35. Errors of law do not raise a question as to the standard of review as directly as errors of fact.  Where a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake.  A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point.  The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.

36. Furthermore, this Chamber is only empowered to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) when there is an error of law that invalidates that decision. It is not any error of law that leads to a reversal or revision of the Trial Chamber’s decision; rather, the appealing party alleging an error of law must also demonstrate that the error renders the decision invalid.

237. The Appeals Chamber notes that the practice of the Tribunal with regard to sentencing is still in its early stages.  Several sentences have been handed down by different Trial Chambers but these are now subject to appeal.  Only three final sentencing judgements have been delivered: one by a Trial Chamber established for sentencing purposes following a successful appeal by the accused in Erdemović,[1] and the others by the Appeals Chamber in Tadić and Aleksovski,[3] each of which has resulted in a revision of the sentence imposed by the original Trial Chamber.  It is thus premature to speak of an emerging “penal regime”,[4] and the coherence in sentencing practice that this denotes.  It is true that certain issues relating to sentencing have now been dealt with in some depth; however, still others have not yet been addressed.  The Chamber finds that, at this stage, it is not possible to identify an established “penal regime”.  Instead, due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.

74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY[1] given by various Trial Chambers of the international criminal Tribunals whereby:

- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;[2]

- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial[3] for the acts covered by the indictment brought against the Accused by the Tribunal[4] and at the end of which trial a final judgement is rendered.[5]

107. Under Rule 62, the Appellant’s right to be brought before a Trial Chamber without delay and be formally charged came into effect on the date of his transfer to the Tribunal.[1] […]

[…]

110. The Parties to a case are responsible for the strategies they use in conducting it. […] Counsel for the Appellant consented to having the Appellant’s initial appearance not take place within the shortest possible lapse of time and himself contributed to prolonging it.

111. The Appeals Chamber finds that Counsel’s request has the import of waiving the Appellant’s right to claim violation of his right to be brought before a Trial Chamber without delay and be formally charged.

92. The Appeals Chamber adopts the findings of ICTY Appeals Chamber in the Aleksovski case[1] and recalls that in the interests of legal certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. […]

22. Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstances is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice. […]

23. Article 23(3) of the Statute outlines the factors which the Trial Chamber ought to take into account during sentencing. The factors are elaborated upon in Rules 101(B) and (C)[1] of the Rules. Although Rule 101(B)(ii) requires a Trial Chamber to consider any mitigating circumstances, the question of the due weight to be attached to any such circumstance is a matter of discretion for the Trial Chamber. The Trial Chamber’s decision in this regard may not be disturbed on appeal unless the Appellant shows the following: (a) the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have, taken into account in the weighing process involved in this exercise of the discretion; and, (b) if it did, that this resulted in a miscarriage of justice. […]

41.     […] [I]t is clear from the Statute and the Rules[1] that, in order for a Chamber to carry out a review, it must be satisfied that four criteria have been met. There must be a new fact; this new fact must not have been known by the moving party at the time of the original proceedings; the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and it must be shown that the new fact could have been a decisive factor in reaching the original decision.

42.     The Appeals Chamber of the International Tribunal for the former Yugoslavia has highlighted the distinction, which should be made between genuinely new facts which may justify review and additional evidence of a fact [2]. In considering the application of Rule 119 of the Rules of the International Tribunal for the former Yugoslavia (which mirrors Rule 120 of the Rules [of the International Tribunal for Rwanda]), the Appeals Chamber held that:

Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial but rather a new fact…It is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision”.[3]

Further, the Appeals Chamber stated that-

a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules.[4]

43.     The Appeals Chamber would also point out at this stage, that although the substantive issue differed, in Prosecutor v. Dra‘en Erdemović,[5] the Appeals Chamber undertook to warn both parties that “[t]he 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”. The Appeals Chamber confirms that it notes and adopts both this observation and the test established in Prosecutor v. Duško Tadić in consideration of the matter before it now.

44.     […] [A] “new fact” cannot be considered as failing to satisfy the criteria simply because it occurred before the trial. What is crucial is satisfaction of the criteria which the Appeals Chamber has established will apply. If a “new” fact satisfies these criteria, and could have been a decisive factor in reaching the decision, the Appeals Chamber can review the Decision.

65.     In the wholly exceptional circumstances of this case, and in the face of a possible miscarriage of justice, the Chamber construes the condition laid down in Rule 120, that the fact be unknown to the moving party at the time of the proceedings before a Chamber, and not discoverable through the exercise of due diligence, as directory in nature. In adopting such a position, the Chamber has regard to the circumstance that the Statute itself does not speak to this issue.

66.     There is precedent for taking such an approach. Other reviewing courts, presented with facts which would clearly have altered an earlier decision, have felt bound by the interests of justice to take these into account, even when the usual requirements of due diligence and unavailability were not strictly satisfied. While it is not in the interests of justice that parties be encouraged to proceed in a less than diligent manner, “courts cannot close their eyes to injustice on account of the facility of abuse”[1].

185. […] While the Appeals Chamber accepts the general importance of deterrence as a consideration in sentencing for international crimes, it concurs with the statement in Prosecutor v. Tadić that “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”.[1] An equally important factor is retribution.  This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.  This factor has been widely recognised by Trial Chambers of this International Tribunal as well as Trial Chambers of the International Criminal Tribunal for Rwanda.[2]  Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question[3] and show “that the international community was not ready to tolerate serious violations of international humanitarian law and human rights”.[4]

104. The right of appeal is a component of the fair trial requirement[1] set out in Article 14 of the ICCPR, and Article 21(4) of the Statute. The right to a fair trial is, of course, a requirement of customary international law.[2]

105. An aspect of the fair trial requirement is the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way and decided as Judge Tanaka said, “possibly by the same reasoning.”[3]

106. The right to a fair trial requires and ensures the correction of errors made at trial.  At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered.