Errors of law

Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

120. […] Where an error of law is found, it is open to the Appeals Chamber to review the relevant findings of the Trial Chamber according to the correct legal standard.[1] In cases like the instant one, however, where it is submitted that an error of law potentially impacts every single piece of evidence and, by implication, every finding made by the Trial Chamber, the appellate party is required to develop its arguments more precisely by referring to specific portions of the Trial Judgement, thus limiting the import of its allegations – lest the appeal procedure effectively becomes a trial de novo.[2] […]

[1] Blaškić Appeal Judgement, para. 15.

[2] See supra, para. 10.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

20. With regard to the burden of proof specifically associated with allegations of errors of law, the Appeals Chamber recalls that in its capacity as the final arbiter of the law of the international Tribunal, it must, in principle, determine whether an error of procedural or substantive law was indeed made, where a party raises an allegation in this connection.[1] Indeed, case law recognizes that the burden of proof on appeal in respect of errors of law is not absolute.[2] In fact, the Appeals Chamber does not cross-check the findings of the Trial Chamber on matters of law merely to determine whether they are reasonable, but indeed to determine whether they are correct. Nevertheless, the party alleging an error of law must, at the very least, identify the alleged error, present arguments in support of his contention,[3] and explain in what way the error invalidates the decision. An alleged legal error that does not have the potential to cause the impugned decision to be reversed or revised is, in principle, not legal[4] and may thus be dismissed as such.

[1] Musema Appeal Judgement, footnote 20 citing Furundzija Appeal Judgement, para. 35; Kunarac Appeal Judgement, para. 38.

[2] Musema Appeal Judgement, para. 16 citing Furundzija Appeal Judgement, para. 36. In fact, where the arguments of a party prove to be inadequate, the Appeals Chamber may admit the appeal for different reasons (Musema Appeal Judgement, footnote 20 citing Furundzija Appeal Judgement, para. 35).

[3] Kupreskic Appeal Judgement, para. 27.

[4] Unless it raises an issue of general interest for the jurisprudence or functioning of the Tribunal.

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ICTR Statute Article 24(1)(a) ICTY Statute Article 25(1)(a)
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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

264. The Trial Chamber considered that “for an accused to be convicted of ‘committing’ pursuant to a theory of [joint criminal enterprise], it must be established that he or she participated in the execution of the common plan or purpose of the enterprise”.[1] The Trial Chamber reasoned that, while Kanyarukiga participated in the planning of the destruction of the Nyange church, there was no evidence to suggest that he ordered, instigated, encouraged, or provided material assistance to the attackers.[2] Accordingly, it concluded that the evidence was insufficient to establish that Kanyarukiga “significantly contributed to the execution or commission of the crimes charged.”[3]

267. The Appeals Chamber notes that the Prosecution does not seek the invalidation of the Trial Judgement, but merely requests clarification on an issue of general importance to the development of the Tribunal’s case law.[4] The Appeals Chamber recalls that the Statute empowers it to hear appeals concerning an alleged error on a question of law “invalidating the decision”.[5] While, in exceptional circumstances, the Appeals Chamber has discretion to hear appeals where a party has raised a legal issue that would not invalidate the judgement,[6] it declines to do so in this case.[7]

[1] Trial Judgement, para. 643 (emphasis in original), referring to Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, para. 96; Vasiljević Appeal Judgement, para. 100; Ntakirutimana Appeal Judgement, para. 466; Tadić Appeal Judgement, para. 227.

[2] Trial Judgement, para. 643.

[3] Trial Judgement, para. 643.

[4] Prosecution Notice of Appeal [The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-A, Prosecutor’s Notice of Appeal, 10 December 2010], para. 2; Prosecution Appeal Brief [The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-A, Prosecutor’s Appellant’s Brief, 23 February 2011], para. 6.

[5] Article 24(1)(a) of the Statute

[6] See, inter alia, Haradinaj et al. Appeal Judgement, para. 9; Boškoski and Tarčulovski Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, para. 12.  

[7] See Article 24(1)(a) of the Statute.

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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

179.    Where errors of law are concerned, the Appeals Chamber holds that the burden placed on the Appellant is somewhat different, although the Appellant must, similarly, prove the errors of law committed by the Trial Chamber and set forth arguments in support of his allegations:

A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point. The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.[1]

[1] Furundzija Appeal Judgment, para. 35.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

35. Errors of law do not raise a question as to the standard of review as directly as errors of fact.  Where a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake.  A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point.  The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.

