Sentencing practices in domestic courts

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

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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