The Prosecutor v. Mucic et al. - Case No. IT-96-21-Abis

“Judgement on Sentence Appeal”

8 April 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Hunt and Gunawardana)

Procedural Background

· In its Delalic et al Judgement delivered on 20 February 2001¹, the Appeals Chamber upheld appeals by Mucic, Delic and Landzo against:

- cumulative convictions based upon the same acts for both grave breaches of the Geneva Conventions and violations of the laws or customs of war, dismissing the charges for the violations of the laws or customs of war;
- the conviction of Delic upon one count of wilful killing; and
- an adverse reference by the original Trial Chamber to the fact that Mucic had not given evidence at the trial.

· All the other grounds of appeal were dismissed, including a challenge by Delic to a number of counts of wilful killing and torture (constituted by rape and repeated incidents of forcible sexual intercourse). The Appeals Chamber also upheld an appeal by the Prosecution against the inadequacy of the sentence imposed upon Mucic.

· The Appeals Chamber remitted to a new Trial Chamber a number of issues relating to the adjustment of the sentences which had been imposed as a result of the rulings which had been made in the Judgement on appeal. The new Trial Chamber² determined that:

- no adjustment should be made for the dismissal of the cumulative convictions;
- the twenty-year sentence imposed upon Delic should be reduced to eighteen years to reflect the quashing of his conviction on one count of wilful killing;
- there should be “a small reduction” given to Mucic as a result of the adverse reference by the original Trial Chamber, when sentencing him, to the fact that he had not given evidence at the trial; and
- an appropriate revised sentence for Mucic was a sentence of imprisonment for nine years.

· The three appellants appealed again to the Appeals Chamber against those findings . Delic also sought to have his original appeal against conviction reconsidered by the Appeals Chamber.

The Judgement

The Appeals Chamber dismissed the appeals against sentence, confirmed the sentences imposed by the Trial Chamber on 9 October 2001, and rejected Delic’s application for a reconsideration of his appeal against conviction.

The Reasoning

In this Judgement, the Appeals Chamber made the following rulings:

The power of the Appeals Chamber to remit limited issues arising on appeal to a new Trial Chamber for determination
The Appeals Chamber considered its power to remit such issues at the time when it exercised that power in its Judgement in the earlier appeal. An appeal from the Trial Chamber’s determination of those limited issues does not give to the parties the opportunity to appeal against the earlier decision of the Appeals Chamber to remit those limited issues to the Trial Chamber.³ Its power to remit limited issues is clear.⁴ The Appeals Chamber which heard the first appeal was prevented by circumstances from conducting a further hearing⁵, before delivering its Judgement, for the parties to make submissions as to the appropriate sentences to be imposed. It therefore had an inherent power to remit those issues to a Trial Chamber.⁶

The right to adduce further evidence upon the hearing of a sentence appeal
Sentencing appeals, as with all appeals to the Appeals Chamber from the Judgement of a Trial Chamber, are appeals stricto sensu. They are not trials de novo. This is clear from the terms of Article 25 of the Statute. The appellant must demonstrate, upon the trial record, that the Trial Chamber had made an appealable error. Evidence of post-sentence behaviour is irrelevant to whether the Trial Chamber erred in the exercise of its sentencing discretion. It is only where the appellant succeeds in demonstrating that the Trial Chamber made such an error in relation to the sentence imposed that any issue of further evidence relating to the appropriate sentence can arise. In those circumstances, it is within the discretion of the Appeals Chamber as to whether further evidence will be admitted. The exercise of that discretion is dependent mainly upon the nature of the error which has been demonstrated in the sentence appeal.⁷

Where the nature of the error demonstrated is such that the Appeals Chamber is replacing the sentence with another which, in its view, the original Trial Chamber should have imposed, further evidence will not ordinarily be admitted.⁸ Evidence of co-operation after conviction is expressly made relevant to sentencing by Rule 101(B)(ii), and thus, in appropriate cases, admissible in a sentence appeal.⁹ Where the nature of the error is such that it may be cured only by additional sentences to be imposed (or a new single sentence to cover additional convictions), the provisions of Rule 101(B) may apply to permit further relevant evidence to be adduced where that evidence is not already before the Appeals Chamber.¹⁰

The evidence which the appellants wished to tender at the hearing related to their conduct since the original sentences were imposed and to sentences imposed upon other accused persons. None was relevant to the limited issues remitted and the ruling of the new Trial Chamber that such evidence was effectively inadmissible was correct.¹¹

