Appellate review

Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

17. Article 24 of the Statute sets forth the circumstances under which a convicted person and/or the Prosecutor may appeal against the judgement and/or sentence of a Trial Chamber. Under this provision, a party wishing to appeal must specify the error alleged[1] and show that such error falls under the jurisdiction of the Appeals Chamber, it being understood that Article 24 of the Statute limits the jurisdiction of the Appeals Chamber in the following manner:

[…] appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds:

(a) An error on a question of law invalidating the decision; or

(b) An error of fact which has occasioned a miscarriage of justice. […]

18. Accordingly, where a party alleges that an error of law or of fact has been committed, that party must go on to show that the alleged error invalidates the decision or occasions a miscarriage of justice. Discharging this burden of proof is primordial for the appeal to succeed.[2] Indeed, the Appeals Chamber is, in principle, not required to consider the arguments of a party if they do not allege an error of law invalidating the decision, or an error of fact occasioning a miscarriage of justice.[3] It is therefore quite useless for a party to repeat on appeal arguments that did not succeed at trial, unless that party can demonstrate that rejecting them occasioned such error as would warrant the intervention of the Appeals Chamber. Where a party is unable to explain in what way an alleged error invalidates a decision or occasions a miscarriage of justice, it should, as a general rule, refrain from appealing on grounds of such error.[4] Logically, therefore, where the arguments presented by a party do not have the potential to cause the impugned decision to be reversed or revised, the Appeals Chamber may immediately dismiss them as being misconceived, and would not have to consider them on the merits.[5]

19. With regard to requirements as to form, the ICTY Appeals Chamber in the Kunarac case stated that “[O]ne cannot expect the Appeals Chamber to give detailed consideration to submissions of the parties if they are obscure, contradictory, vague, or if they suffer from other formal and obvious insufficiencies.”[6] An appellant must therefore clearly set out his grounds of appeal as well as the arguments in support of each ground; he must also refer the Appeals Chamber to the precise parts of the record on appeal invoked in support of his allegations.[7] From a procedural point of view, the Appeals Chamber has the inherent discretion, pursuant to Article 24 of the Statute, to determine which submissions of the parties merit a “reasoned opinion in writing”.[8] The Appeals Chamber cannot be expected to provide comprehensively reasoned opinions in writing on evidently unfounded submissions. The Appeals Chamber should focus its attention on the essential issues of the appeal.[9] In principle, therefore, the Appeals Chamber will dismiss, without providing detailed reasons, those submissions made by appellants in their briefs or in their replies, or presented orally during the appeal hearing, which are evidently unfounded.[10]

[…]

505. […] [T]he Appeals Chamber, in accordance with the established practice of the Tribunal, cannot substitute its own finding for that of the Trial Chamber.[11] It is settled case-law that an appeal is not a de novo review.[12] Based on this principle, therefore, it does not fall to the Appeals Chamber to conduct a de novo trial of the Appellant […] and/or to determine whether a different assessment of the evidence presented at trial would have sustained a finding guilt. According to the standards applicable on appeal, the Appeals Chamber must enter a judgement of acquittal “if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it.” [13] Considering the Judgement in the instant case, such a standard requires the Appeals Chamber to assess the evidence presented at trial as an indivisible whole.

[1] See in particular Kunarac Appeal Judgement, para. 35.

[2] With regard in particular to allegations of errors of law, the Appeals Chamber in Musema concurred with the findings of the ICTY Appeals Chamber in Furundzija: “Where a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake. A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point. The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.” (Musema Appeal Judgement, footnote 20 citing Furundzija Appeal Judgement, para. 35).

The Appeals Chamber in this case accepts this finding, but concurs with the distinction made by the Appeals Chamber of the ICTY in Kupreskic, namely that “a party who submits that the Trial Chamber erred in law must at least identify the alleged error and advance some arguments in support of its contention. An appeal cannot be allowed to deteriorate into a guessing game for the Appeals Chamber. Without guidance from the appellant, the Appeals Chamber will only address legal errors where the Trial Chamber has made a glaring mistake.” (Kupreskic Appeal Judgement, para. 27).

[3] Kupreskic Appeal Judgement, para. 22. The practice in the ad hoc tribunals admits that there are situations where the Appeals Chamber may raise issues proprio motu or accept to examine allegations of error where the findings would not have an impact on the verdict, but where the issues raised are of general importance for the jurisprudence or functioning of the Tribunal (see in particular: Erdemovic Appeal Judgement, para. 16; Tadic Appeal Judgement, paras. 238 to 326, and specifically paras. 247, 281 and 315; Akayesu Appeal Judgement, paras. 18 to 28; Kupreskic Appeal Judgement, para. 22). The parties in the instant case have not put forward any arguments that have the potential to fall into either of these categories.

[4] Kupreskic Appeal Judgement, para. 27. The The ICTY Appeals Chamber in Kupreskic arrived at this conclusion with reference to allegations of errors of law. The Appeals Chamber in this case deems that this standard a fortiori applies to allegations of errors of fact.

[5] Ibid, para. 23.

[6] Kunarac Appeal Judgement, para. 43.

[7] Kunarac Appeal Judgement, para. 44. The ICTY Appeals Chamber pointed out that the appellant must provide the Appeals Chamber with exact references to the parts of the records on appeal invoked in its support /…/ indicating precisely the date and exhibit page number or paragraph number of the text to which reference is made.” (Ibid.).

[8] Kunarac Appeal Judgement, para. 47.

[9] Ibid.

[10] Ibid, para. 48.

