Untitled Document

378. In his appeal against the Sentencing Judgment, Akayesu raises three separate issues, which are referred to as grounds of appeal against the sentence in the relevant Notice of Appeal. For the purposes of this Section, the said issues shall be referred to as “sub-grounds of appeal against the sentence.”[690] The first two sub-grounds of appeal against the sentence relate to alleged violations of Akayesu’s rights during the pre-sentencing hearings held on 28 September 1998 and 2 October 1998, while the third sub-ground is a general allegation challenging the sentence imposed by the Trial Chamber. In his Notice of Appeal Against the Sentence, Akayesu prayed the Appeals Chamber: (1) to declare that the Trial Chamber acted illegally and without jurisdiction in its sentencing proceedings; (2) to join the sentence appeal to the pending appeal on the convictions; and (3) if the appeal on the conviction is rejected, to reduce considerably the sentence on all counts.[691]

379. In his Notice of Appeal Against the Sentence, Akayesu set out the following sub-grounds of appeal:

380. Before considering the merits of these sub-grounds of appeal against the sentence, it is necessary to review a preliminary prayer of Akayesu’s.

381. Akayesu prays the Appeals Chamber to consider his appeal on the merits separately from his appeal against the sentence. He submits that if the Appeals Chamber dismisses his appeal against the merits, a full hearing relating to his appeal against sentence will be required, which would afford him an opportunity to seek admission of additional evidence and leave to file further submissions regarding his sentence.[693]

382. The Prosecution submits in response that such a separation of proceedings has never been the practice of the Appeals Chamber and that the Rules do not provide for such “bifurcation” in the appeals proceedings.[694] It submits that there is no precedent in the practice of the Tribunal for allowing the separation of the appeals proceedings on the merits and the appeal proceedings on the sentence.[695] The Prosecution notes that although the Rules, earlier on, provided for a Trial Chamber first rendering its findings on the merits and subsequently handing down the sentence, the Rules were amended in June 1998 to allow the Judgment on the merits and the Sentence to be delivered at the same time. So the said amendments were already in force when the Judgment and Sentencing were rendered and when Akayesu filed his appeal.[696] The Prosecution recalls that Akayesu himself had, in his Notice of Appeal of Sentence, asked the Appeals Chamber to join the sentence appeal “to the pending appeal on the convictions.”[697] The Prosecution submits that Akayesu would not suffer any prejudice from joint proceedings on both appeals and that his request for a separate appeal proceeding on his appeal against the sentence should be dismissed.[698]

383. The Appeals Chamber notes, firstly, that in his Notice of Appeal against Sentence, Akayesu specifically requests the Appeals Chamber “… to join the sentence appeal to the pending appeal on the convictions…”;[699] and that if the appeal on the conviction is rejected, the Appeals Chamber should “…[reduce] considerably the sentence on all counts.”[700] In the opinion of the Appeals Chamber this request suggests prima facie that the Appellant prays the Appeals Chamber to consider both appeals as one.[701]

384. There is no explicit provision in the Rules of Procedure and Evidence, nor in the Statute which allows for a separate consideration of appeals on the merits and appeals against sentence. Infact, the Rules provide a specific time-limit for the parties to file their briefs. More specifically, under the Rules the Appellant shall file his or her Appellant’s Brief within 90 days of the Notice of Appeal, which Appellant’s Brief shall contain “all the arguments and authorities.”[702] There is no provision in the Rules for a separate filing or filing within a separate time-limit of the Appellant’s Brief relating to sentence. Rule 111 cannot be construed as meaning that once a Notice of Appeal against Sentence is filed, the Appellant’s Brief may not include submissions on the appeals against sentence. Of course, time-limits under the Rules may always be extended by way of a motion for that purpose. In such cases, the moving party shall have to show good cause. [703] Akayesu did not call the attention of the Appeals Chamber to any such request. [704]Furthermore, it is the opinion of the Appeals Chamber that none of the arguments set forth in the above-mentioned Appeal Briefs could be viewed as a motion for extension of time-limits, all the more since no such motion was filed and no good cause shown.