No adjustment despite the dismissal of the cumulative convictions
The Appeals Chamber had emphasised in its earlier Judgement that the governing criterion in sentencing is that the sentence should reflect the totality of the offender’s conduct (the “totality” principle), and that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate . The Trial Chamber in the Judgement now under appeal concluded that the totality of the criminal conduct of each of the three appellants had not been reduced by reason of the quashing of the cumulative convictions.¹²

The Appeals Chamber accepted that the cumulative convictions themselves involve an additional punishment – not only by reason of the social stigmatisation inherent in being convicted of that additional crime, but also the risk that, under the law of the State enforcing the sentence, the eligibility of a convicted person for early release will depend to some extent upon the number or nature of the convictions entered. The quashing of the cumulative convictions undoubtedly removed the punishment involved in the additional convictions themselves. The issue which the new Trial Chamber had to determine in the circumstances of the present case was whether, in determining the length of the concurrent sentences imposed, the original Trial Chamber had also added to the length of those concurrent sentences because of those additional convictions.¹³

The original Trial Chamber made it clear that its decision to make the sentences imposed concurrent was intended to avoid any prejudice to the appellants by reason of the cumulative convictions. It applied the reasoning that what is to be punished is proven criminal conduct, which does not depend upon the technicalities of pleading.¹⁴ The conclusion by the new Trial Chamber that the sentences “clearly would have been the same without the cumulative convictions” was therefore open to it.¹⁵

The "small" reduction to Mucic’s sentence as a result of the adverse reference by the original Trial Chamber to the fact that he had not given evidence at the trial
The new Trial Chamber held that it was not possible to ascertain the precise effect, if any, which this comment may have had on the sentence imposed, but that it was not in a position to say that it had had no effect.¹⁶ Mucic has argued that the error of the original Trial Chamber, by ignoring the burden and standard of proof, was so basic a defect that he was entitled to a reduction as substantial as the error which had been made.¹⁷ The Appeals Chamber held that such an approach is fundamentally defective. An appellate tribunal does not compensate an appellant for the fact that an error was made; it adjusts the sentence to remove the effect of the error which was made.¹⁸ The Appeals Chamber was not persuaded that the new Trial Chamber’s characterisation of the reduction warranted by the error made by the original Trial Chamber as “small” was erroneous.¹⁹

Nine-year sentence imposed upon Mucic
The Appeals Chamber had earlier held that the original Trial Chamber, by imposing a sentence of seven years, had failed to adequately take into account (a) the influential effect of a camp commander’s encouraging or promoting crimes and an atmosphere of lawlessness within the camp by his ongoing failure to exercise his duties of supervision , (b) the gravity of his offences, and specifically the gravity of the underlying crimes, and (c) the fact that both direct and superior responsibility was involved in the wilful causing of great suffering or serious injury to body or health by virtue of the inhumane conditions in the camp.²⁰

The sentence which is appropriate must reflect the inherent gravity of the criminal conduct of Mucic, and it requires a consideration of the particular circumstances of this case, as well as the form and degree of the participation of Mucic in the crimes for which he was convicted. That criminal conduct was serious. Mucic failed to persuade the Appeals Chamber that the new Trial Chamber made any errors of law or that it erred in the exercise of its discretion in imposing a sentence of nine years.²¹

Reduction of sentence for Delic following quashing of one conviction for wilful killing: sentencing in relation to more than one offence
The new Trial Chamber correctly proceeded upon an acceptance of the findings made by the original Trial Chamber (other than those relating to the count of wilful killing which the Appeals Chamber had dismissed) in order to determine the appropriate sentence to be imposed upon Delic which was also appropriate to the totality of his criminal conduct in relation to all of the convictions which remained.²²

Sentencing in relation to more than one offence involves more than just an assessment of the appropriate period of imprisonment for each offence and the addition of all such periods so assessed as a simple mathematical exercise. The total single sentence, or the effective total sentence where several sentences are imposed, must reflect the totality of the offender’s criminal conduct but it must not exceed that totality . Where several sentences are imposed, the result is that the individual sentences must either be less than they would have been had they stood alone or must be ordered to be served either concurrently or partly concurrently.²³

The offences for which Delic remains convicted are very serious. The Appeals Chamber was satisfied that his criminal conduct deserved substantial punishment. The Appeals Chamber was not persuaded that the new Trial Chamber made any errors of law or that it erred in the exercise of its discretion in imposing a sentence of eighteen years in this case.²⁴

