30. In exercising their discretion to impose a sentence, Trial Chambers must take into account the special context of a plea agreement as an additional factor. A plea agreement is a matter of considerable importance as it involves an admission of guilt by the accused. Furthermore, recommendation of a range of sentences or, as in the present case, a specific maximum sentence, reflects an agreement between the parties as to what in their view would constitute a fair sentence. The Appeals Chamber notes that Rule 62ter (B) of the Rules unambiguously states that Trial Chambers shall not be bound by any agreement between the parties. Nevertheless, in the specific context of a sentencing judgement following a plea agreement, the Appeals Chamber emphasises that Trial Chambers shall give due consideration to the recommendation of the parties and, should the sentence diverge substantially from that recommendation, give reasons for the departure.[1] Those reasons, combined with the Trial Chambers’ obligation pursuant to Article 23(2) of the Statute to render a Judgement “accompanied by a reasoned opinion in writing”, will facilitate a meaningful exercise of the convicted person’s right to appeal and allow the Appeals Chamber “to understand and review the findings of the Trial Chamber”.[2]

10. Nsengiyumva requests that judicial notice be taken of portions of a sentencing judgement based on a guilty plea. In this respect, the Appeals Chamber notes that Trial Chambers of this Tribunal and of the International Criminal Tribunal for the former Yugoslavia have held that in order to be judicially noticed, facts must not be based on an agreement between the parties to the original proceedings,[1] and that, as such, facts shall not be deemed “adjudicated” if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings.[2] This position is based on the consideration that such facts are not proper sources of judicial notice because they have not been subjected to the same level of scrutiny as in other trial situations where one of the parties has the burden of proof,[3] and that the accused’s admissions “speak neither to the general currency of the fact nor to its indisputable character.”[4]

11. The Appeals Chamber agrees that facts based on an agreement between parties in previous proceedings cannot be deemed “adjudicated facts” within the meaning of Rule 94 of the Rules because they have not been established by the Trial Chamber on the basis of evidence. Rather, such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than the one applied to instances where the Prosecution must prove the facts upon which convictions are based beyond reasonable doubt. In light of this reasoning, the Appeals Chamber finds that the facts admitted by Michel Bagaragaza as set out in paragraphs 24 and 25 of the Bagaragaza Sentencing Judgement are not subject to judicial notice under Rule 94(B) of the Rules.

51. The avoidance of a lengthy trial has been commended, as correctly noted by the Trial Chamber, with the first admission of guilt before the International Tribunal, in the Erdemović Sentencing Judgement:

[T]his voluntary admission of guilt which has saved the International Tribunal the time and effort of a lengthy investigation and trial is to be commended.[1]

Judge Cassese, in his Separate and Dissenting Opinion to the Erdemović Appeal Judgement, addressed in detail some of the benefits of a guilty plea in terms of the International Tribunal’s resources:

It is apparent from the whole spirit of the Statute and the Rules that, by providing for a guilty plea, the draftsmen intended to enable the accused (as well as the Prosecutor) to avoid a possible lengthy trial with all the attendant difficulties. These difficulties - it bears stressing - are all the more notable in international proceedings. Here, it often proves extremely arduous and time-consuming to collect evidence. In addition, it is imperative for the relevant officials of an international court to fulfil the essential but laborious task of protecting victims and witnesses. Furthermore, international criminal proceedings are expensive, on account of the need to provide a host of facilities to the various parties concerned (simultaneous interpretation into various languages; provision of transcripts for the proceedings, again in various languages; transportation of victims and witnesses from far-away countries; provision of various forms of assistance to them during trial, etc.). Thus, by pleading guilty, the accused undoubtedly contributes to public advantage.[2]

Following Erdemović, other Trial Chambers have also noted that a guilty plea before the commencement of the trial contributes to saving International Tribunal resources.[3] Nevertheless, the Appeals Chamber emphasises that it considers that the avoidance of a lengthy trial, while an element to take into account in sentencing, should not be given undue weight.

