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

412. […] [T]his Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other. 

413. Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld.  Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.

See also paragraphs 403-411.

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

582. [I]f the defendant raises the issue of lack of mental capacity, he is challenging the presumption of sanity by a plea of insanity.  That is a defence in the true sense, in that the defendant bears the onus of establishing it – that, more probably than not, at the time of the offence he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong.[1]  Such a plea, if successful, is a complete defence to a charge and it leads to an acquittal.  It is submitted by Landžo that Rule 67(A)(ii) has also made diminished mental responsibility a complete defence to any charge (or has perhaps recognised it as such),[2] an argument which the Trial Chamber had accepted.[3]

The Appeals Chamber examined in paragraphs 583, 585-588 the ICTY Statute and Rules of Procedure and Evidence, the English Homicide Act of 1957, the partial defence of diminished responsibility that originated in Scotland in the 19th century, Article 31(1)(a) of the ICC Statute, and the relevant penal laws in many other countries.

590. […] The Appeals Chamber accepts that the relevant general principle of law upon which, in effect, both the common law and the civil law systems have acted is that the defendant’s diminished mental responsibility is relevant to the sentence to be imposed and is not a defence leading to an acquittal in the true sense.  This is the appropriate general legal principle representing the international law to be applied in the Tribunal.  Rule 67(A)(ii)(b) must therefore be interpreted as referring to diminished mental responsibility where it is to be raised by the defendant as a matter in mitigation of sentence.  As a defendant bears the onus of establishing matters in mitigation of sentence, where he relies upon diminished mental responsibility in mitigation, he must establish that condition on the balance of probabilities – that more probably than not such a condition existed at the relevant time.

[1]    M’Naghten’s Case (1843) 10 Cl & Fin 200 at 210-211; 4 St Tr (NS) 847 at 930-931.

[2]    Landžo Brief, pp 85, 102; Appeal Transcript, p 590.

[3]    [Čelebići] Trial Judgement, para 1164.

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

533. […] [T]he Appeals Chamber notes that a Trial Chamber exercises considerable discretion in deciding on issues of admissibility of evidence.  As a result, a Trial Chamber should be afforded a certain degree of deference in making decisions based on the circumstances of the case before it.  To this extent the Appeals Chamber agrees with the Prosecution submissions on this point during the hearing on appeal.[1]  Nevertheless, the Appeals Chamber recalls that it also has the authority to intervene to exclude evidence, in circumstances where it finds that the Trial Chamber abused its discretion in admitting it. Indeed the Appeals Chamber has intervened in the past to do so.[2]  In these decisions, the Appeals Chamber confirmed that a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and that it must be shown that the relevant evidence is reliable.  If evidence is admitted and an appellant can subsequently show that prejudice has been caused by a failure by the Trial Chamber to properly apply such protections, then it may be found that the Trial Chamber has erred and exceeded its discretion.  This is when Rule 89(D) and Rule 95 of the Rules may come into play and in these circumstances a ground of appeal may succeed.

[1]    Appeal Transcript, pp 475–476. The Prosecution submits that “[…] in making […] determination of this final matter, the Trial Chamber is required to weigh all the facts in evidence before it, and in some cases involving issues of this kind, it may be required to receive evidence and hear witnesses, and so in accordance with general principles, it would be necessary to afford a considerable margin of deference to the finding of the Trial Chamber, and it would only be where the decision of the Trial Chamber could be shown to be an abuse of discretion that there would be justification in the Appeals Chamber intervening on appeal.”

[2]    See for example: Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No IT-95-14/2-AR73.5, 21 July 2000; Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Case No IT-95-14/2-AR73.6, 18 Sept 2000; The Prosecutor v Kupreškić et al, Decision on Appeal by Dragan Papić Against Ruling to Proceed by Deposition, Case No IT-95-16-AR73.3, 15 July 1999.

