Standard of appellate review

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

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

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

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

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

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

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ICTR Statute Article 19;
Article 20;
Article 22(2)
ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter(C)
Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

130. Further, the Appeals Chamber recalls that “[w]here a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice to it as to amount to an error of law invalidating the judgement”.[1] Thus, the element of prejudice forms an essential aspect of proof required of an appellant in relation to the appeal alleging a violation of his fair trial rights. […].

[1] Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119.

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Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

15. Article 25 of the Statute provides for appeals on the ground of an error of law that invalidates the decision or an error of fact that has occasioned a miscarriage of justice. The settled standard of review applicable for appeals against judgements also applies to appeals against convictions for contempt. A party alleging an error of law must identify the alleged error, present arguments in support of its claim and explain how the error allegedly invalidates the decision.[1]

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005 (“Kvočka Appeal Judgement”), para. 16; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003 (“Krnojelac Appeal Judgement”), para. 10.

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Notion(s) Filing Case
Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

9. […] The settled standard of review for appeals against judgements also applies to appeals against convictions for contempt.[1]

[1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007 (“Jović Appeal Judgement”), para. 11; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006 (“Marijačić and Rebić Appeal Judgement”), para. 15; Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 12;. See also, inter alia, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009 (“Milošević Appeal Judgement”), para. 12; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and [ljivančanin Appeal Judgement”), para. 10; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, 17 March 2009 (“Krajišnik Appeal Judgement”), para. 11; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008 (“Martić Appeal Judgement”), para. 8.

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Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

9. As the Appeals Chamber has previously noted, a Trial Chamber exercises its discretion in “many different situations – such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”[1] A Trial Chamber’s assignment of counsel fits squarely within this last category of decisions.  It draws on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and requires a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings. The Appeals Chamber therefore reviews the Trial Chamber’s decision only to the extent of determining whether it properly exercised its discretion in imposing counsel on Milošević.

[1] Prosecutor v. Milošević, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, 18 April 2002 (hereinafter “Refusal to Order Joinder”), para. 3.

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Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

10. In reviewing this exercise of discretion, the question is not whether the Appeals Chamber agrees with the Trial Chamber’s conclusion, but rather “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[1]  In order to challenge a discretionary decision, appellants must demonstrate that “the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of the discretion,” or that the Trial Chamber “[gave] weight to extraneous or irrelevant considerations, . . . failed to give weight or sufficient weight to relevant considerations, or . . . made an error as to the facts upon which it has exercised its discretion,” or that the Trial Chamber’s decision was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”[2]  In practice, this array of factors boils down to the following simple algorithm:  a Trial Chamber’s exercise of discretion will be overturned if the challenged decision was (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.  Absent an error of law or a clearly erroneous factual finding, then, the scope of appellate review is quite limited:  even if the Appeals Chamber does not believe that counsel should have been imposed on Milošević, the decision below will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.

[1] Refusal to Order Joinder, para. 4.

[2] Refusal to Order Joinder, paras. 5-6.

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Notion(s) Filing Case
Reasons for Decision on Refusal to Order Joinder - 18.04.2002 MILOŠEVIĆ Slobodan
(IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73)

3. The prosecution accepts, correctly, that the decision of a Trial Chamber as to whether two or more crimes should be joined in the one indictment pursuant to Rule 49 of the Rules of Procedure and Evidence (“Rules”) is a discretionary one.[1] A Trial Chamber exercises a discretion in many different situations – such as when imposing sentence,[2] in determining whether provisional release should be granted,[3] in relation to the admissibility of some types of evidence,[4] in evaluating evidence,[5] and (more frequently) in deciding points of practice or procedure.[6]

4. Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision. Provided that the Trial Chamber has properly exercised its discretion, its decision will not be disturbed on appeal, even though the Appeals Chamber itself may have exercised the discretion differently. That is fundamental to any discretionary decision. It is only where an error in the exercise of the discretion has been demonstrated that the Appeals Chamber may substitute its own exercise of discretion in the place of the discretion exercised by the Trial Chamber.

5. It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a “discernible” error made by the Trial Chamber.[7] It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.[8]

6. In relation to the Trial Chamber’s findings of fact upon which it based its exercise of discretion, the party challenging any such finding must demonstrate that the particular finding was one which no reasonable tribunal of fact could have reached,[9] or that it was invalidated by an error of law. Both in determining whether the Trial Chamber incorrectly exercised its discretion and (in the event that it becomes necessary to do so) in the exercise of its own discretion, the Appeals Chamber is in the same position as was the Trial Chamber to decide the correct principle to be applied or any other issue of law which is relevant to the exercise of the discretion. Even if the precise nature of the error made in the exercise of the discretion may not be apparent on the face of the impugned decision, the result may nevertheless be so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[10] Once the Appeals Chamber is satisfied that the error in the exercise of the Trial Chamber’s discretion has prejudiced the party which complains of the exercise, it will review the order made and, if appropriate and without fetter, substitute its own exercise of discretion for that of the Trial Chamber.[11]

[1] Interlocutory Appeal of the Prosecution Against “Decision on Prosecution’s Motion for Joinder”, 15 Jan 2002 (“Appellant’s Written Submissions”), par 6. Rule 49, the full terms of which are discussed later, states: “Two or more crimes may be joined [...]” (the emphasis has been added).

[2] Prosecutor v Tadić, IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, 26 Jan 2000 (“Tadić Sentencing Appeal”), par 22; Prosecutor v Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000 (“Aleksovski Appeal”), par 187; Prosecutor v Furundžija, IT-95-17/1-A, Judgment, 21 July 2000 (“Furundžija Appeal”), par 239; Prosecutor v Delalić et al, IT-96-21-A, Judgment 20 Feb 2001 (“Delalić Appeal”), pars 712, 725, 780; Prosecutor v Kupreškić et al, IT-96-16-A, Appeal Judgment, 23 Oct 2001 (“Kupreškić Appeal”), pars 408, 456-457, 460.

[3] Prosecutor v Brđanin & Talić, IT-99-36-PT, Decision on Motion by Radoslav Brđanin for Provisional Release, 25 July 2000, par 22 (Leave to appeal denied: Prosecutor v Brđanin & Talić, IT-99-36-AR65, Decision on Application for Leave to Appeal, 7 Sept 2000, p 3); Prosecutor v Krajišnik & Plašvić, IT-00-39&40-AR73.2, Decision on Interlocutory Appeal by Momčilo Krajišnik, 26 Feb 2002, pars 16, 22.

[4] Prosecutor v Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 Feb 1999, par 19; Prosecutor v Kordić & Čerkez, IT-95-14/2-73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, par 20; Delalić Appeal, pars 532-533.

[5] Aleksovski Appeal, par 64; Kupreškić Appeal, par 32.

