Post-trial health deterioration

Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle

391. The Appeals Chamber recalls its previous finding in Jelisić that it “will not substitute its sentence for that of a Trial Chamber unless the Trial Chamber […] has failed to follow applicable law”.[1] In the case at hand, the Trial Chamber committed such an error with respect to the scope of Strugar’s criminal liability from 12:00 a.m. to 7:00 a.m. on 6 December 1991. Although this legal error has not been found to have had an impact on the sentence, the criminal conduct for which the Trial Chamber convicted Strugar has changed, as it now also comprises his failure to prevent the unlawful shelling of the Old Town before it had ever begun. As such, taking into consideration this legal error of the Trial Chamber, the Appeals Chamber considers that it is resentencing Strugar for his failure to prevent and punish the unlawful shelling of the Old Town on 6 December 1991 and that it thus has the mandate to revise the sentence without remitting it to the Trial Chamber.[2]

392. With respect to the evidence relating to the deterioration of Strugar’s health since the Trial Judgement, the Appeals Chamber admits the relevant material before it[3] in evidence pursuant to Rules 89 and 98 of the Rules. Having considered this evidence the Appeals Chamber accepts that Strugar’s health has deteriorated since the rendering of the Trial Judgement and will take this into account as a mitigating circumstance in its revision of the sentence imposed on him.

[1] Jelisić Appeal Judgement, para. 99.

[2] See Vasiljević Appeal Judgement, para. 181 (with further references). The Appeals Chamber notes that neither party submits that the matter be be remitted to a Trial Chamber.

[3] Medical Report prepared by Dr. Falke as per the then Pre-Appeal Judge and submitted to the Appeals Chamber by the Deputy Registrar, 7 July 2005; Medical Report submitted to the Appeals Chamber by the Deputy-Regitrar, 17 August 2005; Confidential Annex to Defence Notice, 11 September 2006; Prosecutor v. Pavle Strugar, Case No. IT-01-42-Misc.1, Confidential Annexes to Defence Request for Providing Medical Aid, 10 May 2007; Annex to Defence Notice Relevant to Appeals Chamber’s Public “Order to the Defence of Pavle Strugar for Filing of Medical Report”, 27 June 2008 (confidential).

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