36. Furthermore, this Chamber is only empowered to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) when there is an error of law that invalidates that decision. It is not any error of law that leads to a reversal or revision of the Trial Chamber’s decision; rather, the appealing party alleging an error of law must also demonstrate that the error renders the decision invalid.

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ICTR Statute Article 24(1)(a) ICTY Statute Article 25(1)(a)
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

145. The Appeals Chamber has previously noted that, although a Trial Chamber’s factual findings are governed by the legal rule that facts essential to establishing the guilt of an accused have to be proven beyond reasonable doubt, this does not affect their nature as factual conclusions.[1] A party arguing that a Trial Chamber based its factual conclusions on insufficient evidence therefore submits that the Trial Chamber committed an error in fact, not an error in law.

[1] Blagojević and Jokić, Decision on Motion to Strike [Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion to Strike Ground One of Jokić Appeal Brief, 31 August 2006], para. 8.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

177.    The task of the Appeals Chamber, as defined by Article 24 of the Statute, is to hear appeals from the decisions of Trial Chambers on the grounds of an error on a question of law invalidating the decision or of an error of fact which has occasioned a miscarriage of justice. An appellant must show that the Trial Chamber erred in law or in fact, and the Appeals Chamber expects his arguments to be directed to that end. In the Kambanda Appeal Judgement, the Appeals Chamber was confronted with a similar situation, where the appellant in that case put forward no arguments in support of certain grounds of appeal. The Appeals Chamber found nevertheless that in cases of errors of law it “is not wholly dependent on the arguments of the parties.” In such cases it found that it retained the discretion “in proper cases to consider an issue raised on appeal even in the absence of substantial argument.” […]

See also para. 344.

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ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

335.    The Appeals Chamber notes that a Trial Chamber is required, as a matter of law, under both the Statute and the Rules, to take into account aggravating and mitigating circumstances. Therefore, if it fails to do so, it commits an error of law. Article 23(2) of the Statute provides, inter alia, that in imposing sentence, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

336.    Rule 101(B) of the Rules is binding in that the Trial Chamber “shall take into account” the factors listed. Therefore, if it does not, it will be committing an error of law. The Appeals Chamber must first examine whether or not the Trial Chamber considered these factors.[1] Second, it must consider whether or not it properly took them into account.[2]

337.    In considering the issue of whether a sentence should be revised, the Appeals Chamber notes that the degree of discretion conferred on a Trial Chamber is very broad. As a result, the Appeals Chamber will not intervene in the exercise of this discretion, unless it finds that there was a “discernible error”[3] or that the Trial Chamber has failed to follow the applicable law.[4] In this regard, it confirms that the weighing and assessing of the various aggravating and mitigating factors in sentencing is a matter primarily within the discretion of the Trial Chamber. Therefore, as long as a Trial Chamber does not venture outside its “discretionary framework”[5] in imposing a sentence, the Appeals Chamber shall not intervene.

338.    The burden rests on the Appellants to “show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules.”[6]

[…]

352.    […] The Appeals Chamber recalls that the degree of discretion conferred on a Trial Chamber in the area of sentencing is broad, and that the gravity of the offence is the primary consideration in imposing sentence.[7] Furthermore, as noted above, a Trial Chamber must consider the individual circumstances of the accused, as well as the aggravating and mitigating factors; weighing these factors is a task primarily within its discretion. The Appeals Chamber will not intervene in this exercise unless there has been an abuse of discretion. […]

See also paras. 363 and 366.

[1] Kambanda Appeal Judgement, para. 122.

[2] Ibid., paras. 122 and 123.

[3] Aleksovski Appeal Judgement, para. 187.

[4] Serushago Sentencing Appeal Judgement, para. 32. See also Aleksovski Appeal Judgement, para. 187, and Tadić Sentencing Appeal Judgement, paras. 20 and 22.

[5] Tadić Sentencing Appeal Judgement, para. 20.  See also Čelebići Appeal Judgement, para. 775 (“…a decision as to the weight to be accorded to such acts in mitigation of sentence lies within the discretion of the Trial Chamber. In the absence of a finding that the Trial Chamber abused its discretion in imposing a sentence outside its discretionary framework as provided by the Statute and Rules, this argument must fail.”) (citing Kambanda Appeal Judgement, para. 124).

[6] Kambanda Appeal Judgement, para. 115.

[7] Čelebići Appeal Judgement, para. 731.

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ICTR Statute Article 23(2) ICTY Statute Article 24(2) ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)