[6] For example, granting leave to amend an indictment: Prosecutor v Galić, IT-98-29-AR72, Decision on Application by Defence for Leave to Appeal, 30 Nov 2001, par 17; determining the limits to be imposed upon the length of time available to the prosecution for presenting evidence: Prosecutor v Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 Dec 2001, par 7.

[7]  Tadić Sentencing Appeal, par 22; Aleksovski Appeal, par 187; Furundžija Appeal, par 239; Delalić Appeal, par 725; Kupreškić Appeal, par 408.

[8] Tadić Sentencing Appeal, par 20; Furundžija Appeal, par 239; Delalić Appeal, pars 725, 780; Kupreškić Appeal, par 408. See also Serushago v Prosecutor, ICTR-98-39-A, Reasons for Judgment, 6 Apr 2000, par 23.

[9] Prosecutor v Tadić, IT-94-1-A, Judgment, 15 July 1999 (“Tadić Conviction Appeal”), par 64; Aleksovski Appeal, par 63; Furundžija Appeal, par 37; Delalić Appeal, pars 434-435, 459, 491, 595; Kupreškić Appeal, par 30.

[10] Aleksovski Appeal, par 186.

[11] cf Tribunal’s Statute, Article 25.2.

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ICTR Rule Rule 49 ICTY Rule Rule 49
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

Pursuant to Rule 108 of the Rules, the Appeals Chamber summarily dismissed a number of Prosecution arguments on the ground that they exceeded the scope of its Notice of Appeal: (i) that the Trial Chamber erred in applying mens rea for the first category of JCE (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of  17 August 2006); (ii) that the Trial Chamber erred in not taking into account the Appellant’s sadism and zeal as an aggravating factor (para. 319); (iii) that the Trial Chamber erred in According Weight in Mitigation to the Selective Assistance Provided by the Appellant to Members of his Family (paras 325-326); (iv) that the Sentence is Inconsistent with the Tribunal’s Sentencing Practice (para. 238); (v) that the Sentence is Inconsistent with the Rwanda’s Sentencing Practice (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of 17 August 2006).

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Notion(s) Filing Case
Decision on Fresh Evidence - 26.02.2009 PRLIĆ et al.
(IT-04-74-AR73.14)

The Appeals Chamber restricted the scope of appeal for three reasons:

16. First, the Appeals Chamber notes that the Appellants expressly rely on the arguments contained in their relevant submissions before the Trial Chamber.[1] In this regard, the Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision.[2] Consequently, a party may not merely repeat on appeal arguments that did not succeed at trial, unless it can demonstrate that rejecting them constituted such error as to warrant the intervention of the Appeals Chamber.[3] Therefore, the present decision will not address the arguments that the Appellants simply reiterate after they have been rejected at trial, unless they seek to demonstrate that the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant or irrelevant considerations in an unreasonable manner.[4]

17. Second, the Appellants submit that the Impugned Decision is intricately linked to the Trial Chamber’s “Decision on Scope of Cross-Examination under Rule 90 (H) of the Rules” issued on the same day (“Rule 90(H) Decision”). They therefore suggest that “so far as reasoning behind the Rule 90(H) [Decision] is also part of the reasoning behind the Impugned Decision, the Appeals Chamber is bound to consider and correct such reasoning where flawed”.[5] While the Appeals Chamber cannot exclude that the Trial Chamber may indeed at any moment reconsider its Rule 90(H) Decision if it deems so appropriate, the scope of this Appeal lies strictly within the Impugned Decision[6] and there is no jurisdiction for the Appeals Chamber to decide on matters that the Trial Chamber explicitly declined to certify for appeal.[7]

18. Finally, the Prosecution also appears to be in disagreement with the Impugned Decision and, throughout its Response, invites the Appeals Chamber to correct it accordingly.[8] The Appeals Chamber recalls that the Trial Chamber expressly denied the Prosecution’s request for certification to appeal the Impugned Decision.[9] Therefore, the Appeals Chamber will only consider the Prosecution’s arguments insofar as they properly respond to the submissions raised in the Appeal. Similarly, the Prosecution’s request to “issue a Decision approving the Popović Decision as the correct statement of Tribunal jurisprudence”[10] cannot per se be admissible in the framework of a response to an appeal filed in the present case.

It further rejected a bulk of arguments because the Appellants failed to plead specific prejudice:

26. Furthermore, the Appeals Chamber recalls that the burden of demonstrating that a Trial Chamber erred in exercising its discretion in admitting fresh evidence lies on the party alleging the errors.[11] With respect to the present Appeal, the Appellants failed to meet this burden, merely referring to potential prejudice as a matter of principle. The Appeals Chamber rejects these general allegations and re-emphasizes that “[t]he mere fact that [the admitted evidence] was probative of the Prosecution’s case does not mean that the [a]ccused were prejudiced”.[12]

[1] See, e.g., Appeal [Interlocutory Appeal by Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić Against the Trial Chamber’s 27 November 2008 Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 16 January 2009], para. 14.

[2] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.2, Decision on Krajišnik’s Appeal Against the Trial Chamber’s Decision Dismissing the Defense Motion for a Ruling That Judge Canivell is Unable to Continue Sitting in This Case, 15 September 2006, para. 9; 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. 5; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić Interlocutory Appeal against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 6.

[3] Prosecutor v. Savo Todović, Case No. IT-97-25-/I-AR11bis.1 & IT-97-25/I-AR11bis.2, Decision on Savo Todović’s Appeals Decisions on Referral under Rule 11bis, 4 September 2006, paras 73, 112; Prosecutor v. Mladen Naletilić, a.k.a. “Tuta” and Vinko Martinović, a.k.a. “Štela”, Case No. IT-98-34-A, Judgement, 3 May 2006, para. 13; see also Prosecutor v. Enver Handžihasanović and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 9 and, generally, paras 31, 35-36.

[4] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR72.1, Decision on Petković’s Interlocutory Appeal Against the Trial Chamber’s Decision on Jurisdiction, 16 November 2005, para. 11.

[5] Appeal, paras 17-18.

[6] Certification Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Joint Motion for Certification to Appeal the Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 9 January 2009], pp. 3-5.

[7] Cf. Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Praljak and Petković Defence Request for Certification to Appeal the Decision on Scope of Cross-Examination under Rule 90 (H) of the Rules, 9 January 2009.

[8] E.g. Response [Prosecution Response to Interlocutory Appeal Concerning the Trial Chamber’s 27 November 2008 Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 29 January 2009], paras 5.4, 8, 11, 26, 28, 51, 61.

[9] Certification Decision, p. 5; see also, Reply [Joint Reply to Prosecution Response Filed 29 January 2009 to Interlocutory Appeal by Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić Against the Trial Chamber’s 27 November 2008 Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 2 February 2009], paras 16, 23.