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ICTY Rule Rule 89(D)
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

538. […] The Appeals Chamber recalls that reference to principles applied in national jurisdictions can be of assistance to both Trial Chambers and the Appeals Chamber in interpreting provisions of the Statute and the Rules.[1]  However, Rule 89(A) of the Rules expressly provides that the Chambers “shall not be bound by national rules of evidence.”  What is of primary importance is that a Trial Chamber “apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”[2]  The Appeals Chamber notes that the Trial Chamber found that implicit in this principle was “the application of national rules of evidence by the Trial Chamber.”[3]  On the contrary, the Appeals Chamber confirms that rules of evidence as expressly provided in the Rules should be primarily applied, with the assistance of national principles only if necessary for guidance in the interpretation of these Rules.

[1]    See for example, Furundžija Appeal Judgement, paras 183-188; Aleksovski Appeal Judgement, para 186.

[2]    Rule 89(B) of the Rules.   Although strictly speaking this relates to “cases not otherwise provided for” in Section 3 of the Rules (the title being “Rules of Evidence”) nevertheless, the general principle is important.  See Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Case No IT-95-14/2-AR73.6, 18 Sept 2000, para 22.  See also [Čelebići Case, Prosecution’s Appeal Brief, 2 July 1999], paras 12.11 and 16.11.

[3]    [Čelebići Case, Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, 2 Sept 1997], para 34.

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ICTR Rule Rule 89(A) ICTY Rule Rule 89(A)
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

498. The Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial.  It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible.  Small inconsistencies cannot suffice to render the whole testimony unreliable. […]

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

113. In light of the object and purpose of the Geneva Conventions, which is to guarantee the protection of certain fundamental values common to mankind in times of armed conflict, and of the customary nature of their provisions,[1] the Appeals Chamber is in no doubt that State succession has no impact on obligations arising out from these fundamental humanitarian conventions.  In this regard, reference should be made to the Secretary-General’s Report submitted at the time of the establishment of the Tribunal, which specifically lists the Geneva Conventions among the international humanitarian instruments which are “beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise”.[2]  The Appeals Chamber finds further support for this position in the Tadić Jurisdiction Decision.[3]

[1]    Article 158, para 4, of Geneva Convention IV provides that the denunciation of the Convention “shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience”.  Further, Article 43 of the 1969 Vienna Convention on the Law of Treaties entitled “Obligations imposed by international law independently of a treaty” provides: “The invalidity, termination, or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation […] shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty”.

[2]    Secretary-General’s Report, para 34.

[3]    [Prosecutor v Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995], paras 79-85.

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

122. This Appeals Chamber is of the view that there is no reason why interlocutory decisions of the Appeals Chamber should be considered, as a matter of principle, as having any lesser status than a final decision on appeal.  The purpose of an appeal, whether on an interlocutory or on a final basis, is to determine the issues raised with finality.[1]

[1]    It is noted that the Appeals Chamber in Aleksovski did not draw any distinction between the authoritative nature of its interlocutory and final decisions.

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

47. The Trial Chamber’s finding is also consistent with the holding of the Appeals Chamber in Tadić that “[w]here the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold”.[1]  The “overall control” test could thus be fulfilled even if the armed forces acting on behalf of the “controlling State” had autonomous choices of means and tactics although participating in a common strategy along with the “controlling State”.

[1]    Tadić Appeal Judgement, para 140.

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ICTR Statute Article 4 ICTY Statute Article 2
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

583. [T]here is no reference to any defence of diminished mental responsibility in the Tribunal’s Statute.  The description of diminished mental responsibility as a “special defence” in Rule 67(A)(ii) is insufficient to constitute it as such.  The rule-making powers of the judges are defined by Article 15 of the Tribunal’s Statute, which gives power to the judges to adopt only –

[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.[1]

The Appeals Chamber has held that this power does not permit rules to be adopted which constitute new offences, but only rules of procedure and evidence for the conduct of matters falling within the jurisdiction of the Tribunal.[2]  It follows that there is, therefore, no power to adopt rules which constitute new defences.  If there is a “special defence” of diminished responsibility known to international law, it must be found in the usual sources of international law – in this case, in the absence of reference to such a defence in established customary or conventional law, in the general principles of law recognised by all nations.[3]

 

[1]    The emphasis has been added.

