64.     Where the Appeals Chamber is satisfied that a Trial Chamber has erred, the Appeals Chamber may substitute the exercise of its own discretion for that of the Trial Chamber if it considers it appropriate to do so.  In the ordinary case involving an evidentiary question before a Trial Chamber, the Appeals Chamber may consider sending the matter back to the Trial Chamber with an order that it consider the factors identified as relevant by the Appeals Chamber and exercise its discretion afresh.  In this case, however, the parties are awaiting the Appeals Chamber decision so that they may file their final submissions and close the trial.  Accordingly, the Appeals Chamber has determined that it is more appropriate in this instance for it to substitute its discretion for that of the Trial Chamber.

10.     […] The Appeals Chamber considers that evidence is “available at trial” if it becomes available at a stage when it is still reasonably possible for the relevant party to seek to introduce it before the Trial Chamber. Depending on the circumstances, evidence after closing arguments in a case may meet this standard.

7.         The question of time limits and witness allocation is somewhat less straightforward.  The Appeals Chamber has long recognized that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.”[1]  At a minimum, “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity.[2]  This is not to say, however, that an Accused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution.  The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt.  Defense strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavor which may require less time and fewer witnesses.  This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.

8.       In addition, it should be noted that although Rule 73 ter gives the Trial Chamber the authority to limit the length of time and number of witnesses allocated to the defense case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected.  Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights.[3]

9.       The question, then, is whether, taking into account the complexity of the remaining issues, the amount of time and the number of witnesses allocated to Orić’s defense are reasonably proportional to the Prosecution’s allocation and sufficient to permit Orić a fair opportunity to present his case.  The Trial Chamber’s order leaves Orić nine weeks to present 30 witnesses.[4] [….]

The Appeals Chamber confirmed that “factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.[1]” (para. 106).  It noted that at Section IX. A. of the Sentencing Judgement, the Trial Chamber addressed the gravity of the offence together with the factors considered in aggravation.  However, the Appeals Chamber found that “the Trial Chamber indeed distinguished between aggravating circumstances on the one hand and the gravity of the offence on the other, albeit considering them under the same heading.” (para. 107).

80. […] The Appeals Chamber notes that, contrary to the Defence’s assertion, the position of an accused in “high political offices” has been considered as an aggravating factor for the purposes of sentencing even where an accused’s leadership of a joint criminal enterprise is not at issue.[1]  Several cases before the International Tribunal in which the mode of liability of joint criminal enterprise was not at issue illustrate that a Trial Chamber has the discretion to take into account, as an aggravating circumstance, the seniority, position of authority, or high position of leadership held by a person criminally responsible under Article 7(1) of the Statute.[2] A high rank in the military or political field does not, in itself, merit a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence.[3]  Consequently, what matters is not the position of authority taken alone, but that position coupled with the manner in which the authority is exercised.[4] For instance, in the Aleksovski case, the Appeals Chamber considered that the superior responsibility of the appellant, who was a prison warden, “seriously aggravated [his] offences, [as] [i]nstead of preventing it, he involved himself in violence against those whom he should have been protecting”.[5] In Ntakirutimana, the ICTR Appeals Chamber concurred with the Trial Chamber that the abuse of the appellant’s personal position in the community was an aggravating circumstance.[6] 

81. In the present case, the Trial Chamber did not hold that the Appellant’s position as a regional political leader in itself constituted an aggravating circumstance. The Trial Chamber thoroughly considered the Appellant’s behaviour as a regional political leader and stressed that it considered his leadership position as an aggravating circumstance because he used his authority to enlist resources of the SAO Krajina to further the joint criminal enterprise, made inflammatory speeches during public events and in the media which prepared the ground for the Serb population to accept that their goals could be achieved through acts of persecution, and amplified the consequences of the campaign of persecutions by allowing it to continue.[7] Therefore, the Appeals Chamber considers that the Trial Chamber correctly found that the Appellant’s leadership position was an aggravating circumstance.

43. Neither the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence. Rule 101(B)(ii) of the Rules only states that in determining a sentence, a Trial Chamber shall take into account “any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction”.[1] Factors that have previously been taken into account by the International Tribunal as evidence in mitigation include: (1) co-operation with the Prosecution;[2] (2) the admission of guilt or a guilty plea;[3] (3) the expression of remorse;[4] (4) voluntary surrender;[5] (5) good character with no prior criminal convictions;[6] (6) comportment in detention;[7] (7) personal and family circumstances;[8] (8) the character of the accused subsequent to the conflict;[9] (9) duress[10] and indirect participation;[11] (10) diminished mental responsibility;[12] (11) age;[13] and (12) assistance to detainees or victims.[14] Poor health is to be considered only in exceptional or rare cases.[15] This list is not exhaustive and Trial Chambers are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[16] They are not required to “articulate every step” of their reasoning in reaching particular findings,[17] and failure to list in a judgement “each and every circumstance” placed before them and considered “does not necessarily mean that [they] either ignored or failed to evaluate the factor in question.”[18] For instance, a Trial Chamber’s express reference to the parties' written submissions concerning mitigating circumstances is prima facie evidence that it was cognisant of these circumstances and took them into account.[19] The standard of proof with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[20] but proof on a balance of probabilities: the circumstance in question must have existed or exists “more probably than not”.[21]