385. It is the opinion of the Appeals Chamber that, to a certain extent, Akayesu advanced, both in his filings and during the hearing on appeal, arguments on the issue raised by what it characterized as the first sub-ground of Appeal in his Appeal against the Sentence.[705] Morever, the Appeals Chamber confirmed that Akayesu filed a Notice of Appeal against the sentence at the beginning of the hearing on appeal. The Appeals Chamber had set a time-limit for Akayesu to orally present arguments in support of all his grounds of appeal, including his ground of appeal against the sentence.

386. The Appeals Chamber recalls that it has heretofore been the practice of the Appeals Chamber to consider both appeals against the merits and appeal against the sentence at the same time.[706] The consideration of an appeal lodged against a sentence has been withheld only once in a case before ICTY.[707] However, the Appeals Chamber notes that that was due to special circumstances which cannot be compared to those invoked in the instant case. Indeed, in that case, the Appellant had appealed from both the the Trial Chamber’s Judgment and the sentence imposed by the Chamber. Having substituted findings of guilty for acquittals on certain counts, ICTY Appeals Chamber deemed it appropriate to withhold a ruling on the appeal against the sentence pending the outcome of the sentencing proceedings before a Trial Chamber on the new counts.[708]

387. The Appeals Chamber sees no reason to depart from the procedure set out under the Rules and the time-limits prescribed there under. It was incumbent upon Akayesu to exercize diligence and to file on time his submissions as part of his Appellant’s brief. Consequently, the Appeals Chamber will proceed with a consideration of the issues brought before it, taking into account the arguments contained in Akayesu’s written filings or those put by him orally during the hearing on appeal.[709]

388. Akayesu submits that his right to be represented by Counsel was violated. He alleges that the right to counsel applies equally to proceedings on the merits and on sentence, and that in that context, he was deprived of the right to be represented by counsel at the pre-sentencing hearing held on 28 September 1998.[710] Akayesu also alleges that although he repeatedly requested assistance of counsel,[711] the Trial Chamber denied his requests and took issue with him for having waited until the sentencing hearing to request assignment of a new counsel.[712] He submits that as soon as he requested assistance of Counsel, the Trial Chamber should have adjourned the pre-sentencing hearing until such time as counsel was assigned to him.[713] However, the Trial Chamber did nothing and Akayesu submits that what transpired subsequently suggested that he had waived his right, whereas this was the result of a free choice.[714] Akayesu claims that if he had been assisted by Counsel, he would have been able to call defence witnesses and, furthermore, request the Trial Chamber to take account of the fact that he had been detained unlawfully, an issue that he had raised at the hearing held on 26 September 1996.[715] Lastly, Akayesu asserts that while the Presiding Judge wished to assign him duty counsel, that was not what he wanted.

389. The Prosecution submits that Akayesu misrepresents what took place both prior to and at the pre-sentencing hearing on 28 September 1998.[717] Contrary to Akayesu’s submissions, the Prosecution submits that it was rather the Presiding Judge who “was forcing” Akayesu to agree to be assigned Counsel.[718] He was not preventing Akayesu from having a Counsel.[719] After summing up the proceedings of that day, the Prosecutor submits that “there can be no doubt that …[Akayesu]was informed that he could be assisted by Counsel if he so wished.”[720] However, Akayesu “positively chose to make his own submissions on the question of sentence,”[721] and “voluntarily waived his right” to be represented at the pre-sentencing hearing.[722]

390. The Prosecution further submits that given his status and position in society, together with the fact that he was “responsible for the execution of laws and regulations and the administration of justice,”[723] Akayesu must certainly have “appreciated the consequences of a decision to waive counsel.”[724] The Prosecutor submits that this is further exemplified by the fact that Akayesu was clearly familiar with the law and made detailed submissions on his own behalf during the pre-sentencing hearing in mitigation of sentence.[725] The Prosecution observes that Akayesu “displays a kind of knowledge, which cannot be ascribed to a lay person”[726] and submits that the instant appeal against sentence “is frivolous, [and] should be dismissed.”[727]

391. The Appeals Chamber accepts the Prosecution’s argument to the effect that Akayesu, misrepresented to a certain extent, the facts relating to the pre-sentencing hearing of 28 September 1998. It is the Appeals Chamber’s opinion that contrary to Akayesu’s assertions, he waived his right to have counsel present at the hearing and agreed to proceed without assistance of counsel, pleading his own case in favour of mitigation of sentence. A brief reminder of the facts will establish this fact.