[2]    Prosecutor v Tadić, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, para 24.

[3]    [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704, 3 May 1993 (“Secretary-General’s Report”)], para 58.

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ICTR Statute Article 14 ICTY Statute Article 15
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

655. The qualifications for judges of the Tribunal are stated in Article 13 of the Tribunal’s Statute: 

Article 13

Qualifications and election of judges

The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices.  In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.[1]

This provision is not stated in terms of qualification for election as judges, but rather in terms of continuous application (“The judges shall be […]”).  If, for example, a judge of the Tribunal were to be found guilty of some offence committed during his or her term of office which demonstrated a lack of high moral character or integrity, it could hardly be suggested that such a judge remained qualified within the terms of Article 13 simply because he or she was qualified at the time of election.  The Appeals Chamber accepts that a judge must remain qualified within the meaning of Article 13 throughout his or her term of office.

[…]

659. In the opinion of the Appeals Chamber, any interpretation of Article 13 must take into account the restriction imposed by Article 12 of the Statute, that no two judges may be nationals of the same State.  The Statute envisages that judges from a wide variety of legal systems would be elected to the Tribunal, and that the qualifications for appointment to the highest judicial offices in those systems would similarly be widely varied.  The intention of Article 13 must therefore be to ensure, so far as possible, that the essential qualifications do not differ from judge to judge.  Those essential qualifications are character (encompassing impartiality and integrity), legal qualifications (as required for appointment to the highest judicial office) and experience (in criminal law, international law, including international humanitarian law and human rights law).  Article 13 was not intended to include every local qualification for the highest judicial office such as nationality by birth or religion, or disqualification for such high judicial office such as age.  Nor was Article 13 intended to include constitutional disqualifications peculiar to any particular country for reasons unrelated to those essential qualifications.

[1]    This was the form of Article 13(1) of the Statute at the relevant time.  It has since been amended by Security Council Resolution 1329, 30 Nov 2000, so that the opening sentence commences:  “The permanent and ad litem judges shall be persons of high moral character […]”.

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ICTR Statute Article 12 ICTY Statute Article 13
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research.  Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems.  The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy.[1]  The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.[2]

626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep.[3]  […]

[…]

630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party.[4]  In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted[5] – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed.  However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing.[6]  If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way.  The complaining party must prove the relevant prejudice by clear evidence.[7]  Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.[8]

631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put.[9]  Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings.[10]  The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established.  Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.[11]

632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense.  It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given.  It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.[12]

633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist.  Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges.  Rule 15bis(A) states: 

If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.

Although this rule was not in force at the time of the Čelebići trial proceedings,[13] the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.

[…]

637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial,[14] with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]

638. […] The Appeals Chamber does not accept that this was the correct approach.  In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite

[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive.  The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].[15]

See also paragraphs 640-649.

 

[1]    Cases relating to jurors alleged to have been asleep during a trial are included in the present consideration.

[2]    [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A (“Čelebići Case”), Supplemental Brief of the Appellant, Esad Landžo, in Support of the Fourth Ground of Appeal (Sleeping Judge), 7 December 1999], pp 7-8; [Čelebići Case, Respondent’s Brief of the Prosecution in Relation to Esad Landžo’s Fourth Ground of Appeal, 28 Jan 2000], para 3.3.

