Accused's character

Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

787. Reference to the jurisprudence of the Tribunal and ICTR, [1] and to guidelines and practice of national jurisdictions,[2] illustrates that it is established practice that trial courts exercise a broad discretion in the factors they may consider on sentence. This indicates that all information relevant to an accused’s character may be considered.  As accepted by the Supreme Court of the United States, “modern concepts individualising punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial”.[3]  Therefore there is a relevant distinction in the role of a fact-finder at trial and a sentencing judge, who is not restrained by the same rules.  Rather, it is essential that the sentencing judge is in “possession of the fullest information possible concerning the defendant’s life and characteristics”.[4] 

788. The Trial Chambers of the Tribunal and the ICTR have consistently taken evidence as to character into account in imposing sentence.  The Appeals Chamber notes that factors such as conduct during trial proceedings, ascertained primarily through the Trial Judges’ perception of an accused, have also been considered in both mitigation and aggravation of sentence.[5]  […] This behaviour is relevant to a Trial Chamber’s determination of, for example, remorse for the acts committed or, on the contrary, total lack of compassion.[6] 

[1]    See e.g., Prosecutor v Kambanda, Judgement and Sentence, Case No ICTR 97-23-S, 4 Sept 1998 at para 30; Prosecutor v Akayesu, Sentence, Case No ICTR-96-4-T, 2 Oct 1998, para 21. Prosecutor v Kayishema and Ruzindana, Sentence, Case No ICTR-95-1-T, 21 May 1999, para 3: “These enumerated circumstances, [contained in the Statute and the Rules] however, are not necessarily mandatory or exhaustive. It is a matter of individualising the penalty considering the totality of the circumstances.”

[2]    See e.g.: In the former Yugoslavia, Article 41(1) of the SFRY Penal Code 1990.  In the United Kingdom, the Magistrates Association Sentencing Guidelines issued in 1993 guide the Magistrates in setting out aggravating and mitigating factors in relation to specific offences.  As in the United Kingdom, sentencing in the United States is assisted by Pre-Sentence Reports prepared by probation officers, who enjoy wide discretion in the information to include and present before the court. In Williams v. New York, 337 U.S. 241, (1949) it was noted that “the modern probation report draws on information concerning every aspect of a defendant’s life.” (p 250).  It upheld what is described as “real offence” sentencing or, sentencing that goes beyond the elements of the offence and considers the gravity of the accused’s conduct.  It found that courts do not violate due process by considering unrelated criminal conduct, even if it did not result in a criminal conviction.  See also United States v Grayson, 438 U.S. 41, where it was found that in a system of discretionary sentencing, it is proper and even necessary to consider the defendant’s whole person and personality, as manifested by his conduct at trial and his testimony under oath.  See also 18 UCSA, para 3553(1) which provides that the court should consider “the nature and circumstances of the offence and the history and characteristics of the defendant” and para 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offence which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence”.  In Canada, s 726.1 of the Canadian Criminal Code provides: In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.  In Denmark, See ss 80, 84 and 85 of the Danish Criminal Code.

[3]    Williams v New York, 337 U.S. 241, (1949), p 247.

[4]    William New York, 337 U.S. 241, (1949), p 247.

[5]    For example, in the Blaškić Judgement, para 780: “…the Trial Chamber must take note of the exemplary behaviour of the accused throughout the trial, whatever the judgement as to his statements as a witness.”  In Prosecutor v Kayishema and Ruzindana, Sentence, Case No ICTR-95-1-T, 21 May 1999, para 17, the Trial Chamber noted: “The Prosecution cited one aggravating factor, Ruzindana’s behaviour after the criminal act, and notably the fact that Ruzindana smiled or laughed as survivors testified during trial.”

[6]    In the Second Erdemović Sentencing Judgement, para 16, the Trial Chamber considered remorse and compassion as mitigating factors. 

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