328. The Appeals Chamber recognises that intelligence and good education have been considered to be possible aggravating factors.[1] This does not mean, however, that these factors should only be considered aggravating factors. The Appeals Chamber reiterates that whether certain factors going to a convicted person’s character constitute mitigating or aggravating factors depends largely on the particular circumstances of each case.[2] The Appeals Chamber previously underlined that “[c]aution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different”.[3] […].

716. The benefits of such a definitive list [of sentencing guidelines for future reference] are in any event questionable.  Both the Statute (Article 24) and the Rules (Rule 101) contain general guidelines for a Trial Chamber to take into account in sentencing.  These amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances (including substantial co-operation with the Prosecution), the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.[1]  Other than these general principles, no detailed guidelines setting out, for example, what particular factors may be taken into account in mitigation or aggravation of sentence are provided in either the Statute or the Rules.[2]

717. Trial Chambers exercise a considerable amount of discretion (although it is not unlimited) in determining an appropriate sentencing.  This is largely because of the over-riding obligation to individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime.  To achieve this goal, Trial Chambers are obliged to consider both aggravating and mitigating circumstances relating to an individual accused.  The many circumstances taken into account by the Trial Chambers to date are evident if one considers the sentencing judgements which have been rendered.[3]  As a result, the sentences imposed have varied, from the imposition of the maximum sentence of imprisonment for the remainder of life,[4] to imprisonment for varying fixed terms (the lowest after appeal being five years[5]).  Although certain of these cases are now under appeal, the underlying principle is that the sentence imposed largely depended on the individual facts of the case and the individual circumstances of the convicted person.[6]

718. The Appeals Chamber accordingly concludes that it is inappropriate for it to attempt to list exhaustively the factors that it finds should be taken into account by a Trial Chamber in determining sentence.

See also paragraph 780.

335.    The Appeals Chamber notes that a Trial Chamber is required, as a matter of law, under both the Statute and the Rules, to take into account aggravating and mitigating circumstances. Therefore, if it fails to do so, it commits an error of law. Article 23(2) of the Statute provides, inter alia, that in imposing sentence, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

336.    Rule 101(B) of the Rules is binding in that the Trial Chamber “shall take into account” the factors listed. Therefore, if it does not, it will be committing an error of law. The Appeals Chamber must first examine whether or not the Trial Chamber considered these factors.[1] Second, it must consider whether or not it properly took them into account.[2]

337.    In considering the issue of whether a sentence should be revised, the Appeals Chamber notes that the degree of discretion conferred on a Trial Chamber is very broad. As a result, the Appeals Chamber will not intervene in the exercise of this discretion, unless it finds that there was a “discernible error”[3] or that the Trial Chamber has failed to follow the applicable law.[4] In this regard, it confirms that the weighing and assessing of the various aggravating and mitigating factors in sentencing is a matter primarily within the discretion of the Trial Chamber. Therefore, as long as a Trial Chamber does not venture outside its “discretionary framework”[5] in imposing a sentence, the Appeals Chamber shall not intervene.

338.    The burden rests on the Appellants to “show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules.”[6]

[…]

352.    […] The Appeals Chamber recalls that the degree of discretion conferred on a Trial Chamber in the area of sentencing is broad, and that the gravity of the offence is the primary consideration in imposing sentence.[7] Furthermore, as noted above, a Trial Chamber must consider the individual circumstances of the accused, as well as the aggravating and mitigating factors; weighing these factors is a task primarily within its discretion. The Appeals Chamber will not intervene in this exercise unless there has been an abuse of discretion. […]

See also paras. 363 and 366.