Failure to individualise the sentence
|Appeal Judgement - 23.01.2014||
ŠAINOVIĆ et al.
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. However, although the Trial Chamber acknowledged that the crimes attributed to each individual were not entirely identical, 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 and identified differences in the conduct and roles of Šainović, Pavković, and Lukić in executing the common purpose of the JCE. Nonetheless, it imposed identical sentences on the three, simply because they were convicted on the basis of the same mode of liability. 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, the Trial Chamber erred in declining to individualise the sentences it imposed.
 Trial Judgement, vol. 3, para. 1205.
 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”).
 Trial Judgement, vol. 3, paras 1180-1204.
 See Trial Judgement, vol. 3, paras 285-477 (Šainović), 636-790 (Pavković), 936-1140 (Lukić).
 Trial Judgement, vol. 3, paras 1205, 1208, 1210, 1212.
 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.