KAMBANDA APPEALS LIFE SENTENCE
Press Release
AFR/98
L/2899
KAMBANDA APPEALS LIFE SENTENCE
19980911 ARUSHA, 10 September (International Criminal Tribunal for Rwanda) -- On September 7, counsel for Jean Kambanda, Oliver Michael Inglis, filed a notice of appeal in which he appealed to the Appeals Chamber of the International Criminal Tribunal for Rwanda against the sentence delivered by the Tribunal's Trial Chamber I on 4 September in The Prosecutor v. Jean Kambanda. The Trial Chamber sentenced Mr. Kambanda, who was Prime Minister of Rwanda at the time the genocide occurred in 1994, to a term of life imprisonment, the maximum sentence the Tribunal can impose under its Statute and Rules of Procedure and Evidence.Plea Agreement: Background
On 1 May, Mr. Kambanda, at his initial appearance before the Tribunal, pleaded guilty to six counts of genocide, direct and public incitement to commit genocide, complicity in genocide, crime against humanity (murder), and crime against humanity (extermination).
Together with his "guilty" plea, Jean Kambanda submitted to the Trial Chamber a plea agreement between Jean Kambanda and the Office of the Prosecutor, signed by him and his defence counsel on 29 April, in which he fully admitted all the relevant facts alleged in his indictment .
The plea agreement states, inter alia, that "Jean Kambanda agrees that he is pleading guilty to the crimes because he is in fact guilty and acknowledges full responsibility for his actions that are the subject of the indictment". Regarding penalties, the plea agreement states that "Jean Kambanda and the Office of the Prosecutor acknowledge that sentencing is at the discretion of the Trial Chamber as provided for in articles 22 and 23 of the Statute and rule 101 of the Rules of Procedure and Evidence of the Tribunal".
The plea agreement contained a consideration by the Office of the Prosecutor, in which the office acknowledged the substantial cooperation of Kambanda and undertook to ensure the protection of his wife and two children because his family had received threats as a result of his cooperation with the office. In the subsequent declaration by Jean Kambanda -- also part of the agreement -- the accused affirmed that no other promises or inducements
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had been made to him other than those contained in the agreement.
In light of the admissions made by Jean Kambanda in amplification of his plea of guilty -- which the accused affirmed that he made freely, voluntarily, unequivocally and with a full understanding of its implications -- the Trial Chamber on 1 May accepted his plea and found him guilty on all six counts of his indictment.
In its sentencing decision handed down on 4 September, the Chamber considered the general practice regarding prison sentences in the courts of Rwanda, the gravity of the offence and the individual circumstances of the convicted person, as required by article 23 of the Tribunal's Statute, as well as any aggravating or mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction, as required by rule 101 of the Rules. (Press Release AFR/95-L/2898 of 4 September.)
After weighing all these factors, the Trial Chamber decided that the aggravating factors -- including the gravity of the crime of genocide and the abuse of his high position and authority by Jean Kambanda -- negated any mitigating factors, and thus sentenced Kambanda to life imprisonment.
Grounds of Appeal
Defence counsel for Kambanda stated, in his notice of appeal, that the convict was appealing the sentence on the following grounds:
(i) That the Trial Chamber erred in law by not observing and applying the general principle of law that a plea of guilty as a mitigating factor carries with it a discount sentence.
(ii) That the Trial Chamber erred in law in not taking into account the provisions of article 23(1) and (2) of the Statute of the International Tribunal of Rwanda and rule 101(B)(ii) and (iii) of the Rules of Procedure and Evidence which require that mitigating circumstances, personal circumstance of the convict, the substantial cooperation of the convict with the Prosecutor and the general practice regarding prison sentence in the courts of Rwanda be considered in the determination of the sentence.
(iii)That the Trial Chamber erred in law in failing to pronounce and impose a separate sentence for each count in the indictment, each count being a separate charge of an offence.
(iv) That the sentence is excessive.
Particulars
(a) Failure to take in consideration mitigating circumstances. (b) Failure to consider a please of guilty as a factor attracting a discount in sentence.
