Length of Trial Judgement

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

13. Pursuant to Article 23(2) of the Statute and Rule 98ter(C) of the Rules, Trial Chambers have an obligation to set out a reasoned opinion in writing.[1] This right is one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute. In the Furundzija Appeal Judgement, the Appeals Chamber held that Article 23 of the Statute treats the right of an accused to a reasoned opinion as one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute.[2] With regard to legal findings, this obligation does not require a Trial Chamber to discuss at length all of the case-law of the International Tribunal on a given legal issue but only to identify the precedents upon which its findings are based. With regard to factual findings, a Trial Chamber is required only to make findings on those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.[3] In short, a Trial Chamber should limit itself to indicating in a clear and articulate, yet concise manner, which, among the wealth of jurisprudence available on a given issue and the myriad of facts that emerged at trial, are the legal and factual findings on the basis of which it reached the decision either to convict or acquit an individual. A reasoned opinion consistent with the guidelines provided here allows for a useful exercise of the right of appeal by the Parties and enables the Appeals Chamber to understand and review the Trial Chamber’s findings as well as its evaluation of the evidence.[4] While the Appeals Chamber appreciates the care with which the Trial Chamber has expressed itself in the Trial Judgement, the Appeals Chamber is constrained to observe that the Trial Chamber might have been more sparing in its efforts in this respect.

[1] Naletilić and Martinović Appeal Judgement, para. 603; Kvočka et al. Appeal Judgement, para. 23; Kunarac et al. Appeal Judgement, para. 41; Furundžija Appeal Judgement, para. 69.

[2] Furundžija Appeal Judgement, para. 69. See also Naletilić and Martinović Appeal Judgement, para. 603; Kunarac et al. Appeal Judgement, para. 41.

[3] Kvocka et al. Appeal Judgement, para. 23; Kordić and Čerkez Appeal Judgement, para. 382; Kupreškić et al. Appeal Judgement, para. 39; Čelebići Appeal Judgement, para. 498.

[4] Kunarac et al. Appeal Judgement, para. 41.

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ICTR Statute Article 19;
Article 20;
Article 22(2)
ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter(C)
Notion(s) Filing Case
Decision on Extension of Time - 23.03.2009 MILUTINOVIĆ et al.
(IT-05-87-A)

p. 3: NOTING that Pavković’s and Lukić’s Motions seek authorization to file their notices of appeal within 60 days from the filing of the B/C/S translation of the Trial Judgement on the ground that neither of them understand English;[1]

CONSIDERING that Counsel for Pavković and Lukić work in English;

RECALLING that, pursuant to Rule 108 of the Rules, the Appeals Chamber may, after the filing of the notice of appeal by a party and on good cause being shown by motion, authorize a variation of grounds of appeal;

CONSIDERING therefore that Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules;

FURTHER CONSIDERING that it would be unreasonable to delay the appellate proceedings until the filing of the B/C/S translation of the Trial Judgement;

FINDING therefore that Pavković and Lukić have not shown good cause for the requested extension;

 

pp. 3-4: CONSIDERING that the length of the Trial Judgement is unprecedented and that, in conjunction with the other factors referred by the Joint Motion, this case raises issues of significant complexity;[2]

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis[.]

See also, Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009.

[1] Pavković’s Motion [Motion for an Extension of Time to File Notice of Appeal with Annex” filed by the Defence for Nebojša Pavković, 9 March 2009], paras 2-4; Lukić’s Motion, para. 3.

[2] Cf. Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motions for Extension of Time, Request to Exceed Page Limit, and Motion to File a Consolidated Response to Appeal Briefs, 27 June 2006, para. 7 in which the Pre-Appeal Judge noted the “unusual length” of the Trial Judgement rendered in that case; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 5 mentioning the complexity of issues in that appeal as one of the factors in favour of an extension of time; Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-A, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, para. 19 referring to the length and the complexity of the trial.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Extension of Time for Respondent's Briefs - 27.07.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

[1] Decision of 29 June 2009 [Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009], p. 4.

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Notion(s) Filing Case
Decision on Extension of Time for Respondent's Briefs - 27.07.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

[1] Decision of 29 June 2009 [Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009], p. 4.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

23. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules.[1]  However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.[2] It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[3] If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings. It is therefore not possible to draw any inferences about the quality of a judgement from the length of particular parts of a judgement in relation to other judgements or parts of the same judgement.

24. The Appeals Chamber notes that, in certain cases, the requirements to be met by the Trial Chamber are higher. As an example of a complex issue, the Appeals Chamber considered the appraisal of witness testimony with regard to the identity of the accused:

While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”. In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence. [4]

But even in those cases, the Trial Chamber is only expected to identify the relevant factors, and to address the significant negative factors. If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance. In general, as the Furundžija Appeals Chamber stated:

The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty ... applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case”.[5]

25. The Appeals Chamber therefore emphasizes that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[6] General observations on the length of the Judgement, or of particular parts of the Judgement, or of the discussion of certain parts of the evidence, do not qualify, except in particularly complex cases, as the basis of a valid ground of appeal.[7]

[1] Furundžija Appeal Judgement, para. 69; Kunarac et al. Appeal Judgement, para. 41.

[2] Čelebići Appeal Judgement, para. 498; Kupreškić et al. Appeal Judgement, para. 39; Kordić and Čerkez Appeal Judgement, para. 382. See also above, para. 23.

[3] Čelebići Appeal Judgement, paras 481, 498; Kupreškić et al. Appeal Judgement, para. 32.

[4] Kupreškić et al. Appeal Judgement, para. 39.

[5] Furundžija Appeal Judgement, para. 69 (footnotes omitted).

[6] Cf. Kordić and Čerkez Appeal Judgement, para. 21.

[7] Cf. Decision on Prosecution Motion Requesting Order to Zoran Žigić to File Grounds of Appeal, 14 June 2002, para. 10.

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