadić, the Appeals Chamber of ICTY also considered the relative position of a convicted person in a command structure to be a relevant factor in determining sentence.  In that case, the Appeals Chamber considered that, while Tadic’s criminal conduct was “incontestably heinous”,  his level in the command structure in comparison to his superiors was low”,[1]  and consequently, the sentence passed by the Trial Chamber was excessive.[2]  In subsequent ICTY Appeals Chamber decisions, the need to establish a gradation of sentencing has been endorsed.[3]  In the Čelebići appeal, the Appeals Chamber held that:

[e]stablishing a gradation does not entail a low sentence for all those in a low level of the overall command structure.  On the contrary, a sentence must always reflect the inherent level of gravity of a crime … the gravity of the crime may be so great that even following consideration of any mitigating factors, and despite the fact that the accused was not senior in the so-called overall command structure, a very severe penalty is nevertheless justified.[4]

382.   It went on to state that “while the Appeals Chamber has determined that it is important to establish a gradation in sentencing, this does not detract from the finding that it is as essential that a sentence take into account all the circumstances of an individual case”.[5]  It follows that the jurisprudence of ICTY acknowledges the existence of a general principle that sentences should be graduated, that is, that the most senior levels of the command structure should attract the severest sentences, with less severe sentences for those lower down the structure.  This principle is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence.[6]

383.   As to whether this principle should be applicable to the Trial Chambers of this Tribunal, as a general principle, this Appeals Chamber agrees with the jurisprudence of ICTY that the most senior members of a command structure, that is, the leaders and planners of a particular conflict, should bear heavier criminal responsibility than those lower down the scale, such as the foot soldiers carrying out the orders.  But this principle is always subject to the crucial proviso that the gravity of the offence is the primary consideration of a Trial Chamber in imposing sentence; if the offence is serious enough, a Trial Chamber should not be precluded from imposing a severe penalty upon the accused, just because he is not at a high level of command.

[1] Ibid., para. 56.

[2] The sentences imposed by the Trial Chamber, which ranged from 6 to 25 years, were revised, and a sentence of 20 years’ imprisonment was passed in respect of each count, to be served concurrently.

[3] See Čelebići Appeal Judgement, para. 849, and Aleksovski Appeal Judgement, para. 184.

[4] Čelebići Appeal Judgement, para. 847.

[5] Čelebići Appeal Judgement, para. 849.

[6] Čelebići Appeal Judgement, para. 731; Aleksovski Appeal Judgement, para. 182; Krstić Trial Judgement, para. 698; Todorović Trial Judgement, para. 31; Kupreskić Trial Judgement, para. 852; and Čelebići Trial Judgement, 1225.

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Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

75.     Finally, the Appeals Chamber will consider the Prosecution submission on the Trial Chamber’s findings in paragraphs 75 and 77 of the Judgment relating to whether or not a distinction must be made between the principal offender and the other participants in a joint criminal enterprise when determining the sentence. The Trial Chamber considered that such a distinction was not necessary when assessing the maximum sentence to be passed on each individual.[1] It emphasised that the sentence should reflect the serious nature of the acts whatever their classification and that there were circumstances in which a participant in a joint criminal enterprise might deserve a higher sentence than the principal offender.[2] It also stated that the acts of a participant in a joint criminal enterprise are more serious than those of an aider and abettor to the principal offender since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent. The Appeals Chamber considers that the Prosecution did not show those findings to be erroneous.

[1] Judgment, paras. 74 and 75.

[2] Judgment, paras. 75 to 77.

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Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

The Prosecution argued that the Trial Chamber erred in deciding that Krstić deserved a lesser sentence than other perpetrators of the crimes of which Krstić had been found guilty whose guilt was not adjudicated in the case. The Prosecution argued that by elevating this factor to a “pivotal” level, the Trial Chamber failed to give appropriate consideration to Krstić’s individual responsibility. (para. 253).