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(c) Failure to acknowledge the substantial cooperation of the convict with the Prosector both before and after conviction as a factor that also attracts a discount.
Relief Sought
On these grounds, defence counsel sought the setting aside and revising the entire sentence by the Appeals Chamber.
Appellate Proceedings
Article 24 of the State provides that the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on grounds of an error on a questions of law invalidating the decision, or an error of fact which has occasioned a miscarriage of justice. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.
Mr. Inglis filed his notice of appeal pursuant to rule 108 of the Rules, which provides that a party seeking to appeal a judgement or sentence shall file with the Registrar and serve upon the other parties a written notice of appeal, setting out the grounds of such appeal, not more than 30 days from the date on which the judgement or sentence was pronounced. A respondent's brief containing all the arguments and the authorities, must be similarly filed and served on the appellant within 30 days of the filing of the appellant's brief. The appellant may file a brief in a reply within 15 days after the filing of the respondent's brief.
Under rule 114, the Appeals Chamber shall set the date for the hearing and the Registrar shall notify the parties.
[Rule 117 provides for an expedited appeals procedure that sharply reduces the time requirements of some appellate procedures. These procedures are largely relevant where the appeal arises from a trial. By pleading guilty, Kambanda forfeited his right to a trial, and so some of these procedures are not applicable in his case.]
The judgement of the Appeals Chamber shall be rendered by a majority of the judges and be pronounced in public.
The Appeals Chamber of the International Criminal Tribunal for Rwanda consists of five judges, and is the same for the International Criminal Tribunal for the Former Yugoslavia. They are: Judge Gabrielle Kirk McDonald (United States; President of the Appeals Chamber), Judge Mohammed Shahabudeen (Guyana; Vice-President), Judge Lal Chand Vohrah (Malaysia), Judge Rafael Nieto Navia (Colombia) and Judge Tieya Wang (China).
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Sentencing Appeal in Another Jurisdiction
Another example of an appeal by a convict against a sentencing on a plea of guilty is found in the International Criminal Tribunal for the Former Yugoslavia in The Prosecutor v. Drazen Erdemovic. In that case, the convict appealed against the sentencing judgement rendered by the Tribunal's Trial Chamber I on 29 November 1996. Erdemovic requested the Tribunal to significantly reduce the 10-year prison sentence imposed on him by the Trial Chamber for crimes against humanity, taking into consideration, inter alia, the mitigating circumstances stated in the sentencing judgement. In the alternative, the convict applied for an acquittal. He relied on the defence that he committed the crimes under duress.
The Appeals Chamber, in its majority decision of 7 October 1997, rejected the appellant's application for a revision of his sentence and also unanimously rejected his application for acquittal. The Chamber, however, found that the guilty plea entered by the appellant before the Trial Chamber was not informed, and thus held that the case must be remitted to a different Trial Chamber to give the appellant an opportunity to replead in full knowledge of the nature of the charges and the consequences of his plea. In reaching its decision, the Appeals Chamber stated, "The Appeals Chamber finds nothing in the Statute or the Rules, nor in the practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties".
The Appeals Chamber also recalled that the Trial Chamber took the view that the gravity of the crime was such that "there exists in international law a standard according to which a crime against humanity is one of extreme gravity demanding the most severe penalties when no mitigating circumstances are present". The Appellate Judges also noted the Trial Chamber's view that no consideration could be given to any aggravating circumstances when determining the sentence to be imposed because of the extreme gravity, per se, of crimes against humanity. With respect to mitigating circumstances, the Trial Chamber also considered these. It decided that duress was not sufficiently proven, but took account of the appellant's feelings of remorse, his desire to surrender to the Tribunal, his guilty plea, his cooperation with the Office of the Prosecutor, and his personal circumstances -- the fact that he does not constitute a danger and the corrigible character of his personality. The Trial Chamber also accepted, as mitigating factors, the appellant's young age (23 years at the time of the crime), and his low rank in the military hierarchy of the Bosnian Serb Army.
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