[3]    R v Caley [1997] WCBJ 1714 (British Columbia Supreme Court), at para 25 (to grant relief on the basis of the inattention of the judge there must be “clear and overwhelming evidence”); Sanborn v Commonwealth 975 SW 2d 905 (1998), at 911 (Supreme Court of Kentucky); Commonwealth v Keaton, 36 Mass App Ct 81 (1994), at 87; Bundesgerichtshof, Vol 11, p 74, Judgement of 22 November 1957 (German Federal Supreme Court of Justice); Bundesverwaltungsgericht, Judgement of Supreme Administrative Court, 24 Jan 1986 at para 12; [1986] Neue Juristiche Wochenschrift 2721, at 2721; Illinois v McCraven 97 Ill App 3d 1075 (1981) (Appellate Court of Illinois), at 1076; People v Thurmond 175 Cal App 3d 865 (1985) (Court of Appeal, 2d District), at 874; Commonwealth Bank of Australia v Falzon [1998] VSCA 79, para 10 (Supreme Court of Victoria, Court of Appeal).

[4]    R v Moringiello [1997] Crim LR 902; R v Edworthy [1961] Crim LR 325; R v Tancred 14 April 1997, Court of Appeal (Criminal Division); Kozlowski v City of Chicago 13 Ill App 513 (the fact that a juror fell asleep during proceedings, absent an affirmative showing of prejudice to the complainant, is not a ground for a new trial); State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio) (must be a showing of “material prejudice”).

[5]    See, in Germany, the Strafprozeßordnung, which provides by Article 338 (1) that an absolute ground for revision of a judgement is that the trial court was not constituted as provided.  Article 338 (1) may be violated where a judge or lay assessor is asleep or otherwise “absent”.

[6]    Bundesverwaltungsgericht (Supreme Administrative Court) Judgement of 24 January 1986, [1986] Neue Juristiche Wochenschrift 2721, at 2721; Bundesgerichtshof (Federal Supreme Court of Justice) Vol 2, p 14, Judgement of 23 November 1951.

[7]    State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio); United States of America v White and Keno 589 F 2d 1283 (1979) (Court of Appeals, 5th Circuit), at 1289.

[8]    Ferman v Estwing Manufacturing Company, 31 Ill App 3d 229, at 233.

[9]    See, e.g., Espinoza v The State of Texas, Tex App Lexis 5343, Judgement of 21 July 1999.

[10]   Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106 (Queensland Court of Appeal), at 113.

[11]   The Chicago City Railway Company v John Anderson 193 Ill 9 (1901), at 13.

[12]   Bundesgerichtshof (Federal Supreme Court of Justice) Vol 11 p 74, 22 November 1957, at 77:  “There are numerous matters of behaviour and other circumstances by which a judge may give the impression to participants, especially to a defendant who is a layman in law, that he did not pay attention to a part of the events of the proceedings.  Such an impression can even be made by actions to which the judge is legally obliged [sic]”.

[13]   It was adopted at the Twenty-first Plenary Session, 15-17 Nov 1999, (Revision 17 of the Rules) and entered into force on 7 Dec 1999.  The words “or for reasons of authorised Tribunal business” were inserted by Revision 19 of the Rules, with effect from 19 Jan 2001.

[14]   Appeal Transcript, p 692.

[15]   Kraska v Switzerland, Case No 90/1991/342/415, Judgement of 19 April 1993, para 32.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Esad Landžo alleged that he was the subject of a selective prosecution policy conducted by the Prosecution.

601. Article 16 of the Statute entrusts the responsibility for the conduct of investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991 to the Prosecutor.  Once a decision has been made to prosecute, subject to the requirement that the Prosecutor be satisfied that a prima facie case exists, Article 18 and 19 of the Statute require that an indictment be prepared and transmitted to a Judge of a Trial Chamber for review and confirmation if satisfied that a prima facie case has been established by the Prosecutor.  Once an indictment is confirmed, the Prosecutor can withdraw it prior to the initial appearance of the accused only with the leave of the Judge who confirmed it, and after the initial appearance only with the leave of the Trial Chamber.[1]

602. In the present context, indeed in many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction.  It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted.  It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments.  This is acknowledged in Article 18(1) of the Statute, which provides: 

The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations.  The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.

It is also clear that a discretion of this nature is not unlimited.  A number of limitations on the discretion entrusted to the Prosecutor are evident in the Tribunal’s Statute and Rules of Procedure and Evidence.