254. The Appeals Chamber agrees that Radislav Krstić’s guilt should have been assessed on an individual basis. The Appeals Chamber further agrees that the comparative guilt of other alleged co-conspirators, not adjudicated in this case, is not a relevant consideration. The Appeals Chamber does not, however, share the Prosecution’s interpretation of the Trial Judgement.[1] The Trial Chamber was entitled to consider the conduct of Krstić in the proper context, which includes the conduct of any alleged co-perpetrators. A comprehensive understanding of the facts of a particular case not only permits a consideration of the culpability of other actors; indeed, it requires it in order to accurately comprehend the events in question and to impose the appropriate sentence.[2] While the wording of the Trial Judgement may be misleading, the Trial Chamber did not consider the allegedly higher culpability of others in an inappropriate way.

[1] Ibid. [Prosecution Appeal Brief, 14 November 2001, para. 4.91].

[2] The Tribunal has recognised the practice of ‘gradation of sentence’; cf. the Aleksovski Appeal Judgement, para. 184.

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

414. […] 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.”  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. 

See also paras 410-413.

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

681. Sentences of like individuals in like cases should be comparable and, in this regard, the Appeals Chamber “does not discount the assistance that may be drawn from previous decisions rendered”.[1] Indeed, the Appeals Chamber has observed that a sentence may be considered “capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences”.[2] The underlying question is whether the particular offences, the circumstances in which they were committed, and the individuals concerned can truly be considered “like”. Any given case contains a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual. Often, too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another. Hence the Appeals Chamber has previously stated that:

While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant that the similarities, and the mitigating and aggravating factors dictate different results.[3]

Thus, while comparison with other sentences may be of assistance, such assistance is often limited.[4] For these reasons, previous sentences imposed by the Tribunal and the ICTR are but one factor to be taken into account when determining the sentence.[5]

[1] Čelebići Appeal Judgement, para. 721.

[2] Jelisić Appeal Judgement, para. 96.

[3] Čelebići Appeal Judgement, para. 719. See also Furund‘ija Appeal Judgement, para. 250.

[4] Čelebići Appeal Judgement, para. 721.

[5] Krstić Appeal Judgement, para. 248. 

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

135. The Appeals Chamber recalls its findings in Dragan Nikolić on the question of guidance that may be provided by previous sentences rendered before the International Tribunal:

The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited” but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances, when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified.  Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo, and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[1]

[1] Dragan Nikolić Judgement on Sentencing Appeal, para. 19 (internal quotations omitted).

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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 - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

97. The Appeals Chamber notes that Rule 111 expressly states that “[a]n Appellant’s brief shall contain all the argument and authorities.”[1] Although Rule 114 provides that “the Appeals Chamber may rule on… appeals based solely on the briefs of the parties”,[2] it also states that it can decide to hear the appeal in open court. It is intended that each party should advise the Appeals Chamber in full of all the arguments upon which they it wishes to rely in relation to each ground of appeal, through both written filings and orally.

98. However, in the case of errors of law, the arguments of the parties do not exhaust the subject. It is open to the Appeals Chamber, as the final arbiter of the law of the Tribunal, to find in favour of an Appellant on grounds other than those advanced: jura novit curia. Since the Appeals Chamber is not wholly dependent on the arguments of the parties, it must be open to the Chamber in proper cases to consider an issue raised on appeal even in the absence of substantial argument. The principle that an appealing party should advance arguments in support of his or her claim is therefore not absolute: it cannot be said that a claim automatically fails if no supporting arguments are presented.

[1] NOTE: AT THE TIME OF THE PRESENT JUDGEMENT RULE 111 PROVIDED: “An Appellant's brief shall contain all the argument and authorities. It shall be served on the other party and filed with the Registrar within thirty days of the filing of the Appellant's brief.” AS A RESULT OF AMENDMENTS ON 5-6 JULY 2002, IT PROVIDED: “An Appellant’s brief setting out all the arguments and authorities shall be filed within seventy-five days of filing of the notice of appeal pursuant to Rule 108.” AS OF JULY 2013, THIS FORMULATION REMAINS UNCHANGED IN RULE 111(A).

[2] NOTE: AT THE TIME OF THE PRESENT JUDGEMENT RULE 114 PROVIDED: “After the expiration of the time-limits for filing the briefs provided for in Rules 111, 112 and 113, the Appeals Chamber may rule on such appeals based solely on the briefs of the parties, unless it decides to hear the appeal in open court. The Registrar shall notify the parties accordingly.” AS A RESULT OF AMENDMENTS ON 5-6 JULY 2002, IT PROVIDED: “After the expiry of the time-limits for filing the briefs provided for in Rules 111, 112 and 113, the Appeals Chamber shall set the date for the hearing and the Registrar shall notify the parties.”

