31. […] the Appellant relies on the Appeal Judgement in Musema, which, in his view, found that when a Trial Chamber did not refer to a particular piece of evidence, it could be presumed that the Trial Chamber did not take this piece of evidence into account.[1]

32. Contrary to the Appellant’s view, Musema does not stand for such a proposition. In that case, the Appeals Chamber did not suggest that a Trial Chamber could be presumed to have ignored a piece of evidence just because it did not mention it in the Judgement. Rather, the Appeals Chamber held, in the paragraph cited by the Appellant, that it could be presumed (absent particular circumstances suggesting otherwise) that the Trial Chamber chose not to “rely on” an unmentioned piece of evidence—that is, that it considered the evidence but decided that it was either not reliable or otherwise not worth citing in the Judgement.[2] The Appeals Chamber in Musema furthermore expressly acknowledged that

… a Trial Chamber is not required to articulate in its judgement every step of its reasoning in reaching a particular finding. Although no particular evidence may have been referred to by a Chamber, it may nevertheless be reasonable to assume in the light of the particular circumstances of the case, that the Trial Chamber had taken it into account. Hence, where a Trial Chamber did not refer to any particular evidence in its reasoning, it is for the appellant to demonstrate that both the finding made by the Trial Chamber and its failure to refer to the evidence had been disregarded.[3]

Moreover, the reading of Musema proffered by the Appellant is inconsistent with the subsequent case law of the Appeals Chamber, which clearly establishes that a Trial Chamber is not obligated to identify and discuss in the Judgement each and every piece of evidence that it has considered.[4]

357. The principle of individualization requires that each sentence be pronounced on the basis of the individual circumstances of the accused and the gravity of the crime.[1] The gravity of the crime is a key factor that the Trial Chamber considers in determining the sentence.[2] The Trial Chamber in this case was cognizant of this obligation:

In sentencing Kamuhanda, the Chamber will take into account the gravity of the offences pursuant to Article 23 of the Statute and Rule 101 of the Rules, the individual circumstances of Kamuhanda, aggravating and mitigating circumstances as well as the general sentencing practice of the Tribunal.[3]

While arguing that the Trial Chamber “totally disregarded”[4] this obligation, the Appellant does not draw the attention of the Appeals Chamber to any specific error. He merely argues, without supporting his assertion, that a sentence of life in prison “may only be justified if the wrong occasioned by the crime is such that, in the interest of public law and order, the accused cannot be released even after several years”.[5] Domestic courts in some countries have held that an accused should be given the possibility of release, even if he is sentenced to imprisonment for the remainder of his life. As the German Federal Constitutional Court stated the argument: “One of the preconditions of a humane penal system is that, in principle, those convicted to life sentences stand a chance of being freed again.”[6] The Appeals Chamber considers that, whatever its merits in the context of domestic legal systems, where it may apply “in principle”, this view is inapplicable in a case such as this one which involves extraordinarily egregious crimes. […]

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[…] [C]ounsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements;

47. The Appeals Chamber recalls that Trial Chambers are “required as a matter of law to take account of mitigating circumstances”.[1] The Appeals Chamber is not satisfied that the Trial Chamber wrongly departed from the “balance of probabilities” standard set out in the Čelebići Appeal Judgement. Having recalled the standard in question, the Trial Chamber stated that, in cases of plea agreements, it would primarily rely on the mitigating factors agreed to by the parties. In other words, the Trial Chamber logically relieved the Appellant from discharging the burden of establishing mitigating circumstances on the balance of probabilities with respect to those mitigating circumstances agreed upon by the parties. […]

The Accused appealed against a Decision of the Trial Chamber admitting into evidence from the bar table the record of the Prosecution’s interview with him. When considering whether the Trial Chamber erred in exercising its discretion to admit the record of the interview pursuant to Rule 89(D) of the ICTY Rules of Procedure and Evidence, the Appeals Chamber made the following findings:

14.     With respect to the Appellant’s first argument, that the Rules do not permit a record of an interview with the accused to be tendered into evidence unless the accused has chosen to testify or has consented to the tender, the Appeals Chamber does not agree that the Rules impose such a categorical restriction.  The Rules instead grant Trial Chambers considerable discretion on evidentiary matters; in particular Rule 89(C) states that a “Chamber may admit any relevant evidence which it deems to have probative value”.  Here the Trial Chamber was satisfied that the record of interview was relevant and probative, and the Appellant does not dispute these points.  The Trial Chamber therefore had the discretion to admit the record, at least so long as doing so did not violate any of the specific restrictions outlined in the remainder of the Rules, nor the general principle of Rule 89(B) requiring application of “rules of evidence which will best favour a fair determination of the matter before it andare consonant with the spirit of the Statute and the general principles of law”.

15.     The Appeals Chamber does not find that fairness or the “spirit of the Statute and general principles of law” require that the admissibility of an accused’s prior statements turn on whether he has agreed to testify or consented to the admission.  The Appellant’s argument to the contrary rests implicitly on the right of an accused against self-incrimination.  An accused has the right to refuse to give statements incriminating himself prior to trial, and he had the right to refuse to testify at trial.  But where the accused has freely and voluntarily made statements prior to trial, he cannot later on choose to invoke his right against self-incrimination retroactively to shield those statements[1] from being introduced, provided he was informed about his right to remain silent before giving this statement; there is, however, a presumption that he knows about this right if he is assisted by counsel.  Nor does the Appellant point to any provision of the Rules or rules of customary international law that specifically imposes such a restriction on the admission of an accused’s prior statements.  The Appeals Chamber therefore concludes that no such rules exists.

