Remorse / Regret
|Judgement on Sentencing Appeal - 08.03.2006||
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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).
|ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)|
|Appeal Judgement - 17.07.2008||
365. In order to be a factor in mitigation, the remorse expressed by an accused must be genuine and sincere. The Appeals Chamber recalls that it has previously held that an accused can express sincere regrets without admitting his participation in a crime. In such circumstances, remorse nonetheless requires acceptance of some measure of moral blameworthiness for personal wrongdoing, falling short of the admission of criminal responsibility or guilt. This follows from the ordinary meaning of the term remorse as well as the approach taken in the few cases where expressions of remorse made by accused who maintained their innocence have been accepted in mitigation.
366. However, beyond such expressions of remorse, an accused might also express sympathy, compassion or sorrow for the victims of the crimes with which he is charged. Although this does not amount to remorse as such, it may nonetheless be considered as a mitigating factor. The Appeals Chamber notes that such expressions of sympathy or compassion have been accepted as mitigating circumstances by Trial Chambers of both the ICTR and this Tribunal.
 See Jokić Judgement on Sentencing Appeal, para. 89 (and sources cited therein).
 Vasiljević Appeal Judgement, para. 177.
 The Oxford English Dictionary defines remorse as “a feeling of compunction, or of deep regret and repentance, for a sin or wrong committed.”
 Blaškić Appeal Judgement, para. 705 (finding that “the integrity of the Trial Chamber’s conclusion that the Appellant has demonstrated remorse is in fact unchallenged by the contradiction putatively identified by the Trial Chamber.”); Blaškić Trial Judgement, para. 775 (“The Trial Chamber points out that, from the very first day of his testimony, Tihomir Blaškić expressed profound regret and avowed that he had done his best to improve the situation although this proved insufficient.”); Kunarac et al. Trial Judgement, para. 869 (“his statement that he felt guilty about the fact that FWS-75 was gang-raped while he was raping D.B. in an adjoining room may be interpreted as a statement of remorse, and is considered in mitigation.”); Čelebići Trial Judgement, para. 1279 (“The Trial Chamber does not consider Mr. Landžo’s belated partial admissions of guilt, or any expressions of remorse, to significantly mitigate, in the circumstances, the crimes committed by him. […] Mr. Landžo did address a written statement to the Trial Chamber after the end of his trial, stating that he was sorry for his conduct in the Čelebići prison-camp and that he wished to express his regrets to his victims and their families. Such expression of remorse would have been more appropriately made in open court, with these victims and witnesses present, and thus this ostensible, belated contrition seems to merely have been an attempt to seek concession in the matter of sentence.”).
 Brđanin Trial Judgement, para. 1139 (“throughout the trial there were a few instances when, through Defence counsel, he told witnesses that he felt sorry for what they had suffered. The Trial Chamber has no reason to doubt the sincerity of the Accused in offering his regret, and will take these instances into consideration as a mitigating factor for the purpose of sentencing the Accused.”); Orić Trial Judgement, para. 752 (“throughout the trial, there were a few instances when Defence counsel on his behalf expressed compassion to witnesses for their loss and suffering. The Trial Chamber does not doubt the sincerity of the Accused in expressing empathy with the victims for their loss and suffering, and has taken this sincerity into consideration as a mitigating factor.”); Stakić Trial Judgement, para. 922 (“The Trial Chamber considers as a mitigating factor Dr. Stakić’s behaviour towards certain witnesses. For example, on 27 June 2002, he directed his counsel not to cross-examine Nermin Karagić 'because of the suffering of this witness and his pretty bad mental state.’”); Akayesu Trial Judgement, para. 45 (“Akayesu expressed sympathy for the many victims of the genocide and of the war and he identified with the survival of the events of 1994.”); Musema Trial Judgement, para. 1005 (“The Chamber, amongst the mitigating circumstances, takes into consideration that Musema admitted the genocide against the Tutsi people in Rwanda in 1994, expressed his distress about the deaths of so many innocent people, and paid tribute to all victims of the tragic events in Rwanda.”); Musema Appeal Judgement, para. 396 (accepting the Trial Chamber’s findings on mitigating circumstances).
|Appeal Judgement - 08.05.2012||
292. The Appeals Chamber recalls that expressions of sincere regret, sympathy, compassion, or sorrow for the victims of the crimes with which an accused is charged may be considered as mitigating factors. In light of the possible impact genuine regret may have on a sentence, the Appeals Chamber considers that the fact that the Trial Chamber expressly referred to other particular factors while not expressly mentioning Ntabakuze’s statement of regret allows for the conclusion that it failed to consider Ntabakuze’s submission. The Appeals Chamber finds that the Trial Chamber should have considered whether this factor constituted a mitigating circumstance, and, if so, whether it should have been accorded any weight. In order to establish whether this error invalidates the Trial Chamber’s determination of the sentence, the Appeals Chamber turns to examine Ntabakuze’s alleged expression of regret.
