CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

Paragraphs 12 and 13 of the Interlocutory Appeal contain the ratio of the Decision, finding that the Trial Chamber had not gone beyond the discretion allocated to it on evidentiary and procedural matters:

12. The Defence for Mr. Ntahobali argues that this procedure adopted by the Trial Chamber was impermissibly informal[1] since prior statements of an accused should be subject to an inquiry conducted “in accordance with pre-established rules of law which are known to the parties”[2] and not by merely requiring the parties to indicate their views on whether the Rules were complied with in taking the Previous Statements.[3] The Defence for Mr. Ntahobali has not identified any error in the procedure adopted by the Trial Chamber. The voir dire procedure originates from the common law and does not have a strictly defined process in this Tribunal.[4] There are no provisions in the Rules which direct Trial Chambers to adopt a formal procedure for determining whether they should conduct a voir dire. Instead, Rule 89(B) of the Rules provides that reference may be made to evidentiary rules “which will best favour a fair determination of the matter”. This discretion can extend to the conduct of a voir dire procedure when it is determined appropriate by the Trial Chamber.[5] The procedure conducted by the Trial Chamber permitted the parties to make submissions as to whether the Prosecution and Co-Accused could use the Previous Statements to impeach Mr. Ntahobali. The Trial Chamber considered the submissions of the parties on whether it was necessary to grant the request for a voir dire procedure by the Defence of Mr. Ntahobali, and after finding that it was not necessary, the Trial Chamber determined the admissibility of the Previous Statements on the basis of the submissions made by the parties. At several stages during the hearing[6] the Trial Chamber affirmed that this was the procedure to be followed, in particular when it stated:

We would like to hear the challenge, the basis of the challenge [to the admissibility of the Previous Statements]. And in the process, certainly, the Trial Chamber will examine the [admissibility] issue, including whether to determine the issue as presently presented, or whether there would be any need for voir – for trial within a trial, voir dire.[7]   

13. Therefore, the parties were informed of the procedure the Trial Chamber was adopting and made submissions pursuant to this procedure.[8] Indeed, the procedure adopted by the Trial Chamber, while characterised as one adopted to determine whether a voir dire procedure was necessary, was very similar to a voir dire. The Trial Chamber heard the parties on the circumstances surrounding the taking of the Previous Statements, admitting a written affidavit from Mr. Ntahobali into evidence on that issue, and decided that no further evidence was required to determine whether the Previous Statements were in accordance with the Rules. The Appeals Chamber does not see any abuse of the Trial Chamber’s discretion in the way that it chose to proceed.

297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

766. The Appeals Chamber understands that the Prosecution does not challenge the Trial Chamber’s factual determinations regarding the gravity of crimes, but rather contends that the sentence it imposed on Karadžić was “manifestly inadequate” and unreasonable given the “unprecedented gravity” of his crimes.[1] Taking into account the Trial Chamber’s conclusions reflecting the magnitude of Karadžić’s crimes, the Appeals Chamber is in agreement with the Prosecution’s position. While fully cognizant of the Trial Chamber’s discretion in sentencing, the Appeals Chamber considers that the 40-year sentence inadequately reflects the extraordinary gravity of Karadžić’s crimes as well as his central and instrumental participation in four joint criminal enterprises, which spanned more than four years and covered a large number of municipalities in Bosnia and Herzegovina.

767. The incongruence between the gravity of Karadžić’s crimes and his 40-year sentence is apparent when Karadžić’s crimes and punishment are compared to the life sentences imposed on Tolimir, Beara, Popović, and Galić for their responsibility in only a fraction of Karadžić’s crimes. The Appeals Chamber notes that the Trial Chamber did not explicitly consider these cases in its determination of Karadžić’s sentence.[2] The Appeals Chamber recalls that trial chambers are under no obligation to expressly compare the case of one accused to that of another.[3] Moreover, it is settled jurisprudence that any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual.[4] However, a “disparity between sentences rendered in similar cases may be considered ‘capricious or excessive’, hence warranting the intervention of the Appeals Chamber, ‘if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’”.[5]

See also paras. 768 to 771.

[…]

772. In the present case, the Appeals Chamber observes the Trial Chamber’s findings that Galić was a named member of the Sarajevo JCE,[6] and that Tolimir,[7] Beara,[8] and Popović[9] either supported or were named members of the Srebrenica JCE. Additionally, as noted above, these individuals were high‑ranking members of the VRS or the SRK, which were under Karadžić’s “authority” as the President of Republika Srpska and Supreme Commander of its forces.[10] The fact that Tolimir, Beara, Popović, and Galić were each sentenced to life imprisonment for participating in only one of the four joint criminal enterprises involved in this case, and the fact that they were subordinated to Karadžić, further demonstrates that the 40-year sentence imposed on Karadžić was inadequate.

773. Given the above, the Appeals Chamber considers that the sentence of 40 years imposed on Karadžić by the Trial Chamber underestimates the extraordinary gravity of Karadžić’s responsibility and his integral participation in “the most egregious of crimes” that were committed throughout the entire period of the conflict in Bosnia and Herzegovina and were noted for their “sheer scale” and “systematic cruelty”.[11] In the circumstances of this case, the sentence the Trial Chamber imposed was so unreasonable and plainly unjust that the Appeals Chamber can only infer that the Trial Chamber failed to properly exercise its discretion.

774. The Appeals Chamber finds, Judges de Prada and Rosa dissenting, that the Trial Chamber committed a discernible error and abused its discretion in imposing a sentence of only 40 years of imprisonment. The Appeals Chamber, Judges de Prada and Rosa dissenting, therefore grants Ground 4 of the Prosecution’s appeal.[12] The impact of this finding is addressed below.

[…]

776. […] In light of Karadžić’s position at the apex of power in Republika Srpska and its military, his instrumental and integral participation in the four joint criminal enterprises, the scale and systematic cruelty of the crimes committed, the large number of victims, the continued impact of these crimes on victims who have survived, as well as the relevant mitigating and aggravating factors, the Appeals Chamber, Judges de Prada and Rosa dissenting, finds that the only appropriate sentence in the circumstances of this case is imprisonment for the remainder of Karadžić’s life.

See also para. 777.