Reasoned opinion

Notion(s) Filing Case
Decision on Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

12. […] There is nothing wrong in clarifying the law or providing guidelines and directing a party to re-file its submission rather than immediately ruling upon it, insofar as a Chamber provides sound reasons for doing so.[1] Furthermore, the Appeal Chamber recalls that:

[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail. The fact that the Trial Chamber did not mention a particular fact in its written order does not by itself establish that the Chamber has not taken that circumstance into its consideration.[2]

In addition, with respect to the amount of time alloted [sic] to a party for the presentation of its case, the Appeals Chamber has held that “although [a] Trial Chamber must justify its reduction in time by indicating the documents and the competing interests it considered, it does not need to specifically ‘itemise and justify’ all of the bases for this reduction”.[3] This principle is also applicable to a Trial Chamber’s determination on the number of witnesses. In the present case, the Trial Chamber provided adequate reasoning for placing a limit on the number of Rule 92 bis written statements or transcripts that Praljak could tender and sending back the Motions to him without ruling upon the admissibility of each and every Statement, based on a sufficiently particularised and comprehensive analysis of the Statements. [“Statements” or, individually, “Statement” are defined in paragraph 4 as the written statements and transcripts of 155 witnesses, in total, which Praljak requested the Trial Chamber on 14 September, 1 October and 16 October 2009 to admit into evidence pursuant to Rule 92 bis of the Rules]

[1] See e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-T, 7 July 2006, T. 5999:12-5999:19 (oral order), directing the accused Milan Martić to re-file more detailed Rule 65 ter witness summaries. Based on the re-filed witness summaries, the Trial Chamber set the time allocated to the presentation of the defence case and the number of witnesses it could call, see Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Time Available for the Defence for Presenting Its Evidence, 14 August 2006 (confidential), pp. 2, 4. See also Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Order on Prosecution’s Motion to Admit Documentary Evidence with Annexes, 6 June 2006, p. 2, requiring more information on the items that the Prosecution tendered into evidence from the bar table. The Trial Chamber subsequently decided upon their admissibility taking into account the supplemented information, see Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Motion to Admit Documentary Evidence, 10 October 2006, paras 2-4.

[2] Prlić et al. Appeal Decision of 1 July 2008, para. 48, referring to Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 7.

[3] Prlić et al. Appeal Decision of 1 July 2008, para. 48, referring to Prlić et al. Appeal Decision of 11 May 2007, para. 25.

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Notion(s) Filing Case
Decision Refusing Leave to Appeal - 03.07.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

23.     […] A Chamber is required to give reasons for its finding on the facts which led to its conclusion but this does not mean that it has a duty to give a detailed analysis of each such factor.  In most applications for provisional release, it would be sufficient for a Chamber to state that the matters put forward by the applicant have not satisfied it that he will appear for trial, or that, if released, he will not pose a danger to any victim, witness or other person (as the case may be).  In the particular case, one or more of the particular matters put forward by the applicant will be of such a nature that, in the discharge of its duty to give reasons, the Chamber will be obliged to explain why it has not accepted one or more of the various matters as being sufficient to establish the relevant fact.  It is not possible to state in advance any specific test as when such an obligation will arise.  Each case will depend upon its own circumstances. […]

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

143. […] While a trier of fact is not obliged to detail every step of its reasoning, in view of its concerns regarding the credibility of Witness KXX and its decision to accept his testimony only where corroborated,[1] the Trial Chamber was compelled to explain why it relied on the uncorroborated account of Witness KXX instead of Witness YH’s testimony with regard to the time of the Appellant’s arrival at Kaduha Parish. The Appeals Chamber will consider below whether, and if necessary, to what extent, the Trial Chamber’s error affects its findings relating to the Appellant’s participation in the attacks at MurambiTechnicalSchool and Kaduha Parish on 21 April 1994 within the time frame emerging from the relevant testimonies.

152. Turning to the issue of distance and driving time, the Appeals Chamber recalls that a Trial Chamber has the obligation to provide a reasoned opinion,[2] but is not required to articulate the reasoning in detail.[3] Although certain evidence may not have been referred to by a Trial Chamber, in the particular circumstances of a given case it may nevertheless be reasonable to assume that the Trial Chamber took it into account.[4] There is no guiding principle on the question to determine the extent to which a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[5]

155. […] the Trial Chamber failed to expressly discuss the Defence evidence to the effect that it was impossible for the Appellant to travel from MurambiTechnicalSchool to Kaduha Parish within this time-frame. The issue was clearly controversial and the evidence presented by the parties in this respect was contradictory. The Trial Chamber should have been clearer in finding that the Appellant was at both MurambiTechnicalSchool and Kaduha Parish, which the Trial Chamber deemed geographically proximate, thereby rejecting his argument regarding impossibility. However, the failure to be more explicit does not indicate the lack of a reasoned judgement, particularly in light of the approximate nature of the evidence offered by Witnesses KSY, YH and AJT1 as discussed in subsequent paragraphs.

[1] Trial Judgement, para. 169.

[2] Article 22(2) of the Statute and Rule 98(C) of the Rules.

[3] Kamuhanda Appeal Judgement, para. 32; Kajelijeli Appeal Judgement, para. 59; Semanza Appeal Judgement, paras 130, 149; Niyitegeka Appeal Judgement, para 124; Rutaganda Appeal Judgement, para. 536; Musema Appeal Judgement, paras 18, 277; Delalić et al. .Appeal Judgement, para. 481.

[4] Musema Appeal Judgement, para. 19.

[5] Musema Appeal Judgement, para. 18. 

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Notion(s) Filing Case
Decision After Remand - 11.05.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

The Prosecution challenged the compliance of the Impugned Decision on Remand with the Appeals Chamber’s direction to the Trial Chamber that it specifically consider whether the reduction of 107 hours from the 400 hours originally allocated to the Prosecution would allow it a fair opportunity to present its case in light of the complexity and number of issues that remain. The Appeals Chamber found:

25. The Appeals Chamber considers that while a Trial Chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision – in this case whether the reduced timeframe objectively allows the Prosecution a fair opportunity to present its case – the Prosecution overstates the Trial Chamber’s burden in this respect. It is sufficient here that the Trial Chamber indicated what documents and information it had taken into account and the factors it considered in assessing what remains to be covered against the backdrop of the Amended Indictment, while making clear in its assessment that it duly balanced the sometimes competing interests at stake in carrying out its duty to ensure the fairness and expeditiousness of the proceedings. The Trial Chamber is not, however, required to itemise and justify the time reduction in respect of each section of the Amended Indictment.[1]

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (“Milošević Appeal by the Amici”), para. 9 (“While a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail.”).

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Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

[1] Trial Judgement, para. 915.

[2] Kayishema and Ruzindana Trial Judgement, para. 26.

[3] Ntakirutimana Trial Judgement, para. 153.

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Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

[1] Trial Judgement, para. 915.

[2] Kayishema and Ruzindana Trial Judgement, para. 26.

[3] Ntakirutimana Trial Judgement, para. 153.