[11] Akayesu Appeal Judgement, para. 178, citing Celebici Appeal Judgement, paras. 434 and 435.

[12] See, inter alia, Musema Appeal Judgement, para. 17 and Kunarac Appeal Judgement, para. 36.

[13] Akayesu Appeal Judgement, para. 178, citing Celebici Appeal Judgement, paras. 434 and 435.

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ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

48. Where a Trial Chamber has not made a particular finding, the party seeking to have the Appeals Chamber make that finding for itself must demonstrate that such a finding is the only reasonable conclusion available.[1] […]

[1]    Aleksovski Judgment, par 172;  Čelebići Judgment, par 441.

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Notion(s) Filing Case
Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

177.    As stated by ICTY Appeals Chamber, an appeal is not, from the point of view of the Statute, a de novo review.[1] The Appeals Chamber may hear only appeals brought pursuant to Article 24 of the Statute. The standards applied by the Appeals Chamber to pass on both errors of fact and of law are derived from consistent ICTY Appeals Chamber case-law. The Appeals Chamber reiterates and upholds those standards in the instant Judgment.

[1] “Tadić Decision (Additional Evidence), para. 41, para.41. ICTY Appeals Chamber further held in its Judgment rendered in the Furundžija case: “The Appeals Chamber finds no merit in the Appellant’s submission which it understands to mean that the scope of the appellate function should be expanded to include de novo review. This Chamber does not operate as a second Trial Chamber. The role of the Appeals Chamber is limited, pursuant to Article 25 of the Statute, to correcting errors of law invalidating a decision, and errors of fact which have occasioned a miscarriage of justice.” See Furundžija Judgment, para. 40.

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ICTR Statute Article 24
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

The Appeals Chamber considered that the existing standards on appeal necessitated a “further examination”.[1] It first noted the standard of review when additional evidence has been admitted on appeal set out by the Appeals Chamber in Kupreškić:

The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.[2]

The Appeals Chamber then considered that:

23. However, if in a given case, the outcome were that a reasonable trier of fact could reach a conclusion of guilt beyond reasonable doubt, the Appeals Chamber considers that, when the Appeals Chamber is itself seized of the task of evaluating trial evidence and additional evidence together, and in some instances in light of a newly articulated legal standard, it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal. […]

The Appeals Chamber then summarised the “standard of review to be applied on appeal by the International Tribunal in relation to findings challenged only by the Defence, in the absence of a Prosecution appeal”:

24. (a) The Appeals Chamber is confronted with an alleged error of fact, but the Appeals Chamber has found no error in the legal standard applied in relation to the factual finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will determine whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If a reasonable trier of fact could have reached such a conclusion, then the Appeals Chamber will affirm the finding of guilt.

(b) The Appeals Chamber is confronted with an error in the legal standard applied in relation to a factual finding, and an error of fact has been alleged in relation to that finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt.

(c) The Appeals Chamber is confronted with an alleged error of fact, and – contrary to the scenario described in (a) – additional evidence has been admitted on appeal. There is no error in the legal standard applied in relation to the factual finding. There are two steps involved.

The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.

If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.

(d) The Appeals Chamber is confronted with an error in the legal standard applied in relation to the factual finding and an alleged error of fact, and – contrary to the scenario described in (b) –  additional evidence has been admitted on appeal. There are two steps involved.

(i) The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt, on the basis of the trial record. If it is not convinced, then no further examination of the matter is necessary as a matter of law.

(ii) If, however, the Appeals Chamber, applying the correct legal standard to the evidence contained in the trial record, is itself convinced beyond reasonable doubt as to the finding of guilt, it will then proceed to determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself still convinced beyond reasonable doubt as to the finding of guilt.

See also the Partial Dissenting Opinion of Judge Weinberg de Roca.

[1] Para. 8.

[2] Kupreškić Appeal Judgement, para. 75.

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Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

21. The Appeals Chamber reiterates that an appeal is not a trial de novo.  In making its assessment, the Appeals Chamber will in principle only take into account the following factual evidence: evidence referred to by the Trial Chamber in the body of the judgement or in a related footnote; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal.[1]

See also Separate Opinion of Judge Weinberg de Roca.

[1] To hold otherwise would mean to hold a trial de novo before the Appeals Chamber merely based on documentary evidence including transcripts. It is only the impugned judgement and the submissions of the parties, both including references to the trial record, that is before an Appeals Chamber. The Appeals Chamber notes that it is not obliged by Rule 109 of the Rules to review proprio motu the entire trial record. Otherwise, the Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002, would become meaningless when ordering the parties in its para. 13: “Where filings of the parties refer to passages in a judgement, decision, transcripts, exhibits or other authorities, they shall indicate precisely the date, exhibit number, page number and paragraph number of the text or exhibit referred to”. This Practice Direction can only confirm and concretize existing law under Article 25 of the Statute. See already Vasiljević Appeal Judgement, para. 11, footnote 13, to be read together with footnotes 11-12 and 15. Furthermore, it is settled jurisprudence of the International Tribunal that it is the trier of fact who is best placed to assess the evidence in its entirety as well as the demeanour of a witness. The Appeals Chamber would act ultra vires when reviewing proprio motu the entire trial record.

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

40. […] This Chamber does not operate as a second Trial Chamber.  The role of the Appeals Chamber is limited, pursuant to Article 25 of the Statute, to correcting errors of law invalidating a decision, and errors of fact which have occasioned a miscarriage of justice.

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ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

44. […] The appeal process is not designed for the purpose of allowing parties to remedy their own failings or oversights at the trial.

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