Mitigation of sentence

Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena

28. In the Appeals Chamber’s view, the Prosecution’s submission that the Trial Chamber erroneously mitigated Rasic’s sentence by partially suspending it on the basis of her health condition[1] is misguided as it relies again on a conflation of suspension and mitigation. The Trial Chamber considered that the effect that detention could have on Rašić’s psychological well-being did not constitute a mitigating factor.[2] It held, however, that this constituted a relevant consideration, among others, to partially suspend “the execution of the sentence”.[3] Regardless of whether Rašić will serve the remainder of eight months in detention, her sentence of 12 months’ imprisonment remains unaffected. Therefore, the partial suspension of Rašić’s sentence by the Trial Chamber [4] does not equate to a reduction of her sentence, and the Prosecution’s submission in this respect is dismissed.

[1] See Prosecution Appeal Brief [Prosecution Appeal Brief, 16 March 2012 (public with confidential annex)], para. 14. The Appeals Chamber is satisfied that, contrary to Rašić’s assertion, the Prosecution explicitly opposed at trial her argument that “her detention resemble[d] a de facto solitary confinement”. See Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Prosecution Response to Urgent Motion for Provisional Release, 27 October 2010 (confidential), para. 2, referring to Prosecutor v. Jelena Rašić, Case No. It-98-32/1-R77.2, Urgent Motion for Provisional Release, 26 October 2012 (confidential) (“26 October 2010 Provisional Release Motion”), paras 16-18. Thus, Rašić’s argument that the Prosecution has waived its right to object to the qualification of her detention conditions as quasi-solitary is dismissed.

[2] Sentencing Judgement [Written Reasons for Oral Sentencing Judgement, 6 March 2012], para. 30.

[3] Sentencing Judgement, paras 30-31. The Appeals Chamber notes that the Trial Chamber’s reference to “the execution of the sentence” is misleading, as the execution of a sentence lies within the authority of the President and the enforcing state. However, the Appeals Chamber finds that this reference does not constitute an error of law, as the Trial Chamber’s partial suspension of Rašić’s sentence did not infringe the authority of the President and the enforcing state in this respect, as the suspended sentence was an integral part of its judicial discretion in the determination of Rašić’s sentence (see supra paras 17-18).

[4] T. 72-73 (7 February 2012); Sentencing Judgement, para. 31. 

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