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Notion(s) Filing Case
Decision on Reducing Time for the Prosecution Case - 06.02.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

The Appeals Chamber recalled that, in reducing the time allocated for the presentation of evidence, Trial Chambers must provide a reasoned opinion:

16. […] The Appeals Chamber recalls that a Trial Chamber must, at a minimum, provide reasoning in support of its findings on the substantive considerations relevant for a decision and considers that, in this case, the reasoning in the Impugned Decision in the absence of this assessment is insufficient in itself to support the reduction.[1] While it may be that, in light of the evidence presented to date, the reduction of 107 hours allocated to the Prosecution still permits it a fair opportunity to present its case, the Trial Chamber must specifically consider whether this is indeed so.

[1] See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release, 9 March 2006, para. 10; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (finding that the Trial Chamber had an obligation to provide reasons for its decision, although it need not have provided its reasoning in detail); Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 6. 

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Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

530. Turning first to Renzaho’s arguments concerning Witness AWO raised under his Eleventh Ground of Appeal, the Appeals Chamber notes that, in relation to her rapes in Rugenge sector, the Trial Chamber was satisfied with Witness AWO’s identification of Renzaho and found her physical description of him to be adequate and consistent.[1] As to factors impacting negatively on the reliability of her identification evidence, the Appeals Chamber recalls that not all factors need to be explicitly addressed, only any significant ones.[2] The fact that Witness AWO had seen Renzaho only once before April 1994 does not, per se, diminish the reliability of her sighting, and the fact that she did not personally know him prior to the events is not sufficient to undermine the reliability of her identification evidence as to the rapes, or moreover with respect to Sainte Famille.[3]

531. Regarding whether the Trial Chamber should have exercised “extreme caution” in assessing Witness AWO’s identification evidence in relation to the attack at Sainte Famille, the Appeals Chamber recalls that such a high level of caution is required only when a witness’s identification was made under difficult circumstances.[4] In this case, the Appeals Chamber finds that the identification evidence did not necessarily call for an “extreme” level of caution.[5] While the events suffered by Witness AWO were unquestionably traumatic, her identification of Renzaho at Sainte Famille did not occur in circumstances that made him difficult to identify, such as in the dark or as a result of a fleeting glance.[6]

  (i) Reasoned opinion

527. The Appeals Chamber notes that the Trial Chamber failed to provide any reasons for accepting the Prosecution witnesses’ identifications of Renzaho at Sainte Famille on 17 June 1994. The Appeals Chamber recalls the general principle that a Trial Chamber need not articulate every step of its reasoning.[7] However, as established in the Kupreškić et al. case, “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’.”[8]

529. The Appeals Chamber considers that the circumstances in which these witnesses identified Renzaho were traumatic. In addition, Witness AWO’s evidence was determinative to the Trial Chamber’s finding that Renzaho ordered the attack at Sainte Famille (rather than simply being present).[9] The Trial Chamber therefore should have provided some reasons for accepting their identifications of Renzaho in relation to the attack at Sainte Famille. The Appeals Chamber finds that the Trial Chamber erred in failing to do so. However, the Appeals Chamber finds that this error does not invalidate the Trial Judgement.

[1] See Trial Judgement, para. 716, referring to Witness AWO, T. 7 February 2007 p. 9 (“It was a man who was bald. He had big eyes […] and I believe he must be quite old today.”).

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

[3] Cf. Kayishema and Ruzindana Appeal Judgement, paras. 327, 328.

[4] Kupreškić et al. Appeal Judgement, paras. 34, 39. See also Kalimanzira Appeal Judgement, para. 96.

[5] In Kupreškić et al., the ICTY Appeals Chamber found that Witness H’s identification of the Defendants was carried out under “very difficult circumstances” because, inter alia, the attackers descended upon her and her family while they were sleeping; her father was killed as the family hid in the basement; and the attackers had masked their faces with paint in an attempt to camouflage themselves. Kupreškić et al. Appeal Judgement, para. 133. Despite these and many other “stressful conditions”, the Appeals Chamber was nevertheless “not persuaded by the Defendant’s arguments that the difficult circumstances in which Witness H found herself that morning completely eliminated any possibility of her recognising the attackers and that no reasonable Trial Chamber could have accepted that she did”. Kupreškić et al. Appeal Judgement, para. 135.

[6] Cf. Kupreškić et al. Appeal Judgement, para. 40.

[7] See Karera Appeal Judgement, para. 19.

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

[9] See Trial Judgement, para. 716. 

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Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

144. It is within a Trial Chamber’s discretion to assess any inconsistencies in the testimony of witnesses, and to determine whether, in the light of the overall evidence, the witnesses were nonetheless reliable and credible.[1] However, the Trial Chamber also has an obligation to provide a reasoned opinion.[2] From the discussion of the evidence in the Trial Judgement, the Appeals Chamber cannot conclude whether a reasonable trier of fact could have relied on the testimony of Witnesses YAI and CCP to convict Muvunyi for this event. The Appeals Chamber is particularly troubled by the numerous inconsistencies in their testimonies as to the core details relating to Muvunyi’s alleged speech[3] and by the utter lack of any discussion of these inconsistencies in the Trial Judgement.[4] In view of this, the Appeals Chamber finds it impossible to assess the finding that the testimony of Witnesses YAI and CCP about the meeting was “strikingly similar” or consistent with respect to the material facts relating to this charge.

147. The Appeals Chamber recalls again that a Trial Chamber has an obligation to provide a reasoned opinion. In this instance, the Appeals Chamber considers that the Trial Chamber did not provide sufficient reasons for preferring the testimony of Witnesses YAI and CCP over that of Witness MO78. The Trial Chamber did not point to any inconsistencies in the evidence of Witness MO78 nor did it identify any reasons for doubting his credibility. The Trial Chamber appears to have deemed Witness MO78 unreliable solely on the basis that his evidence differed from that of Witnesses YAI and CCP. Such an approach is of particular concern given the Trial Chamber’s express recognition[5] of the need to treat the evidence of Witnesses YAI and CCP, unlike the evidence of Witness MO78, with caution.[6] The Appeals Chamber therefore finds that the Trial Chamber failed to provide a reasoned opinion on this point.

[1] See e.g., Bagilishema Appeal Judgement [The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons), 3 July 2002], para. 78.

[2] Simba Appeal Judgement [The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Judgement, 27 November 2007], para. 152; Kamuhanda Appeal Judgement [Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-95-54A-A, Judgement, 19 September 2005], para. 32; Kajelijeli Appeal Judgement [Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A], Judgement, 23 May 2005, para. 59; Semanza Appeal Judgement [Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005], paras. 130, 149; Niyitegeka Appeal Judgement [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004], para. 124; Rutaganda Appeal Judgement [Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003], para. 536; Musema Appeal Judgement [Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 16 November 2001], paras. 18, 277; Čelebići Case Appeal Judgement [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 481; Kupreškić et al. Appeal Judgement [Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Judgement, 23 October 2001], para. 224.

[3] Compare T. 25 May 2005 pp. 4-16 (Witness YAI) with T. 9 June 2005 pp. 1-14 (Witness CCP).

[4] See Trial Judgement, para. 209.

[5] See Trial Judgement, paras. 206, 208.

[6] Cf. Simba Appeal Judgement, para. 143.

