| Text search | Notions | Case | Filing | Date range | Tribunal |
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Showing 2496 results (20 per page)
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| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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366. […] discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity. However, the discriminatory intent may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime.[1] Accordingly, the Appeals Chamber found in the case Prosecutor v. Krnojelac that, when beatings were inflicted only on the non-Serb detainees in a prison, it was reasonable to conclude that these beatings were committed because of the political or religious affiliation of the victims, and that these acts were committed with the requisite discriminatory intent.[2] In the present case, it appears that almost all the detainees in the camp belonged to the non-Serb group. It was reasonable to conclude that the reason for their detention was their membership in this group and therefore of a discriminatory nature. [1] Krnojelac Appeal Judgement, para. 184. [2] Ibid., para. 186; Kordić and Čerkez Appeal Judgement, para. 950. |
ICTR Statute Article 3(h) ICTY Statute Article 5(h) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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284. The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in not requiring that the crime of torture be committed by a public official or, in the case of a plurality of perpetrators, that at least one of the persons involved in the torture process be a public official. This question was resolved by the Appeals Chamber in the Kunarac Appeal Judgement. In that case, the Appeals Chamber concluded that the Kunarac Trial Chamber was correct to take the position that the public official requirement was not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.[1] The Appeals Chamber in the present case reaffirms that conclusion. […]. [1] Kunarac et al. Appeal Judgement, para. 148. |
ICTR Statute Article 3(f) ICTY Statute Article 5(f) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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395. The Trial Chamber relied on the definition of rape as given in the Kunarac et al. Trial Judgement,[1] which reads as follows: In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.[2] This definition was confirmed by the Appeals Chamber, which added that the “assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts”.[3] Any diverging definition of the crime in Yugoslav law is irrelevant. Radić’s argument that the Statute was not in force when the crimes were committed[4] is without merit: the prohibition of rape in armed conflicts has been long recognized in international treaty law as well as in customary international law.[5] [1] Trial Judgement, para. 177. [2] Kunarac et al. Trial Judgement, para. 460. [3] Kunarac et al. Appeal Judgement, para. 128. [4] Radić Reply Brief, para. 75. [5] Furundžija Trial Judgement, para. 168; Čelebići Trial Judgement paras 476-479; Furundžija Appeal Judgement, para. 210. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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23. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules.[1] However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.[2] It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[3] If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings. It is therefore not possible to draw any inferences about the quality of a judgement from the length of particular parts of a judgement in relation to other judgements or parts of the same judgement. 24. The Appeals Chamber notes that, in certain cases, the requirements to be met by the Trial Chamber are higher. As an example of a complex issue, the Appeals Chamber considered the appraisal of witness testimony with regard to the identity of the accused: While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”. In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence. [4] But even in those cases, the Trial Chamber is only expected to identify the relevant factors, and to address the significant negative factors. If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance. In general, as the Furundžija Appeals Chamber stated: The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty ... applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case”.[5] 25. The Appeals Chamber therefore emphasizes that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[6] General observations on the length of the Judgement, or of particular parts of the Judgement, or of the discussion of certain parts of the evidence, do not qualify, except in particularly complex cases, as the basis of a valid ground of appeal.[7] [1] Furundžija Appeal Judgement, para. 69; Kunarac et al. Appeal Judgement, para. 41. [2] Čelebići Appeal Judgement, para. 498; Kupreškić et al. Appeal Judgement, para. 39; Kordić and Čerkez Appeal Judgement, para. 382. See also above, para. 23. [3] Čelebići Appeal Judgement, paras 481, 498; Kupreškić et al. Appeal Judgement, para. 32. [4] Kupreškić et al. Appeal Judgement, para. 39. [5] Furundžija Appeal Judgement, para. 69 (footnotes omitted). [6] Cf. Kordić and Čerkez Appeal Judgement, para. 21. [7] Cf. Decision on Prosecution Motion Requesting Order to Zoran Žigić to File Grounds of Appeal, 14 June 2002, para. 10. