Principle of proportionality

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

21. With regard to the Appellant’s submission that the Trial Chamber violated the principle of proportionality, the Appellant’s argument is that the Trial Chamber did so by equating his offences and the position in which he was placed “to that of the likes of the ICTR Defendants”.[1] The Appellant referred to paragraph 126 of the Sentencing Judgement, whereby the Trial Chamber indeed made clear that it would adhere to this principle. The Appeals Chamber finds that the principle of proportionality, in the Trial Chamber’s consideration, means that the punishment must be “proportionate to the moral blameworthiness of the offender”[2] and requires that “other considerations such as deterrence and societal condemnation of the acts of the offender” be taken into account.[3] The principle of proportionality referred to by the Trial Chamber by no means encompasses proportionality between one’s sentence and the sentence of other accused. As correctly noted by the Trial Chamber, the principle of proportionality implies that “[a] sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender”.[4] It appears that the Appellant misunderstands what the principle of proportionality encompasses.[5]

[1] Appellant's Brief, para. 117.

[2] Canadian Supreme Court decision in R. v. Martineau (R. v. Martineau, [1990] 2 S.C.R. 633, p. 645), cited at footnote 161 of the Sentencing Judgement.

[3] Canadian Supreme Court decision in R. v. Arkell (R. v. Arkell, [1990] 2 S.C.R. 695, p. 704), cited at footnote 161 of the Sentencing Judgement.

[4] Sentencing Judgement, para. 144, referring to para. 414 of the Akayesu Appeal Judgement.

[5] Asked by the Presiding Judge, at the Appeal Hearing, whether his reference to the principle of proportionality involved proportionality with sentences in other cases and proportionality between the circumstances of the crimes and the sentence rendered, Counsel for the Appellant replied that the principle encompasses both. However, he made no submission in respect of the latter.

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