Trial Chamber's discretion

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

182. Under Rule 90(F) of the Rules, the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”. The Appeals Chamber recalls that the Trial Chamber has discretion to determine the modalities of examination-in-chief, cross-examination and re-examination so as to accord with the purposes of Rule 90(F). In this regard, it should be emphasised that:

the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.[1]

When addressing a submission concerning the modalities of examination, cross-examination or re-examination of witnesses, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

[1] Rutaganda Appeal Judgement, para. 45. See also Akayesu Appeal Judgement, para. 318.

[2] Rutaganda Appeal Judgement, paras. 99 and 102.

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ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
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Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard.  The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

[…]

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention.  The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

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Decision on Voir Dire and Statements of the Accused - 27.10.2006 NTAHOBALI & NYIRAMASUHUKO
(ICTR-97-21-AR73)

Paragraphs 12 and 13 of the Interlocutory Appeal contain the ratio of the Decision, finding that the Trial Chamber had not gone beyond the discretion allocated to it on evidentiary and procedural matters:

12. The Defence for Mr. Ntahobali argues that this procedure adopted by the Trial Chamber was impermissibly informal[1] since prior statements of an accused should be subject to an inquiry conducted “in accordance with pre-established rules of law which are known to the parties”[2] and not by merely requiring the parties to indicate their views on whether the Rules were complied with in taking the Previous Statements.[3] The Defence for Mr. Ntahobali has not identified any error in the procedure adopted by the Trial Chamber. The voir dire procedure originates from the common law and does not have a strictly defined process in this Tribunal.[4] There are no provisions in the Rules which direct Trial Chambers to adopt a formal procedure for determining whether they should conduct a voir dire. Instead, Rule 89(B) of the Rules provides that reference may be made to evidentiary rules “which will best favour a fair determination of the matter”. This discretion can extend to the conduct of a voir dire procedure when it is determined appropriate by the Trial Chamber.[5] The procedure conducted by the Trial Chamber permitted the parties to make submissions as to whether the Prosecution and Co-Accused could use the Previous Statements to impeach Mr. Ntahobali. The Trial Chamber considered the submissions of the parties on whether it was necessary to grant the request for a voir dire procedure by the Defence of Mr. Ntahobali, and after finding that it was not necessary, the Trial Chamber determined the admissibility of the Previous Statements on the basis of the submissions made by the parties. At several stages during the hearing[6] the Trial Chamber affirmed that this was the procedure to be followed, in particular when it stated:

We would like to hear the challenge, the basis of the challenge [to the admissibility of the Previous Statements]. And in the process, certainly, the Trial Chamber will examine the [admissibility] issue, including whether to determine the issue as presently presented, or whether there would be any need for voir – for trial within a trial, voir dire.[7]   

13. Therefore, the parties were informed of the procedure the Trial Chamber was adopting and made submissions pursuant to this procedure.[8] Indeed, the procedure adopted by the Trial Chamber, while characterised as one adopted to determine whether a voir dire procedure was necessary, was very similar to a voir dire. The Trial Chamber heard the parties on the circumstances surrounding the taking of the Previous Statements, admitting a written affidavit from Mr. Ntahobali into evidence on that issue, and decided that no further evidence was required to determine whether the Previous Statements were in accordance with the Rules. The Appeals Chamber does not see any abuse of the Trial Chamber’s discretion in the way that it chose to proceed.

[1] [The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73 (Joint Case No. ICTR-98-42-T), Appel de l’Accusé Arsène Shalom Ntahobali à l’Encontre de la Décision Intitulée “Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 8 June 2006 (“Interlocutory Appeal”)], para. 5.

[2] Interlocutory Appeal, para. 8.

[3] Interlocutory Appeal, para. 6.

[4] As an example of the flexibility with which the voir dire procedure is utilised at trial, voir dire examinations have previously been deferred to the cross-examination stage in determining a Witness’s qualification as an Expert Witness: Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, Decision on the Prosecutor’s Motion for Admission of Testimony of Expert Witness Rule 92bis of the Rules, 24 March 2005, para. 27. See also [ The Prosecutor v. [efer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 5 (“Halilović Decision”)], para. 46 finding that a voir dire procedure is not necessarily required for identifying the voluntariness of an interview of an accused, although “there may be certain advantages in doing so.”

[5] Halilović Decision, para. 46.

[6]T. 9 May 2006, pp. 3, 16, 42; T. 15 May 2006, p. 16.

[7]T. 9 May 2003, p. 16.

[8] See the full submissions on T. 8 May 2006 pp. 76-78; T. 9 May 2006; T. 15 May 2006. 

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ICTR Rule Rule 89(B)
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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

408.    Given the “considerable amount of discretion” vested in the Trial Chamber, the question arises as to what role the Appeals Chamber should play in the consideration of an appeal against sentence, that is in the instant case, the penalty imposed by the Trial Chamber on Akayesu. In this instance, this Appeals Chamber will follow the test which has recently been upheld by ICTY Appeals Chamber as the appropriate test:

The Appeals Chamber reiterates that “the appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.” Appeal proceedings are rather of a corrective nature and, […] they do not amount to a trial de novo

[…].

The test to be applied in relation to the issue as to whether a sentence should be revised is that moist recently confirmed in the Furundzija Appeal Judgment.  Accordingly, as a  general rule,  the Appelas Cahmber will not substitute its sentence for that of a Trial Chamber unless it believes that the Trial Chamber has committed an error in exercising its discretion or has failed to follow applicable law.” The Appeals Chamber will only intervene if it finds that the error was “discernible.”  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence, the Appeals Chamber will not intervene. [1]

409.    Consequently, before the Appeals Chamber is able to revise a sentence or substitute its own sentence for the one imposed by the Trial Chamber, it must be shown that the Trial Chamber ventured outside discretion in imposing sentence.