[10] Response, paras 5.4, 61.

[11] Kordić and Čerkez Appeal Judgement, paras 223-224.

[12] Ibid., para. 224.

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Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

252. Although this sub-ground of appeal is presented as relating to an alleged error of law, the Appeals Chamber is of the view that it is more accurately characterized as a mixed error of law and fact. Hence, the Appeals Chamber will determine whether the conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached. However, before doing so, the Appeals Chamber will clarify the legal standard employed by the Trial Chamber in the Trial Judgement.

269. At the outset, the Appeals Chamber notes that, although Strugar qualifies the relevant alleged errors of the Trial Chamber as errors of law, it understands him to challenge both the Trial Chamber’s legal and factual conclusions with respect to defining the mens rea requirement of the crimes in question and its application to the conduct of JNA forces in the region of Dubrovnik on 6 December 1991.[1] Hence, the Appeals Chamber will first examine the applicable law and then determine whether the factual conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached.

[1] The Appeals Chamber notes that the Trial Chamber made legal and factual findings with respect to Count 3 (attacks on civilians) and Count 5 (attacks on civilian objects) simultaneously (Trial Judgement, paras 277 et seq.). Strugar has not presented any argument concerning the Trial Chamber’s findings in relation the mens rea element of the crime of attack on civilian objects, given that, in light of its conlusion on cumulation, the Trial Chamber did not enter a conviction under Count 5. Both parties clarified that, in their views, the mens rea requirement of the crime of attack on civilians and the crime of attack on civilian objects are identical (AT. 137; AT. 212). 

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Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

The Appeals Chamber has identified 6 categories of arguments relevant to this case, which can be summarily dismissed:

   i.    challenges to factual findings on which a conviction does not rely (paras 18-19);
  ii.    arguments that fail to identify the challenged factual findings, that misrepresent the factual findings, or that ignore other relevant factual findings (para. 20)
 iii.    mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner (para. 21)
 iv.    mere assertions unsupported by any evidence (para. 22)
 v.    arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence (para. 23)
 vi.    mere assertions that the Trial Chamber must have failed to consider relevant evidence (para. 24)

For the application of these categories, see paras 66-74, 90-92, 100-101, 115-116, 121-124, 145-146, 162-163, 190-191, 221-222, 240-244.

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Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

11. The same standard of reasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. Thus, when considering an appeal by the Prosecution, the Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the impugned finding.[1] However, since the Prosecution must establish the guilt of the accused at trial, the significance of an error of fact occasioning a miscarriage of justice takes on a specific character when alleged by the Prosecution.[2] In this context, the Appeals Chamber has endorsed the following holding by the ICTR Appeals Chamber:

[b]ecause the Prosecution bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution faces a more difficult task. It must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.[3]

16. The Appeals Chamber notes that Halilović does not identify any authority for his assertion that the Prosecution’s right to appeal against acquittals should be exercised only exceptionally, nor does he provide support for his claim that such an appeal would have to reach a higher threshold of “diligence” to be exercised by the appellant in such a case.[4] Similarly, Halilović fails to specify on what ground he bases his assertion that an appeal against acquittal by the Prosecution would have, as a pre-condition, to serve the “purposes for which th[e] [International] Tribunal has been created”,[5] in a manner different from all other appeals against judgements rendered by the International Tribunal. The Appeals Chamber also stresses that it is not its task, as suggested by Halilović, to ascertain whether the Prosecutor has fulfilled her responsibilities in accordance with the Completion Strategy laid out in Security Council Resolution 1503 (2003).[6] The Appeals Chamber further considers that Halilović has failed to point to any element suggesting that the Prosecution abused its discretion in appealing his acquittal. It should also be recalled that the Appeals Chamber has already dismissed Halilović’s request to dismiss the appeal without hearing the parties’ arguments.[7] Thus, Halilović’s request for summary dismissal of the entire appeal is denied.

[1] Blagojević and Jokić Appeal Judgement, para. 9; Brđanin Appeal Judgement, para. 14; Bagilishema Appeal Judgement, para. 13.

[2] Krnojelac Appeal Judgement, para. 14.

[3] Bagilishema Appeal Judgement, para. 14, cited with approval in Limaj et al. Appeal Judgement, para. 13.

[4] In this context, the Appeals Chamber recalls (see supra, para. 11) that the Prosecution’s task in the case of appealing an acquittal is “more difficult”, in as much as it has “to show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated” (Bagilishema Appeal Judgement, para. 14).

[5] Respondent’s Brief, para. 6.

[6] See, in particular, Security Council Resolution 1503, S/RES/1503 (2003), adopted on 28 August 2003, para. 6, as well as Security Council Resolution 1534, S/RES/1534 (2004), adopted on 26 March 2004, paras 4 and 6, requesting the Prosecutor to review the case load of the International Tribunal and to explain, in its progress reports submitted to the Security Council every six months, “what measures have been taken to implement the Completion Strategy and what measures remain to be taken”.

[7] See Decision on Defence Motion for Prompt Scheduling of Appeals Hearing, 27 October 2006, paras 8-9, where the Appeals Chamber found that, since the Prosecution opposed the request for summary disposition of the appeal, the question of whether or not it was open to the parties to waive their entitlement to an oral hearing did not arise.

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Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

120. […] Where an error of law is found, it is open to the Appeals Chamber to review the relevant findings of the Trial Chamber according to the correct legal standard.[1] In cases like the instant one, however, where it is submitted that an error of law potentially impacts every single piece of evidence and, by implication, every finding made by the Trial Chamber, the appellate party is required to develop its arguments more precisely by referring to specific portions of the Trial Judgement, thus limiting the import of its allegations – lest the appeal procedure effectively becomes a trial de novo.[2] […]

[1] Blaškić Appeal Judgement, para. 15.

[2] See supra, para. 10.

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Decision on Admission of Record of Interview - 19.08.2005 HALILOVIĆ Sefer
(IT-01-48-AR73.2)

64.     Where the Appeals Chamber is satisfied that a Trial Chamber has erred, the Appeals Chamber may substitute the exercise of its own discretion for that of the Trial Chamber if it considers it appropriate to do so.  In the ordinary case involving an evidentiary question before a Trial Chamber, the Appeals Chamber may consider sending the matter back to the Trial Chamber with an order that it consider the factors identified as relevant by the Appeals Chamber and exercise its discretion afresh.  In this case, however, the parties are awaiting the Appeals Chamber decision so that they may file their final submissions and close the trial.  Accordingly, the Appeals Chamber has determined that it is more appropriate in this instance for it to substitute its discretion for that of the Trial Chamber.