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ICTY Rule Rule 111
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Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

117. Rule 101(B) is expressed in the imperative in that the Trial Chamber “shall take into account” the factors listed and therefore, if it does not, it will commit an error of law. Whether or not this would invalidate the decision is of course another question.

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Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

102. The Appeals Chamber notes that nothing in the Statute or Rules expressly states that a Chamber must impose a separate sentence for each count on which an accused is convicted. However, in view of the references in Rule 101(C) to “multiple sentences”, and to “consecutively or concurrently”, it may be argued that the Rules seem to assume that a separate sentence will be imposed for each count.

103. The Appeals Chamber finds in this regard that the Statute is sufficiently liberally worded to allow for a single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the Chamber. The Appeals Chamber upholds the argument of the Prosecution that a Chamber is not prevented from imposing a global sentence in respect of all counts for which an accused has been found guilty.[1]

109. It is thus apparent that it is within the discretion of the Trial Chamber to impose either a single sentence or multiple sentences for convictions on multiple counts. However, the question arises, in what circumstances is it appropriate for a Chamber to exercise its discretion to impose a single sentence.

110. On this point, the Appeals Chamber notes that with respect to the particular circumstances of the Blaškić case, ICTY Trial Chamber I stated that

the crimes ascribed to the accused have been characterised in several distinct ways but form part of a single set of crimes committed in a given geographic region during a relatively extended time-span … In light of this overall consistency, the Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.

This followed similar reasoning in the Jelisić case.[2]

111. The Appeals Chamber agrees with the approach adopted in the Blaškić case: where the crimes ascribed to an accused, regardless of their characterisation, form part of a single set of crimes committed in a given geographic region during a specific time period, it is appropriate for a single sentence to be imposed for all convictions, if the Trial Chamber so decides. The issue is whether this case falls within such parameters.

See also paras. 104–108.

[1] Prosecutor’s Response [Prosecution’s Response to Jean Kambanda’s Provisional Appellant’s Brief of 30 March 2000”, 2 May 2002], at para. 4.164.

[2] “Judgement”, The Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, T. Ch. I, 14 December 1999, para. 137.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

238. Finally, the Appeals Chamber is not persuaded by the Prosecution’s reading of the Gacumbitsi Appeal Judgement and its relevance to this case. Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of a sentence of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.[1]

[1] Gacumbitsi Trial Judgement, paras. 224, 325. The Trial Chamber found that Gacumbitsi had exhibited particular sadism and that there were no significant mitigating circumstances. He was found to be a “primary player” and “a leader in the commune who used his power to commit the brutal massacre and rape of thousands.” See Gacumbitsi Appeal Judgement, para. 204. The Appeals Chamber noted that, although not every individual convicted of genocide or extermination has been sentenced to life imprisonment, Gacumbitsi’s case was not comparable to the cases where a fixed term of imprisonment has been imposed. See Gacumbitsi Appeal Judgement, paras. 204, 205, n. 446.

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Prosecution argued that the Trial Chamber committed an error by failing to impose a sentence reflecting the gravity of the crimes and of the Appellant’s degree of criminal culpability, and submits that the Trial Chamber should have considered the Appellant as one of the most serious offenders, deserving the highest penalty available at the Tribunal (para. 200).

The Appeals Chamber held that it was an abuse of discretion for the Trial Chamber to issue a sentence of only thirty years under the circumstances of the case:

205. The Appeals Chamber is, as noted above, fully cognizant of the margin of discretion to which Trial Chambers are entitled in sentencing. This discretion is not, however, unlimited. It is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal. This is such a case. The Appeals Chamber concludes that in light of the massive nature of the crimes and the Appellant’s leading role in them, as well as the relative insignificance of the purported mitigating factors, the Trial Chamber ventured outside its scope of discretion by imposing a sentence of only thirty years’ imprisonment. The Appeals Chamber therefore upholds this sub-ground of the Prosecution’s appeal.

Based on this and other errors, it quashed the sentence and entered a life sentence.

