Suspension of sentence

Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

17. The Appeals Chamber considers that the Trial Chamber’s power to suspend a sentence is inherent to its authority to impose one.[1] Such power is operative at the time of sentencing, and not thereafter, and for this reason is entirely distinct from the power to grant pardon or commutation.[2] The authority to grant pardon or commutation pursuant to Article 28 of the Statute and Rules 123 through 125 of the Rules is vested exclusively in the President and that power relates to a post-conviction change in the sentence, thus overriding the decision of the sentencing chamber in specific circumstances, where the detainee has already served part of a final sentence.[3]

18. […][T]he Appeals Chamber finds that the power to suspend a sentence must be distinguished from the power to issue a pardon, commutation of sentence, or early release. Such suspension of a sentence, either in full or in part, does not infringe the authority of the enforcing State to execute the sentence in accordance with the applicable law of that State. Similarly, it does not “effectively remove the power from the President of the Tribunal to make the final determination regarding the [execution of the] sentence” imposed by the Trial Chamber.[4] Rather, the decision to suspend the last eight months of Rašić’s sentence of 12 months’ imprisonment forms an integral part of the Trial Chamber’s judicial discretion in the determination of the sentence.

[1] Cf. Tadić Judgement in Sentencing Appeals, para. 28.

[2] The Appeals Chamber notes that, although they are distinct acts, the powers to grant, on the one hand, commutation or pardon and, on the other, early release are all governed by Article 28 of the Statute, Rule 125 of the Rules, and the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal, IT/146/Rev.3, 16 September 2010 (“Practice Direction”). The Appeals Chamber notes that the Prosecution does not stipulate which specific type of post-conviction release it submits the Trial Chamber granted, but the Appeals Chamber considers that this is of no consequence given that the identical decision making process for each type is governed by the same provisions.

[3] Cf. Practice Direction.

[4] Stakić Appeal Judgement, para. 392.

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Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

29. In this context, the Appeals Chamber further considers the Prosecution’s argument that the Trial Chamber erroneously found that Rašić’s health problems were serious enough to warrant the imposition of a suspended sentence.[1] In support of this argument, the Prosecution refers to the Milan Simić case in which the trial chamber neither mitigated nor suspended Milan Simić’s sentence, although his health problems required “complete nursing care on a daily basis”.[2] The Appeals Chamber recalls that while “sentences of like individuals in like cases should be comparable”,[3] trial chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[4] Comparison between cases is thus generally of limited assistance.[5] The Appeals Chamber finds that the Milan Simić case bears no relevance for the present case. There are too many variables in both cases to be able to transpose the sentencing considerations from the former to the latter. In particular, Milan Simić was convicted of two counts of torture as crimes against humanity,[6] while Rašic was not convicted of any of the Statute’s core crimes. In these circumstances, the Prosecution has failed to show that the Trial Chamber erred in considering that Rašić’s health problems were serious enough to warrant a partial suspension of her sentence.

30. Further, the Trial Chamber did not err in taking into consideration Rašić’s conditions at the UNDU.[7] The Appeals Chamber notes that to date, no person convicted of contempt was transferred from the UNDU to an enforcing State to serve his or her sentence. Moreover, given the length of the sentence (12 months) and the length of time for which she had already been detained at the time of the Sentencing Judgement (84 days), the Appeals Chamber is satisfied that it was not unreasonable for the Trial Chamber to consider that Rašić would serve the remainder of her sentence at the UNDU. In these circumstances, the Prosecution has not shown that the Trial Chamber erred in taking into account Rašić’s detention conditions at the UNDU.

31. With respect to the Prosecution’s argument that Rašić’s confinement in the UNDU is not truly solitary, the Appeals Chamber notes that the Trial Chamber considered the ex parte medical reports of Dr. Vera Petrović (“Petrović Reports”)[8] concerning Rašić’s health condition.[9] In these reports, Dr. Petrović made observations about Rašić’s mental health condition at the UNDU.[10] While the Prosecution argues that Rašić was able to socialise “for 10 hours each weekday and for eight hours each day on Saturdays and Sundays” with other detainees in the UNDU to an extent that her confinement cannot be considered “quasi-solitary”,[11] the Appeals Chamber finds that the Prosecution does not show an error in the Trial Chamber’s finding. The Trial Chamber based its decision to impose a suspended sentence on Rašić’s “perception of her detention and the practical impact upon her well-being”.[12] The Prosecution does not show that the Trial Chamber ventured outside its scope of discretion when it relied on how Rašić perceived her confinement, on the basis of the Petrović Reports. Furthermore, the Appeals Chamber notes that the Trial Chamber based the suspension of the sentence not only on Rašić’s perception of her detention but also on “Rašić’s comparably young age and that this is the first time she is sentenced to a prison sentence.”[13]

[1] Prosecution Appeal Brief, para. 18.