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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426. The Appeals Chamber has granted in part a motion by Žigić to adduce additional evidence,[1] and has heard two additional witnesses and two rebuttal witnesses. In determining whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice, the Appeals Chamber has set out the applicable test in the Kupreškić et al. Appeal Judgement: The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.[2] In Blaskić, the Appeals Chamber cited and affirmed that test. The Appeals Chamber noted that in the context of the Kupreškić case, the Appeals Chamber simply applied a deferential standard of review to the totality of the evidence admitted both at trial and on appeal, because the appellant had successfully established that no reasonable trier of fact could have reached a finding of guilt based on that evidence.[3] However, as the Appeals Chamber in Blaškić further correctly noted, the Appeals Chamber in Kupreškić was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered together with the additional evidence admitted on appeal, “a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt.”[4] In that case, the Appeals Chamber in Blaškić concluded that “it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal.”[5] Consequently, the Appeals Chamber in Blaškić answered the question left open in Kupreškić, further developing the test first articulated therein. In reaching this conclusion, the Appeals Chamber in Blaškić underscored that such a standard of review is necessary in the interests of justice as well as for reasons of due process when considering a case before this International Tribunal because, if any lower standard were to be applied, “then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of the evidence relied upon in the case … be reached by either Chamber beyond reasonable doubt.”[6] The Appeals Chamber in Blaškić indicated, when summarizing the above test, the following two steps in a case where an error of fact is alleged and additional evidence proffered by the Defence is admitted: (i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.[7] (ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.[8] 427. It has of course to be borne in mind that, as the Appeals Chamber has noted several times, the task of hearing, assessing and weighing the evidence is left primarily to the Trial Chamber: The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’s testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.[9] 428. Therefore, the Appeals Chamber will uphold a conviction on the basis that a reasonable trier of fact could have arrived at a conviction on the evidence on the trial record in two cases: (i) if there is no additional evidence admitted; (ii) if additional evidence is admitted, but upon further review, is found to be not credible or irrelevant, so that it could not have been a decisive factor in reaching the decision at trial.[10] See also Separate Opinion of Judge Weinberg de Roca and Separate Opinion of Judge Shahabuddeen. [1] Decision on Appellants’ Motion to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004. [2] Kupreškić et al., Appeal Judgement, paras 75-76 [3] Blaškić Appeal Judgement, para. 22. Cf. Musema Appeal Judgement, paras. 184-194. In Musema, the Appeals Chamber applied that same deferential standard of review in quashing the accused’s conviction for rape because it found that on the basis of the totality of the evidence, a trier of fact would have reasonable doubt as to the accused’s guilt. [4] Blaškić Appeal Judgement, para. 23. [5] Ibid. [6] Ibid. [7] The Appeals Chamber notes that this is a summary of the test developed in para. 23 of the Blaškić Appeal Judgement and must therefore be read taking into consideration the entire context of the decision with regard to this holding. In light of the affirmation of the test first articulated in the Kupreškić Appeal Judgement and the reasoning found in paras 22-23 of the Blaškić Appeal Judgement, the Appeals Chamber considers that the Appeals Chamber in Blaškić obviously considered that if such a determination is also reached on the basis of the trial record taken together with the evidence admitted on appeal, then no further examination of the matter is needed. [8] Blaškić Appeal Judgement, para. 24(c). [9] Kupreškić et al. Appeal Judgement, para. 32 (footnote omitted). This was confirmed by Blaškić Appeal Judgement, para. 17. [10] See e.g. Kupreškić et al. Appeal Judgement, paras 338-348. In Kupreškić, the Appeals Chamber considered the testimony of Witness AT, admitted as additional evidence under Rule 115, as it pertained to Drago Josipović’s appeal. The Appeals Chamber concluded that because Witness AT could not bring himself to tell the truth about his own involvement in the Ahmići attack and because Witness AT’s wife was a close relative of Josipović, Witness AT’s evidence was “so unreliable” as to Josipović’s appeal that it was incapable of making his conviction for participation in the attack on Ahmići unsafe. Thus, the Appeals Chamber in Kupreškić did not need to take into consideration this additional evidence together with the evidence before the Trial Chamber and simply reviewed the safety of Josipović’s conviction on the basis of whether a reasonable trier of fact could have convicted him on the basis of the trial record alone. It is true that the Appeals Chamber in Kupreškić then proceeded to assess Witness AT’s testimony together with the trial record as if it theoretically was reliable evidence and concluded that, even then, it would not challenge the safety of Josipović’s conviction. However, the Appeals Chamber considers that this latter analysis was pure dicta given that Witness AT’s evidence had already been rejected as “so unreliable” by the Appeals Chamber in Kupreškić that it did not need to be considered any further with regard to reviewing Josipović’s conviction. See also Rutaganda Appeal Judgement, paras. 473-489, wherein the Appeals Chamber found that the additional evidence admitted in support of the accused’s alibi was insufficiently probative for challenging the accused’s conviction because the evidence so lacked credibility. The Appeals Chamber came to this conclusion because the evidence consisted of a personal opinion that was formulated upon underlying information that appeared to have no relevance for establishing that alibi. |