16.     The Appellant’s second complaint, that the method of introducing the evidence (via tender from the bar table) breached the principle of orality, is misplaced.  There is to be sure, a general principle that witnesses before the Tribunal should give their evidence orally rather than have their statement entered into the record.  The principle has its origin in the Roman law requirement that parties before a tribunal make submissions orally rather than in writing, and exists in various forms in common and civil law traditions today.  The principle of orality and its complement, the principle of immediacy, act as analogues to common law hearsay rules and are meant to ensure the adversarial nature of criminal trials, and the right of the accused to confront witnesses against him.  

17.     However, the principle of orality, as reflected in the Rules, is not an absolute restriction, but instead simply constitutes a preference for the oral introduction of evidence.  Rule 89(F) states that a “Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.[2] The Tribunal’s jurisprudence recognises that the interests of justice may often allow for the admission of prior statements of the accused.  The principle of orality is weaker in application to the accused’s own statements than to the testimony of other witnesses.  As the Appeals Chamber explained in the Kvočka case, the rules of evidence applicable to witness testimony do not always apply to the statements of an accused: “[t]here is a fundamental difference between an accused, who might testify as a witness if he so chooses, and a witness”. [3]  The principle of orality is intended principally to ensure the accused’s right to confront the witnesses against him, and in this respect its logic is not applicable to the accused’s own statements.  Moreover, to the extent that the principle of orality ensures that in-court witness testimony (generally understood to be more reliable) is used instead of those witnesses’ out-of-court statements where possible, that logic is also less applicable to the accused’s statements, for the accused may, as the Appellant did, refuse to testify.

10.     […] The Statute of the Tribunal extends the Tribunal's jurisdiction to those entities that were a part of the former Yugoslavia prior to its dissolution. This includes Macedonia, which was part of the former Yugoslavia prior to its succession. Further, the Statute of the Tribunal confers jurisdiction on the Tribunal over persons responsible for serious violations of international humanitarian law since 1991. The  UN  Security  Council  has  decided  in  Resolution  827  (1993)  that the temporal jurisdiction of the Tribunal covers the period "between 1 January  1991  and  a  date  to be determined by the Security Council upon restoration of peace."[1] At present,  no  such  end  date has been determined; therefore, the Tribunal's temporal jurisdiction is open-ended  and  does extend to allegations of serious violations of international humanitarian law occurring after 2001.

11.     […] [T]he Appellant had ample time to file a motion requesting that the Trial Chamber reopen the proceedings to consider the evidence.[1] […]

The Appellant argued that the vulnerability of the victims cannot be considered as an aggravating circumstance because it is not directly related to the offender himself. The Appeals Chamber rejected this argument and held that:

124. […] The statement by the Kunarac et al. Trial Chamber that aggravating circumstances must relate “to the offender himself” is not to be taken as a rule that such circumstances must specifically pertain to the offender’s personal characteristics. Rather, it simply reflects the general principle of individual responsibility that underlies criminal law: a person cannot be held responsible for an act unless something he himself has done or failed to do justifies holding him responsible. […] Here, not only was the Appellant aware of his victims’ defencelessness and took advantage of it, but he exacerbated it through Milutin Milošević’s statements making false promises of safety on his behalf, which he accepted.[1] There is no question that this factor “relates to the offender himself”.

The Appellant argued that the vulnerability of the victims is already “subsumed in the overall gravity of the offence” and cannot be considered as an aggravating factor (para. 126).  The Appeals Chamber held the following:

127. While it is correct to say that the civilian status of the population against which the attack is directed is an element of crimes against humanity[1] and that therefore such status cannot be taken into account as an aggravating circumstance,[2] the Appeals Chamber notes that the issue before it is not whether the intrinsic vulnerability of civilians can be taken into account but rather whether there are additional elements amounting to particular circumstances showing that the victims were subjected to a special vulnerability.[3] In the present case, not only had the civilians been disarmed and denied any warning about their fate, but moreover had been deceived by a statement on the Appellant’s behalf into believing they were safe. These facts are not inherent in the population’s civilian status.

Accordingly, the Appeals Chamber accepted the Trial Chamber’s finding that “the exacerbated vulnerability and defencelessness of the victims was an aggravating circumstance.” (para. 128). 

30. In exercising their discretion to impose a sentence, Trial Chambers must take into account the special context of a plea agreement as an additional factor. A plea agreement is a matter of considerable importance as it involves an admission of guilt by the accused. Furthermore, recommendation of a range of sentences or, as in the present case, a specific maximum sentence, reflects an agreement between the parties as to what in their view would constitute a fair sentence. The Appeals Chamber notes that Rule 62ter (B) of the Rules unambiguously states that Trial Chambers shall not be bound by any agreement between the parties. Nevertheless, in the specific context of a sentencing judgement following a plea agreement, the Appeals Chamber emphasises that Trial Chambers shall give due consideration to the recommendation of the parties and, should the sentence diverge substantially from that recommendation, give reasons for the departure.[1] Those reasons, combined with the Trial Chambers’ obligation pursuant to Article 23(2) of the Statute to render a Judgement “accompanied by a reasoned opinion in writing”, will facilitate a meaningful exercise of the convicted person’s right to appeal and allow the Appeals Chamber “to understand and review the findings of the Trial Chamber”.[2]