Successful review of Sljivancanin case marks breakthrough in ICTY jurisprudence Commentary
Successful review of Sljivancanin case marks breakthrough in ICTY jurisprudence
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Slobodan Zecevic [Of Counsel, The Ackerman Law Firm]: “The Sljivancanin Review Judgement delivered by the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) Appeals Chamber on December 8, 2010 is a significant breakthrough in the ICTY jurisprudence. Indeed, it is the first time that a request for review of an ICTY judgement, under Rules 119 through 122 of the Rules of Procedure and Evidence (hereinafter RPE), has been successful. Rules 119-122 of the RPE were adopted in 1994 and since then a request for review was filed in 13 different cases, but not a single one was granted.

Section 8 of the RPE, Article 120, provides for a two-step procedure i.e. the preliminary examination and the actual review of the judgement. In all previous cases the requests for review were dismissed during the preliminary examination stage, whereby the Chamber ruled that the moving party failed to establish that the fact(s), based on which the review was requested, constituted indeed a “new fact.” Instead, the Chamber found that proposed facts were but “additional fact(s)” known to the moving party at the time of the proceedings, and thus did not meet the standard for review.

Perhaps one of the most important features of the Sljivancanin Review is that the request for review of the judgement was granted from the appeal judgement. Originally, the Trial Chamber found Mr. Sljivancanin guilty of aiding and abetting torture as a violation of the laws or customs of war, thereby sentencing him to five years’ imprisonment. The Appeals Chamber, in a tight majority judgement of 3 against 2, upheld his original conviction, and added an additional conviction of aiding and abetting murder as a violation of laws or customs of war, increasing the sentence of Mr. Sljivancanin to 17 years’ imprisonment. This additional conviction was based on circumstantial evidence and in the subsequent review proceedings the Review Chamber found that the new fact, adduced through the witness testimony, rendered the previous inference untenable, and consequently vacated the conviction for murder.

There is, however, an additional aspect to the Sljivancanin Review Judgement which is worth noting as it touches on the most fundamental principles of international human rights law. Namely, in his dissenting opinion Judge Pocar has maintained his position held in previous cases that the Appeals Chamber of the ICTY does not have the power to impose on the accused a new sentence that is higher than the original one. Judge Pocar, in our opinion rightfully, directs attention to Article 14(5) of the International Covenant on Civil and Political Rights which provides that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

It took 14 attempts over the course of 16 years, to finally bring about the Review of the Judgement at the ICTY. Hopefully, it will not take that long for the Appeals Chamber to recognize and adhere to the principles already enshrined in the International Covenant on Civil and Political Rights.”

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