Stare decisis

Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

92. The Appeals Chamber adopts the findings of ICTY Appeals Chamber in the Aleksovski case[1] and recalls that in the interests of legal certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. […]

[1] Case No. IT-95-14/1-A, The Prosecutor v. Zlatko Aleksovski, "Decision", Appeals Chamber, 24 March 2000, paras. 107-109: "The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice [para. 107]. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law’ [para. 108]. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts" [para. 109].

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Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

101. The fundamental purpose of the Tribunal is the prosecution of persons responsible for serious violations of international humanitarian law.[1]  The Appeals Chamber considers that this purpose is best served by an approach which, while recognising the need for certainty, stability and predictability in criminal law, also recognises that there may be instances in which the strict, absolute application of that principle may lead to injustice.

102. The principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases. […]

107. The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.

108. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law.”[2]

109. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception.  The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.

110. What is followed in previous decisions is the legal principle (ratio decidendi), and the obligation to follow that principle only applies in similar cases, or substantially similar cases.  This means less that the facts are similar or substantially similar, than that the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision.  There is no obligation to follow previous decisions which may be distinguished for one reason or another from the case before the court.

111. Where, 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.

See also paras. 102-106.

[1] See Article 1 of the Statute.

[2] Black’s Law Dictionary (7th ed., 1999).

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Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

104. The right of appeal is a component of the fair trial requirement[1] set out in Article 14 of the ICCPR, and Article 21(4) of the Statute. The right to a fair trial is, of course, a requirement of customary international law.[2]

105. An aspect of the fair trial requirement is the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way and decided as Judge Tanaka said, “possibly by the same reasoning.”[3]

106. The right to a fair trial requires and ensures the correction of errors made at trial.  At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered. 

[1] Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (1993) comments that the bundle of rights which constitute the right to a fair trial are those set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights 1966 (“ICCPR”) (ibid., Article 14, para. 19).

[2] See Article 6 of the 1949 European Convention on Human Rights, Article 8 of the 1969 American Convention on Human Rights and Article 7 of the 1981 African Charter on Human and People’s Rights.

[3] See footnote 243, Judge Tanaka’s Separate Opinion.

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ICTR Statute Article 20(4) ICTY Statute Article 21(4) Other instruments International Covenant on Civil and Political Rights: Article 14.
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

126. The Defence argument on the principle of legality or nullum crimen sine lege, is based on a misunderstanding of that principle.  The Appeals Chamber understands the Defence to be saying that reliance cannot be placed on a previous decision as a statement of the law, since that decision would necessarily have been made after the commission of the crimes, and for that reason would not meet the requirements of the principle of legality.  There is nothing in that principle that prohibits the interpretation of the law through decisions of a court and the reliance on those decisions in subsequent cases in appropriate circumstances.  The principle of legality is reflected in Article 15 of the ICCPR.[1]  What this principle requires is that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission. […]

127. There is, therefore, no breach of the principle of nullum crimen sine lege.  That principle does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime; nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime.

 

[1] Article 15 of the ICCPR states in relevant part: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

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Other instruments International Covenant on Civil and Political Rights: Article 15.
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

113. The Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers for the following reasons:

(i) the Statute establishes a hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact arising from decisions of the Trial Chambers.  Under Article 25, the Appeals Chamber hears an appeal on the ground of an error on a question of law invalidating a Trial Chamber’s decision or on the ground of an error of fact which has occasioned a miscarriage of justice, and its decisions are final;

(ii) the fundamental mandate of the Tribunal to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law; and

(iii) the right of appeal is, as the Chamber has stated before,[1] a component of the fair trial requirement, which is itself a rule of customary international law and gives rise to the right of the accused to have like cases treated alike.  This will not be achieved if each Trial Chamber is free to disregard decisions of law made by the Appeals Chamber, and to decide the law as it sees fit.  In such a system, it would be possible to have four statements of the law from the Tribunal on a single legal issue - one from the Appeals Chamber and one from each of the three Trial Chambers, as though the Security Council had established not a single, but four, tribunals.  This would be inconsistent with the intention of the Security Council, which, from a plain reading of the Statute and the Report of the Secretary-General, envisaged a tribunal comprising three trial chambers and one appeals chamber, applying a single, unified, coherent and rational corpus of law.  The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more pronounced.

[1] See para. 104, supra.

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ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

114. The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.

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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

576. [T]he Trial Chamber is said by Landžo to have violated the principles of certainty in the criminal law,[1] and of nullum crimen sine lege,[2] or ex post facto law (as it was described by counsel for Landžo).[3]  These objections are misconceived.  The law to be applied must be that which existed at the time the acts upon which the charges are based took place.  However, the subsequent identification or interpretation of that law by the Tribunal, whenever that takes place, does not alter the law so as to offend either of those principles.[4]

[1]    Landžo Brief, pp 88-89.

[2]    Restated in Article 15 of the International Covenant on Civil and Political Rights, 1966: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

[3]    Appeal Transcript, pp 590, 595, 627.

[4]    Aleksovski Appeal Judgement, paras 126-127, 135.

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Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

15. […] while not bound by the jurisprudence of the ICTR or the ICTY, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTR or the ICTY Appeals Chambers and depart from them only for cogent reasons in the interests of justice.

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