293. In his Closing Brief, Ntabakuze expressed his eagerness “to be given the chance to work together with his countrymen, without distinction, to reconstruct and reconcile the nation”. He also expressly referred to his testimony at trial during which he stated that he strongly condemned the massacres of Tutsi refugees throughout Rwanda, calling them a “terrible tragedy”, expressed his sadness for the victims, and, while denying his involvement in the massacres, stated: “I regret that I could not have done more to stop [the massacres] […] personally, and using my troops. […] It is regrettable, it is a terrible situation, it is a very sad tragedy […]”.
294. The Appeals Chamber considers that Ntabakuze’s expression of regret should have been considered as a mitigating factor in sentencing by the Trial Chamber, and that the Trial Chamber erred in failing to consider it as such. However, the Appeals Chamber does not find that this error invalidates the sentence imposed by the Trial Chamber, as it considers that the gravity of the crimes for which Ntabakuze was convicted at trial and the aggravating factors identified by the Trial Chamber greatly outweighed this mitigating factor. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.
 Nchamihigo Appeal Judgement, para. 396, citing Strugar Appeal Judgement, paras. 365, 366 (stating that such expressions of sympathy or compassion have been accepted as mitigating circumstances by Trial Chambers of both the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the Tribunal); Vasiljević Appeal Judgement, para. 177.
 Ntabakuze Closing Brief, para. 477. See also ibid., para. 2598.
 Ntabakuze Closing Brief, para. 477, citing Ntabakuze, T. 21 September 2006 pp. 61, 62. See also Exhibit DNT235 (“Report by Ntabakuze”), Conclusion at p. 48:
I was not involved in the massacres which plunged my country into mourning in 1994. I strongly condemn these massacres from the bottom of my heart. I feel very sad to talk about the tragedy. So many people died for nothing. It is painful, regrettable and shocking. There is no single family in Rwanda that has not lost their loved ones. Some of them were acquaintances, friends and even relatives to me. I feel sorry for all of them not only because the[y] were my countrymen but because they were human beings whose live [sic]] should have been respected and protected. War is a dirty business and definitely no one won it. The country has been destroyed. It is a very sad situation. I regret that I could not have done more personally and with the troops under my command to prevent and stop the killing of civilians.
I would like to take this opportunity to pay my due respect in the memory of all Rwandans from all ethnic groups and various regions and of all foreigners who died in the Rwandan tragedy. I would like also to pay my respect before the suffering of the survivors, of the orphans, widows and before all the handicapped because of this insane war that destroyed Rwanda since 1990. I pay my respect to all these thousands souls while wishing to all sons and girls of Rwanda to reject forever the axe of hate and war in order to rebuild a reconciled and democratic nation, to make a land of peace and happiness for all Rwandans and for all inhabitants of Rwanda without distinction. I would be very happy to be able to give my modest contribution to this worthy work of the children of God.
 The Appeals Chamber recalls that sincere regret can be expressed without admitting participation in a crime. The Appeals Chamber has previously found that remorse nonetheless requires acceptance of some measure of moral blameworthiness for personal wrongdoing, falling short of the admission of criminal responsibility or guilt. See Strugar Appeal Judgement, para. 365; Vasiljević Appeal Judgement, para. 177.
|ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)|
|Appeal Judgement - 25.02.2004||
177. Previous case-law from the Trial Chambers of the Tribunals states that in order for remorse to be considered as a mitigating factor it has to be sincere. The Appeals Chamber is of the view that an accused can express sincere regrets without admitting his participation in a crime, and that that is a factor which may be taken into account.
 See Todorović Sentencing Judgement, para 89; Erdemović Second Sentencing Judgement, p. 16; Blaškić Trial Judgement, para 775; Serushago Sentencing Judgement, paras 40-41; Ruggiu Trial Judgement, paras 69-72; Simić Sentencing Judgement, para. 92; Banović Sentencing Judgement, para 70.