Imposition of a minimum sentence

Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir

In sentencing the Appellant to life imprisonment, the Trial Chamber stated:

The then competent court (Rule 104 of the Rules) shall review this sentence and if appropriate suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation, if: (1) 20 years have been served calculated in accordance with Rule 101(C) from the date of Dr. Stakić’s deprivation of liberty for the purposes of these proceedings, this being the “date of review”[;] (2) In reaching a decision to suspend the sentence, the following considerations, inter alia, shall be taken into account: the importance of the legal interest threatened in case of recidivism; the conduct of the convicted person while serving his sentence; the personality of the convicted person, his previous history and the circumstances of his acts; the living conditions of the convicted person and the effects which can be expected as a result of the suspension[.][1]

The Appeals Chamber found that the Trial Chamber acted “ultra vires”[2] in imposing a review obligation on the Host State whereas Article 28 of the Statute, Rule 123 of the Rules, the Practice Direction on Pardon, Commutation of Sentence and Early Release,[3] and the Model Agreement for enforcing sentences[4] “each provide that eligibility of a convicted person for pardon, early release or commutation of sentence is determined by the law of the State in which the convicted person is serving his sentence”.[5] It also found that, by vesting the courts of the Host States with the power to suspend the sentence, the Trial Chamber removed the power of the President of the Tribunal[6] to make the final determination regarding the sentence.[7]

[1] Trial Judgement, pp. 253-254 (Disposition).

[2] Judgement, para. 393.

[3] Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal, IT/146, 7 April 1999. 

[4] “If, pursuant to the applicable national law of the requested State, the convicted person is eligible for pardon or commutation of the sentence, the requested State shall notify the Registrar accordingly.”

[5] Judgement, para. 392.

[6] Article 28 of the Statute, Rules 124 and 125 of the Rules, Practice Direction, paras 5-11.

[7] Judgement, para. 392.

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ICTR Statute Article 27 ICTY Statute Article 28 ICTR Rule Rule 124 ICTY Rule Rule 123 Other instruments Model Agreement for Enforcing Sentences (ICTY). Practice Direction on the Procedure for the Determination of Applications for Pardon Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal (ICTY).
Notion(s) Filing Case
Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

28. Neither the Statute nor the Rules provide guidance for judicial discretion with respect to the recommendation of a minimum sentence.  The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules.  However, the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness.


31. […] the Trial Chamber’s recommendation that the ten-year minimum sentence begins to run “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later raises legitimate concerns. Such a condition could suggest to prospective appellants that the exercise of the right to appeal could result in enhanced penalties.  The consequential discouragement of appeals may deprive the Appeals Chamber of the opportunity to hear appeals on substantial questions of law.

32. Accordingly, the Appeals Chamber finds that the Trial Chamber erred insofar as it ordered that the recommended minimum term take as its starting point the final determination of any appeal.   […]

See also paras. 29–30.

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