Circumstantial evidence

Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

At paras 219-220 of the Judgement, the Appeals Chamber recalled that when reviewing a Trial Chamber’s finding of fact based on inference, the standard is the same at that applied for direct evidence: the question before the Appeals Chamber is whether no reasonable trier of fact could have excluded or ignored other inferences that lead to the conclusion that an element of the crime was not proven.[1]

219. A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.[2] This standard applies whether the evidence evaluated is direct or circumstantial.[3] Where the challenge on appeal is to an inference drawn to establish a fact on which the conviction relies, the standard is only satisfied if the inference drawn was the only reasonable one that could be drawn from the evidence presented.[4] In such instances, the question for the Appeals Chamber is whether it was reasonable for the Trial Chamber to exclude or ignore other inferences that lead to the conclusion that an element of the crime was not proven.[5] If no reasonable Trial Chamber could have ignored an inference which favours the accused, the Appeals Chamber will vacate the Trial Chamber’s factual inference and reverse any conviction that is dependent on it.[6]

See also Ntagerura Appeal Judgement, paras 304-306.

[1] Čelebići Appeal Judgement, para. 458.

[2] Vasiljević Appeal Judgement, para. 120; Ntakirutimana Appeal Judgement, para. 171; Semanza Trial Judgement, para. 148; Musema Trial Judgement, para. 108; Čelebići Trial Judgement, para. 601.

[3] Kupreskić Appeal Judgement, para. 303; Kordić Appeal Judgement, para. 834.

[4] Čelebići Appeal Judgement, para. 458; Krnojelac Trial Judgement, para. 67. With respect to a Trial Chamber’s findings of fact on which the conviction does not rely, the Appeals Chamber will defer to the findings of the Trial Judgement where such findings are reasonable.

[5] Čelebići Appeal Judgement, para. 458; Kvočka Appeal Judgement, para. 18.

[6] The Accused must present clearly and in detail any such alternative inference he wishes the Appeals Chamber to consider. See Vasiljević Appeal Judgement, para. 12. See also Blaškić Appeal Judgement, para. 13; Kunarac Appeal Judgement, paras 43, 48; Niyitegeka Appeal Judgement, para. 10

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Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

318. Renzaho does not specify whether he contends that, by law, no conviction could be entered against him for ordering the killing of Tutsis unless based on direct evidence or whether he challenges the Trial Chamber’s findings themselves. To the extent that Renzaho challenges the Trial Chamber’s reliance on circumstantial evidence for a conviction, the Appeals Chamber recalls that ordering, as a mode of responsibility, can be inferred from circumstantial evidence, so long as it is the only reasonable inference.[1] The Trial Chamber was fully aware of this standard.[2]

319. The Appeals Chamber considers, however, that in finding that Renzaho gave a distinct order to kill Tutsis at roadblocks, the Trial Chamber failed to explain how this was the only reasonable inference that could be drawn from the evidence. The Trial Chamber enumerated the factors that it took into account: Renzaho’s “authority, his actions in support of roadblocks, their role in the ‘defence’ of the city, their widespread and continuous operation, as well as his order to distribute weapons”.[3] However, no explanation is provided to show how the combination of these factors necessarily leads to the conclusion that Renzaho ordered killings. Even if all of these factors consistently show that Renzaho’s actions were aimed at the killing of Tutsis at roadblocks or that he was aware of the risk that Tutsis would be killed at roadblocks, there is an insufficient basis to make the factual finding that Renzaho “ordered” such killings. Judge Güney and Judge Pocar dissent on this point.

[1] See D. Milošević Appeal Judgement, para. 265 (“the actus reus and the mens rea of ordering can be established through inferences from circumstantial evidence, provided that those inferences are the only reasonable ones”). See also Kamuhanda Appeal Judgement, para. 76; Galić Appeal Judgement, para. 178.

[2] See Trial Judgement, para. 764, fn. 855, referring to Galić Appeal Judgement, paras. 177, 178, 389.

[3] Trial Judgement, para. 764.