See paras 200-206.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

662. The Appeals Chamber recalls that expressions of regret may be considered in mitigation, provided they are expressed sincerely.[1] The Trial Chamber did not consider the statements by Sredoje Lukić’s counsel to be expressions of remorse of the kind contemplated by law, but took “these statements into account as expressions of sympathy and compassion for the suffering of the victims of the crimes”.[2] The Trial Chamber found that in light of the gravity of the crimes, “the statements are not substantial enough to warrant great weight being placed upon them as a mitigating factor”.[3] Sredoje Lukić has not shown that the Trial Chamber erred in this respect.

[1] Vasiljević Appeal Judgement, para. 177; Sikirica et al. Sentencing Judgement, paras 152, 194, 230; Todorović Sentencing Judgement, paras 89-92; Erdemović Sentencing Judgement, para. 16(iii).

[2] Trial Judgement, para. 1094.

[3] Trial Judgement, para. 1094. See also Trial Judgement, para. 1098.

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

In the present case, the Appeals Chamber found, by majority, Judge Pocar partially dissenting and Judge Meron dissenting, that “the sentence of only 20 years was so unreasonable and plainly unjust, in that it underestimated the gravity of Galić’s criminal conduct, that it is able to infer that the Trial Chamber failed to exercise its discretion properly.” (para. 455).

For a full account of the Appeals Chamber’s discussion, see paras 444-456.

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

The Trial Chamber found that the accused had expressed his remorse and took this into account as mitigating circumstance. Momir Nikolić argued on appeal that the Trial Chamber had not accepted his statement as “sincere expression of remorse”.

The Appeals Chamber found that the mere finding of the Trial Chamber that his expression of remorse was a mitigating circumstance is “in itself a confirmation that the Trial Chamber considered the Appellant’s remorse to be sincere, as only a ‘real and sincere’ expression of remorse constitutes a mitigating circumstance.” (para. 117).

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ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)
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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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Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

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

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Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

237. The Appeals Chamber notes that the practice of the Tribunal with regard to sentencing is still in its early stages.  Several sentences have been handed down by different Trial Chambers but these are now subject to appeal.  Only three final sentencing judgements have been delivered: one by a Trial Chamber established for sentencing purposes following a successful appeal by the accused in Erdemović,[1] and the others by the Appeals Chamber in Tadić and Aleksovski,[3] each of which has resulted in a revision of the sentence imposed by the original Trial Chamber.  It is thus premature to speak of an emerging “penal regime”,[4] and the coherence in sentencing practice that this denotes.  It is true that certain issues relating to sentencing have now been dealt with in some depth; however, still others have not yet been addressed.  The Chamber finds that, at this stage, it is not possible to identify an established “penal regime”.  Instead, due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.

[1] Second Erdemović Sentencing Judgement.

[2] Tadić Sentencing Appeals Judgement.

[3] Aleksovski Appeals Judgement.

[4] Even including a decision from the ICTR Appeals Chamber (Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, 6 Apr. 2000, which affirmed the sentence imposed by a Trial Chamber), the number of final sentencing decisions from two Tribunals is limited to four. 

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

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

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

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

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

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Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

101. Finally, Nshogoza does not demonstrate how the Trial Chamber erred in imposing a custodial sentence to express its disapproval of his conduct. Such considerations are well within the Trial Chamber’s discretion to tailor appropriate sentences to individual cases. 

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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

408.    Given the “considerable amount of discretion” vested in the Trial Chamber, the question arises as to what role the Appeals Chamber should play in the consideration of an appeal against sentence, that is in the instant case, the penalty imposed by the Trial Chamber on Akayesu. In this instance, this Appeals Chamber will follow the test which has recently been upheld by ICTY Appeals Chamber as the appropriate test:

The Appeals Chamber reiterates that “the appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.” Appeal proceedings are rather of a corrective nature and, […] they do not amount to a trial de novo

[…].

The test to be applied in relation to the issue as to whether a sentence should be revised is that moist recently confirmed in the Furundzija Appeal Judgment.  Accordingly, as a  general rule,  the Appelas Cahmber will not substitute its sentence for that of a Trial Chamber unless it believes that the Trial Chamber has committed an error in exercising its discretion or has failed to follow applicable law.” The Appeals Chamber will only intervene if it finds that the error was “discernible.”  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence, the Appeals Chamber will not intervene. [1]

409.    Consequently, before the Appeals Chamber is able to revise a sentence or substitute its own sentence for the one imposed by the Trial Chamber, it must be shown that the Trial Chamber ventured outside discretion in imposing sentence.