392. By a letter dated 18 September 1998, Akayesu requested from the Trial Chamber a change of counsel, which request was granted.[728]

393. At the start of the hearing of 28 September 1998, before hearing the submissions of the parties, the Presiding Judge urged Akayesu to make clear his position on his counsel and to say whether or not he wished to be assisted by counsel at the pre-sentencing hearing. The Presiding Judge remarked as follows:

394. Akayesu responded: “[...] you yourself have just said that in your understanding, you thought that I had asked that my counsel be changed for the appeal stage. But that was not necessarily so because we are still in the course of trial and I suppose that my trial is ending today, if I am not mistaken.”[730] Having asked Akayesu why he had not waited until the end of the trial to request a change of Counsel, the Presiding Judge then stated that Akayesu’s Counsel had not appeared at the hearing because they had received an insulting letter from Akayesu.[731] The following exchange ensued:

395. Immediately after this exchange, the Prosecutor made his submissions on the sentence. The following exchange ensued after his submission:

396. Consequently, the Presiding Judge gave Akayesu the floor to present any likely mitigating circumstances. However, Akayesu immediately began to repeat that his rights continued to be violated since his former Counsel was no longer assisting him and he had been assigned a new Counsel for the hearing.[734] Here again, the Presiding Judge asked him several times whether or not he wished to be represented by Counsel.[735] Finally, Akayesu answered:

397. The Presiding Judge once again asked him: “[…] Do you not need any counsel?” Akayesu said he did not, [737] then he presented his arguments regarding the sentence. [738] The Appeals Chamber notes that twice during the said presentation, Akayesu mentioned, in passing, that he did not have a Counsel.[739] The Appeals Chamber finds that such brief references do not contradict the repeated assertions by Akayesu that he was happy to continue the proceedings without assistance of Counsel. On the transcripts of the hearing of 28 September 1998, and in particular, the extracts cited above, the Appeals Chamber finds no reason to hold that Akayesu did not voluntarily waive his right to assistance of counsel at that hearing.

398. Lastly, the Appeals Chamber notes that during the hearing on appeal, Akayesu acknowledged that, he had indeed, been offered the services of counsel, albeit not counsel of his choosing, but of duty counsel.[740] The Appeals Chamber confirms, as explained above, that when an accused is found to be indigent, he or she does not have the right to counsel of his own choosing.[741] In this regard, it held in the Kambanda Appeal Judgment that “… the right to free legal assistance does not confer the right to choose one’s counsel ”[742] Such a right is reserved for those who retain counsel. The Appeals Chamber finds that Akayesu was offered assistance of counsel and positively turned it down.

399. For the foregoing reasons, this sub-ground of appeal against sentence is rejected.

400. Akayesu alleges that on 2 October 1998 he was unlawfully deprived of his right to address the Trial Chamber at the delivery of the Sentencing Judgment. He submits that the Trial Chamber’s “unconscionable actions once again confirm the loss of all jurisdiction and moral authority” of the Tribunal.[743] Akayesu never elaborated on this argument, neither in his written submissions[744] nor during the hearing on appeal and the Prosecution, for its part, did not respond thereto either orally or in writing.

401. Accordingly, the Appeals Chamber finds that this sub-ground of appeal against sentence must be rejected and that there is no need to consider it further.[745]

402. Akayesu submits that the sentence is unreasonable and unjustified and that if the appeal on the conviction is rejected, the Appeals Chamber should reduce considerably the sentence on all counts he was convicted on.

403. The Prosecution submits firstly that since Akayesu has not advanced any meaningful argument in support of this sub-ground of appeal against sentence, the Appeals Chamber should reject it out right.[746] At the same time, it submits that, in any case, that general allegation is devoid of merit.[747] In that regard, it submits that the Trial Chamber gave due weight to the relevant provisions of the Statue and the Rules[748] and, considered inter alia, the gravity of the offences and the personal circumstances of Akayesu. It is the Prosecution’s submission that “ the sentence is well-founded in law and that the Trial Chamber committed no discernible error in the exercise of its discretion when it measured the sentence against the Appellant.”[749]

404. As indicated above, the Appeals Chamber has previously considered a similar situation in Kambanda: in that case, the Appellant had practically put forward no argument at all in support of his appeal against sentence. The Appeals Chamber found that:

405. As in that case, the Appeals Chamber has decided to exercise its discretion to consider this ground of appeal on the merits.