Application by Delic for reconsideration of his original appeal against conviction : the power of the Appeals Chamber to reconsider its Judgement
The Appeals Chamber has an inherent power to reconsider any decision, including a Judgement where it is necessary to do so in order to prevent an injustice. Whether or not a Chamber does reconsider its decision is itself a discretionary decision. The power exists in relation to a Judgement which the Appeals Chamber has given  – where it is persuaded:

(a)    (i) that a clear error of reasoning in the previous Judgement has been demonstrated by, for example, a subsequent decision of the Appeals Chamber itself, the International Court of Justice, the European Court of Human Rights or a senior appellate court within a domestic jurisdiction, or

(ii) that the previous Judgement was given per incuriam²⁵; and

(b) that the Judgement of the Appeals Chamber sought to be reconsidered has led to an injustice.²⁶

Delic argued that there has been a “significant” change in the law relevant to the present case since the earlier Judgement of the Appeals Chamber. He claimed that, in the Judgement of the Appeals Chamber in the Kupreskic case, the Appeals Chamber laid down a “new test” as to the sufficiency of the evidence to support a conviction which, if it had been applied by the Appeals Chamber in its earlier Judgement, would have resulted in the quashing of his convictions in respect of Counts 3, 18 and 31 of the indictment.²⁷

The Appeals Chamber was satisfied that, in considering whether the original Trial Chamber’s conclusion of Delic’s guilt beyond reasonable doubt upon those counts was one which no reasonable tribunal of fact could have reached, the Appeals Chamber had in its earlier Judgement applied the same test as that applied in the Kupreskic case, and that the claim that the Appeals Chamber had applied a “new test” in the Kupreskic case is misconceived. The distinction to which the Appeals Chamber had referred in that Judgement, between the reliability (or the quality) of a witness’s evidence as opposed to the credibility (or truthfulness) of that witness, was directed to the issue of identification raised in that appeal in relation to the only witness who had identified the accused. The Trial Chamber in the Kupreskic case had acknowledged the criticisms of the credibility of that witness but had stated that those criticisms had been outweighed by the impression which the witness had made upon the Chamber when she was giving evidence. When determining whether no reasonable tribunal of fact could have accepted that witness’s evidence, it was appropriate for the Appeals Chamber to refer to the uncertainty and the inherent frailties of identification evidence. That distinction is a well known one, and one which is not new to the Tribunal’s jurisprudence.²⁸

Separate Opinion of Judge Meron and Judge Pocar

Judge Meron and Judge Pocar stated that judicial restraint requires the Appeals Chamber to determine whether it has power to reconsider its Judgement only when, in some future case, it is necessary to do so. They reserved their position on that issue but agreed that there had been no intervening change in the governing legal standard.

Separate Opinion of Judge Shahabuddeen

In answer to the Joint Separate Opinion, Judge Shahabuddeen has stated that it was within the competence of the Appeals Chamber to pronounce on the issue of its power to reconsider its Judgement; he agreed that the Appeals Chamber possesses such a power and accepted the statement in the Judgement of the Appeals Chamber that the power may be exercised where the Appeals Chamber is persuaded that there is a clear error of reasoning in its previous Judgement or that it was given per incuriam and where the Judgement has led to an injustice.

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1. Delalic et al., IT-96-21-A, 20 February 2001, Judicial Supplement No. 23.
2. Mucic et al., IT-96-21-T bis-R117, Sentencing Judgement, 9 October 2001, Judicial Supplement No. 28.
3. Judgement, para. 9.
4. Ibid., para. 10.
5. The resignation of one member of the Appeals Chamber was to take effect within a short time after the Appeals Chamber Judgement was delivered and therefore the parties could not make submissions to the Appeals Chamber at the time (see para. 3).
6. Judgement, paras. 3, 16.
7. Ibid., para. 11.
8. Ibid., para. 12.
9. Ibid., para. 13.
10. Ibid., para. 14.
11. Ibid., para. 15.
12. Ibid., para. 21.
13. Ibid., para. 25.
14. Ibid., para. 26.
15. Ibid., para. 27.
16. Ibid., para. 29.
17. Ibid., para. 30.
18. Ibid., para. 31.
19. Ibid., para. 32.
20. Ibid., para. 35.
21. Ibid., para. 39.
22. Ibid., paras. 41, 45 and 47.
23. Ibid., para. 46.
24. Ibid., para. 47.
25. Per incuriam: [Latin] Through lack of care. A decision of a court is made per incuriam if it fails to apply a relevant statutory provision or ignores a binding precedent (Oxford Dictionary of Law).
26. Ibid., para. 49.
27. Ibid., para. 54.
28. Ibid., paras. 58-60.