[2] Prosecution Appeal Brief, para. 18, quoting M. Simić Sentencing Judgement, para. 100.

[3] Milošević Appeal Judgement, para. 326, quoting Strugar Appeal Judgement, para. 348; Kvočka et al. Appeal Judgement, para. 681.

[4] Ntabakuze Appeal Judgement, paras 264, 298.

[5] Milošević Appeal Judgement, para. 326 and references cited therein.

[6] M. Simić Sentencing Judgement, para. 34.

[7] Sentencing Judgement, para. 31.

[8] Medical Reports of Dr. Vera Petrović on Jelena Rasić dated 26 January 2012 and 1 February 2012, annexed to Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Registrar’s Submission of Medical Reports, 6 February 2012 (confidential). The ex parte status of the Petrović Reports was lifted on 6 March 2012 by the Trial Chamber. See Sentencing Judgement, para. 34.

[9] Sentencing Judgement, para. 31. See also T. 73 (7 February 2012).

[10] “There was a short period of time when she was almost overcome by panic, at the very beginning, during the weekend, given that she was alone and in isolation (due to Detention Unit rules) for a longer period.” See Petrović Reports, p. 6. “Her mental state is that of a moderate depressive reaction. She has a difficult time dealing with isolation on the floor where she stays, although she does realise that the management of the detention unit has done everything possible to reduce these feelings.” See Petrović Reports, p. 8.

[11] Prosecution Reply Brief [Prosecution Reply to Jelena Rašić’s Response Brief, 30 March 2012], para. 12.

[12] Sentencing Judgement, para. 31 (emphasis added). See also T. 72 (7 February 2012).

[13] Sentencing Judgement, para. 31. 

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Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

28. In the Appeals Chamber’s view, the Prosecution’s submission that the Trial Chamber erroneously mitigated Rasic’s sentence by partially suspending it on the basis of her health condition[1] is misguided as it relies again on a conflation of suspension and mitigation. The Trial Chamber considered that the effect that detention could have on Rašić’s psychological well-being did not constitute a mitigating factor.[2] It held, however, that this constituted a relevant consideration, among others, to partially suspend “the execution of the sentence”.[3] Regardless of whether Rašić will serve the remainder of eight months in detention, her sentence of 12 months’ imprisonment remains unaffected. Therefore, the partial suspension of Rašić’s sentence by the Trial Chamber [4] does not equate to a reduction of her sentence, and the Prosecution’s submission in this respect is dismissed.

[1] See Prosecution Appeal Brief [Prosecution Appeal Brief, 16 March 2012 (public with confidential annex)], para. 14. The Appeals Chamber is satisfied that, contrary to Rašić’s assertion, the Prosecution explicitly opposed at trial her argument that “her detention resemble[d] a de facto solitary confinement”. See Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Prosecution Response to Urgent Motion for Provisional Release, 27 October 2010 (confidential), para. 2, referring to Prosecutor v. Jelena Rašić, Case No. It-98-32/1-R77.2, Urgent Motion for Provisional Release, 26 October 2012 (confidential) (“26 October 2010 Provisional Release Motion”), paras 16-18. Thus, Rašić’s argument that the Prosecution has waived its right to object to the qualification of her detention conditions as quasi-solitary is dismissed.

[2] Sentencing Judgement [Written Reasons for Oral Sentencing Judgement, 6 March 2012], para. 30.

[3] Sentencing Judgement, paras 30-31. The Appeals Chamber notes that the Trial Chamber’s reference to “the execution of the sentence” is misleading, as the execution of a sentence lies within the authority of the President and the enforcing state. However, the Appeals Chamber finds that this reference does not constitute an error of law, as the Trial Chamber’s partial suspension of Rašić’s sentence did not infringe the authority of the President and the enforcing state in this respect, as the suspended sentence was an integral part of its judicial discretion in the determination of Rašić’s sentence (see supra paras 17-18).

[4] T. 72-73 (7 February 2012); Sentencing Judgement, para. 31. 

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