|Decision on Provisional Release - 17.10.2005||
8. The Appeals Chamber further considers that in rendering a decision on provisional release under the requirements of Rule 65(B), a Trial Chamber is required to provide a reasoned opinion. Thereby, it is obliged “to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.” What exactly constitute the relevant factors to be considered and the weight to be given to them depend upon the particular circumstances of each case. This is due to the fact that “[d]ecisions on motions for provisional release are fact intensive and cases are considered on an individual basis . . . in light of the particular circumstances of the individual accused.” The Trial Chamber is required to assess these circumstances not only as they exist at the time when it reaches its decision on provisional release but also, as much as can be foreseen, at the time the case is due for trial and the accused is expected to return to the International Tribunal.
 Prosecutor v. Šainović & Odjanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, (“Šainović & Odjanić Decision”), para. 6.
 Ibid. [Prosecutor v. Šainović & Odjanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 6]
 See, e.g., the non-exhaustive list of factors laid out in the Šainović & Odjanić Decision at para. 6 when assessing whether an accused will appear for trial.
 Prosecutor v. Boškoski & Tarčulovski, Case No. IT-04-82-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Johan Tarčulovski’s Motion for Provisional Release, 4 October 2005, para. 7; see also Šainović & Odjanić Decision, para. 7; Prosecutor v. Mrkšić, Case No. IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002 (“Mrkšić Decision”), para. 9.
 Šainović & Odjanić Decision, para. 7.
|ICTR Rule Rule 65 ICTY Rule Rule 65|
|Appeal Judgement - 27.02.2014||
NDINDILYIMANA et al. (Military II)
292. The Appeals Chamber observes that the Trial Chamber did not make express findings on the mens rea and actus reus related to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute. The Trial Chamber’s reasoning fails to specify when, where, how, and to whom Nzuwonemeye and Sagahutu issued instructions to commit an offence upon which their ordering liability for the killing of the Prime Minister could be founded. Similarly, the Trial Chamber failed to identify in the Trial Judgement what conduct on the part of Nzuwonemeye and Sagahutu had a “direct and substantial effect” on the killing of the Prime Minister.
293. The Appeals Chamber recalls that, as part of fair trial guarantees, a trial chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules. Consequently, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis on which it reached the decision to convict or acquit an accused. In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged. The Appeals Chamber finds that the Trial Chamber’s failure to make mens rea and actus reus findings in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering amounts to a failure to provide a reasoned opinion. The Trial Chamber’s failure to provide a reasoned opinion amounts to an error of law which allows the Appeals Chamber to consider the relevant evidence and factual findings in order to determine whether a reasonable trier of fact could have found beyond reasonable doubt that the requisite actus reus and mens rea were established in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute.
 Trial Judgement [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Judgement and Sentence, pronounced on 17 May 2011, filed in writing on 17 June 2011], paras. 2093, 2146.
 Trial Judgement, paras. 2093, 2146.
 Trial Judgement, paras. 2093, 2146.
 See, e.g., Nchamihigo Appeal Judgement, para. 165; Krajišnik Appeal Judgement, para. 139; Muvunyi I Appeal Judgement, para. 144.
 See Hadžihasanović and Kubura Appeal Judgement, para. 13.
 Renzaho Appeal Judgement, para. 320; Kajelijeli Appeal Judgement, para. 60; Kordić and Čerkez Appeal Judgement, para. 383. Cf. Orić Appeal Judgement, para. 56.
 Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 683; Kalimanzira Appeal Judgement, paras. 100, 200. See also Perišić Appeal Judgement, para. 92.
|Appeal Judgement - 23.10.2001||
KUPREŠKIĆ et al.
34. The Appeals Chamber notes […] that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction. […]
39. In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances. 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. As stated by the Canadian Court of Appeal in R. v Harper:
Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.
See also paras. 33-38, 40.
 R. v Harper,  1 S.C.R. 2.
|Decision on Legal Aid - 07.02.2003||
KVOČKA et al.
Download full document
50. […] Because administrative functions are different in kind from judicial functions, administrative decision makers are not usually required to give reasons for their decisions in the way courts are required. The imposition by the Directive of an obligation upon the Registrar to give a reasoned decision when withdrawing legal aid should not therefore be interpreted in the same way as the obligation upon a Chamber of the Tribunal to give reasons for its decision. What is necessary in relation to the Registrar’s decision is that it makes apparent in its reasons that he has considered the issues raised by the accused and it reveals the evidence upon which he has based his conclusion.
[The Directive on the Assignment of Defence Counsel was amended since this decision was issued, and the relevant provision was moved from Article 18(B) to Article 19(C).]
|Other instruments Directive on the Assignment of Defence counsel (ICTY): Article 18(A)|
|Appeal Judgement - 16.11.2012||
GOTOVINA & MARKAČ
61. […] The Appeals Chamber finds that there was a need for an evidentiary basis for the Trial Chamber’s conclusions, particularly because these conclusions relate to a highly technical subject: the margin of error of artillery weapons in particular conditions. However, the Trial Chamber adopted a margin of error that was not linked to any evidence it received; this constituted an error on the part of the Trial Chamber. The Trial Chamber also provided no explanation as to the basis for the margin of error it adopted; this amounted to a failure to provide a reasoned opinion, another error. […]
64. The Appeals Chamber recalls that the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at targets that offered a definite military advantage, including the broad spread of individual artillery impact sites and the number of projectiles falling far from identified artillery targets. However, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that the distance between a given impact site and one of the artillery targets identified by the Trial Chamber was the cornerstone and the organising principle of the Trial Chamber’s Impact Analysis. In each of the Four Towns, the Trial Chamber found at least one target which the HV could have believed possessed military advantage. With no exceptions, it concluded that impact sites within 200 metres of such targets were evidence of a lawful attack, and impact sites beyond 200 metres from such targets were evidence of an indiscriminate attack. The Appeals Chamber recalls that it has found that the Trial Chamber failed to provide a reasoned opinion in deriving the 200 Metre Standard, a core component of its Impact Analysis. In view of this legal error, the Appeals Chamber will consider de novo the remaining evidence on the record to determine whether the conclusions of the Impact Analysis are still valid.
 See [Gotovina and Markač] Trial Judgement, paras 1893-1945.
 See, e.g., [Gotovina and Markač] Trial Judgement, para. 1906.
 See generally [Gotovina and Markač] Trial Judgement, paras 1898-1945.
 See, e.g., [Gotovina and Markač] Trial Judgement, paras 1899, 1917-1918, 1930-1931, 1939.
 See [Gotovina and Markač Appeal Judgement], para. 57.
 See [Gotovina and Markač Appeal Judgement], para. 61.
 See [Gotovina and Markač Appeal Judgement], para. 25.
 See [Gotovina and Markač Appeal Judgement], para. 12. Cf. Kalimanzira Appeal Judgement, paras 99-100, 199-200.