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Appeal Judgement - 25.02.2004 VASILJEVIĆ Mitar
(IT-98-32-A)

120. The Appeals Chamber further recalls that the standard of proof to be applied is beyond a reasonable doubt, and the burden lies on the Prosecution as the accused enjoys the benefit of the presumption of innocence. The Appeals Chamber agrees with the test adopted by the Trial Chamber according to which, when the Prosecution relies upon proof of the state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence.[1]

[1] Judgement [Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002], para. 68.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

99. The Trial Chamber found that there was no direct evidence of the circumstances in which Muharem Ramadani was killed.[1] Its conviction was based on circumstantial evidence. In light of the circumstances established on the evidence, the Trial Chamber found that the only reasonable conclusion was that the police, directed by Tarčulovski, killed Muharem Ramadani.[2] […]. Tarčulovski fails to demonstrate any error in the findings of the Trial Chamber.[3] […]

[1] Trial Judgement, para. 324.

[2] See Hadžihasanović and Kubura Appeal Judgement, para. 286; Galić Appeal Judgement, para. 218; Stakić Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 303; Čelebići Appeal Judgement, para. 458.

[3] Trial Judgement, para. 325.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

458. A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him […].  Such a conclusion must be established beyond reasonable doubt.  It is not sufficient that it is a reasonable conclusion available from that evidence.  It must be the only reasonable conclusion available.  If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

149. The Appeals Chamber recalls that there is no requirement that the body of a victim be recovered in order to prove death beyond a reasonable doubt, and that a victim’s death can be inferred circumstantially from all the evidence presented to the Trial Chamber.[1] Consequently, the evidence of an eye-witness can be the sole basis for a finding that a person is dead. The Appeals Chamber also recalls that, in order to successfully challenge the trial chamber’s assessment of circumstantial evidence on appeal, an appellant must show that no reasonable trier of fact could have found that the conclusion reached by the trial chamber was the only reasonable inference.[2].

208. At the outset, the Appeals Chamber recalls that proof beyond reasonable doubt that a person was killed does not necessarily require proof that the dead body of that person has been recovered. Rather, a victim’s death may be inferred circumstantially from all the evidence presented to the Trial Chamber.[3] […]

316. As the Appeals Chamber noted above, proof beyond a reasonable doubt that a person is dead does not necessarily require that the body of that person was recovered.[4] A victim’s death can be inferred circumstantially from all of the evidence presented to a trial chamber.[5] […]

[1] Kvočka et al. Appeal Judgement, para. 260.

[2] See supra [Appeal Judgement,] para. 13.

[3] See supra [Appeal Judgement,] para. 149.

[4] See supra [Appeal Judgement,] para. 149.

[5] See supra [Appeal Judgement,] para. 149.

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Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

91.       In rejecting these alternative explanations, the Trial Chamber considered evidence that the war-front was relatively far from ButarePrefecture, that there was no legitimate threat of invasion by the RPF from neighbouring Burundi, and that the evidence of RPF infiltration in the area was general or pre-dated 1994.[1] The Appeals Chamber is not convinced, Judge Liu dissenting, that the considerations identified by the Trial Chamber eliminate the reasonable possibility that Mugenzi and Mugiraneza agreed to remove Habyalimana for political or administrative reasons rather than for the purpose of furthering the killing of Tutsis in Butare Prefecture. Consequently, the Appeals Chamber finds, Judge Liu dissenting, that the Trial Chamber erred in concluding that the only reasonable inference that could be drawn from the circumstantial evidence is that Mugenzi and Mugiraneza possessed the requisite mens rea for a conviction for conspiracy to commit genocide.

[…]

138.     The Appeals Chamber finds that the Trial Chamber erred in concluding that the only reasonable inference that could be drawn from the evidence on the record is that Mugenzi and Mugiraneza knew that Sindikubwabo’s speech at the ceremony would be aimed at sparking the killing of Tutsis and that, therefore, their presence at the ceremony demonstrates their shared genocidal intent. In this respect, the Appeals Chamber notes the Trial Chamber’s acknowledgment that there was no direct evidence that Mugenzi and Mugiraneza met with Sindikubwabo immediately prior to the ceremony or any other direct evidence of “pre-planning”.[2] Furthermore, the Appeals Chamber considers that, given that Mugenzi spoke at the ceremony before Sindikubwabo, it was unreasonable for the Trial Chamber to rely on the fact that Mugenzi did not contradict Sindikubwabo in support of its finding that Mugenzi must have known the intended message of the president’s speech.[3]