[1] Celebici Appeal Judgment, paras. 724 and 725, citing respectively (footnote omitted): Erdemovic Appeal Judgment, para .15; Tadic Decision (Additional Evidence ), paras. 41 and 42;  Furundzija Appeal Judgment, para. 239; Serushago Appeal against Sentence Judgment, para. 32; Tadic Appeal against Sentence, para. 22; and Aleksovski  Appeal Judgment, para. 187; Tadic Appeal against Sentence, para 20.    

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

151. […] The Appeals Chamber reiterates that the Trial Chamber is only obliged to have regard to the gravity of the crimes for which an accused has been convicted, and the form or degree of responsibility for these crimes. […]

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

352.    […] The Appeals Chamber recalls that the […] gravity of the offence is the primary consideration in imposing sentence.[1] […]

See also para. 363.

[1] Čelebići Appeal Judgement, para. 731.

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

367.    […] The Appeals Chamber remarks that there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are “serious violations of international humanitarian law”,[1] capable of attracting the same sentence. The actual sentence imposed depends, of course, upon the evaluation of the various factors referred to in the Statute and the Rules. The Appeals Chamber finds that the Trial Chamber’s description of genocide as the “crime of crimes” was at the level of general appreciation, and did not impact on the sentence it imposed. Furthermore, upon examining the statements of the Trial Chamber, it is evident that the primary thrust of its finding as to the gravity of the offences relates to the fact that genocide in itself is a crime that is extremely grave. Such an observation is correct, and for these reasons, there was no error in its finding on this point.

[1] Article 1 of the Statute.

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

368.    Kayishema submits that a complete and objective analysis of the facts of the case will show that he is not guilty of the crimes alleged, and that in these circumstances, the Trial  Chamber has committed both an error of law and of fact in handing down a sentence for guilt which does not exist.[1]

369.    A similar, though not identical issue, was raised in the appellate proceedings in the case of Anto Furundžija before ICTY. In that case, the Appellant submitted that there were “substantive issues that hang over the case”, suggesting that innocence is a possibility and that that should be considered in sentencing. ICTY Appeals Chamber rejected such a submission, finding that:

[g]uilt or innocence is a question to be determined prior to sentencing. In the event that an accused is convicted, or an Appellant’s conviction is affirmed, his guilt has been proved beyond reasonable doubt. Thus a possibility of innocence can never be a factor in sentencing.[2]

370.    Similarly in this case, a Trial Chamber cannot commit an error by sentencing an accused for crimes for which it has found that he is guilty beyond a reasonable doubt. […]

[1] Kayishema’s Notice of Appeal, p. 10.

[2]Furundžija’s Appeal Judgement, para. 253.

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

335.    The Appeals Chamber notes that a Trial Chamber is required, as a matter of law, under both the Statute and the Rules, to take into account aggravating and mitigating circumstances. Therefore, if it fails to do so, it commits an error of law. Article 23(2) of the Statute provides, inter alia, that in imposing sentence, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

336.    Rule 101(B) of the Rules is binding in that the Trial Chamber “shall take into account” the factors listed. Therefore, if it does not, it will be committing an error of law. The Appeals Chamber must first examine whether or not the Trial Chamber considered these factors.[1] Second, it must consider whether or not it properly took them into account.[2]

337.    In considering the issue of whether a sentence should be revised, the Appeals Chamber notes that the degree of discretion conferred on a Trial Chamber is very broad. As a result, the Appeals Chamber will not intervene in the exercise of this discretion, unless it finds that there was a “discernible error”[3] or that the Trial Chamber has failed to follow the applicable law.[4] In this regard, it confirms that the weighing and assessing of the various aggravating and mitigating factors in sentencing is a matter primarily within the discretion of the Trial Chamber. Therefore, as long as a Trial Chamber does not venture outside its “discretionary framework”[5] in imposing a sentence, the Appeals Chamber shall not intervene.