406. For ease of reference, the relevant provisions of the Statute and the Rules are set out below:

407. In the context of appeals lodged against sentence, ICTY Appeals Chamber has found that:

408. Given the “considerable amount of discretion” vested in the Trial Chamber, the question arises as to what role the Appeals Chamber should play in the consideration of an appeal against sentence, that is in the instant case, the penalty imposed by the Trial Chamber on Akayesu. In this instance, this Appeals Chamber will follow the test which has recently been upheld by ICTY Appeals Chamber as the appropriate test:

409. Consequently, before the Appeals Chamber is able to revise a sentence or substitute its own sentence for the one imposed by the Trial Chamber, it must be shown that the Trial Chamber ventured outside discretiona in imposing sentence.

410. The Trial Chamber’s discretion is, primarily, governed by the Statute and the Rules which contain the general guidelines for a Trial Chamber to take into account in sentencing: “These amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances (including substantial cooperation with the Prosecution), the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts”[753] of Rwanda. In the instant case, it was held that the Trial Chamber “will prefer to lean more on its unfettered discretion each time that it has to pass sentence […],taking into account the circumstances of the case and the standing of the accused persons.”[754] Taken out of context, this holding could be understood as meaning that the Trial Chamber enjoys unlimited discretion. In the opinion of the Appeals Chamber this is a matter of interpretation of the language used by the Trial Chamber and of the context in which the holding was made, which holding should be viewed as a whole. When that is done, it become apparent that the holding did not mean that the Trial Chamber was claiming unfettered power; clearly, the Trial Chamber was aware that it had to take into account the applicable law, the circumstances of the case and the conduct of the accused. Provided it took into account all relevant considerations, the Trial Chamber had wide discretion in sentencing as illustrated by the citation from the Trial Judgment contained in paragraph 412 below.

411. In the circumstances, the Appeals Chamber must now determine whether, in the instant case, the Trial Chamber considered the relevant factors and took due account thereof. Failing which, it would have committed an error of law. Whether or not said error was such as to invalidate the decision is another matter.[755]

412. In the Sentence, prior to proceeding with its review, the Trial Chamber enumerated the factors or arguments that it intended to take into account. In this connection, the Trial Chamber stated that it would consider the fact that the Judgment had been rendered one month earlier, the offences of which Akayesu was found guilty, the Prosecutor’s Brief on the sentence, the submissions made by Akayesu and by the Prosecution at the pre-sentencing hearing held on 28 September 1998, and lastly, the relevant provisions of the Statute and the Rules.[756] This summary was prima facie correct.

413. It is equally clear to the Appeals Chamber that, in its review, the Trial Chamber duly considered and took account of the relevant factors. In its Sentence, the Trial Chamber discussed firstly how to interpret the relevant provisions of the Statute and the Rules. The Trial Chamber held, in particular, that “precisely on account of their extreme gravity, genocide and crimes against humanity must be punished appropriately.”[757] Indeed, the Trial Chamber was to view the issue of sentencing from this perspective. In that regard, the Appeals Chamber endorses the well-established principle applied by the Appeals Chamber of ICTY whereby “the litmus test for the appropriate sentence is the gravity of the offence.”[758] It requires “a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.”[759] It has not been shown that the Trial Chamber shirked its duty to undertake such a review.

414. After defining the legal principles on which it was to rely, the Trial Chamber set out its findings on the merits of the arguments put forward by Akayesu and the Prosecution. The Trial Chamber considered factors in mitigation and aggravation and held that : “the degree of the magnitude of the crime is still an essential criterion for evaluation of sentence. A sentence must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender.”[760] The Trial Chamber took into account the fact that “Akayesu consciously chose to participate in the systematic killings that followed in Taba,”[761] and that he was

415. Consequently, the Appeals Chamber finds that the Trial Chamber duly considered and took into account the inherent gravity of the crimes Akayesu was convicted of and his degree of responsibility therefor.