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ICTR Statute Article 22(2) ICTY Statute Article 23(2)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

165. The Appeals Chamber recalls that a Trial Chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules.[1] A reasoned opinion ensures that the accused can exercise his right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 24 of the Statute.[2] However, this requirement relates to the Trial Judgment as a whole, not to each submission made at trial.[3] In addition, a Trial Chamber “is not required to set out in detail why it accepted or rejected a particular testimony.”[4]

166. Furthermore, although certain evidence may not have been referred to by a Trial Chamber, in the particular circumstances of a given case it may nevertheless be reasonable to assume that the Trial Chamber took it into account.[5] A Trial Chamber need not refer to every witness testimony or every piece of evidence provided there is no indication that the Trial Chamber completely disregarded any particular piece of evidence; such disregard is shown where evidence that is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.[6]

[1] Muvunyi Appeal Judgement, para. 144, citing Simba Appeal Judgement, para. 152; Kamuhanda Appeal Judgement,

para. 32; Kajelijeli Appeal Judgement, para. 59; Semanza Appeal Judgement, paras. 130, 149.

[2] Karera Appeal Judgement, para. 20. See also Musema Appeal Judgement, para. 18 (noting that the Trial Chamber is not required to articulate every step of its reasoning for each particular finding it makes).

[3] Karera Appeal Judgement, para. 20. See also Limaj et al. Appeal Judgement, para. 81; Kvočka et al. Appeal Judgement, para. 23.

[4] Musema Appeal Judgement, para. 20.

[5] Musema Appeal Judgement, para. 19.

[6] See also Limaj et al. Appeal Judgement, para. 86, citing Kvočka et al. Appeal Judgement, para. 23.

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ICTR Statute Article 22 ICTY Statute Article 23 ICTR Rule Rule 88(C) ICTY Rule Rule 98ter(C)
Notion(s) Filing Case
Decision on Provisional Release - 07.04.2009 KAREMERA et al.
(ICTR-98-44-AR65)

14. In addition, the Appeals Chamber emphasizes that the humanitarian and medical grounds advanced by Ngirumpatse in support of his application[1] were relevant factors in deciding whether he will return for trial.[2] As such, they deserved consideration in the assessment of whether Ngirumpatse is a flight risk. In limiting itself to concluding that Ngirumpatse would not receive a better medical treatment in Europe or anywhere else without considering the humanitarian and medical grounds put forward by Ngirumpatse,[3] the Trial Chamber erred in the exercise of its discretion.

15. The Appeals Chamber therefore finds that the Trial Chamber erred in failing to take into account all the factors which were relevant to its taking a fully informed and reasoned decision as to whether, pursuant to Rule 65 of the Rules, Ngirumpatse will appear for trial if provisionally released and, more generally, as to whether or not he should be granted provisional release. […]

[1] See Motion [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Requête de M. Ngirumpatse aux fins de mise en liberté provisoire pour motif médical, et de transfert en urgence dans l’attente qu’il soit statué sur les conditions matérielles susceptibles d’assortir sa mise en liberté, 3 November 2008] , paras. 7, 18-21.

[2] Cf. Popović Decision, para. 18; Prlić 23 April 2008 Decision, para. 14; Boškoski Decision, para. 14. If the requirements of Rule 65(B) are met, the existence of humanitarian reasons can also be a salient and relevant factor in assessing whether to exercise discretion to grant provisional release: see Prlić 23 April 2008 Decision, para. 14.

[3] Impugned Decision, para. 22, referring to the testimony of the Tribunal’s Chief Medical Officer. 

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Request for Clarification - 06.08.2003 NIKOLIĆ Dragan
(IT-94-2-AR73)

CONSIDERING that the Appeals Chamber has an obligation to give reasoned opinions for its decisions but that this obligation does not require it to spell out every step in its reasoning;[1]

[1] See, e.g., Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, Appeals Chamber, Judgement, 12 June 2002, para. 42.

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Decision on Provisional Release - 30.10.2002 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65)

6. A Trial Chamber is not obliged to deal with all possible factors which a Trial Chamber can take into account when deciding whether it is satisfied that, if released, an accused will appear for trial. It must, however, render a reasoned opinion.[1]  This obliges it to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision. [...]

[1]    This point is conceded by the Prosecution (pars 37-38 of the Appellant’s Brief).

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Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

As one of preliminary matters, Karadžić argued that the Trial Chamber erred in considering his six, allegedly distinct and unrelated motions, in one consolidated decision thus violating his right to reasoned opinion. The Appeals Chamber clarified:

27. The Appeals Chamber recalls that the Trial Chamber is endowed with a considerable degree of discretion in deciding issues of practice and procedure, including the issue of whether to consider similar motions together.[1] To this extent, the Appeals Chamber notes that the joint consideration of the six motions submitted by Karadžić does not per se amount to an error. [See also infra, para. 28.]

30. With respect to Karadžić’s claim that the Impugned Decision lacked reasoned support, the Appeals Chamber emphasises that while a Trial Chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision, it is not required to articulate every step of its reasoning.[2] Nor is the Trial Chamber required to discuss at length all the Tribunal’s case-law on a certain legal issue. Rather, it must identify the precedents on which its findings are based.[3]

31. In the instant case, in determining that none of the six motions submitted by Karadžić amounts to a challenge to jurisdiction within the terms of Rule 72(D)(iv), the Trial Chamber considered the Tribunal’s jurisprudence where “challenges of a similar nature” have been brought.[4] […] Having satisfied itself that the Preliminary Motion raised similar challenges as discussed in the cited jurisprudence, the Trial Chamber concluded that “[f]or these reasons […] none of the Motions amounts to a challenge to jurisdiction within the terms of Rule 72(D)(iv)”.[5]

32.     While it may have been desirable for the Trial Chamber to indicate explicitly the relevance of the cited jurisprudence to the Motions on Omission Liability and Superior Responsibility, Karadžić fails to show that the Trial Chamber’s reasoning, as a whole, was insufficient. As to the Motion on Special Intent Crimes, the Trial Chamber explicitly observed that the arguments advanced by Karadžić are similar to those discussed and dismissed by the Appeals Chamber in the Tolimir Decision.[6] Accordingly, the Appeals Chamber rejects Karadžić’s submission that the Trial Chamber failed to provide sufficient reasoning in dismissing the jurisdictional nature of the motion.

[1] Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para 4, citing Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3.

[2] Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Judgement, 3 April 2007, para. 39, citing Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 6 November 2001, para. 18.

[3] Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Judgement, 22 April 2008, para. 13.

[4] Impugned Decision, para. 31.

[5] Ibid. [Impugned Decision ], para. 32.

[6] Ibid. [Impugned Decision], para. 31.

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Decision on Hostage-Taking - 09.07.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.5)

The Applicant claimed that the timing and brevity of the Impugned Decision revealed a hurried approach on the part of the Trial Chamber and its failure to adequately consider some important defence arguments. Having recalled its previous jurisprudence,[1] the Appeals Chamber observed:

11. […] The Appellant does not claim an error of law based on this alleged brevity, nor does he identify specific issues, findings or arguments which the Trial Chamber did not address. In view of this, the Appeals Chamber declines to consider this matter. It does note, however, that a Trial Chamber’s efficiency in dealing with the motions pending before it cannot be regarded as a symptom of superficiality, and that the brevity or length of a decision depends upon a number of factors, including the nature of the issue in dispute and the quality of the parties’ arguments.

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005 (“Kvočka Judgement”), para. 25; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, 17 March 2009, para. 142.

