Non-prosecution agreement

Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan

753. The Appeals Chamber recalls that a trial chamber is required to consider any mitigating circumstance when determining the appropriate sentence, but it enjoys considerable discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to the factors identified.[1] The existence of mitigating factors does not automatically imply a reduction of sentence or preclude the imposition of a particular sentence.[2]

754. Turning to Karadžić’s submissions regarding the purported violation of the non-prosecution agreement, the Appeals Chamber observes that the Trial Chamber considered the Holbrooke Agreement[3] and Karadžić’s reliance on it for two purposes: (i) to demonstrate his good character and conduct after the conflict; and (ii) to receive a remedy for the violation of his rights resulting from his prosecution at the ICTY in alleged breach of this agreement.[4] The Trial Chamber concluded that Karadžić’s decision to step down from public office in July 1996 had a “positive influence on the establishment of peace and stability” in Bosnia and Herzegovina and the region and found this to be a mitigating factor.[5] The Trial Chamber also examined evidence that Karadžić verbally agreed to step down from public office in order to not be prosecuted by the ICTY[6] but considered his reasons for resigning irrelevant to determining mitigating factors in sentencing.[7]

755. The Appeals Chamber finds no error in this approach. The Appeals Chamber recalls that the ICTY Appeals Chamber issued a decision on 12 October 2009 finding that, even if the Holbrooke Agreement provided that Karadžić would not be prosecuted before the ICTY, “it would not limit the jurisdiction of the [ICTY], it would not otherwise be binding on the [ICTY] and it would not trigger the doctrine of abuse of process”.[8] The Appeals Chamber of the ICTY considered that a fundamental aim of international criminal tribunals is to end impunity by ensuring that serious violations of international humanitarian law are prosecuted and punished.[9] Consequently, it held that individuals accused of such crimes “can have no legitimate expectation of immunity from prosecution” and that Karadžić’s “expectations of impunity do not constitute an exception to this rule”.[10] Accordingly, the Trial Chamber correctly did not take into account any purported non-prosecution agreement when assessing the mitigating factors. The Appeals Chamber finds that Karadžić does not demonstrate any error on the part of the Trial Chamber in this respect.

[1] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 1130; Nyiramasuhuko et al. Appeal Judgement, para. 3394; Ngirabatware Appeal Judgement, para. 265.

[2] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3394; Ngirabatware Appeal Judgement, para. 265 and references cited therein.

[3] Trial Judgement, paras. 6053-6057.

[4] Trial Judgement, para. 6053, n. 20648, referring to Karadžić Final Trial Brief, paras. 3379-3406. See Karadžić Final Trial Brief, paras. 3400-3406.

[5] Trial Judgement, para. 6057.

[6] See Trial Judgement, para. 6056.

[7] Trial Judgement, para. 6057.

[8] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Decision of 12 October 2009”), para. 54.

[9] Decision of 12 October 2009, para. 52.

[10] Decision of 12 October 2009, para. 52.

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