ICTR Rule Rule 115 ICTY Rule Rule 115 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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681. Sentences of like individuals in like cases should be comparable and, in this regard, the Appeals Chamber “does not discount the assistance that may be drawn from previous decisions rendered”.[1] Indeed, the Appeals Chamber has observed that a sentence may be considered “capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences”.[2] The underlying question is whether the particular offences, the circumstances in which they were committed, and the individuals concerned can truly be considered “like”. Any given case contains a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual. Often, too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another. Hence the Appeals Chamber has previously stated that: While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant that the similarities, and the mitigating and aggravating factors dictate different results.[3] Thus, while comparison with other sentences may be of assistance, such assistance is often limited.[4] For these reasons, previous sentences imposed by the Tribunal and the ICTR are but one factor to be taken into account when determining the sentence.[5] [1] Čelebići Appeal Judgement, para. 721. [2] Jelisić Appeal Judgement, para. 96. [3] Čelebići Appeal Judgement, para. 719. See also Furund‘ija Appeal Judgement, para. 250. [4] Čelebići Appeal Judgement, para. 721. [5] Krstić Appeal Judgement, para. 248. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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674. […] As regards additional mitigating evidence that was available, though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised.[1] Rule 85(A)(vi) provides that a Trial Chamber will consider “any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment”. In this regard, the following passage from Kupreškić should be reiterated: If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time.[2] [1] Čelebići Appeal Judgement, para. 790. [2] Kupreškić et al. Appeal Judgement, para. 414. |
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| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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707. The Appeals Chamber now turns to Žigić’s submission that his extreme consumption of alcohol should be considered a mitigating circumstance. The jurisprudence of this Tribunal is clear that voluntary intoxication is not a mitigating factor.[1] In this regard, the Trial Chamber correctly stated: [W]hen mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic’s contention that an intentionally procured diminished mental state could result in a mitigated sentence.[2] [1] Simić Sentencing Judgement, para. 74; Todorović Sentencing Judgement, para. 94, footnote 98. [2] Trial Judgement, para. 706. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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In considering whether an Appellant’s surrender while incarcerated could be considered as voluntary and thus as a mitigating factor in sentencing, the Appeals Chamber found that given that the lack of cooperation between the authorities of Republika Srpska and the International Tribunal during the period under consideration may have impacted upon the likelihood of extradition, the voluntary surrender could be considered a mitigating factor (para. 712). However, the fact of incarceration meant that this mitigating factor would not be given much weight (para. 713). |
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| Decision on Time and Page Extensions for Response - 21.02.2005 |
GALIĆ Stanislav (IT-98-29-A) |
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FINDING that no explanation has been provided which would justify an extension of time or page limits to the Appellant for the filing of his reply, and that a request by a party for extension of time does not automatically amount to a showing of good cause by the opposing party; |
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| Decision on Supplementing Appeal Brief - 18.02.2005 |
NALETILIĆ & MARTINOVIĆ (IT-98-34-A) |
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CONSIDERING that, where a party alleges that the subsequent jurisprudence of the International Tribunal impacts upon the position that party took in its previous submissions, leave for it to supplement the said submissions may be granted; |
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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27. The Appeals Chamber emphasises that while the Statute and the Rules do oblige Trial Chambers to take into account both the aggravating and the mitigating circumstances of a case, the determination of what can constitute an aggravating or a mitigating factor and what weight has to be attached to those is within their discretion.[1] A Trial Chamber’s decision may therefore only be disturbed on appeal if the Appellant shows that the Trial Chamber either erred in the weighing process involved in the exercise of its discretion by taking into account what it ought not to have, or erred by failing to take into account what it ought to have taken into account.[2] 28. The apparent enjoyment an accused may derive from his criminal act has already been considered as an aggravating factor by the International Tribunal. [1] Čelebići Appeal Judgement, paras 716-717. [2] Ibid., para. 780. |