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Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

The standard of review for discretionary decisions had been set in previous decisions. The Appeals Chamber, in the present case, re-stated it clearly and applied it to decisions on provisional release:

21. The Trial Chamber’s decision on provisional release is a discretionary one, so the Appeals  Chamber, on review, must ask not whether it agrees with the decision but whether the Trial Chamber “correctly exercised its discretion in reaching that opinion”.[1]

22. The party challenging a provisional release decision bears the burden of showing that the Trial Chamber committed a “discernible error”.[2] In order to do so, it must show either that  the Trial Chamber (1)  “misdirected itself […] as to the principle to be applied”; (2) misdirected itself “as to the law which is relevant to the exercise of discretion”; (3) “gave weight to extraneous or irrelevant considerations”; (4) “failed to give weight or sufficient weight to relevant considerations”; (5)  “made an error as to the facts upon which it has exercised its discretion”; [3] or (6) rendered a decision “so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.[4]

23. The Appeals Chamber has also ruled that a Trial Chamber must provide a reasoned opinion in rendering a decision on provisional release.[5] The Trial Chamber must therefore “indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision”, in light of circumstances obtaining both at the time of the provisional release decision and “at the time the case is due for trial and the accused is expected to return to the International Tribunal”.[6]

[1] Prosecutor v. Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Rule 65 Decision”), para. 6, quoting Prosecutor v. Milošević, Case Nos IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), paras 3-4.

[2] Ibid.

[3] To warrant reversal, such an error of fact must be “patently incorrect”. Ibid., quoting Milošević Decision on Joinder, para. 10.

[4] Prosecutor v. Tolimir et al., Case No. IT-04-80-AR65.1, Decision on Interlocutory Appeal Against Trial Chamber’s Decisions Granting Provisional Release, 19 October 2005 (“Tolimir Decision”), para. 4.

[5] See, e.g., Stanišić Rule 65 Decision, para. 8.

[6] Ibid.

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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
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

20. With regard to the burden of proof specifically associated with allegations of errors of law, the Appeals Chamber recalls that in its capacity as the final arbiter of the law of the international Tribunal, it must, in principle, determine whether an error of procedural or substantive law was indeed made, where a party raises an allegation in this connection.[1] Indeed, case law recognizes that the burden of proof on appeal in respect of errors of law is not absolute.[2] In fact, the Appeals Chamber does not cross-check the findings of the Trial Chamber on matters of law merely to determine whether they are reasonable, but indeed to determine whether they are correct. Nevertheless, the party alleging an error of law must, at the very least, identify the alleged error, present arguments in support of his contention,[3] and explain in what way the error invalidates the decision. An alleged legal error that does not have the potential to cause the impugned decision to be reversed or revised is, in principle, not legal[4] and may thus be dismissed as such.

[1] Musema Appeal Judgement, footnote 20 citing Furundzija Appeal Judgement, para. 35; Kunarac Appeal Judgement, para. 38.

[2] Musema Appeal Judgement, para. 16 citing Furundzija Appeal Judgement, para. 36. In fact, where the arguments of a party prove to be inadequate, the Appeals Chamber may admit the appeal for different reasons (Musema Appeal Judgement, footnote 20 citing Furundzija Appeal Judgement, para. 35).

[3] Kupreskic Appeal Judgement, para. 27.

[4] Unless it raises an issue of general interest for the jurisprudence or functioning of the Tribunal.

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ICTR Statute Article 24(1)(a) ICTY Statute Article 25(1)(a)
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

21. With regard to errors of fact, the party alleging this type of error in support of an appeal against conviction must show the error that was committed and the miscarriage of justice resulting therefrom.[1] It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber.[2] Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying,[3] and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility,[4] and to determine the probative value to ascribe to the evidence presented at trial.[5]

[…]

367. […] In the absence of any showing by the Appellant that no reasonable trier of fact could have discounted [the] evidence, the Appeals Chamber must a priori give a margin of deference to the Trial Chamber’s assessment of the evidence presented at trial and to its factual findings, as the Trial Chamber is best placed to hear the witnesses and assess the probative value of their evidence.[6] […]

[…]

512. The Appeals Chamber recalls that with regard to errors of fact, the appealing party must show both the error that was committed and the miscarriage of justice resulting there from.[7] It is therefore futile on appeal to repeat arguments that failed at trial, unless it can be demonstrated that the dismissal of such arguments actually resulted in an error. With respect to miscarriage of justice, the Appeals Chamber has already specified that the Appellant must show that it was critical to the verdict reached by the Trial Chamber[8] or that the assessment of the evidence was totally erroneous,[9] and that, therefore, flagrant injustice resulted there from.

See also paras. 362, 386.

[1] See in particular: Bagilishema Appeal Judgement, para. 10.

[2] Musema Appeal Judgement, para. [18] cited in Bagilishema Appeal Judgement, para. 10. See also: Kunarac Appeal Judgement, para. 40 citing Kupreskic Appeal Judgement, para. 32; Furundzija Appeal Judgement, para. 37; Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63. 

[3] The Appeals Chamber has access only to transcripts of live testimonies by witnesses.

[4] Bagilishema Appeal Judgement, para. 12 citing Kupreskic Appeal Judgement, para. 32. See also Musema Appeal Judgement, para. 18 and Kunarac Appeal Judgement, para. 40.

[5] Bagilishema Appeal Judgement, para. 11 citing Akayesu Appeal Judgement, para. 232 (citing Tadic Appeal Judgement, para. 64). See also Musema Appeal Judgement, para. 18; Kunarac Appeal Judgement, para. 39.

[6] Aleksovski Appeal Judgement, para. 63.

[7] See, inter alia, Bagilishema Appeal Judgement, para. 10.

[8] Kupreskic Appeal Judgement, para. 29, citing the Bagilishema Appeal Judgement, para. 14

[9] Kunarac Appeal Judgement, para. 39 citing Kupreskic Appeal Judgement, para. 30.

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ICTR Statute Article 24(1)(b) ICTY Statute Article 25(1)(b)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

736. The vagueness of the Judgement, in itself an error on the part of the Trial Chamber,[1] compels the Appeals Chamber to examine the broadcasts between 1 January and 6 April 1994 referred to in the Judgement in order to determine whether one or more of them directly incited the commission of genocide. As recalled in the Introduction,[2] when the Trial Chamber errs in law, the Appeals Chamber must determine whether it is itself satisfied beyond reasonable doubt in regard to the disputed finding before it can affirm it on appeal.

770. However, the Appeals Chamber notes that the Trial Chamber did not clearly identify all the extracts from Kangura which, in its view, directly and publicly incited genocide, confining itself to mentioning only extracts from Kangura published before 1 January 1994 to support its findings.[3] […] Moreover, as explained previously,[4] the lack of particulars concerning the acts constituting direct and public incitement to commit genocide represented an error, and obliges the Appeals Chamber to examine the 1994 issues of Kangura mentioned in the Judgement in order to determine, beyond reasonable doubt, whether one or more of them constituted direct and public incitement to commit genocide.

