Individual deterrence

Notion(s) Filing Case
Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan

At paras 44-47, the Appeals Chamber endorsed the definition of individual deterrence retained in the Trial Judgement and discussed the effects of such factor on sentencing:

44. At paragraphs 134 and 135 of the Sentencing Judgement, the Trial Chamber held:

134. Individual and general deterrence has an important function in principle and serves as an important goal of sentencing.[1]

135. Individual deterrence refers to the specific effect of the sentence upon the accused which should be adequate to discourage him from re-offending once the sentence has been served and he has been released. The Trial Chamber finds, however, that individual deterrence has no relevance in this case.

45. The Appeals Chamber adheres to the definition of individual deterrence provided by the Trial Chamber.[2] The rationale behind individual deterrence is that the sentence should be adequate to discourage an accused from recidivism after the sentence has been served and he has been released. The rationale behind general deterrence is very similar: “the penalties imposed by the International Tribunal must […] have sufficient deterrent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so.”[3]

46. The Appeals Chamber reiterates that the principle of deterrence is “a consideration that may legitimately be considered in sentencing”[4] but that, in any case, “this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal”.[5] While it is undisputed that the element plays “an important role in the functioning of the Tribunal”,[6] the Trial Chamber’s duty remains to tailor the penalty to fit the individual circumstances of the accused and the gravity of the crime.[7] By doing so, Trial Chambers contribute to the promotion of and respect for the rule of law and respond to the call from the international community to end impunity, while ensuring that the accused are punished solely on the basis of their wrongdoings and receive a fair trial.

47. The Appeals Chamber therefore does not see how the Trial Chamber erred in the exercise of its discretion in imposing the sentence in this case. The Trial Chamber did consider the principle of deterrence as a fundamental principle to take into consideration when imposing a sentence[8] and correctly understood the scope of individual deterrence.[9] The Appeals Chamber considers that the Trial Chamber, in finding that individual deterrence does not apply, could have briefly referred to the reasons why it does not, so as to inform the Appellant, but was under no obligation to do so. Furthermore, it seems that the Appellant misunderstood the effect of the principle of deterrence at sentencing. He alleges that he was entitled to “benefit” from individual deterrence and treats this argument under his ground of appeal related to the alleged error of the Trial Chamber in its consideration of the mitigating factors. As shown above, individual deterrence is not a mitigating factor; it instead is a sentencing factor which, when relevant, is considered in imposing a penalty to enhance, but not to reduce, a sentence. A finding of a Trial Chamber that individual deterrence does not apply cannot therefore prejudice an accused.

[1] Stakić Trial Judgement, para. 900.

[2] This definition has also been adopted in the Deronjić Sentencing Judgement, para. 145.

[3] Todorović Sentencing Judgement, para. 30.

[4] Tadić Judgement in Sentencing Appeals, para. 48 (emphasis added).

[5] Ibid., cited with approval in the Aleksovski Appeal Judgement, para. 185.

[6] Čelebići Appeal Judgement, para. 800, citing with emphasis paragraph 72 of the Tadić Jurisdiction Decision, which reads: “In adopting resolution 827, the Security Council established the International Tribunal with the stated purpose of bringing to justice persons responsible for serious violations of international humanitarian law in the former Yugoslavia, thereby deterring future violations and contributing to the re-establishment of peace and security in the region.”

[7] Čelebići Appeal Judgement, para. 717.

[8] Sentencing Judgement, para. 132.

[9] Ibid., para. 135.

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