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Decision on Trial Date - 13.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.5)

19. [R]ather than establishing that the calculation of pre-trial preparation time is a mechanically “objective” task,[1] the Ngirabatware Decision underscores that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”.[2] A Trial Chamber’s assessment of the amount of pre-trial preparation required in each case is a fact-intensive exercise but also involves an exercise of the Trial Chamber’s judgement. The factors cited in the Ngirabatware Decision and addressed by both Karadžić and the Prosecution are specifically described as examples of indicia that might impact a Trial Chamber’s assessment of the pre-trial preparation period,[3] rather than constituting a required “objective” checklist for Trial Chambers.  

20. […] The Appeals Chamber reiterates that assessing the amount of pre-trial preparation required is not a mechanical duty, and also that “[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail”.[4] […] The Appeals Chamber underscores that “[i]n examining whether the Trial Chamber has considered appropriate factors in sufficient measure” with regard to pre-trial preparation, “the Appeals Chamber is not limited to the text of the order issued by the Trial Chamber”. Instead, it will look to relevant decisions and transcripts of recent status and pre-trial conferences in order to determine “whether the Trial Chamber gave the issues involved due consideration”.[5]

[1] See Appeal [Appeal of Decision on Commencement of Trial, 25 September 2009], para. 31.

[2] Ngirabatware Decision [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 28; see also Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Appeal Judgement, 28 November 2007, para. 220.

[3] Ngirabatware Decision, para. 28.

[4] Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation of the Defence Case, 20 January 2004], para. 7 (internal citations omitted).

[5] Milošević Decision, para. 7.

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Appeal Judgement - 30.06.2014 BIZIMUNGU Augustin
(ICTR-00-56B-A)

18. The Appeals Chamber recalls that, under Article 22(2) of the Statute and Rule 88(C) of the Rules, trial chambers are required to provide a reasoned opinion.[1] Accordingly, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused.[2] A reasoned opinion in the trial judgement is essential to ensuring that the Tribunal’s adjudications are fair, and, inter alia, allows for a meaningful exercise of the right of appeal by the parties, and enables the Appeals Chamber to understand and review the trial chamber’s findings.[3]

19. The Appeals Chamber finds that the absence of any relevant legal findings in the Trial Judgement constitutes a manifest failure to provide a reasoned opinion. Indeed, the Appeals Chamber considers the magnitude of this error to be unprecedented in the history of the Tribunal. Rather than engaging in “the most careful of analyses”, as it was required to do,[4] the Trial Chamber failed to even attempt to address in the Trial Judgement the most fundamental of issues: whether the evidence adduced was sufficient to prove Bizimungu’s individual criminal responsibility for genocide.[5]

20. In light of these omissions and to safeguard Bizimungu’s right to an effective appeal, the Appeals Chamber ordered that the appeals concerning Bizimungu be severed.[6] For these same reasons, the Appeals Chamber also ordered additional submissions from the parties on the evidentiary basis for Bizimungu’s conviction for genocide.[7]

[…]

23. The Appeals Chamber recalls that a trial chamber’s failure to provide a reasoned opinion constitutes 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 established beyond reasonable doubt the findings challenged by the appellant.[8]

24. Mindful of the extraordinary nature of the Trial Chamber’s omissions and the gravity of a conviction for genocide, the Appeals Chamber shall assess the findings and evidence relevant to each incident supporting Bizimungu’s genocide conviction to determine whether the elements of genocide are established beyond reasonable doubt.[9] In light of the additional submissions, Bizimungu has had a full and focused opportunity to appeal his genocide conviction and to respond to the Prosecution’s case in this regard. In these circumstances, considerations of fairness do not preclude the Appeals Chamber from conducting this review, and, given the Trial Chamber’s conclusions that genocide was committed and that Bizimungu was responsible for this crime, it is necessary in the interests of justice for the Appeals Chamber to determine whether such findings are sustained by the record.[10]

[1] See, e.g., Nchamihigo Appeal Judgement, para. 165; Krajišnik Appeal Judgement, para. 139; Muvunyi I Appeal Judgement, para. 144.

[2] See Hadžihasanović and Kubura Appeal Judgement, para. 13.

[3] Hadžihasanović and Kubura Appeal Judgement, para. 13. See also Nchamihigo Appeal Judgement, para. 165; Karera Appeal Judgement, para. 20.

[4] Zigiranyirazo Appeal Judgement, para. 75.

[5] By contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions. See, e.g., Trial Judgement [The Prosecutor v. Augustin Ndindiliyimana, Case No. ICTR-00-56-T, Judgement and Sentence, pronounced on 17 May 2011, filed in writing on 17 June 2011], paras. 2077-2085 (making legal findings on the crime of genocide in relation to Ndindiliyimana).

[6] Order for Further Submissions and Severance, 7 February 2014, p. 2.

[7] Order for Further Submissions and Severance, 7 February 2014, pp. 1, 2.

[8] Ndindiliyimana et al. Appeal Judgement, para. 293. See also supra para. 11.

[9] Such course of action has precedent. See, e.g., Ndindiliyimana et al. Appeal Judgement, paras. 292-312; Bagosora and Nsengiyumva Appeal Judgement, paras. 683-689; Rukundo Appeal Judgement, paras. 174, 175; Kalimanzira Appeal Judgement, paras. 89-91. See also Kordić and Čerkez Appeal Judgment, paras. 392-409. The Appeals Chamber undertakes this assessment below in paragraphs 195-201, 272-277, 309-314, and 343-348 of the judgement.

[10] See Kordić and Čerkez Appeal Judgment, paras. 384-388.

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Decision on Provisional Release - 09.03.2006 HARADINAJ et al.
(IT-04-84-AR65.2)

At para. 10, after recalling that Trial Chambers only need, when deciding on a provisional release, to “examine those factors that a reasonable Trial Chamber would take into account[1]”, that is “those which are relevant to its taking a fully informed and reasonable decision as to whether, pursuant to Rule 65(B), the accused will appear for trial if provisionally released[2]”, the Appeals Chamber made clear that Trial Chambers must provide a reasoned opinion:

10. […] A Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied that the requirements of Rule 65(B) are fulfilled, but at a minimum, must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[3] […]

[1]Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, Case No.: IT-99-37-AR65, Decision on Provisional Release, 30 October 2002 (“Šainović and Ojdanić Decision”), para. 6; Prosecutor v. Vujadin Popović, Case No.: IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vujadin Popović’s Application for Provisional Release, 28 October 2005, para. 8.

[2] Šainović and Ojdanić Decision, para. 9.