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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66. The weight to be attached to co-operation as a mitigating factor is within the discretion of Trial Chambers, which can decide, after assessing the importance to give to this factor, to give it no weight, to give it “substantial” weight within the meaning of Rule 101(B)(ii), or to give it more “modest” weight in mitigation.[1] The Appellant in the present case only argues that the evidence clearly and unambiguously showed that his cooperation was substantial, and that this, combined with the risk to which he exposed himself by co-operating, should have led the Trial Chamber to accord “greater weight than merely ‘some importance’”.[2] In the absence of a demonstration that the Trial Chamber committed an error in assessing the importance of his cooperation, the Appeals Chamber dismisses the Appellant’s argument in that regard. [1] In the Vasiljević Appeal Judgement, at para. 180, the Appeals Chamber accepted the Trial Chamber’s conclusion that Rule 101(B)(ii) shall not be interpreted as entailing that only “substantial” cooperation can be taken into account in mitigation and that, to the contrary, more “modest” cooperation can be given some weight in mitigation. Paragraph 299 of the Vasiljević Trial Judgement reads: “The Trial Chamber is not satisfied that the statement given by the Accused in the present case represented ‘substantial’ co-operation pursuant to Rule 101(B)(ii), but it does not interpret Rule 101(B)(ii) as excluding the fact that a statement was made from the matters which may be taken into account in mitigation unless such co-operation is ‘substantial’. Nevertheless, the co-operation which was given by the Accused was indeed modest, and it has been given very little weight.” [2] Appellant’s Brief, para. 155: “It is our respectful submission that if it was clear and unambiguous on the evidence and the submissions of the parties, as we submit it was, that the Appellant’s co-operation was substantial, then given, for example, not just the substance of that assistance but also the risk to which any Defendant exposes himself by cooperating with the [Office of the Prosecutor] in this way (which, we say, in the context of the society from which the Appellant comes means exposing himself to the very real risk of serious personal harm or death), co-operation is a factor to be accorded considerably greater weight than merely ‘some importance’”. lack'>ć Sentencing Judgement, para. 50, and Dragan Nikolić Sentencing Judgement, para.184.
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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51. The avoidance of a lengthy trial has been commended, as correctly noted by the Trial Chamber, with the first admission of guilt before the International Tribunal, in the Erdemović Sentencing Judgement: [T]his voluntary admission of guilt which has saved the International Tribunal the time and effort of a lengthy investigation and trial is to be commended.[1] Judge Cassese, in his Separate and Dissenting Opinion to the Erdemović Appeal Judgement, addressed in detail some of the benefits of a guilty plea in terms of the International Tribunal’s resources: It is apparent from the whole spirit of the Statute and the Rules that, by providing for a guilty plea, the draftsmen intended to enable the accused (as well as the Prosecutor) to avoid a possible lengthy trial with all the attendant difficulties. These difficulties - it bears stressing - are all the more notable in international proceedings. Here, it often proves extremely arduous and time-consuming to collect evidence. In addition, it is imperative for the relevant officials of an international court to fulfil the essential but laborious task of protecting victims and witnesses. Furthermore, international criminal proceedings are expensive, on account of the need to provide a host of facilities to the various parties concerned (simultaneous interpretation into various languages; provision of transcripts for the proceedings, again in various languages; transportation of victims and witnesses from far-away countries; provision of various forms of assistance to them during trial, etc.). Thus, by pleading guilty, the accused undoubtedly contributes to public advantage.[2] Following Erdemović, other Trial Chambers have also noted that a guilty plea before the commencement of the trial contributes to saving International Tribunal resources.[3] Nevertheless, the Appeals Chamber emphasises that it considers that the avoidance of a lengthy trial, while an element to take into account in sentencing, should not be given undue weight. [1] Erdemović 1998 Sentencing Judgement, para. 16. [2] Separate and Dissenting Opinion of Judge Cassese to the Erdemović Appeal Judgement, para. 8, cited with approval at para. 80 of the Todorović Sentencing Judgement. [3] Todorović Sentencing Judgement, para. 81. See also Sikirica Sentencing Judgement, para. 149; Plavšić Sentencing Judgement, para. 73; Banović Sentencing Judgement, para. 68; Jokić Sentencing Judgement, para. 77. |