[1] As recalled in the Naletilić and Martinović Appeal Judgement, paragraph 603, and in the Limaj et al. Appeal Judgement, paragraph 81, a trial judgement must be sufficiently reasoned to allow the parties to exercise their right of appeal and the Appeals Chamber to assess the Trial Chamber’s conclusions.

[2] See supra I. E.

[3] Ibid., paras. 1036-1038.

[4] See supra XIII. B. 2 (c).

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Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

64. The two parties agree that the standard to be used when determining whether the Trial Chamber’s factual finding should stand is that of unreasonableness, that is, a conclusion which no reasonable person could have reached.  The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.

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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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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

264. The Trial Chamber considered that “for an accused to be convicted of ‘committing’ pursuant to a theory of [joint criminal enterprise], it must be established that he or she participated in the execution of the common plan or purpose of the enterprise”.[1] The Trial Chamber reasoned that, while Kanyarukiga participated in the planning of the destruction of the Nyange church, there was no evidence to suggest that he ordered, instigated, encouraged, or provided material assistance to the attackers.[2] Accordingly, it concluded that the evidence was insufficient to establish that Kanyarukiga “significantly contributed to the execution or commission of the crimes charged.”[3]

267. The Appeals Chamber notes that the Prosecution does not seek the invalidation of the Trial Judgement, but merely requests clarification on an issue of general importance to the development of the Tribunal’s case law.[4] The Appeals Chamber recalls that the Statute empowers it to hear appeals concerning an alleged error on a question of law “invalidating the decision”.[5] While, in exceptional circumstances, the Appeals Chamber has discretion to hear appeals where a party has raised a legal issue that would not invalidate the judgement,[6] it declines to do so in this case.[7]

[1] Trial Judgement, para. 643 (emphasis in original), referring to Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, para. 96; Vasiljević Appeal Judgement, para. 100; Ntakirutimana Appeal Judgement, para. 466; Tadić Appeal Judgement, para. 227.

[2] Trial Judgement, para. 643.

[3] Trial Judgement, para. 643.

[4] Prosecution Notice of Appeal [The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-A, Prosecutor’s Notice of Appeal, 10 December 2010], para. 2; Prosecution Appeal Brief [The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-A, Prosecutor’s Appellant’s Brief, 23 February 2011], para. 6.

[5] Article 24(1)(a) of the Statute

[6] See, inter alia, Haradinaj et al. Appeal Judgement, para. 9; Boškoski and Tarčulovski Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, para. 12.  

[7] See Article 24(1)(a) of the Statute.

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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR73.9)

6. Neither the Rules of Procedure and Evidence of the Tribunal […]] nor the Statute specify the standard by which the Appeals Chamber is to review the denial of a motion for acquittal under Rule 98 bis of the Rules. However, in previous rulings on interlocutory appeals from decisions on Rule 98 bis motions, the Appeals Chamber has reviewed trial chambers’ legal conclusions to determine whether the trial chamber committed errors of law.[1] Accordingly, the Appeals Chamber will review, as relevant, the Impugned Decision to determine whether the Trial Chamber committed an “error on a question of law invalidating [its] decision”.[2]

[1] See Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-AR73.3, Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, 11 March 2005, para. 15; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004, paras 5-10. Cf. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR98bis, Decision on Appeal of Decision Denying the Motion for Judgement of Acquittal, 11 November 2009, paras 9-14.

[2] Statute, Article 25(1). See also Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Judgement, 16 November 2012, para. 10.

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis
Notion(s) Filing Case
Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

12. The Appeals Chamber recalls the applicable standards of appellate review pursuant to Article 24 of the Statute of the Tribunal (“Statute”). The Appeals Chamber reviews errors of law which invalidate the decision of the Trial Chamber and errors of fact which have occasioned a miscarriage of justice. This standard of review, applicable for appeals against judgements, also applies to appeals against convictions for contempt.[1]

[1] Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Judgement, 23 July 2009, para. 14 (“Haraqija and Morina Appeal Judgement”). See also Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009, para. 11 (“Dragan Jokić Appeal Judgement”).

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Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

6. A trial chamber’s decision on defects in the form of the indictment is a matter which relates to the general conduct of trial proceedings and thus falls within the discretion of the trial chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a “discernible error” resulting in prejudice to that party. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (i) based on an incorrect interpretation of governing law; (ii) based on a patently incorrect conclusion of fact; or (iii) so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

[1] See Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.5, Decision on Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 of the Indictment, 9 July 2009, para. 8. Cf. Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-AR73.19, Decision on Matthieu Ngirumpatse’s Appeal Against a Sanction Imposed on Counsel by Trial Chamber’s Decision of 1 September 2010, 21 March 2011, para. 12; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR73.7, Decision on Jérôme-Clément Bicamumpaka’s Interlocutory Appeal Concerning a Request for a Subpoena, 22 May 2008, para. 8; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to be Present at Trial, 5 October 2007, para. 7.

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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 - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

178.    With respect to errors of fact, the Appeals Chamber confirms that the standard to be applied is the standard of reasonableness of the impugned finding, it being understood that “it is not any and every error of fact which will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but one which has led to a miscarriage of justice.”[1] The onus is therefore on the Appellant to show that an error was committed by the Chamber, which error occasioned a miscarriage of justice. ICTY Appeals Chamber has, on several occasions, applied this standard which can be summed up as follows:

[..].  The test to be applied in relation to the issue as to whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.  If an appellant is not able to establish that the Trial Chamber’s conclusion of guilt beyond reasonable doubt was one which no reasonable tribunal of fact could have reached, it follows that there must have been evidence upon which such a tribunal could have been satisfied beyond reasonable doubt of that guilt.  Under those circumstances, the latter test of legal sufficiency is therefore redundant, and the appeal must be dismissed.  Similarly, 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, the appeal against conviction must be allowed and a Judgment of acquittal entered.  In such a situation it is unnecessary for an appellate court to determine whether  there was evidence (if accepted) upon which  such a tribunal could have reached such a conclusion.[2]

[…]

232.    […] [T]he Appeals Chamber recalls that appellate proceedings are not intended as a trial de novo.  In this case, the Appeals Chamber is guided by the following standard: “The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber. […] It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber”.[3]

 

[1] Furundžija Appeal Judgment, para. 37.

[2] Celebici Appeal Judgment, paras. 434 and 435; see also Tadic Appeal Judgment, para. 64; Aleksovski Appeal Judgment, para. 63; Furundzija appeal Judgment, para. 37.

[3] Tadic  Appeal Judgment, para. 64.  See also Celebici Appeal Judgment, para. 435.