[3] See Prosecutor v. Slobodan Milošević, Case No.: IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, in which the Appeals Chamber examined whether the Trial Chamber considered appropriate factors in sufficient measure, and determined that the Trial Chamber had an obligation to provide reasons for its decision, although the Trial Chamber need not have provided its reasoning in detail; Prosecutor v. Dragoljub Kunarac et al., Case No.: IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, para. 42, which stated that a Chamber has an obligation to give reasoned opinions for its decisions but this obligation does not require it to spell out every step in its reasoning; Šainović and Ojdanić Decision, para. 6.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

44. The second error of the Trial Chamber was its failure to provide a reasoned opinion in relation to the feasibility of travel between Kesho Hill and Kanombe. […]

45. The Appeals Chamber notes that “[t]here is a presumption that a Trial Chamber has 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.”[1] However, this presumption may be rebutted “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”[2] […]

69. The Appeals Chamber is mindful that evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary purportedly taken by Zigiranyirazo on 12 and 17 April 1994. Nevertheless, the various estimates reflect that Rubaya in GisenyiPrefecture is not in close geographic proximity with the Kiyovu area of Kigali. As a result, the distance, time, and feasibility of travel are highly relevant factors in view of the evidence placing Zigiranyirazo at Rubaya on 12 April 1994 and 17 April 1994, as each trip would have resulted in a significant period of absence from Rubaya.[3] […]

70. The Appeals Chamber notes that the Trial Chamber did refer generally to the lengthy journey from Kanombe, which is near Kigali, to Rubaya in recounting the alibi evidence.[4] Therefore, it follows that it was aware of the significant distance in assessing the allegations related to the Kiyovu Roadblock. In such circumstances, the Trial Chamber should have provided clear reasons as to why the alibi did not account for the time when Zigiranyirazo was seen at the Kiyovu Roadblock. This is especially so given the alibi evidence that Witness Bararengana saw Zigiranyirazo on 12 April 1994,[5] evidence which is not easily reconciled with Zigiranyirazo’s presence, according to Witness BCW, at the Kiyovu Roadblock around 11.00 a.m. or 12.00 p.m. on 12 April 1994. As noted above, the brief absences in the area surrounding Rubaya did not provide a reasonable basis for discounting the alibi. While the Trial Chamber might have reasonably rejected Witness Bararengana’s testimony for a number of other reasons when weighed against that of Witness BCW, it did not do so. Rather, it expressly stated that it did not discount Witness Bararengana’s evidence.[6]

[1] Halilović Appeal Judgement, para. 121. See also Kvoèka et al. Appeal Judgement, para. 23.

[2] Kvoèka et al. Appeal Judgement, para. 23.

[3] In view of this conclusion, the Appeals Chamber does not find it necessary to discuss the additional evidence related to the viability of the Ruhengeri route.

[4] Trial Judgement, paras. 246-248. See also Trial Judgement, para. 87, fn. 88.

[5] See T. 6 March 2007 p. 45.

[6] Trial Judgement, para. 250.

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Notion(s) Filing Case
Decision Refusing Leave to Appeal - 27.06.2003 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65.2)

CONSIDERING that when[…] an applicant for provisional release did not raise any new issue which had not been discussed in his earlier application to the same effect, the Trial Chamber need not give its reasons anew in relation to the issues raised in the new application, if the new material before it does not impact upon its original decision;

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Decision on Provisional Release - 01.11.2005 MILUTINOVIĆ et al.
(IT-05-87-AR65.1)

When examining the Trial Chamber’s finding that it was satisfied that the Accused, if released, will not pose a danger to victims, witnesses or other persons, the Appeals Chamber held:

11. The Trial Chamber “consider[ed] that there is nothing to suggest that, if released, the Accused will pose” such a danger, and “that the Trial Chamber thereby previously [only] identified the [question of whether the Accused would appear for trial] as being in issue”.[1]  The Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied the requirements of Rule 65(B) are fulfilled, but at a minimum, the Trial Chamber must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[2]  Here, the Trial Chamber appears, in effect, to have switched the burden to the Prosecution to show that the Accused would pose a danger if released.  In the putative absence of such information, the Trial Chamber appears to have assumed the lack of a danger posed by the Accused’s release.  If the Trial Chamber found, as it must have done so here, that the Accused upon release will pose no danger to persons, then it must provide the reasons for reaching that finding.

[1] Impugned Decision [Prosecutor v. Milutinović et al., Case No. IT-05-87-PT, Decision on Nebojša Paković’s Provisional Release, 30 September 2005], p. 2.

[2] Prosecutor v. Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (The Appeals Chamber examined whether the Trial Chamber considered appropriate factors in sufficient measure, and determined that the Trial Chamber had an obligation to provide reasons for its decision, although the Trial Chamber need not have provided its reasoning in detail); Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, Appeals Chamber, Judgement, 12 June 2002, para. 42 (a Chamber has an obligation to give reasoned opinions for its decisions but this obligation does not require it to spell out every step in its reasoning ).

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Appeal Judgement - 28.02.2013 PERIŠIĆ Momčilo
(IT-04-81-A)

92. The Appeals Chamber acknowledges that a trial chamber is entitled to rely on the evidence it finds most convincing.[1] The Appeals Chamber, nevertheless, recalls that:

a [t]rial [c]hamber need not refer to the testimony of every witness or every piece of evidence on the trial record, ‘as long as there is no indication that the [t]rial [c]hamber completely disregarded any particular piece of evidence.’ Such disregard is shown ‘when evidence which is clearly relevant […] is not addressed by the [t]rial [c]hamber’s reasoning.’[2]

The Appeals Chamber also recalls that “not every inconsistency which the [t]rial [c]hamber failed to discuss renders its opinion defective”;[3] what constitutes a reasoned opinion depends on the specific facts of a case.[4] However, in certain circumstances, insufficient analysis of evidence on the record can amount to a failure to provide a reasoned opinion.[5] Such a failure constitutes an error of law requiring de novo review of evidence by the Appeals Chamber.[6]

95. The Appeals Chamber considers that the analysis undertaken by the Trial Chamber with respect to Perišić’s effective control might be regarded as “reasoned” in itself. However, in the Appeals Chamber’s view, an analysis limited to a select segment of the relevant evidentiary record is not necessarily sufficient to constitute a reasoned opinion. In the context of this case, the Trial Chamber’s failure to explicitly discuss and analyse the evidence of Witnesses Rašeta and Orlić constituted a failure to provide a reasoned opinion. The Appeals Chamber acknowledges that a trial chamber’s failure to explicitly refer to specific witness testimony will often not amount to an error of law, especially where there is significant contrary evidence on the record.[7] However, the Appeals Chamber underscores that, as explained above, the testimony of Witnesses Rašeta and Orlić was clearly relevant, relied upon in other sections of the Trial Judgement, and not explicitly discounted in whole or in part.[8] The Appeals Chamber also notes that the Trial Chamber acknowledged the comparatively limited evidence on the record regarding Perišić’s ability to issue orders to or discipline VJ soldiers seconded through the 40th PC.[9] In these circumstances – i.e. given the paucity of relevant evidence, and the credible testimony contrary to the Trial Chamber’s conclusions – the Appeals Chamber is not satisfied that, merely by noting its existence,[10] the Trial Chamber adequately addressed the testimony of Witnesses Rašeta and Orlić.[11]

96. Accordingly, the Appeals Chamber concludes that the Trial Chamber’s failure to address the relevant portions of this testimony in its analysis of Perišić’s superior responsibility constituted a failure to provide a reasoned opinion, an error of law.[12] In view of the Trial Chamber’s legal error, the Appeals Chamber will proceed to assess the evidence relevant to Perišić’s exercise of effective control de novo. As detailed below, the evidence relating to Perišić’s effective control is circumstantial and thus can only support a finding of effective control if this is the sole reasonable interpretation of the record.[13]

See also paras 93-94.

[1] Kvočka et al. Appeal Judgement, para. 23.

[2] Limaj et al. Appeal Judgement, para. 86 (internal citations omitted).