338.    The burden rests on the Appellants to “show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules.”[6]

[…]

352.    […] The Appeals Chamber recalls that the degree of discretion conferred on a Trial Chamber in the area of sentencing is broad, and that the gravity of the offence is the primary consideration in imposing sentence.[7] Furthermore, as noted above, a Trial Chamber must consider the individual circumstances of the accused, as well as the aggravating and mitigating factors; weighing these factors is a task primarily within its discretion. The Appeals Chamber will not intervene in this exercise unless there has been an abuse of discretion. […]

See also paras. 363 and 366.

[1] Kambanda Appeal Judgement, para. 122.

[2] Ibid., paras. 122 and 123.

[3] Aleksovski Appeal Judgement, para. 187.

[4] Serushago Sentencing Appeal Judgement, para. 32. See also Aleksovski Appeal Judgement, para. 187, and Tadić Sentencing Appeal Judgement, paras. 20 and 22.

[5] Tadić Sentencing Appeal Judgement, para. 20.  See also Čelebići Appeal Judgement, para. 775 (“…a decision as to the weight to be accorded to such acts in mitigation of sentence lies within the discretion of the Trial Chamber. In the absence of a finding that the Trial Chamber abused its discretion in imposing a sentence outside its discretionary framework as provided by the Statute and Rules, this argument must fail.”) (citing Kambanda Appeal Judgement, para. 124).

[6] Kambanda Appeal Judgement, para. 115.

[7] Čelebići Appeal Judgement, para. 731.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

3404.            The Appeals Chamber notes that nothing precludes a trial chamber from imposing a term of life imprisonment when the gravity of the offence so requires,[1] and that neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment.[2] The Appeals Chamber considers that Ntahobali’s submissions concerning the enforcement of his sentence are speculative. Furthermore, the Appeals Chamber observes that sentence enforcement issues were not matters for the Trial Chamber and that, as such, there can be no error on behalf of the Trial Chamber in this respect. His arguments concerning pardon, commutation of sentence, and early release are therefore dismissed.

3405.            The Appeals Chamber further dismisses Ntahobali’s contention that the absence in the Residual Mechanism Statute of a mandatory review of his life sentence after a fixed period would violate his fundamental rights. The Appeals Chamber observes that Ntahobali will retain the possibility to directly petition the President of the Residual Mechanism for pardon, commutation of sentence, or early release.[3]

[…]

3517.            The Appeals Chamber also dismisses Ndayambaje’s claim that imposing a single life sentence deprived him of the benefit of any credit based on the period already spent in detention and that the Trial Chamber erred in failing to provide a reasoned opinion in this regard. Rule 101(C) of the Rules states that “[c]redit shall be given to the convicted person 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”. This provision, however, does not affect the ability of a trial chamber to impose the maximum sentence, as provided for by Rule 101(A) of the Rules.[4]

[1] See Rule 101(A) of the Rules; Ntawukulilyayo Appeal Judgement, fn. 581; Munyakazi Appeal Judgement, para. 186, quoting Rukundo Appeal Judgement, para. 260 (“there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated.”).

[2] See Stakić Appeal Judgement, para. 395.

[3] See Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the ICTR, the ICTY or the Mechanism, MICT/3, 5 July 2012, para. 3.

[4] See Karera Appeal Judgement, para. 397.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

3449.            The Appeals Chamber observes that the gravity of the crime of direct and public incitement to commit genocide derives from that of the crime of genocide, a crime of the most serious gravity.[1] The Trial Chamber found that Nteziryayo committed direct and public incitement to commit genocide on three separate occasions.[2] Accordingly, the Appeals Chamber considers that, regardless of whether or not deaths resulted from his statements, the imposition of a sentence of 30 years of imprisonment was not beyond the Trial Chamber’s sentencing discretion.

[1] Cf. Bikindi Appeal Judgement, para. 208.

[2] See Trial Judgement, paras. 6022-6029, 6036.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

The Appeals Chamber recalled: (i) its findings that the Trial Chamber erred in finding that Nyiramasuhuko, Ntahobali, and Ndayambaje’s right to be tried without undue delay had not been violated, and that these violations caused them prejudice; and (ii) that it had reversed some of their convictions. The Appeals Chamber then held as follows:

3523.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Nyiramasuhuko’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3526.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ntahobali’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3538.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ndayambaje’s sentence of life imprisonment to 47 years of imprisonment.

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