61. The Appeals Chamber holds that the conditions for accepting a plea agreement are firstly that the person pleading guilty must understand the consequence of his or her actions, and secondly that no pressure must have been brought to bear upon that person to sign the plea agreement. This position is reflected in the separate opinion of Judges McDonald and Vohrah in Erdemović, which stated that a voluntary plea requires two elements, namely that “an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty” and “the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentences.”[1]

84. The Appeals Chamber notes that, as articulated by Judges McDonald and Vohrah in the Erdemović case, “[w]hether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.”[1] This Appeals Chamber agrees with this statement.

18. The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah, unanimously finds that the Appellant’s plea was voluntary.

19. […] [T]he majority of the Appeals Chamber finds that the guilty plea of the Appellant was not equivocal. […]

20. […] The Appeals Chamber, for the reasons set out in the Joint Separate Opinion of Judge McDonald and Judge Vohrah, finds that the guilty plea of the Appellant was not informed and accordingly remits the case to a Trial Chamber other than the one which sentenced the Appellant in order that he be given an opportunity to replead. […]

The Joint Separate Opinion of Judge McDonald and Judge Vohrah found that for a guilty plea to be entered, certain pre-conditions must be satisfied:

 8. […]  It follows, therefore, that certain pre-conditions must be satisfied before a plea of guilty can be entered. In our view, the minimum  re-conditions are as follows:

a)     The guilty plea must be voluntary.  It must be made by an accused who is mentally fit to understand the consequences of pleading guilty and who is not affected by any threats, inducements or promises.

b)     The guilty plea must be informed, that is, the accused must understand the nature of the charges against him and the consequences of pleading guilty to them.  The accused must know to what he is pleading guilty;

c)     The guilty plea must not be equivocal.  It must not be accompanied by words amounting to a defence contradicting an admission of criminal responsibility;

10. […] Voluntariness involves two elements.  Firstly, an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty.  […] Secondly, the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentence. 

13. […] Although it appears that the Appellant did not in his reply address the question whether he was promised anything for his plea, in the absence of any suggestion that the plea was improperly solicited, we would find that the Appellant pleaded guilty voluntarily whilst he was mentally competent to comprehend the consequences of his so pleading.

14. The fact that the Appellant was mentally competent to comprehend the consequences of pleading guilty does not necessarily mean that the plea was “informed”.  Indeed, all common law jurisdictions insist that an accused who pleads guilty must understand the nature and consequences of his plea and to what precisely he is pleading guilty[1].  […] In respect of the present case, an informed plea would require that the Appellant understand (a)   the nature of the charges against him and the consequences of pleading guilty generally; and (b) the nature and distinction between the alternative charges and the consequences of pleading guilty to one rather than the other.

15. […] We feel unable to hold with any confidence that the Appellant was adequately informed of the consequences of pleading guilty by the explanation offered during the initial hearing.  It was not clearly intimated to the Appellant that by pleading guilty, he would lose his right to a trial, to be considered innocent until proven guilty and to assert his innocence and his lack of criminal responsibility for the offences in any way.  It was explained to the Appellant that, if he pleaded not guilty he would have to contest the charges, whereas, if he pleaded guilty he would be given the opportunity of explaining the circumstances under which the offence was committed.

16.        Moreover, it appears to us that defence counsel consistently advanced arguments contradicting the admission of guilt and criminal responsibility implicit in a guilty plea.  If the defence had truly understood the nature of a guilty plea, it would not have persisted in its arguments which were obviously at odds with such a plea. […]  

19. […] With respect, the difference between a crime against humanity and a war crime was not adequately explained to the Appellant by the Trial Chamber at the initial hearing nor was there any attempt to explain the difference to him at any later occasion when the Appellant reaffirmed his plea.  […]

We have, accordingly, no doubt that the misapprehension regarding the true distinction between the two alternative charges led the Appellant to plead guilty to the more serious of the two charges, that is, the charge alleging the crime against humanity. 

26. […] There is nothing on the record to show that anyone, either defence counsel or the Trial Chamber, had explained to the Appellant that a crime against humanity is a more serious crime and that if he had pleaded guilty to the alternative charge of a war crime he could expect a correspondingly lighter punishment. […]

31. Whether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.  The Appellant pleaded guilty but claimed that he acted under duress.  It follows therefore that we must now examine whether duress can constitute a complete defence to the killing of innocent persons.