[3] Kvočka et al. Appeal Judgement, para. 23.

[4] See Kvočka et al. Appeal Judgement, para. 24. The Appeals Chamber notes, for example, that a trial chamber’s failure to discuss witness testimony has not been deemed a failure to provide a reasoned opinion when disregarded testimony was confusing, biased, or contradicted by substantial and credible contrary evidence. See Kvočka et al. Appeal Judgement, paras 483-484, 487, 582-583.

[5] See, e.g., Zigiranyirazo Appeal Judgement, paras 44-46; Muvunyi Appeal Judgement, paras 144, 147 n. 321, citing Simba Appeal Judgement, para. 143 (finding that a trial chamber’s failure to explain its treatment of witness testimony, in context, constituted an error of law).

[6] See, e.g., Kalimanzira Appeal Judgement, paras 195-201; Zigiranyirazo Appeal Judgement, paras 44-46; Simba Appeal Judgement, paras 142-143. Cf. Limaj et al. Appeal Judgement, para. 86; Kalimanzira Appeal Judgement, paras 99-100; Muvunyi Appeal Judgement, paras 144, 147 n. 321.

[7] See, e.g., Kvočka et al. Appeal Judgement, paras 23, 483-484, 487, 582-583. See also Simba Appeal Judgement, paras 143, 152, 155.

[8] See [Perišić Appeal Judgement], paras 93-94.

[9] See [Perišić Appeal Judgement], para. 90.

[10] See [Perišić] Trial Judgement, paras 1678, 1720. Cf. [Perišić] Trial Judgement, paras 1758-1764.

[11] Cf. Limaj et al. Appeal Judgement, para. 86; Kvočka et al. Appeal Judgement, para. 23.

[12] Cf. Kalimanzira Appeal Judgement, paras 99-100, 195-199; Muvunyi Appeal Judgement, para. 148.

[13] See Krajišnik Appeal Judgement, para. 202; Stakić Appeal Judgement, para. 219.

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Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

In paragraph 20, the Appeals Chamber recalled the essence of the right of an accused to a reasoned opinion and its limits with references to Limaj et al. and Kvočka et al. Appeal Judgements. It also clarified that

20. […] Additionally, a Trial Chamber does not need to set out in detail why it accepted or rejected a particular testimony.[1] This is equally applicable to all evidence, including that tendered by the accused person.

[1] Muhimana Appeal Judgement, para. 99; Simba Appeal Judgement, para. 152; Musema Appeal Judgement, paras. 18-20.

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

139. As recently recalled by the Appeals Chamber:

The fair trial requirements of the Statute include the right of each accused to a reasoned opinion by the Trial Chamber under Article 23 of the Statute and Rule 98ter(C) of the Rules. A reasoned opinion ensures that the accused can exercise his or her right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 25 to review these appeals. The reasoned opinion requirement, however, relates to a Trial Chamber’s judgement rather than to each and every submission made at trial.[1]

As a general rule, a Trial Chamber “is required only to make findings on those facts which are essential to the determination of guilt on a particular count”;[2] it “is not required to articulate every step of its reasoning for each particular finding it makes”[3] nor is it “required to set out in detail why it accepted or rejected a particular testimony.”[4] However, the requirements to be met by the Trial Chamber may be higher in certain cases.[5] It will be “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]

141. […] The Trial Chamber does not have to refer to the testimony of every witness or every piece of evidence on the trial record; it is to be presumed that the Trial Chamber evaluated all the evidence before it.[7] In fact, the Trial Chamber specifically stated that it had “carefully deliberated” on the evidence presented to it. Both impugned passages merely stress the fact that the Trial Chamber could not present and discuss “all the evidence” in the judgement, a statement which cannot, by itself, be equated with a failure to examine the evidence in question, nor with a failure to provide sufficient reasons for the conclusions reached in the Trial Judgement. The Appeals Chamber considers that the approach taken by the Trial Chamber in the impugned paragraphs was not in error.

142. The Appeals Chamber also recalls that it is necessary for any appellant claiming an error of law based on the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which the appellant submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[8] […]

[1] Limaj et al. Appeal Judgement, para. 81 (references omitted). See also Hadžihasanović and Kubura Appeal Judgement, para. 13; Naletilić and Martinović Appeal Judgement, para. 603; Kvočka et al. Appeal Judgement, paras 23 and 288.

[2] Hadžihasanović and Kubura Appeal Judgement, para. 13.

[3] Musema Appeal Judgement, para. 18. See also Brđanin Appeal Judgement, para. 39.

[4] Musema Appeal Judgement, para. 20.

[5] Kvočka et al. Appeal Judgement, para. 24.

[6] Kvočka et al. Appeal Judgement, para. 25 (reference omitted). See also Halilović Appeal Judgement, para. 7; Brđanin Appeal Judgement, para. 9.

[7] Kvočka et al. Appeal Judgement, para. 23.

[8] Halilović Appeal Judgement, para. 7; Brđanin Appeal Judgement, para. 9; Kvočka et al. Appeal Judgement, para. 25.

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ICTR Statute Article 22 ICTY Statute Article 23 ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter(C)
Notion(s) Filing Case
Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

69. The right of an accused under Article 23 of the Statute to a reasoned opinion is an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute.  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.”[1]  The European Court of Human Rights has held that a “tribunal’ is not obliged to give a detailed answer to every argument.[2]

[1] See Case of Ruiz Torija v. Spain, Judgment of 9 December 1994, Publication of the European Court of Human Rights (“Eur. Ct. H. R.”), Series A, vol. 303, para. 29.

[2] Case of Van de Hurk v. The Netherlands, Judgment of 19 April 1994, Eur. Ct. H. R., Series A, vol. 288, para. 61.

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ICTR Statute Article 22 ICTY Statute Article 23
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

18.     The Appeals Chamber recalls that in determining whether or not a Trial Chamber’s finding was reasonable, it “will not lightly disturb findings of fact by a Trial Chamber.”[1]  In the first place, the task of weighing and assessing evidence lies with the Trial Chamber.  Furthermore, it is for the Trial Chamber to determine whether a witness is credible or not.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.[2]  But the Trial Chamber’s discretion in weighing and assessing evidence is always limited by its duty to provide a “reasoned opinion in writing,”[3]  although it is not required to articulate every step of its reasoning for each particular finding it makes.[4]  The question arises as to the extent that a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[5]  There is no guiding principle on this point and, to a large extent, testimony must be considered on a case by case basis. The Appeals Chamber of ICTY held that:[6]

[t]he right of an accused under Article 23 of the Statute to a reasoned opinion is an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute.  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.”[7]  The European Court of Human Rights has held that a “tribunal’ is not obliged to give a detailed answer to every argument.[8]

19.     In addition, the Appeals Chamber of ICTY has stated that although the evidence produced may not have been referred to by a Trial Chamber, based on the particular circumstances of a given case, it may nevertheless be reasonable to assume that the Trial Chamber had taken it into account.[9]

20.     It does not necessarily follow that because a Trial Chamber did not refer to any particular evidence or testimony in its reasoning, it disregarded it.  This is particularly so in the evaluation of witness testimony, including inconsistencies and the overall credibility of a witness. A Trial Chamber is not required to set out in detail why it accepted or rejected a particular testimony.  Thus, in the Čelebići case, the Appeals Chamber of ICTY found that it is open to the Trial Chamber to accept what it described as the “fundamental features” of testimony.[10]  It also stated that:

[t]he Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial.  It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible. Small inconsistencies cannot suffice to render the whole testimony unreliable.[11]

21.     It is for an appellant to show that the finding made by the Trial Chamber is erroneous and that the Trial Chamber indeed disregarded some item of evidence, as it did not refer to it. In Čelebići, the Appeals Chamber found that the Appellant had “failed to show that the Trial Chamber erred in disregarding the alleged inconsistencies in its overall evaluation of the evidence as being compelling and credible, and in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond reasonable doubt on these grounds.”[12]

[1] Furundžija Appeal Judgement, para. 37; Tadić Appeal Judgement, para. 35; Aleksovski Appeal Judgement, para. 63.