416. In considering the factors set out under Article 23(2) of the Statute and Rule 101(B) of the Rules, the Trial Chamber submitted that “it is a matter, as it were, of individualizing the penalty.”[763] To the Trial Chamber this meant that “as far as the individualization of penalties is concerned, the Judges cannot limit themselves to the factors mentioned in the Statute and the Rules. Here again their unfettered discretion to evaluate the facts and attendant circumstances should enable them to take into account any other factor they deem pertinent.”[764] The Appeals Chamber finds no policy error in this finding. The right to take into account other pertinent factors goes hand in hand with the overriding obligation to individualize a penalty to fit the individual circumstances of the accused, the overall scope of his guilt and the gravity of the crime the overriding consideration being that the sentence to be imposed must reflect the totality of the accused’s criminal conduct.[765] The Trial Chamber then turned its attention specifically to the mitigating and aggravating circumstances and to the individual circumstances of the Accused. It recalled the mitigating circumstances invoked by Akayesu during the pre-sentencing hearing held on 28 September 1998 and the counter aggravating circumstances raised by the Prosecution [766] in its brief and in its oral submissions at the hearing of 28 September 1998. The Trial Chamber held that it had “scrupulously examined all the submissions presented by the parties in determination of sentence.” It drew the following conclusion therefrom:

417. The Appeals Chamber finds no error in this analysis. In particular, it has not been shown that the Trial Chamber committed an error of Judgment in according a weight to each of the arguments presented by the parties. Akayesu was individually responsible, under Article 6(1) of the Statute, for genocide, direct and public incitement to commit genocide, and crimes against humanity, all extremely serious crimes. The Appeals Chamber finds that the sentence imposed is proportionate to the gravity of the offences committed and, consequently, remains within the discretion of the Trial Chamber.

418. In light of the foregoing, in its summary of the acts which served as a basis for the counts on which Akayesu was found individually responsible, the Trial Chamber included inter alia: killing and causing serious or bodily or mental harm to members of the Tutsi group; aiding and abetting in the commission of acts of sexual violence, including rape and other inhuman acts; addressing a meeting, knowing full well that his utterances would be construed by the people present as a call to kill the Tutsi which touched off widespread killing of Tutsis in Taba; ordering the killing of three people ; ordering the killing of eight refugees, which order was executed in his presence; ordering the killing of five teachers ; as well as the torture of six victims.[768]

419. With respect to this last finding, the Trial Chamber identified the torture victims as Victims U, V, W, X, Y, and Z. Now, the same Chamber had found that the torture of Victim X had not been shown.[769] The question is whether there can be discerned in this instance an error such as would warrant the Appeals Chamber intervening and substituting the sentence imposed by another sentence. Akayesu was sentenced to a term of 10 years of imprisonment for torture, as a crime against humanity. He was also handed three sentences of life imprisonment, four fifteen-year sentences and another ten-year prison sentence for the remainder of the crimes he was convicted of. It is the view of the Appeals Chamber that in light of all of the sentences imposed, the offences Akayesu was convicted of and the totality of his criminal conduct, the erroneous inclusion of Victim X in the brief summary contained in the Sentencing Judgment is not such as to justify a reduction of sentence.

420. Lastly, the Appeals Chamber confirms that Trial Chambers are duty bound to “resort” to the general practice regarding prison sentences in the courts of Rwanda. [770] and to “take account”[771] thereof. Neither the Rules nor the Statute specify to what extent the Trial Chamber must resort to said practice, although there is consistent authority at ICTR that the said provisions “do not oblige the Trial Chamber to conform to that practice; they only oblige the Trial Chambers to take account of that practice.”[772] In the instant case, the Trial Chamber considered whether it could rely on the practice in courts of Rwanda. It found rightly, that the said practice “is but one of the factors that it has to take into account in determining sentences,” and that, it should be used for guidance but is not binding.[773] The Trial Chamber held that although trials relating the 1994 events had been conducted in Rwanda resulting in death sentences and prison terms on several occasions, it had “not been able to have information on the contents of these decisions, particularly their underlying reasons.”[774] Finally, the Trial Chamber recalled that “Rwanda, like all States which have incorporated genocide or crimes against humanity in their domestic legislation, has envisaged the most severe penalties in its criminal legislation.”[775]

421. With the exception of the single error referred to above, the Appeals Chamber can discern no error in the Trial Chamber’s overall analysis, nor in the sentence imposed on Akayesu (and, besides, none has been pointed to the Appeals Chamber). Such minor error by the Trial Chamber does not suffice to warrant a revision of the trial sentence by the Appeals Chamber.

