The factors that a Trial Chamber is obliged to take into account in sentencing a defendant are set out in Article 23 of the Statute and in Rule 101 of the Rules. They are:

(1) the general practice regarding prison sentences in the courts of Rwanda. However, Trial Chambers are not obliged to conform to that practice but need only to take account of it;[1]

(2) the gravity of the offences (i.e. the gravity of the crimes of which the accused has been convicted, and the form or degree of responsibility for these crimes). It is well established that this is the primary consideration in sentencing;[2]

(3) the individual circumstances of the accused, including aggravating and mitigating circumstances. Aggravating circumstances must be proved by the Prosecutor beyond reasonable doubt;[3] the accused bears the burden of establishing mitigating factors based on the most probable hypothesis (or according to the term of art used in certain jurisdictions, “on a balance of probabilities”).[4] While the Trial Chamber is legally required to take into account any mitigating circumstances, what constitutes a mitigating circumstance and the weight to be accorded thereto is a matter for the Trial Chamber to determine in the exercise of its discretion.[5] In particular, the existence of mitigating circumstances does not automatically imply a reduction of sentence or preclude the imposition of a sentence of life imprisonment;[6]

(4) the extent to which any sentence imposed on the defendant by a court of any State for the same act has already been served.

The Appeals Chamber further recalls that credit shall be given for any period of detention of the defendant prior to final judgement.[7]

47. The right of an accused to be tried before an impartial tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] Furthermore, Article 12 of the Statute cites impartiality as one of the essential qualities of any Tribunal Judge, while Rule 14(A) of the Rules provides that, before taking up his duties, each Judge shall make a solemn declaration that he will perform his duties and exercise his powers “impartially and conscientiously”. The requirement of impartiality is again recalled in Rule 15(A) of the Rules, which provides that “[a] judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality”.

48. The Appeals Chamber reiterates that there is a presumption of impartiality which attaches to any Judge of the Tribunal and which cannot be easily rebutted.[2] In the absence of evidence to the contrary, it must be assumed that the Judges “can disabuse their minds of any irrelevant personal beliefs or predispositions”.[3] Therefore, it is for the appellant doubting the impartiality of a Judge to adduce reliable and sufficient evidence to the Appeals Chamber to rebut this presumption of impartiality.[4]  [See also para. 183 of the Appeal Judgement]

49. In the Akayesu Appeal Judgement, the Appeals Chamber recalled the criteria set out by the ICTY Appeals Chamber regarding the obligation of impartiality incumbent upon a Judge:

That there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A. A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or

(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[5]

50. The test of the reasonable observer, properly informed, refers to “an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality, apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.[6] The Appeals Chamber must therefore determine whether such a hypothetical fair-minded observer, acting in good faith, would accept that a Judge might not bring an impartial and unprejudiced mind to the issues arising in the case.[7]

78. The Appeals Chamber recalls that the Judges of this Tribunal and those of the ICTY are sometimes involved in several trials which, by their very nature, cover issues that overlap. It is assumed, in the absence of evidence to the contrary, that, by virtue of their training and experience, the Judges will rule fairly on the issues before them, relying solely and exclusively on the evidence adduced in the particular case.[8] The Appeals Chamber agrees with the ICTY Bureau that “a judge is not disqualified from hearing two or more criminal trials arising out of the same series of events, where he is exposed to evidence relating to these events in both cases”.[9] [See also para. 84 et seq. of the Appeal Judgement]

See also Hadžihasanović Appeal Judgement, para. 78.

380. The factors that a Trial Chamber is obliged to take into account in sentencing a convicted person are provided for in Article 23 of the Statute and Rule 101 of the Rules.  Those factors are: the general practice regarding prison sentences in the courts of Rwanda;  the gravity of the offence; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; and 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.  This list is not exhaustive;  it was held by the Appeals Chamber of ICTY that it is inappropriate for it “to attempt to list exhausitively the factors that  […] should be taken into account by a Trial Chamber in determining sentence”.[1]

414. […] 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.”  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. 

See also paras 410-413.