[2] Akayesu Appeal Judgement, para. 232; Tadić Appeal Judgement, para. 64; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Serushago Appeal Judgement, para 22.

[3] Article 22(2) of the Statute and Rule 88(C) of the Rules [Rules of Procedure and Evidence].

[4] Čelebići Appeal Judgement, para. 481.

[5] In particular, the Prosecution has submitted that the “parameters of what constitutes a ‘reasoned opinion’ have yet to be articulated by any Trial Chamber of this Tribunal or ICTY, or by the Appeals Chamber.” Prosecution’s Response [Prosecution's Brief in Response to Alfred Musema's Grounds of Appeal Against Conviction and Sentence and Appellant's Brief on Appeal, 13 September 2000], footnote 59 and para. 4.108.

[6] Furundžija Appeal Judgement, para. 69.

[7] Footnote reference: “See the case of Ruiz Torija v. Spain, Judgement of 9 December 1994, Publication of the European Court of Human Rights (“Eur. Ct. H. R.”), Series A, vol. 303, para. 29.”

[8] Footnote reference: “Case of Van de Hurk v. The Netherlands, Judgement of 19 April 1994, Eur. Ct. H. R., Series A, vol. 288, para. 61.”

[9] Čelebići Appeal Judgement, para. 483.

[10] Ibid., para. 485.

[11] Ibid., para. 498.

[12] Ibid.,

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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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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

81. The fair trial requirements of the Statute include the right of each accused to a reasoned opinion by the Trial Chamber under Article 23 of the Statute and Rule 98ter(C) of the Rules.[1] A reasoned opinion ensures that the accused can exercise his or her right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 25 to review these appeals.[2] The reasoned opinion requirement, however, relates to a Trial Chamber’s judgement rather than to each and every submission made at trial.[3]

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

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

[3] Naletilić and Martinović Appeal Judgement, para. 603; Kvočka et al. Appeal Judgement, para. 23.

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

65. With respect to the argument that the Trial Judgement failed to address the destruction of the Rwankuba sector office or the sites requested to be visited by the parties, the Appeals Chamber recalls that a trial chamber must provide a reasoned opinion in the trial judgement; however, this requirement relates to the trial judgment as a whole, not to each submission made at trial.

[1] See, e.g., Nchamihigo Appeal Judgement, para. 165; Karera Appeal Judgement, para. 20. See also Krajišnik Appeal Judgement, para. 139; Limaj et al. Appeal Judgement, para. 81.

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

165.    The Appeals Chamber recalls that Article 22(2) provides that a Judgement “shall be accompanied by a reasoned opinion in writing”.[1] ICTY Appeals Chamber has, in its interpretation of the corresponding provision in ICTY Statute,[2] drawn from the case-law developed under the European Convention on Human Rights. In conformity with this jurisprudence, the extent to which a court is to provide a reasoned opinion must be determined on a case by case basis and courts are generally “not obliged to give a detailed answer to every argument”.[3] The Appeals Chamber concurs with this understanding of the requirement of providing a reasoned opinion in writing, as laid down in Article 22 of the Statute and considers that it is sufficient for the Trial Chamber to explain its position on the main issues raised. […]

See also paras. 214, 245 and 267.

[1] See also Rule 88(C) of the Rules. 

[2] Article 23 of ICTY Statute. 

[3] Furundžija Appeal Judgement, para. 69 referring to Van de Hurk v. The Netherlands, Judgement of 19 April 1994, Eur. Ct. H. R. , Series A, vol. 288.  See also Čelebići Appeal Judgement, para 481.  

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Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

21.     […] The Appeals Chamber affirms that it is not necessary for a Trial Chamber to give formal oral or written reasons in response to each and every objection raised by the parties. To require reasons for all objections would place an unreasonable burden on the resources of the Trial Chamber. […]

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Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR50)

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.

[…]

19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

[1] [Prosecutor v. Karemera et al., No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003 (“Karemera”)]], para. 19.

[2] Ibid., para. 13 (quoting Statute of the International Tribunal, Art. 20(4)(c)).

[3] See ibid., paras. 15, 20-30; Prosecutor v. Kovačević, No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998, paras 29, 31.

[4] See Karemera, para. 27.

[5] See ibid., para. 28. 

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

138.    The Appeals Chamber first turns to Stanišić’s submission that the Trial Chamber failed to indicate the evidence relied upon or excluded in the section of the Trial Judgement addressing Stanišić’s contribution and as such failed to provide a reasoned opinion. The Appeals Chamber notes that the section of the Trial Judgement on Stanišić’s contribution to the JCE indeed does not refer to the evidence relied upon by the Trial Chamber to support its findings. Neither does it include any cross references to its earlier findings where the Trial Chamber analysed the evidence.[1] The Appeals Chamber, however, recalls that a trial judgement must be read as a whole.[2] Furthermore, there is a presumption that a trial chamber has 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.[3] As Stanišić acknowledges in his own submission,[4]  in the section of the Trial Judgement addressing his contribution to the JCE, the Trial Chamber summarised the evidence that it had relied on in other sections of the Trial Judgement. While the Appeals Chamber considers the Trial Chamber’s approach regrettable, [5] it does not, in its view, amount to a failure to provide a reasoned opinion in and of itself. The Appeals Chamber therefore dismisses Stanišić’s argument.

[1] See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 2, paras 729-765.

[2] Šainović et al. Appeal Judgement, paras 306, 321; Boškoski and Tarčulovski Appeal Judgement, para. 67; Orić Appeal Judgement, para. 38.

[3] Popović et al. Appeal Judgement, para. 306; Đorđević Appeal Judgement, fn. 2527; Haradinaj et al. Appeal Judgement, para. 129; Kvočka et al. Appeal Judgement, para. 23.

[4] See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 46, 240.