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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

179.    Where errors of law are concerned, the Appeals Chamber holds that the burden placed on the Appellant is somewhat different, although the Appellant must, similarly, prove the errors of law committed by the Trial Chamber and set forth arguments in support of his allegations:

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.[1]

[1] Furundzija Appeal Judgment, para. 35.

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Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

113. The Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers for the following reasons:

(i) the Statute establishes a hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact arising from decisions of the Trial Chambers.  Under Article 25, the Appeals Chamber hears an appeal on the ground of an error on a question of law invalidating a Trial Chamber’s decision or on the ground of an error of fact which has occasioned a miscarriage of justice, and its decisions are final;

(ii) the fundamental mandate of the Tribunal to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law; and

(iii) the right of appeal is, as the Chamber has stated before,[1] a component of the fair trial requirement, which is itself a rule of customary international law and gives rise to the right of the accused to have like cases treated alike.  This will not be achieved if each Trial Chamber is free to disregard decisions of law made by the Appeals Chamber, and to decide the law as it sees fit.  In such a system, it would be possible to have four statements of the law from the Tribunal on a single legal issue - one from the Appeals Chamber and one from each of the three Trial Chambers, as though the Security Council had established not a single, but four, tribunals.  This would be inconsistent with the intention of the Security Council, which, from a plain reading of the Statute and the Report of the Secretary-General, envisaged a tribunal comprising three trial chambers and one appeals chamber, applying a single, unified, coherent and rational corpus of law.  The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more pronounced.

[1] See para. 104, supra.

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ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

63. Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial.  Whether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.[1]  In a similar vein, it is for a Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.  The Appeals Chamber, therefore, has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.  The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal[2] or where the evaluation of the evidence is wholly erroneous.

[1] Tadi} Judgement, para. 65.

[2] Ibid.

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Appeal Judgement - 03.07.2002 BAGILISHEMA Ignace
(ICTR-95-IA-A)

9. With regard to allegations of errors on a question of law, the Appeals Chamber considers that the standards of review are the same for the two types of appeal: following the example of a party appealing against conviction, an appeal by the Prosecution against acquittal, which alleges that the Trial Chamber committed an error on a question of law, must establish that the error invalidates the decision.

10. With regard to errors of fact in appeals against conviction, the Appeals Chamber applies the standard of the “unreasonableness” of the impugned finding. The Appeals Chamber must determine whether the finding of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached, it being understood that the Appeals Chamber can only overturn a decision of the Trial Chamber where the alleged error of fact occasioned a miscarriage of justice. An appellant who alleges an error of fact must therefore show both the error that was committed and the miscarriage of justice resulting therefrom.[1]

[…]

13. The same standard of unreasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. Thus, when considering an appeal by the Prosecution, as when considering an appeal by the accused, the Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the challenged finding.

14. Under Article 24(1)(b) of the Statute, the Prosecution, like the accused, must demonstrate “an error of fact that occasioned a miscarriage of justice.” For the error to be one that occasioned a miscarriage of justice, it must have been “critical to the verdict reached.”[2] Because the Prosecution bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution faces a more difficult task. It must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.

See also paras. 8, 11-12.

[1] Musema Appeal Judgement, para. 17; Akayesu Appeal Judgement, para. 178.

[2] Kupreškić Appeal Judgement, para. 29.

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ICTR Statute Article 24(1)(b) ICTY Statute Article 25(1)(b)
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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

9. When considering an alleged error of fact with respect to a particular ground where no additional evidence has been admitted on appeal, the Appeals Chamber will apply a standard of reasonableness in reviewing the finding.[1] […] In determining whether or not a Trial Chamber’s finding was reasonable, the Appeals Chamber does not lightly disturb findings of fact made by a Trial Chamber.[2] The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in the Kupreškić et al. case, wherein it was stated that […].

[1] See Brđanin Appeal Judgement, paras. 12-14.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

9. […] Where the Prosecution is appealing, the Appeals Chamber will reverse only if it finds that no reasonable trier of fact could have failed to make the particular finding of fact beyond reasonable doubt and the acquittal relied on the absence of this finding.[1] […]

[1] See Brđanin Appeal Judgement, paras. 12-14.

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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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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

272. The Appeals Chamber recalls that when the Prosecution appeals against an acquittal it must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated. 

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Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

9.       Orić contends that the Single Judge committed errors of law and fact when deciding that his prosecution in Bosnia and Herzegovina does not violate the non bis in idem principle.[…] The Appeals Chamber considers that, to succeed on appeal, Orić would have to demonstrate that the Single Judge committed a discernible error in his decision because this was based on an incorrect interpretation of the governing law, a patently incorrect conclusion of fact, or because it was so unfair or unreasonable as to constitute an abuse of discretion.[1]

[1] See, e.g., Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.5, Decision on Interlocutory Appeal against the 27 March 2015 Trial Chamber Decision on Modality for Prosecution Re-Opening, 22 May 2015, para. 6; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14. See also Stanković Decision, para. 12; Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Mu[n]yarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 19. 

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Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

Brđanin’s appeal was characterized by a large number of factual challenges. The Appeals Chamber identified eight categories of alleged errors which were summarily dismissed (paras 19-31):

(1)   Challenges to factual findings on which a conviction does not rely,

(2)   Arguments that misrepresent the Trial Chamber’s factual findings or the evidence, or that ignore other relevant factual findings made by the Trial Chamber,

(3)   Mere assertions that the Trial Chamber must have failed properly to consider relevant evidence,

(4)   Mere assertions that no reasonable Trial Chamber could have reached a particular conclusion by inferring it from circumstantial evidence,

(5)   Arguments that are clearly irrelevant or that lend support to the challenged finding,

(6)   Arguments that challenge a Trial Chamber’s reliance or failure to rely on one particular piece of evidence, disregarding the remaining evidence,

(7)   Arguments contrary to common sense, and

(8)   Challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the Appellant.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

433. Delić has filed two grounds of appeal in relation to each of the convictions which he has challenged.  The first is that the evidence was not what was described as legally sufficient to sustain the convictions; the second is that the evidence was not what was described as factually sufficient to sustain the convictions. 

434. The issue as to whether there is a legal basis to sustain a conviction usually arises at the close of the Prosecution case at trial, a situation now covered by Rule 98bis(B),[1] following the earlier practice of seeking a judgement of acquittal upon the basis that, in relation to one or more charges, there is no case to answer.  The test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.[2]  In the present case, the Trial Chamber ruled that there was a case to answer,[3] and there was no appeal from that decision.  The test to be applied in relation to the issue as to whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.[4] 

435. If an appellant is not able to establish that the Trial Chamber’s conclusion of guilt beyond reasonable doubt was one which no reasonable tribunal of fact could have reached, it follows that there must have been evidence upon which such a tribunal could have been satisfied beyond reasonable doubt of that guilt.  Under those circumstances, the latter test of legal sufficiency is therefore redundant, and the appeal must be dismissed.  Similarly, 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, the appeal against conviction must be allowed and a judgement of acquittal entered.  In such a situation it is unnecessary for an appellate court to determine whether there was evidence (if accepted) upon which such a tribunal could have reached such a conclusion. 