422. Lastly, the Trial Chamber decided that all the sentences imposed shall be served concurrently and directed that Akayesu serve a single term of life imprisonment (une peine unique d’emprisonnement à vie in the French translation of the Sentence). Thus as found in the Kambanda Appeal Judgment this is the maximum sentence which may be imposed by the Tribunal, to wit, “imprisonment for […] the remainder of […] life” (emprisonnement à vie) as provided for under Rule 101 (A) of the Rules.[776] The sentence should be served in accordance with the applicable law of the State in which the convicted person will be detained, subject to the supervision of the Tribunal (Article 26 of the Statute). As a result, the sentence may always be reduced if so provided for under the applicable law of the State and if the President of the Tribunal, in consultation with the judges, so decides (Article 27 of the Statute).

423. The Appeals Chamber has considered all the arguments put forward by Akayesu, both separately and in conjunction with each other. The Appeals Chamber finds that Akayesu has failed to show that the Trial Chamber committed any of the errors of fact and law as alleged. Consequently, the Appeals Chamber holds that there is no need for it to consider the Other Issues and the eighty Ground of Appeal. As explained above, Akayesu has failed to fully articulate his grounds of appeal and he concedes that some of these grounds find no support in the evidence and consist, rather, of groundless allegations. As a result, all the grounds of appeal raised in these sections are rejected.

424. Lastly, since Akayesu neither explained nor even mentioned the other grounds of appeal set out in his first and second Notices of Appeal, the Appeals Chamber finds that it must reject them and therefore will not consider them.

[690] The Appeals Chamber notes that in his Notice of Appeal Against the Sentence, Akayesu presents the background to the concerns raised, in relation to what he alleged to be a continuous violation of his fundamental rights by the Tribunal’s Administration (paras. 27 et seq). His allegations reiterate concerns about the assignement of Counsel, citing firstly a letter dated 18 September 1998 from Akayesu to the Registrar of the Tribunal. In addition he refers to these facts in Chapter 15 of his Brief.

[691] Notice of Appeal of Sentence, Prayers.

[692] Notice of Appeal of Sentence, para. 24.

[693] Akayesu’s Brief, Chapter 14, para. 7 and Chapter 15, para. 5, Akayesu’s Reply, para. 137. Akayesu provided no detailed argument in support of his third sub-ground of appeal (where he claims that the sentence was unreasonable and unwarranted). He reserves the right to present arguments regarding the determination of the sentence and the fact that he was detained for six months before his initial appearance. Regarding this latter prayer, it should be remembered that Akayesu’s allegations concerning his unlawful detention were addressed by the Appeals Chamber in its consideration of the tenth Ground of Appeal (See supra).

[696] Prosecution’s Response, para. 15.5 to 15.7.

[698] Prosecution’s Response, paras. 15.8 and 15.9.

[699] Notice of Appeal of Sentence, Prayers.

[700] Notice of Appeal of Sentence, Prayers.

[701] The Appeals Chamber also notes that another significant fact is that Akayesu included these grounds of appeal in what he referred to as “Consolidated Notice of Appeal”, attached to his Brief. Akayesu’s Brief, Introduction, para. 5

[702] Rule 111 provides that: “An Appellant’s brief shall contain all the arguments and authorities. It shall be filed with the Registrar and served on the other party within ninety days of the notice of appeal pursuant to Rule 108 (As amended during the fifth plenary session of 8 June 1998).

[703] Rule 116 of the Rules provides that “The Appeals Chamber may grant a motion to extend a time-limit upon showing of good cause.

[704] In the Scheduling Order of 24 May 2000, the Appeals Chamber had ordered the parties to file their Appellant’s Brief under Rule 111 of the Rules by 10 July 2000.

