The Hague, 11 April 2008 (FH) - The principles governing defence rights at the International Criminal Tribunal for Rwanda (ICTR) want sentences relating to the admission of guilt be fixed in first instance so that the person convicted can appeal; but, in fact, although there is no possibility of a later recourse, the Appeals Chamber possess, also, a broad power of assessment on the sentences.

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Thirty-two cases have already been tried by the ICTR Appeals Chamber. While the large majority of appeals were rejected, five have led to a reduction of the sentence, some, considerably, and three, on the contrary, to an increase.

The first instance judges, under the terms of Article 23 of the ICTR statute, must take into account factors such as the gravity of the violation and the personal situation of the person convicted. But also,according to Article 101 of the ICTR Rules of Procedure and evidence, the existence of aggravating and attenuating circumstances as well as the extent and the seriousness of the co-operation of the person convicted with the prosecutor at the various stages of the procedure.

"However, the [First Instance] Chamber estimates that its sovereign power of assessment of the facts and the circumstances (...) enables it not to be limited to only the factors stated by the statute and the rules" (Ruggiu, 1st instance, 1 June 2000).

No article determines sentences in appeal since it normally rests with the First Instance Chamber to do so.

The Appeals Chamber, under the terms of the ICTR statute, has the authority to reform the judgments delivered by the first instance judges. It not only intervenes to repair errors concerning the admission of guilt, but also those committed in the determination of the sentence.

Indeed, "the imposed sentence must reflect the totality of the criminal behaviour" (Akayesu, Appeals Chamber, 1 June 2001).

However, in the Vasiljevic ruling of 25 February 2004, the Appeals Chamber clearly reminds that, as for the appeal interjected against the admission of guilt, the procedure is corrective, it is not a question of a "new examination of the sentence"; even if in the Blaskic ruling of 29 July 2004, it purely and simply decided to do the contrary.

The Chamber affirms, still in the Vasiljevic ruling, that "in general, [it] will not substitute its own sentence for that delivered in first instance except if", and it refers to, inter alia, the Serushago ruling (6 April 2000), "it is convinced that the First Instance Chamber committed an error in the exercise of its discretionary power, or if it deviated from the applicable duty".

It is inspired by the Akayesu ruling of 1 June 2001 to determine that the criterion then applicable is that which consists in "determining if the Appeals Chamber can distinguish an error of assessment on behalf of the First Instance Chamber".

In the Blaskic case, the Appeals Chamber specified, however, that if it cancelled one or more admissions of guilt, it could revise the sentence even if the First Instance Chamber had not committed an error of assessment in fixing it.

At the ICTR, of the eight cases where the sentences were modified by the Appeals Chamber, three have led to increases: Laurent Semanza must serve thirty-five years in prison instead of twenty-five, and Sylvestre Gacumbitsi and Athanase Seromba were sentenced by the Appeals Chamber to life in prison whereas they were respectively to spend 30 years and 15 years in prison.

Such as in the Gacumbitsi (7 July 2006) and Seromba (12 March 2008) rulings, the Appeals Chamber decided itself to re-qualify the mode of participation of "assistance and complicity" in the "commission" because it considered that the first did not sufficiently reflect the gravity of the crimes committed. It was then logical, in the continuity of its reasoning, that it revise and increase the sentences that were rendered.

Indeed, it declared as it was its "prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the tribunal" (Gacumbitsi ruling).

But on several occasions, Judge Fausto Pocar expressed his dissension on this practice; in particular, in the Rutaganda and Semanza cases in 2004 and 2005. According to him, the Appeals Chamber is not competent to correct the errors committed in first instance "by pronouncing subsequently new more severe admissions of guilt in appeal", or increasing the sentence.

He considers that that goes against Article 14 (5) of the International Covenant on Civil and Political Rights of 1966 which enshrines the right of appeal for defendants, which precisely disappears in this case.

It only happened once in the history of the ad hoc tribunals, in the Kupreskic case at the International Criminal Tribunal for the former Yugoslavia (ICTY), that the Appeals Chamber referred to the discretion of the First Instance Chamber the determination of the sentence after it decided to reform the counts of the indictment and thus the admissions of guilt.

The cumulative jurisprudence of the two ad hoc tribunals defines the finalities of the sentence as being: retribution, dissuasion, rehabilitation, protection of society, end of impunity, support of reconciliation, and the return of peace. They are certainly only met provided that the sentence is coherent with the admission of guilt.

It remains that judgments will remain surprising, as in the Media ruling in November 2007, Appeals Chamber, as it removed the majority of the counts of the indictment raising a great number of errors which could have justified, according to Judge Theodore Meron, a reference to first instance, almost did not reduce the rendered sentences. Ferdinand Nahimana and Hassan Ngeze sentenced in first instance to life in prison saw their sentences reduced to 30 and 35 years in prison. Jean Bosco Barayagwiza gained only two years on the 35 years initially decided.


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