[RULE 98BIS WAS AMENDED ON 8 DECEMBER 2004.]

[1]    Rule 98bis(B) provides:  “The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges”.

[2]    The jurisprudence of the Tribunal in relation to Rule 98bis(B) and the earlier practice was recently reviewed in Prosecutor v Kunarac, Case No IT-96-23-T, Decision on Motion for Acquittal, 3 July 2000, at paras 2-10.

[3]    Prosecutor v Delalić et al, Order on the Motions to Dismiss the Indictment at the Close of the Prosecutor’s Case, 18 Mar 1998.

[4]    Tadić Appeal Judgement, para 64; Aleksovski Appeal Judgement, para 63.

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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 - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

17. […] [T]he Appeals Chamber recalls that it has identified the types of deficient submissions on appeal which are bound to be summarily dismissed.[1] In particular, the Appeals Chamber will dismiss without detailed analysis (i) arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings; (ii) mere assertions that the Trial Chamber must have failed to consider relevant evidence, without showing that no reasonable trier of fact, based on the evidence could have reached the same conclusion as the Trial Chamber did; (iii) challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding; (iv) arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence, without explaining why the conviction should not stand on the basis of the remaining evidence; (v) arguments contrary to common sense; (vi) challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the appealing party; (vii) mere repetition of arguments that were unsuccessful at trial without any demonstration that their rejection by the Trial Chamber constituted an error warranting the intervention of the Appeals Chamber; (viii) allegations based on material not on record; (ix) mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error; and (x) mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner.[2]

[1] Krajišnik Appeal Judgement, para. 17; Martić Appeal Judgement, para. 15; Strugar Appeal Judgement, para. 17.

[2] Krajišnik Appeal Judgement, paras 17-27; Martić Appeal Judgement, paras 14-21; Strugar Appeal Judgement, paras 18-24; Brđanin Appeal Judgement, paras 17-31; Galić Appeal Judgement, paras 256-313.

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

The Appeals Chamber summarily dismissed a number of grounds on the following basis:

16. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing. Indeed, the Appeals Chamber’s mandate cannot be effectively and efficiently carried out without focused contributions by the parties. […] As well, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.

The Appeals Chamber further identified the following categories of errors that it would dismiss summarily, as outlined in paras. 18-27:

  • Arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings;
  • Mere assertions that the Trial Chamber must have failed to consider relevant evidence;
  • Challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding;
  • Arguments that challenged a Trial Chamber’s reliance or failure to rely on one piece of evidence;
  • Arguments contrary to common sense;
  • Challenges to factual findings where the relevance of the factual findings is unclear and has not been explained by the Appellant;
  • Mere repetition of arguments that were unsuccessful at trial;
  • Allegations based on material not on the record;
  • Mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error;
  • Mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner.
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Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

6. The Appeals Chamber recalls that the Mechanism was established pursuant to United Nations Security Council Resolution 1966 (2010) and continues the material, territorial, temporal, and personal jurisdiction of the ICTR.[1] The Statute and the Rules of the Mechanism reflect normative continuity with the Statutes and Rules of the ICTR and ICTY.[2] The Appeals Chamber considers that it is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ICTR and ICTY.[3] Likewise, where the respective Rules or Statutes of the ICTR or ICTY are at issue, the Appeals Chamber is bound to consider the relevant precedent of these tribunals when interpreting them.[4]

[1] United Nations Security Council Resolution 1966, U.N. Doc. S/RES/1966, 22 December 2010 (“Security Council Resolution 1966”), paras. 1, 4, Annex 1, Statute of the Mechanism (“Statute”), Preamble, Article 1. See also Security Council Resolution 1966, Annex 2.

[2] See Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision”), para. 5.

[3] See Munyarugarama Decision, para. 6.

[4] See Munyarugarama Decision, para. 6. 

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Appeal Judgement - 10.10.1997 ERDEMOVIĆ Dražen
(IT-96-22-A)

16. The Appeals Chamber has raised preliminary issues proprio motu pursuant to its inherent powers as an appellate body once seised of an appeal lodged by either party pursuant to Article 25 of the Statute.  The Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties.  

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

37. As to an allegation that there was an error of fact, this Chamber agrees with the following principle set forth by the Appeals Chamber for the International Criminal Tribunal for Rwanda (“the ICTR”)[1] in Serushago:

Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstance is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice.[2]

Similarly, under Article 25(1)(b) of the ICTY Statute, it is not any and every error of fact which will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but one which has led to a miscarriage of justice.  A miscarriage of justice is defined in Black’s Law Dictionary as “a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.”[3]  This Chamber adopts the following approach taken by the Appeals Chamber in the Tadić case[4] in dealing with challenges to factual findings by Trial Chambers:

[t]he task of hearing, assessing and weighing the evidence presented at trial is left to the judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.[5]

The position taken by this Chamber in the Tadić Appeals Judgement has been reaffirmed in the Aleksovski Appeals Judgement.[6]  The reason the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known; the Trial Chamber has the advantage of observing witness testimony first-hand, and is, therefore, better positioned than this Chamber to assess the reliability and credibility of the evidence.

[1] International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Neighbouring States between 1 January and 31 December 1994 (“the ICTR”).

[2] Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A,  Reasons for Judgment, 6 Apr. 2000, para. 22.

[3] Black’s Law Dictionary (7th ed., St. Paul, Minn. 1999).

[4] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“the Tadić Appeals Judgement”).

[5] Tadić Appeals Judgement, para. 64.

[6] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“the Aleksovski Appeals Judgement”), para. 63. 

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ICTR Statute Article 24(1)(b) ICTY Statute Article 25(1)(b)
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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
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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

35. Errors of law do not raise a question as to the standard of review as directly as errors of fact.  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.

36. Furthermore, this Chamber is only empowered to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) when there is an error of law that invalidates that decision. It is not any error of law that leads to a reversal or revision of the Trial Chamber’s decision; rather, the appealing party alleging an error of law must also demonstrate that the error renders the decision invalid.

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ICTR Statute Article 24(1)(a) ICTY Statute Article 25(1)(a)
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Decision on Interlocutory Appeal - 26.02.2002 KRAJIŠNIK Momčilo
(IT-00-39&40-AR73.2)

20. The issue which the Appeals Chamber must now determine is whether the duty judge, had he not made the erroneous finding in relation to urgency, would have proceeded to grant the application for provisional release.  If the application would have been dismissed in any event, there can be no miscarriage of justice because it had been dismissed upon a wrong basis.  If a Trial Chamber acquits an accused upon a wrong basis (even a grossly unfair basis), but should have done so on another basis, there has been no miscarriage of justice, and the acquittal would not be reversed.[1]  In determining this issue, the Appeals Chamber is entitled to have regard to the events which have occurred following the duty Judge’s decision.