139.     The Appeals Chamber also considers that, based on the record, no reasonable trier of fact could have excluded the reasonable possibility that Mugenzi and Mugiraneza attended the installation ceremony for reasons other than because they shared a common criminal purpose of killing Tutsis in Butare Prefecture. Notably, Mugenzi and Mugiraneza submit that they attended the ceremony as a result of obligations arising from their positions as ministers.[4] Indeed, the Trial Chamber recounted evidence from Mugiraneza and Defence Witness André Ntagerura, a former minister, that their attendance at the installation ceremony resulted from obligations of protocol and custom.[5] The Trial Chamber did not discount this evidence and, in fact, took it into account in rejecting Mugenzi’s claim that Sindikubwabo’s attendance at the ceremony was unexpected.[6] Moreover, a review of the Trial Judgement reflects that Mugenzi also attended the installation ceremony of the new prefect of Gisenyi Prefecture on 20 April 1994 and that there is evidence that Kambanda and other ministers attended the installation ceremony of the prefect of Ruhengeri Prefecture in the second half of April 1994.[7]

140.     Furthermore, the Trial Chamber relied on its finding that Mugenzi and Mugiraneza acted with genocidal intent in agreeing on 17 April 1994 to remove Habyalimana as the prefect of Butare Prefecture to reinforce its conclusion that they would have thus known that Sindikubwabo’s message would be aimed at sparking the killings in Butare Prefecture in view of the coordinated nature of the events.[8] The Appeals Chamber recalls that it has reversed, Judge Liu dissenting, the Trial Chamber’s finding that Mugenzi and Mugiraneza possessed genocidal intent in taking the decision to replace Habyalimana.[9] The Appeals Chamber thus considers that Mugenzi’s and Mugiraneza’s participation in the decision could not support the finding of their mens rea for direct and public incitement to commit genocide.

141.     Accordingly, Mugenzi and Mugiraneza have demonstrated that the Trial Chamber erred in its assessment of the evidence related to their mens rea for convictions for direct and public incitement to commit genocide. The Appeals Chamber therefore dismisses their remaining arguments as moot.[10]

[1] Trial Judgement, paras. 1234, 1236.

[2] Trial Judgement, para. 1943. See also Trial Judgement, para. 1942.

[3] See Trial Judgement, para. 1369.

[4] See, e.g., Mugenzi Appeal Brief, para. 290 (recalling that Mugenzi attended the installation ceremony of the prefect of Gisenyi Prefecture on 20 April 1994 and that Kambanda and other members of the Interim Government attended the 22 April 1994 installation ceremony for the prefect of Ruhengeri Prefecture); Mugiraneza Appeal Brief, paras. 164, 211 (contending that Mugiraneza’s attendance at the 19 April 1994 installation ceremony could reasonably be explained as a matter of state protocol).

[5] Trial Judgement, paras. 1297, 1301.

[6] Trial Judgement, n. 1977.

[7] Trial Judgement, paras. 1391, 1400, 1428, 1430. The Trial Chamber did not discount the evidence of Defence Witness Basile Nsabumugisha concerning the ministerial presence at his swearing-in ceremony as the new prefect of Ruhengeri Prefecture. See Trial Judgement, paras. 1430, 1439.

[8] Trial Judgement, para. 1984.

[9] See supra paras. 93, 94.