[705] In particular, during the hearing on appeal, it was not mentioned anywhere that the arguments relating to that ground of appeal should be considered merely as preliminary arguments, pending another hearing on the matter. In the Prosecution’s Response, it is asserted that Akayesu’s arguments on this issues “seem directed towards the request for a bifurcation of the Appeal procedure …” Prosecution’s Response, para. 15.11. Nevertheless, the Appeals Chamber finds that in reality, Akayesu seemed to be discussing the merit of this sub-ground of appeal against the sentence.

[706] Appeal Judgments in Furundzija, Celebici , Kambanda and Aleksovski.

[708] Tadic Appeal Judgment. Disposition. It should also be recalled that in the Celebici Appeal Judgment the issue of the sentence was deferred to a new Trial Chamber to be designated by the President. Also in that case, all the parties concerned had lodged appeals against sentence before the Appeals Chamber, which had ruled on the merits of the grounds of appeal against the sentence, but had left it to the discretion of a Trial Chamber, yet to be designated, to adjust the sentence to the new findings. Celebici Appeal Judgment, Disposition.

[709] See also Kambanda’s Appeal Judgment, para. 97.

[710] Akayesu’s Brief, Chapter 14, para. 7.

[711] Ibid, para 4. Akayesu submits that “he complained unequivocally about the absence of Counsel.”

[712] Ibid, para. 4. Akayesu submits in this connection that the Trial Chamber seems to have forgotten that a 30-day time-limit is prescribed for the filing of a Notice of Appeal and that his Counsel had abandoned him. Akayesu submits that during the pre-sentencing hearing, he clearly requested repeatedly that he needed the services of counsel. See Akayesu’s Reply, para. 137. See also Transcript (A), 1 November 2000, pp.93 and 94.

[713] Akayesu’s Reply, para. 137. Akayesu submits that during the hearing he again complained that he could not adequately respond to the Prosecutor’s submissions without counsel. See Akayesu’s Brief , para. 137. See also Transcript (A), 1 November 2000, p. 94 where Akayesu submits that as a result of failure to adjourn the hearing the sentencing proceedings was fatally flawed.

[714] Transcript (A), 1 November 2000, p. 187. The Prosecutor “suggest a waiver by Mr. Akayesu.”

[715] Akayesu’s Brief, Chapter 15, para. 7.

[716] Transcript(A), 1 November 2000, p. 190.

[718] Transcript(A), 1 November 2000, p. 164.

[719] Transcript (A) , 1 November 2000, p. 164.

[722] Prosecution’s Response, paras. 15.13 to 15.18; Transcript (A), 1 November 2000, pp. 164 to 169.

[723] Prosecution’s Response, para 15.20. The Prosecutor submits that ‘a person in his position, that is one executing laws and administering justice must necessarily be acquainted with fundamental notions such as rights of accused individuals.

[724] Prosecution’s Response, para. 15.21. The Prosecution submits that “in the circumstances of this case interest of justice did not require the Appellant to be represented by counsel at the pre-sentencing hearing.’’

[725] Prosecution’s Response, paras. 15.19 to 15.23.

[726] Prosecution’s Response, para. 15. 23.

[727] Transcript (A), 1 November 2000, p. 169.

[728] This letter was addressed in the Decision of 17 April 2000. See also with respect to this point, the Second Ground of Appeal.

[730] Transcript, 28 September 1998, pp. 4 and 5.

[731] Transcript, 28 September 1998, pp. 5 and 6.

[733] Transcript, 28 September 1998, pp. 25 and 26.

[734] Akayesu submitted: “[…] I must inform you that I do not know anything in law, nothing concerning procedures and therefore, under normal conditions, it’s my counsel, who should have responded to the observations made by the prosecutor. Unfortunately, I am separated before them, a little before this present hearing and no counsel has been assigned to me. In other words, my interests are not being defended. However, I shall […] ” Transcript, 28 September 1998, pp. 26 and 27.

[735] Transcript, 28 September 1998, pp. 27 and 28 [Presiding Judge] “ I don’t want any confusion here. I have asked you before everyone here, we are talking about the sentencing. Do you want yourself to make your own observations or do you want to be assisted by counsel for the sentencing? And you said that you do not want to lose any time, so that, in order for us to finish today, you are going to defend yourself. So, let’s not have a confusion in this matter at all. It’s up to you to decide.” Akayesu replied: “I would be going to the appeal myself.” Still finding the answer unclear, the Presiding Judge asked the question again and stated: “Be clear. Do you want counsel to defend your interest in the matter of sentencing? I want this to be clear or do you want to do this yourself because we are dealing with sentencing here?” Again he said: “[..] Please answer. We must be very clear. What is your position?”

