The new sentence, however, is still higher than the five-year sentence imposed by the Trial Chamber.
In his partially dissenting opinion, judge Pocar reiterated his disagreement with the Tribunal’s practice of increasing sentence by the Appeals Chamber.
For the reasons already expressed in his dissenting opinions in the previous cases (Galic,Semanza, Rutaganda, and Mrksic), the judge reaffirmed the he does not believe that the Appeals Chamber has the power to impose a new sentence on the accused that is higher than that which was imposed by the Trial Chamber.
In the judge’s view, the Appeals Chamber is bound to apply Article 25(2) of the ICTY Statute in compliance with fundamental principles of international human rights law as enshrined in, inter alia, the International Covenant on Civil and Political Rights.
Article 14(5) of the ICCPR 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”.
The judge opined that the right to appeal a sentence should be granted to an accused before the Tribunal in all situations, which is not the case for the new sentence imposed by the Appeals Chamber.
According to the judge, the Appeals Chamber should have remitted the determination of sentence to the Trial Chamber in order to ensure that the right to appeal against sentence is upheld.
Šljivančanin, Review Judgement, Case No. IT-95-13/1-R.1, App. Ch., 8 December 2010, Partially Dissenting Opinion of Judge Pocar