Convictions on the basis of both direct and superior responsibility

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

745. Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence.  This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count.  Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).[1]  The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence. […]

[1]    This observation applies only if the two types of responsibility are not independently charged under different counts, with separate sentences imposed on each.  A different situation may arise of two separate counts against an accused, one alleging Article 7(1) responsibility for direct or accessory participation in a particular criminal incident, and another alleging Article 7(3) responsibility for failure to prevent or punish subordinates for their role in the same incident.  If convictions and sentences are entered on both counts, it would not be open to aggravate the sentence on the Article 7(3) charge on the basis of the additional direct participation, nor the sentence on the Article 7(1) charge on the basis of the accused’s position of authority, as to do so would impermissibly duplicate the penalty imposed on the basis of the same conduct.

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