603. The Prosecutor is required by Article 16(2) of the Statute to “act independently as a separate organ of the International Tribunal”, and is prevented from seeking or receiving instructions from any government or any other source.  Prosecutorial discretion must therefore be exercised entirely independently, within the limitations imposed by the Tribunal’s Statute and Rules.  Rule 37(A) provides that the Prosecutor “shall perform all the functions provided by the Statute in accordance with the Rules and such Regulations, consistent with the Statute and the Rules, as may be framed by the Prosecutor.”

604. The discretion of the Prosecutor at all times is circumscribed in a more general way by the nature of her position as an official vested with specific duties imposed by the Statute of the Tribunal.  The Prosecutor is committed to discharge those duties with full respect of the law.  In this regard, the Secretary-General’s Report stressed that the Tribunal, which encompasses all of its organs, including the Office of the Prosecutor, must abide by the recognised principles of human rights.[2]

605. One such principle is explicitly referred to in Article 21(1) of the Statute, which provides:

All persons shall be equal before the International Tribunal. 

This provision reflects the corresponding guarantee of equality before the law found in many international instruments, including the 1948 Universal Declaration of Human Rights,[3] the 1966 International Covenant on Civil and Political Rights,[4] the Additional Protocol I to the Geneva Conventions,[5] and the Rome Statute of the International Criminal Court.[6]  All these instruments provide for a right to equality before the law, which is central to the principle of the due process of law.  The provisions reflect a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law.  Thus Article 21 and the principle it embodies prohibits discrimination in the application of the law based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin.  The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.

606. This reflects principles which apply to prosecutorial discretion in certain national systems.  In the United Kingdom, the limits on prosecutorial discretion arise from the more general principle, applying to the exercise of administrative discretion generally, that the discretion is to be exercised in good faith for the purpose for which it was conferred and not for some ulterior, extraneous or improper purpose.[7]  In the United States, where the guarantee of equal protection under the law is a constitutional one, the court may intervene where the accused demonstrates that the administration of a criminal law is “directed so exclusively against a particular class of persons […] with a mind so unequal and oppressive” that the prosecutorial system amounts to “a practical denial” of the equal protection of the law.[8]

607. The burden of the proof rests on Landžo, as an appellant alleging that the Prosecutor has improperly exercised prosecutorial discretion, to demonstrate that the discretion was improperly exercised in relation to him.  Landžo must therefore demonstrate that the decision to prosecute him or to continue his prosecution was based on impermissible motives, such as race or religion, and that the Prosecution failed to prosecute similarly situated defendants.

[1]    Rule 51(A).

[2]    Secretary-General’s Report, para 106.

[3]    Article 7 provides: “All are equal before the law and are entitled without any discrimination to equal protection of the law.  All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

[4]    Article 14 provides: “[a]ll persons shall be equal before the courts and tribunals […].” Article 26 provides explicitly that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

[5]    Article 75 (fundamental guarantees) provides in para 1: “Insofar as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria.”

[6]    Article 21(3) provides “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”

[7]    R v Inland Revenue Commissioners, ex parte Mead and Cook, [1993] 1 All ER 772.  It has also been accepted in Australia that there may be a principle pursuant to which proof of a selective prosecution may give rise to some relief, including, for example, the exclusion of evidence:  Hutton v Kneipp [1995] QCA 203.

[8]    Yick Wo v Hopkins 118 US 356, 373 (1886); United States v Armstrong 517 US 456, 464-465 (1996).

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84. Applying the principle enunciated in Aleksovski, the Appeals Chamber sees no cogent reasons in the interests of justice to depart from the Tadić Appeal Judgement. The nationality of the victims for the purpose of the application of Geneva Convention IV should not be determined on the basis of formal national characterisations, but rather upon an analysis of the substantial relations, taking into consideration the different ethnicity of the victims and the perpetrators, and their bonds with the foreign intervening State.

See also paragraphs 64-83.

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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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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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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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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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