Lex mitior

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.

At para. 48, the Appeals Chamber held:

The Referral Bench had no obligation to determine which jurisdiction provided guarantees of enforcing the more lenient law on the Appellants in the case of referral; it had only to satisfy itself that there were appropriate provisions —within the legal framework of BiH— to address the criminal acts alleged in the Indictment and that there was an adequate penalty structure in place.

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
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Judgement on Sentencing Appeal - 04.02.2005 NIKOLIĆ Dragan

80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle [of lex mitior] applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction”,[1] and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply.[2] The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal. 

81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide. 

82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person’s life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges.

83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment. 

84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia.[3]  It has merely to take it into consideration.  Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal’s judges.  In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal’s statute, States could then prevent their citizens from being properly sentenced by this Tribunal.  This is not compatible with the International Tribunal’s primacy enshrined in Article 9(2) of the Statute and its overall mandate.

85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported.

[1] Ibid., para. 163.

[2] Ibid., paras 164-165.

[3] See Tadić Sentencing Appeal Judgement, para. 21. See supra para. 69.

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Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ

128. Finally, Judge Afanđe dissenting, if the new trial chamber were to examine the responsibility of Stanišić and Simatović for aiding and abetting the crimes, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, instructs it to apply the correct law on aiding and abetting liability as set out above, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[1] In this regard, the Appeals Chamber notes that the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law,[2] as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the Tribunal has to apply.[3] Accordingly, the Appeals Chamber dismisses Simatović’s argument in this respect.[4]

[1] See supra, paras 104-106.

[2] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81.

[3] See supra, paras 104-105.

[4] See supra, para. 119. 

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