[1] Celebici Appeal Judgment, paras. 724 and 725, citing respectively (footnote omitted): Erdemovic Appeal Judgment, para .15; Tadic Decision (Additional Evidence ), paras. 41 and 42;  Furundzija Appeal Judgment, para. 239; Serushago Appeal against Sentence Judgment, para. 32; Tadic Appeal against Sentence, para. 22; and Aleksovski  Appeal Judgment, para. 187; Tadic Appeal against Sentence, para 20.    

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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

[1] Mrkšić and Šljivančanin Appeal Judgement, para. 352; Strugar Appeal Judgement, para. 336; Hadžihasanović and Kubura Appeal Judgement, para. 302.

[2] See, e.g., Mrkšić and Šljivančanin Appeal Judgement, para. 353; Martić Appeal Judgement, para. 326; Strugar Appeal Judgement, paras 336-337. 

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Decision on Provisional Release - 31.10.2003 LIMAJ et al.
(IT-03-66-AR65)

17.     […] [T]he right to be heard personally is not absolute. The granting of an oral hearing is a matter for the discretion of a Chamber, and it may legitimately be regarded as unnecessary when, as in the present case, the information before the Trial Chamber is sufficient to enable the Chamber to reach an informed decision. […] Finally, the Trial Chamber is not obliged to explain prior to its final decision why a hearing is unnecessary or to notify the parties of this.

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Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

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Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

The Prosecution argued that the Trial Chamber committed an error by failing to impose a sentence reflecting the gravity of the crimes and of the Appellant’s degree of criminal culpability, and submits that the Trial Chamber should have considered the Appellant as one of the most serious offenders, deserving the highest penalty available at the Tribunal (para. 200).

The Appeals Chamber held that it was an abuse of discretion for the Trial Chamber to issue a sentence of only thirty years under the circumstances of the case:

205. The Appeals Chamber is, as noted above, fully cognizant of the margin of discretion to which Trial Chambers are entitled in sentencing. This discretion is not, however, unlimited. It is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal. This is such a case. The Appeals Chamber concludes that in light of the massive nature of the crimes and the Appellant’s leading role in them, as well as the relative insignificance of the purported mitigating factors, the Trial Chamber ventured outside its scope of discretion by imposing a sentence of only thirty years’ imprisonment. The Appeals Chamber therefore upholds this sub-ground of the Prosecution’s appeal.

Based on this and other errors, it quashed the sentence and entered a life sentence.

See paras 200-206.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

[1] Article 24 of the Statute and Rule 101(A) of the Rules.

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ICTR Statute Article 23 ICTY Statute Article 24 ICTR Rule Rule 101(A) ICTY Rule Rule 101(A)
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

335.    The Appeals Chamber notes that a Trial Chamber is required, as a matter of law, under both the Statute and the Rules, to take into account aggravating and mitigating circumstances. Therefore, if it fails to do so, it commits an error of law. Article 23(2) of the Statute provides, inter alia, that in imposing sentence, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

336.    Rule 101(B) of the Rules is binding in that the Trial Chamber “shall take into account” the factors listed. Therefore, if it does not, it will be committing an error of law. The Appeals Chamber must first examine whether or not the Trial Chamber considered these factors.[1] Second, it must consider whether or not it properly took them into account.[2]

337.    In considering the issue of whether a sentence should be revised, the Appeals Chamber notes that the degree of discretion conferred on a Trial Chamber is very broad. As a result, the Appeals Chamber will not intervene in the exercise of this discretion, unless it finds that there was a “discernible error”[3] or that the Trial Chamber has failed to follow the applicable law.[4] In this regard, it confirms that the weighing and assessing of the various aggravating and mitigating factors in sentencing is a matter primarily within the discretion of the Trial Chamber. Therefore, as long as a Trial Chamber does not venture outside its “discretionary framework”[5] in imposing a sentence, the Appeals Chamber shall not intervene.

338.    The burden rests on the Appellants to “show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules.”[6]

[…]

352.    […] The Appeals Chamber recalls that the degree of discretion conferred on a Trial Chamber in the area of sentencing is broad, and that the gravity of the offence is the primary consideration in imposing sentence.[7] Furthermore, as noted above, a Trial Chamber must consider the individual circumstances of the accused, as well as the aggravating and mitigating factors; weighing these factors is a task primarily within its discretion. The Appeals Chamber will not intervene in this exercise unless there has been an abuse of discretion. […]

See also paras. 363 and 366.

[1] Kambanda Appeal Judgement, para. 122.

[2] Ibid., paras. 122 and 123.

[3] Aleksovski Appeal Judgement, para. 187.

[4] Serushago Sentencing Appeal Judgement, para. 32. See also Aleksovski Appeal Judgement, para. 187, and Tadić Sentencing Appeal Judgement, paras. 20 and 22.

[5] Tadić Sentencing Appeal Judgement, para. 20.  See also Čelebići Appeal Judgement, para. 775 (“…a decision as to the weight to be accorded to such acts in mitigation of sentence lies within the discretion of the Trial Chamber. In the absence of a finding that the Trial Chamber abused its discretion in imposing a sentence outside its discretionary framework as provided by the Statute and Rules, this argument must fail.”) (citing Kambanda Appeal Judgement, para. 124).

[6] Kambanda Appeal Judgement, para. 115.

[7] Čelebići Appeal Judgement, para. 731.

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ICTR Statute Article 23(2) ICTY Statute Article 24(2) ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)