[10] In these circumstances, the Appeals Chamber also need not address Mugiraneza’s request for the admission of material from the Ngirabatware case as additional evidence on appeal. See generally Mugiraneza Motion of 8 October 2012 ₣Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Prosper Mugiraneza’s Motion Pursuant to Rule 115(A) for Admission of Testimony of Augustin Ngirabatware, 8 October 2012ğ, referring to material from the Ngirabatware case. See also Mugiraneza Reply ₣Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Prosper Mugiraneza’s Reply to the Prosecution’s Response to Prosper Mugiraneza’s and ₣Jğustin Mugenzi’s Motions Under Rule 68 and for the Admission of Evidence Pursuant to Rule 115 Emergency Motion for Admission of Evidence, 12 November 2012ğ, paras. 18-24. This motion is therefore dismissed, in part, as moot. See also supra para. 64.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At paras 304-306, the Appeals Chamber recalled the law applicable to circumstantial evidence, as enounced in the Čelebići Appeal Judgement and recently confirmed in Stakić:

304.    In the Čelebići Appeal Judgement, the ICTY Appeals Chamber set out the standard of proof applicable to circumstantial evidence as follows:

A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him – here that he participated in the second beating of Gotovac. Such a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

The same standard was applied in theVasiljević, Krstić and Kvočka et al. Appeal Judgements in relation to the establishment of the state of mind of the accused by inference and, more recently, in the Stakić Appeal Judgement.

305.    As the ICTY Appeals Chamber made clear in the Kordić and Čerkez Appeal Judgement, the Čelebići standard on circumstantial evidence has to be distinguished from the standard of appellate review. The Appeals Chamber notes that the Tribunal’s law on appellate proceedings, namely wheter “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, permits a conclusion to be upheld on appeal even where other inferences sustaining guilt could reasonably have been drawn at trial”.[5]

306.    It is settled jurisprudence that the conclusion of guilt can be inferred from circumstantial evidence only if it is the only reasonable conclusion available on the evidence. Whether a Trial Chamber infers the existence of a particular fact upon which the guilt of the accused depends from direct or circumstantial evidence, it must reach such a conclusion beyond reasonable doubt. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the non-existence of that fact, the conclusion of guilt beyond reasonable doubt cannot be drawn.

[1] Čelebići Appeal Judgement, para. 458.

[2] Vasiljević Appeal Judgement, para. 120; Krstić Appeal Judgement, para. 41; Kvočka et al. Appeal Judgement, para. 237.

[3] Stakić Appeal Judgement, para. 219.

[4] Kordić and Čerkez Appeal Judgement, paras. 289-290.

[5] Ibid., para. 288.

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Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The standard for appellate review as set out in the Judgement was based on the standard set out in the Stakić Appeal Judgement, with a slight amendment, in para. 9, pertaining to the reasonableness standard, which has been made clearer (emphasis added in bold):

9. When considering alleged errors of fact on appeal from the Defence, the Appeals Chamber will determine whether no reasonable trier of fact could have reached the verdict of guilt beyond reasonable doubt.[1] The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence.[2] In determining whether or not a Trial Chamber’s finding was one that no reasonable trier of fact could have reached, the Appeals Chamber “will not lightly disturb findings of fact by a Trial Chamber”.[3] The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in Kupreškić, which stated:

Pursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.[4]

[1] Stakić Appeal Judgement, para. 10; Kvočka et al. Appeal Judgement, para. 18; Kordić and Čerkez Appeal Judgement, para. 18; Blaškić Appeal Judgement, para. 16; Čelebići Appeal Judgement, para. 435; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Tadić Appeal Judgement, para. 64.

[2] Stakić Appeal Judgement, para. 220; Čelebići Appeal Judgement, para. 458. Similarly, the type of evidence, direct or circumstantial, is irrelevant to the standard of proof at trial, where the accused may only be found guilty of a crime if the Prosecution has proved each element of that crime and the relevant mode of liability beyond a reasonable doubt. See Stakić Appeal Judgement, para. 219; Čelebići Appeal Judgement, para. 458.

[3] Stakić Appeal Judgement, para. 10; Furundžija Appeal Judgement, para. 37, referring to Tadić Appeal Judgement, para. 64. See also Kvočka et al. Appeal Judgement, para. 19; Krnojelac Appeal Judgement, para. 11; Aleksovski Appeal Judgement, para. 63; Musema Appeal Judgement, para. 18.

[4] Stakić Appeal Judgement, para. 10; Kvočka et al. Appeal Judgement, para. 19, quoting Kupreškić et al. Appeal Judgement, para. 30. See also Kordić and Čerkez Appeal Judgement, para. 19, fn. 11; Blaškić Appeal Judgement, paras 17-18.

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