[5] See supra [Stanišić and Župljanin Appeal Judgement]], para. 90.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

139.    In relation to Stanišić’s submission that the Trial Chamber failed to provide a reasoned opinion as to whether and how his acts and conduct furthered the JCE, and whether his alleged contribution to the JCE was significant, the Appeals Chamber notes that the Trial Chamber indeed did not enter express findings in this regard. The Appeals Chamber recalls that these are legal requirements in order for joint criminal enterprise liability to be incurred[1] and that not every type of conduct will amount to a significant enough contribution to the crime to give rise to criminal liability.[2] A trial chamber’s determination of whether and to what extent an accused’s acts and conduct furthered the joint criminal enterprise, and whether the requisite threshold of significance is met, are therefore relevant legal findings essential to the determination of an accused’s guilt, and must be set out in a clear and articulate manner.[3] The lack of explicit findings in this regard falls short of what is required under Article 23(2) of the Statute and Rule 98ter(C) of the Rules.[4] Neither Stanišić nor the Appeals Chamber should be expected to engage in a speculative exercise to discern the Trial Chamber’s findings in this regard.[5]

140.    In this context, the Appeals Chamber further considers that the absence of these essential legal findings and the accompanying reasoning have necessarily hindered Stanišić’s ability to appeal his conviction, as he would have been unable to identify exactly which underlying factual findings the Trial Chamber relied upon in its ultimate conclusion that he contributed significantly to the furtherance of the JCE. The Appeals Chamber therefore finds that the Trial Chamber’s failure to enter express findings as to whether and how Stanišić’s acts and conduct furthered the JCE, and whether his contribution was significant constitutes a failure to provide a reasoned opinion.

[1] Popović et al. Appeal Judgement, para. 1378; Krajišnik Appeal Judgement, paras 215, 218, 695; Brđanin Appeal Judgement, paras 427, 430. See supra [Stanišić and Župljanin Appeal Judgement]], para. 136.

[2] Šainović et al. Appeal Judgement, para. 988; Brđanin Appeal Judgement, para. 427.

[3] Stanišić and Simatović Appeal Judgement, para. 78; Popović et al. Appeal Judgement, para. 1906; Bizimungu Appeal Judgement, paras 18-19.

[4] See Kordić and Čerkez Appeal Judgement, paras 384-385; Bizimungu Appeal Judgement, paras 18-19.

[5] Cf. Orić Appeal Judgement, para. 56. The Trial Judgement must enable the Appeals Chamber to discharge its task pursuant to Article 25 of the Statute based on a sufficient determination as to what evidence has been accepted as proof of all elements of the mode of liability charged (Cf. Kordić and Čerkez Appeal Judgement, para. 385). The Appeals Chamber notes that, by contrast, after analysing Župljanin’s conduct, the Trial Chamber concluded that “during the Indictment period, Stojan Župljanin significantly contributed to the common objective to permanently remove Bosnian Muslims and Bosnian Croats from the territory of the planned Serbian state” (Trial Judgement, vol. 2, para. 518. See Trial Judgement, vol. 2, para. 510 (holding that Župljanin’s “omission to take adequate measures to stop the mass arrest of non-Serbs and his policemen’s involvement therein constituted at least a significant contribution to the unlawful arrests, if not a substantial one”)). The Appeals Chamber considers that the different approach taken with respect to Župljanin further highlights the Trial Chamber’s failure to enter the requisite findings with respect to Stanišić (see Bizimungu Appeal Judgement, para. 19 and fn. 52 (wherein the Appeals Chamber noted that “[b]]y contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions”, specifying that the trial chamber made “legal findings on the crime of genocide in relation to Ndindiliyamana”)).

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

537.    The Appeals Chamber recalls that a trial chamber’s failure to explicitly refer to particular evidence will not often amount to an error of law, especially where there is significant contrary evidence on the record.[1] This is because a trial chamber cannot be presumed to have ignored a particular piece of evidence simply because it did not mention it in its judgement.[2] Rather, it could be presumed, in the absence of particular circumstances suggesting otherwise, that a trial chamber chose not to rely on an unmentioned piece of evidence, meaning that it considered the evidence but was of the view that it was either not reliable or otherwise not worth citing in its judgement.[3] In the Appeals Chamber’s view, this reflects a corollary of the overarching principle of deference to the discretion of a trial chamber. The Appeals Chamber therefore concludes that only where it is shown within the substance of a trial chamber’s reasoning that clearly relevant evidence has been disregarded, should the Appeals Chamber intervene in order to assess whether that evidence would have changed the factual basis supporting the trial chamber’s conclusion.

[1] Tolimir Appeal Judgement, para. 53; Perišić Appeal Judgement, para. 95, referring to Kvočka et al. Appeal Judgement, paras 23, 483-484, 487, 582-583, Simba Appeal Judgement, paras 143, 152, 155.

[2] Kamuhanda Appeal Judgement, para. 32, referring to Musema Appeal Judgement, para. 118.

[3] Kamuhanda Appeal Judgement, para. 32, referring to Musema Appeal Judgement, para. 118.

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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

40.     […] The Appeals Chamber recalls that the Trial Chamber is presumed to have 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.[1] There may be an indication of disregard when evidence, which is clearly relevant to the findings, is not addressed in the Trial Chamber’s reasoning.[2] […]

See also paragraph 54.

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, (“Kvočka et al. Appeal Judgement”) para. 23. See also, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1308; Prosecutor v. Vlastimir Ðorđević, Case No. IT-05-87/1-A, Judgement, 27 January 2014 (“Ðorđević Appeal Judgement”), para. 864.

[2] Kvočka et al. Appeal Judgement, para. 23. See also, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1308; Ðorđević Appeal Judgement, para. 864; Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-A, Judgement, 8 May 2012, para. 127; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Judgement, 8 May 2012, para. 161.

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Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

152. The Appeals Chamber recalls that, in the case of complex issues, such as the assessment of identification evidence, the reasoned opinion requirement to be met by a Trial Chamber is higher.[1] The Appeals Chamber has held that, “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’.”[2] In these instances, the Trial Chamber is required to “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.”[3] The Appeals Chamber observes that, in such cases:

[w]here 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.[4]

155. The Appeals Chamber recalls that Trial Chambers must consider the difficulties associated with identification evidence in a particular case and carefully evaluate it before accepting it as the sole basis for sustaining a conviction. In particular, Trial Chambers must exercise extreme caution before convicting a person based on the identification evidence of a single witness made under difficult circumstances in light of the frailties of human perception and the risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations.[5]

156. Factors relevant to the Appeals Chamber’s determination of whether a Trial Chamber’s decision to rely upon identification evidence was unreasonable or renders a conviction unsafe include:

[…] identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.[6]

Furthermore, the Appeals Chamber recalls that identification evidence may be affected by the length of time between the crime and the confrontation.[7]

[1] Kvočka et al. Appeal Judgement, para. 24.

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

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

[4] Kupreškić et al. Appeal Judgement, para. 39, citing Harper v. The Queen, [1982] 1 S.C.R. 2, p. 14.

[5] Kupreškić et al. Appeal Judgement, para. 34. See also Prosecutor v. Dragoljub Kunarac et al., Case Nos. IT-96-23-T and IT-96-23/1-T, Decision on Motion for Acquittal, 3 July 2000, para. 8

[6] Kupreškić et al. Appeal Judgement, para. 40 (internal citations omitted).

[7]Limaj et al. Appeal Judgement, para. 30. 

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

25.     […] The Appeals Chamber recalls further that, while a trial chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision, it is not required to articulate every step of its reasoning and to discuss each submission.[1] […]

[1] Nyiramasuhuko et al. Appeal Judgement, para. 105 and references cited therein. See also Prosecutor v. Radovan Karadžić, Cases Nos. IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3, Decision on Radovan Karadžić’s Motions Challenging Jurisdiction (Omission Liability, JCE-III – Special Intent Crimes, Superior Responsibility), 25 June 2009, para. 30.

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