44. Proof of mitigating circumstances “does not automatically entitle [an] [a]ppellant to a ‘credit’ in the determination of the sentence; it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination”.[22]  An appellant challenging the weight given by a Trial Chamber to a particular mitigating factor thus bears “the burden of demonstrating that the Trial Chamber abused its discretion”.[23] The Appellant has 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.[24]

The Appellant argued that taken “either separately or in amalgamation”, the mitigating circumstances before the Trial Chamber should have attracted a lesser sentence (see Judgement on Sentencing Appeal, para. 66). At footnote 215, the Appeals Chamber found:

The Appeals Chamber will not address the issue of whether, taken “in amalgamation”, the mitigating factors referred to by the Appellant were properly weighed by the Trial Chamber. An appellant can only succeed in challenging a Trial Chamber’s decision regarding the weight afforded to a mitigating circumstance by demonstrating that the Trial Chamber committed a discernible error concerning a specific factor. As correctly stated at para. 675 of the Kvočka Appeal Judgement, “[m]ere recital of mitigating factors without more does not suffice to discharge this burden”.

55. The Appeals Chamber notes that an accused’s conduct after committing a crime is relevant in that it reveals how aware he was of the wrongfulness of his actions and his intention to “make amends” by, among other things, facilitating the task of the International Tribunal.[1] In the instant case, the Trial Chamber acknowledged that conduct subsequent to the crime had been accepted in other cases before the International Tribunal, “where the convicted person acted immediately after the commission of the crime to alleviate the suffering of victims.”[2]  In support of such assertion, the Trial Chamber referred to the Plavšić case.[3] Since the Trial Chamber was not satisfied that conclusive evidence had been proffered to show that the Appellant alleviated the suffering of victims after the commission of the crime of persecution or at the end of the armed conflict, it held that his post-conflict conduct did not amount to a mitigating circumstance[4] and found that such conduct concerned matters which had already been considered, such as cooperation and acceptance of responsibility.[5]

56. The Appeals Chamber notes, however, that the Trial Chamber in the Plavšić case in fact gave significant weight as a factor in mitigation to Biljana Plavšić’s post-conflict conduct, namely her contribution to the advancement of the Dayton Agreement and her attempt to remove obstructive officials from office,[6] because “she made a considerable contribution to peace in the region” without reference to the alleviation of the suffering of victims.[7] The Appeals Chamber thus considers that the Sentencing Judgement incorrectly interpreted the Plavšić Trial Chamber’s assessment of Biljana Plavšić’s “post-conflict conduct.”

59. The Appeals Chamber is satisfied that the Appellant attempted to further peace after the commission of the crime of persecution. The Appeals Chamber finds that the Trial Chamber erred in law in categorically refusing to take these attempts to further peace into account as a mitigating factor on the basis that they did not directly alleviate the suffering of the victims.

61. The Appeals Chamber notes that in light of the mandate of the International Tribunal under Chapter VII of the UN Charter, an attempt to further peace in the former Yugoslavia is in general relevant as a mitigating circumstance. […].

32. As previously noted in the Dragan Nikolić case, the precedential effect of previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but “also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence”.[2] The reasons for this are clearly set out in the case law of the International Tribunal: (1) such comparison can only be undertaken where the offences are the same and committed in substantially similar circumstances;[3] and (2) a Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[4]

33. In the Jelisić case, in addressing the appellant’s arguments to the effect that he was given a sentence in excess of those rendered in other cases, the Appeals Chamber held the following:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.[5]

In the present case, the Appellant is not alleging that his case falls within a pattern or a line of sentences passed in similar circumstances for the same offences. He only refers to one case which in his view bears some similarities with his own. The finding of the Appeals Chamber in Jelisić was concerned with a comparison with a “line of sentences” and not with a comparison with one single case. Furthermore, the Appeals Chamber emphasises that, as a general principle, comparisons with other cases as an attempt to persuade the Appeals Chamber to either increase or reduce the sentence are of limited assistance: the differences are often more significant than the similarities and the mitigating and aggravating factors dictate different results.[6] In this case, even assuming that the two cases were so similar as to be meaningfully comparable, the Appellant’s sentence is not so out of reasonable proportion with Plavšić’s sentence so as to suggest capriciousness or excessiveness. The Appeals Chamber will therefore not engage in a comparison between these two cases. In light of the foregoing, this part of the Appellant's second ground of appeal is dismissed.

73.     The Appeals Chamber notes that it is normal for a witness who testified in several trials about the same event or occurrence to focus on different aspects of that event, depending on the identity of the person at trial and the questions posed to the witness.[1] Therefore, not every discrepancy may undermine a witness’s credibility. […]