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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89. As previously stated, in exercising their discretion to impose a sentence, Trial Chambers must take into account the following factors: the gravity of the offence and the individual circumstances of the convicted person, the general practice regarding prison sentences in the courts of the former Yugoslavia, and aggravating and mitigating circumstances.[1] The special context of a plea agreement raises an additional factor that must be taken into account. A plea agreement is a matter of considerable importance as it involves an admission by the accused of his guilt. Furthermore, recommendation of a range of sentences or, as in the present case, a specific 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. Those reasons, combined with the Trial Chamber’s 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] [1] Čelebići Appeal Judgement, para. 716. In addition, Trial Chambers are obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10(3) of the Statute and in Rule 101(B)(iv). [2] Kunarac Appeal Judgement, para. 41. |
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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At paras 13 to 18, the Appeals Chamber recalled its previous case-law that there is no sentencing scale at the ICTY. It then stated: 19. The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances,[2] when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified. Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime,[3] with due regard to the entirety of the case, as the triers of fact. The Appeals Chamber recalls that it does not operate as a second Trial Chamber conducting a trial de novo,[4] and that it will not revise a sentence unless the Appellant demonstrates that the Trial Chamber has committed a “discernible error” in exercising its discretion.[5] See also Limaj Appeal Judgement, para. 135. [1] Čelebići Appeal Judgement, para. 821. [2] Ibid., para. 720. [3] Ibid., para. 717. [4] Furundžija Appeal Judgement, para. 40; Čelebići Appeal Judgement, para. 203. [5] Tadić Judgement in Sentencing Appeals, para. 22. See also Blaskić Appeal Jugdement, para. 680. See supra para. 9. |
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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21. With regard to the Appellant’s submission that the Trial Chamber violated the principle of proportionality, the Appellant’s argument is that the Trial Chamber did so by equating his offences and the position in which he was placed “to that of the likes of the ICTR Defendants”.[1] The Appellant referred to paragraph 126 of the Sentencing Judgement, whereby the Trial Chamber indeed made clear that it would adhere to this principle. The Appeals Chamber finds that the principle of proportionality, in the Trial Chamber’s consideration, means that the punishment must be “proportionate to the moral blameworthiness of the offender”[2] and requires that “other considerations such as deterrence and societal condemnation of the acts of the offender” be taken into account.[3] The principle of proportionality referred to by the Trial Chamber by no means encompasses proportionality between one’s sentence and the sentence of other accused. As correctly noted by the Trial Chamber, the principle of proportionality implies that “[a] sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender”.[4] It appears that the Appellant misunderstands what the principle of proportionality encompasses.[5] [1] Appellant's Brief, para. 117. [2] Canadian Supreme Court decision in R. v. Martineau (R. v. Martineau, [1990] 2 S.C.R. 633, p. 645), cited at footnote 161 of the Sentencing Judgement. [3] Canadian Supreme Court decision in R. v. Arkell (R. v. Arkell, [1990] 2 S.C.R. 695, p. 704), cited at footnote 161 of the Sentencing Judgement. [4] Sentencing Judgement, para. 144, referring to para. 414 of the Akayesu Appeal Judgement. [5] Asked by the Presiding Judge, at the Appeal Hearing, whether his reference to the principle of proportionality involved proportionality with sentences in other cases and proportionality between the circumstances of the crimes and the sentence rendered, Counsel for the Appellant replied that the principle encompasses both. However, he made no submission in respect of the latter. |
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| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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At paras 44-47, the Appeals Chamber endorsed the definition of individual deterrence retained in the Trial Judgement and discussed the effects of such factor on sentencing: 44. At paragraphs 134 and 135 of the Sentencing Judgement, the Trial Chamber held: 134. Individual and general deterrence has an important function in principle and serves as an important goal of sentencing.[1] 135. Individual deterrence refers to the specific effect of the sentence upon the accused which should be adequate to discourage him from re-offending once the sentence has been served and he has been released. The Trial Chamber finds, however, that individual deterrence has no relevance in this case. 45. The Appeals Chamber adheres to the definition of individual deterrence provided by the Trial Chamber.[2] The rationale behind individual deterrence is that the sentence should be adequate to discourage an accused from recidivism after the sentence has been served and he has been released. The rationale behind general deterrence is very similar: “the penalties imposed by the International Tribunal must […] have sufficient deterrent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so.”