[739] Ibid, pp. 34 and 35 “Now, Mr. President, I would like to avow sincerely to say that I am unable to adequately respond to the brief presented by the prosecutor, as would have done a professional person. I do not have any counsel. How therefore can I respond to the prosecutor since I do not have the same weapons? He is a lawyer, he is a man of law and very well experienced. He had persons in his assistance during this trial and he has tried to convince you of my guilt. How can I, before such a personality, a bourgmaster by a matter of chance, how can I also show how I can be protecting myself? I do not ---I am only a simple teacher and I could like to say on a few words on the exorbitant demands requested by the prosecutor.” Once again, p. 42, Akayesu mentioned “the mitigating circumstances” although he was not able to present them “with the appropriate words and the necessary professionalism as a professional counsel would do.”

[740] Transcript (A) 1 November 2000, p. 190.

[741] See Discussion under the first Ground of Appeal.

[742] Kambanda Appeal Judgment, para. 33 referring inter alia to “a textual and systematic interpretaion of the provisions of the Statute” read in conjunction with the relevant provisions of the Human Rights Committee and the organs of the European Commission on Human Rights.…………………..” read in conjunction with the relevant provisions of the Human Rights Committee and the organs of the European Commission on Human Rights.

[743] Akayesu Notice of Appeal Against Sentence, para. 24.

[744] Neither Akayesu’s Brief nor his Reply refer to this allegation; the ground is mentioned only in the Brief.

[745] Here, the Appeals Chamber will simply note (without ruling on the matter) that on the transcripts of 2 October 1998, there is nothing to suggest that Akayesu asked to speak before the Trial Chamber or that the Trial Chamber refused such a request. Transcripts, 2 October 1998, pp. 1 to 35.

[746] Prosecution’s Response, paras. 15.26 to 15.28. The Prosecution had advanced a similar argument in the submisisons filed in the Kambanda trial. See Kambanda Appeal Judgment, para. 96.

[747] Prosecution’s Response,paras. 15.29 to 15.33.

[748] Prosecution’s Response, para. 15.30.

[749] Prosecution’s Response, para. 15.33.

[752] Celebici Appeal Judgment, paras. 724 and 725, citing respectively (footnote omitted): Erdemovic Appeal Judgment, para .15; Tadic Decision (Additional Evidence ), paras. 41 and 42; Furundzija Appeal Judgment, para. 239; Serushago Appeal against Sentence Judgment, para. 32; Tadic Appeal against Sentence, para. 22; and Aleksovski Appeal Judgment, para. 187; Tadic Appeal against Sentence, para 20.

[753] Celebici Appeal Judgment, para. 716. Although, this applied to ICTY, the provisions in question are indentical to those applicable to theTribunal.

[754] Sentence, para 17. See also para. 21.

[755] Kambanda Appeal Judgment, paras. 116, 117, 123 and 124.

[758] Celebici Appeal Judgment, para. 731, endorsing the finding in the Kupreskic Judgment, para. 852 and cited in the Aleksovski Appeal Judgment, para. 182. See also Kambanda Appeal Judgment, para. 125.

[759] Kupreskic Judgment, para. 852, cited in Aleksovski Appeal Judgment, para. 152.

[765] Celebici Appeal Judgment, paras. 429 and 771.

[769] Judgment, paras. 407, 676 to 684 and 713 (“Regarding the acts alleged in para. 17, the Prosecutor has failed to satisfy the Chamber that they were proven beyond a reasonable doubt.)”

[770] Article 23 (1) of the Statute.

[772] Serushago, Judgment on Appeal, para. 30. See also the more recent Judgment of ICTY Appeals Chamber in the Celebici case, Celebici Appeal Judgment, para. 813.

[774] Sentence, para. 15. The reasons why the Trial Chamber had been confronted with such difficulties are unclear , but the Appeals Chamber is not in a position to speculate on the issue.

[776] Kambanda Appeal Judgment, footnote 144. As in that case, the original text of the Sentence was drafted in French.