Right to a reasoned opinion

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

Kordić argued that the Trial Chamber erred in failing to make explicit findings and to give a “reasoned explanation” with respect to each of the elements of the crimes charged. The Appeals Chamber found that:

382. […] the Trial Chamber correctly stated that it “will only deal with such evidence as is necessary for the purposes of the Judgement”,[1] meaning that not each and every piece of evidence has to be discussed.

383. However, this approach does not relieve the Trial Chamber from its obligation pursuant to Article 23(2), sentence 2, of the Statute, translated into Rule 98ter(C), sentence 2, of the Rules to give a reasoned opinion, meaning that all the constituent elements of a crime have to be discussed and supporting evidence has to assessed by the Trial Chamber. Where, as in this case, “a vast amount of detail has been presented”, in fact “too much”[2] – an opinion with which the Appeals Chamber agrees – the obligation to give a reasoned opinion continues to apply.  Apparently, this presentation of too much detail has hindered the Trial Chamber from focusing on the evidence underlying the crimes charged. 

384. The Appeals Chamber notes that the Trial Chamber did not in most cases make specific explicit factual findings with regard to each element of the crimes, but expressly concluded that the crimes were established. The Appeals Chamber considers that by finding that the crimes were established, the Trial Chamber implicitly found all the relevant factual findings required to cover the elements of the crimes. 

385. 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 crimes charged, and, if discussed, its assessment of, inter alia, the credibility and demeanour of a witness. Relying in part on a catch-all phrase[3] cannot substitute the Trial Chamber’s obligation to give “a reasoned opinion in writing” as envisaged in the afore-mentioned Article 23(2), sentence 2, of the Statute.[4]

[1] Trial Judgement, para. 20.

[2] Trial Judgement, para. 20.

[3] Referring to para. 20 of the Trial Judgement: “In its discussion the Trial Chamber will only deal with such evidence as is necessary for the purposes of the Judgement.  It will, thus, concentrate on the most salient parts and briefly summarise (or not mention at all) much of the peripheral evidence.  A vast amount of detail has been presented in this case (too much, in the view of the Trial Chamber).  The fact that a matter is not mentioned in the Judgement does not mean that it has been ignored.  All the evidence has been considered by the Trial Chamber and the weight to be given it duly apportioned.  However, only such matter as is necessary for the purposes of the Judgement is included in it.”

[4] Appeal Judgement, para. 385.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Notion(s) Filing Case
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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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 - 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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Notion(s) Filing Case
Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

61. […] The Appeals Chamber finds that there was a need for an evidentiary basis for the Trial Chamber’s conclusions, particularly because these conclusions relate to a highly technical subject: the margin of error of artillery weapons in particular conditions. However, the Trial Chamber adopted a margin of error that was not linked to any evidence it received; this constituted an error on the part of the Trial Chamber. The Trial Chamber also provided no explanation as to the basis for the margin of error it adopted; this amounted to a failure to provide a reasoned opinion, another error. […]

64. The Appeals Chamber recalls that the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at targets that offered a definite military advantage,[1] including the broad spread of individual artillery impact sites and the number of projectiles falling far from identified artillery targets.[2] However, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that the distance between a given impact site and one of the artillery targets identified by the Trial Chamber was the cornerstone and the organising principle of the Trial Chamber’s Impact Analysis.[3] In each of the Four Towns, the Trial Chamber found at least one target which the HV could have believed possessed military advantage.[4] With no exceptions, it concluded that impact sites within 200 metres of such targets were evidence of a lawful attack, and impact sites beyond 200 metres from such targets were evidence of an indiscriminate attack.[5] The Appeals Chamber recalls that it has found that the Trial Chamber failed to provide a reasoned opinion in deriving the 200 Metre Standard,[6] a core component of its Impact Analysis.[7] In view of this legal error, the Appeals Chamber will consider de novo the remaining evidence on the record to determine whether the conclusions of the Impact Analysis are still valid.[8]

[1] See [Gotovina and Markač] Trial Judgement, paras 1893-1945.

[2] See, e.g., [Gotovina and Markač] Trial Judgement, para. 1906.

[3] See generally [Gotovina and Markač] Trial Judgement, paras 1898-1945.

[4] See, e.g., [Gotovina and Markač] Trial Judgement, paras 1899, 1917-1918, 1930-1931, 1939.

[5] See [Gotovina and Markač Appeal Judgement], para. 57.

[6] See [Gotovina and Markač Appeal Judgement], para. 61.

[7] See [Gotovina and Markač Appeal Judgement], para. 25.

[8] See [Gotovina and Markač Appeal Judgement], para. 12. Cf. Kalimanzira Appeal Judgement, paras 99-100, 199-200.

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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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ICTR Statute Article 22 ICTY Statute Article 23
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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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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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ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter
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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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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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