[3] 46. The Appeals Chamber reiterates that the principle of deterrence is “a consideration that may legitimately be considered in sentencing”[4] but that, in any case, “this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal”.[5] While it is undisputed that the element plays “an important role in the functioning of the Tribunal”,[6] the Trial Chamber’s duty remains to tailor the penalty to fit the individual circumstances of the accused and the gravity of the crime.[7] By doing so, Trial Chambers contribute to the promotion of and respect for the rule of law and respond to the call from the international community to end impunity, while ensuring that the accused are punished solely on the basis of their wrongdoings and receive a fair trial. 47. The Appeals Chamber therefore does not see how the Trial Chamber erred in the exercise of its discretion in imposing the sentence in this case. The Trial Chamber did consider the principle of deterrence as a fundamental principle to take into consideration when imposing a sentence[8] and correctly understood the scope of individual deterrence.[9] The Appeals Chamber considers that the Trial Chamber, in finding that individual deterrence does not apply, could have briefly referred to the reasons why it does not, so as to inform the Appellant, but was under no obligation to do so. Furthermore, it seems that the Appellant misunderstood the effect of the principle of deterrence at sentencing. He alleges that he was entitled to “benefit” from individual deterrence and treats this argument under his ground of appeal related to the alleged error of the Trial Chamber in its consideration of the mitigating factors. As shown above, individual deterrence is not a mitigating factor; it instead is a sentencing factor which, when relevant, is considered in imposing a penalty to enhance, but not to reduce, a sentence. A finding of a Trial Chamber that individual deterrence does not apply cannot therefore prejudice an accused. [1] Stakić Trial Judgement, para. 900. [2] This definition has also been adopted in the Deronjić Sentencing Judgement, para. 145. [3] Todorović Sentencing Judgement, para. 30. [4] Tadić Judgement in Sentencing Appeals, para. 48 (emphasis added). [5] Ibid., cited with approval in the Aleksovski Appeal Judgement, para. 185. [6] Čelebići Appeal Judgement, para. 800, citing with emphasis paragraph 72 of the Tadić Jurisdiction Decision, which reads: “In adopting resolution 827, the Security Council established the International Tribunal with the stated purpose of bringing to justice persons responsible for serious violations of international humanitarian law in the former Yugoslavia, thereby deterring future violations and contributing to the re-establishment of peace and security in the region.” [7] Čelebići Appeal Judgement, para. 717. [8] Sentencing Judgement, para. 132. [9] Ibid., para. 135. |
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| Notion(s) | Filing | Case |
| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle [of lex mitior] applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction”,[1] and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply.[2] The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal. 81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide. 82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person’s life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges. 83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment. 84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia.[3] It has merely to take it into consideration. Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal’s judges. In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal’s statute, States could then prevent their citizens from being properly sentenced by this Tribunal. This is not compatible with the International Tribunal’s primacy enshrined in Article 9(2) of the Statute and its overall mandate. 85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported. [1] Ibid., para. 163. [2] Ibid., paras 164-165. [3] See Tadić Sentencing Appeal Judgement, para. 21. See supra para. 69. |
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| Notion(s) | Filing | Case |
| Judgement on Sentencing Appeal - 04.02.2005 |
NIKOLIĆ Dragan (IT-94-2-A) |
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97. The Appeals Chamber notes that the Trial Chamber, by imposing a sentence of 23 years, clearly – although not expressly – entered into a calculation to reflect the practice of the International Tribunal of granting early release after the convicted person has served two-thirds of his sentence:[1] the term of 15 years clearly amounts to two-thirds of the sentence it effectively rendered. The Appeals Chamber considers that the Trial Chamber mechanically – not to say mathematically – gave effect to the possibility of an early release. By doing so, it attached too much weight to the possibility of an early release. As a consequence, the Appeals Chamber (Judge Shahabuddeen dissenting) finds that a reduction of sentence shall be granted. (See also Judge Shahabuddeen’s Dissenting Opinion) [1] Prosecutor v. Miroslav Tadić, Case No. IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić, 24 June 2004, para. 4: “[…] the eligibility for pardon or commutation of sentence in the enforcement states generally ‘starts at two-thirds of the sentence served’. It has been a consistent practice of this Tribunal to apply this standard when determining the eligibility of persons imprisoned at the UNDU for pardon or commutation of sentence.” |
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