[1] Statute of the Tribunal, Article 25.1(b).

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Decision on Interlocutory Appeal - 26.02.2002 KRAJIŠNIK Momčilo
(IT-00-39&40-AR73.2)

13. The duty Judge’s decision as to whether to deal with an application out of normal Registry hours is a discretionary one once the Judge is satisfied as to its urgency.[1] […] [T]he finding of fact as to whether the matter is or is not urgent is, however, the same as any other finding of fact. The finding by the duty Judge that there was no urgency in the Appellant’s application cannot be reversed on appeal unless it is one which no reasonable tribunal of fact could have reached.[2] This is so whether the finding related to the application being dealt with out of, or during, normal Registry hours.

[1] Rule 28(B) states: “The duty Judge [...] may refuse to deal with any application out of normal Registry hours if not satisfied as to its urgency” (emphasis added). Rule 28(D) states: “The duty Judge may, in his or her discretion, if satisfied as to the urgency of the matter, deal with an application in a case already assigned to a Chamber out of normal Registry hours as an emergency application.”

[2] Prosecutor v Tadić, IT-94-1-A, Judgment, 15 July 1999, par 64; Prosecutor v. Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000, par 63; Prosecutor v Furundžija, IT-95-17/1-A, Judgment, 21 July 2000 (“Furundžija Appeal”), par 37; Prosecutor v Delalić, IT-96-21-A, Judgment, 20 Feb 2001, pars 434-435, 459, 491, 595; Prosecutor v Kupreškić, IT-95-16-A, Appeal Judgment, 23 Oct 2001, par 30.

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Decision on Leave to Appeal - 16.02.2001 KVOČKA et al.
(IT-98-30/1-AR73.5)

P. 3: CONSIDERING that it is for the Defence to show the Bench that the proposed appeal raises an issue of general importance to proceedings before the International Tribunal or in international law generally;

FINDING that there has been such showing in that the questions as to

i)  whether proceedings in the Trial Chamber should be suspended pending determination of the same
    or an allied issue by the International Court [of] Justice; and

ii)  the impact of decisions by each judicial body on the other constitute issues of general importance
    to proceedings before the International Tribunal and in international law generally;

constitute issues of general importance to proceedings before the International Tribunal and in international law generally;

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
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Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

13. The ICTR Appeals Chamber in Rutaganda and Bagilishema held that the same standard of reasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. The Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the impugned finding.[1] Under Article 25(1)(b) of the Statute, the Prosecution, like the accused, must demonstrate “an error of fact that occasioned a miscarriage of justice”. For the error to be one that occasioned a miscarriage of justice, it must have been “critical to the verdict reached”.[2] Considering that it is the Prosecution that bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.[3]

[1] Blagovević and Jokić Appeal Judgement, para. 9.

[2] Kupreškić Appeal Judgement, para. 29.

[3] Rutaganda Appeal Judgement, para. 24; Bagilishema Appeal Judgement, paras 13-14. See also Blagojević and Jokić Appeal Judgement, para. 9; Brđanin Appeal Judgement, para. 14.

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ICTR Statute Article 24(1)(b) ICTY Statute Article 25(1)(b)
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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The standard for appellate review as set out in the Judgement was based on the standard set out in the Stakić Appeal Judgement, with a slight amendment, in para. 9, pertaining to the reasonableness standard, which has been made clearer (emphasis added in bold):

9. When considering alleged errors of fact on appeal from the Defence, the Appeals Chamber will determine whether no reasonable trier of fact could have reached the verdict of guilt beyond reasonable doubt.[1] The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence.[2] In determining whether or not a Trial Chamber’s finding was one that no reasonable trier of fact could have reached, the Appeals Chamber “will not lightly disturb findings of fact by a Trial Chamber”.[3] The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in Kupreškić, which stated:

Pursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.[4]

[1] Stakić Appeal Judgement, para. 10; Kvočka et al. Appeal Judgement, para. 18; Kordić and Čerkez Appeal Judgement, para. 18; Blaškić Appeal Judgement, para. 16; Čelebići Appeal Judgement, para. 435; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Tadić Appeal Judgement, para. 64.

[2] Stakić Appeal Judgement, para. 220; Čelebići Appeal Judgement, para. 458. Similarly, the type of evidence, direct or circumstantial, is irrelevant to the standard of proof at trial, where the accused may only be found guilty of a crime if the Prosecution has proved each element of that crime and the relevant mode of liability beyond a reasonable doubt. See Stakić Appeal Judgement, para. 219; Čelebići Appeal Judgement, para. 458.

[3] Stakić Appeal Judgement, para. 10; Furundžija Appeal Judgement, para. 37, referring to Tadić Appeal Judgement, para. 64. See also Kvočka et al. Appeal Judgement, para. 19; Krnojelac Appeal Judgement, para. 11; Aleksovski Appeal Judgement, para. 63; Musema Appeal Judgement, para. 18.

[4] Stakić Appeal Judgement, para. 10; Kvočka et al. Appeal Judgement, para. 19, quoting Kupreškić et al. Appeal Judgement, para. 30. See also Kordić and Čerkez Appeal Judgement, para. 19, fn. 11; Blaškić Appeal Judgement, paras 17-18.

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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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Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

7. The certificate given by the Trial Chamber pursuant to Rule 73(C) (as it then stood)[[1]] – that it was appropriate for the continuation of the trial that an interlocutory appeal be determined – related only to [one of several] issues […]. It is, however, within the discretion of the Appeals Chamber to determine also other, related, issues where it considers it appropriate to do so, at least where they have been raised in the interlocutory appeal and the respondent to the appeal has had the opportunity to put his or its arguments in relation to those related issues. […]

[1] [“The Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial, upon a request being made within seven days of the issuing of the decision. If such certification is given, a party may appeal to the Appeals Chamber without leave, within seven days of the filing of the certification.”]

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ICTR Rule Rule 73 ICTY Rule Rule 73
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Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

The Appeals Chamber has reiterated the standard of review applicable to interlocutory appeals against discretionary decisions of a Trial Chamber:

11. The Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision.[1] Since decisions on matters relating to the calling of witnesses and assignment of counsel at trial fall squarely within the discretion of the Trial Chamber,[2] the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The party challenging a discretionary decision by the Trial Chamber must demonstrate that the Trial Chamber has committed a “discernible error”.[4] The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion”.[5]

[1] Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007 (“Lukić Provisional Release Decision”), para. 4; Prosecutor v. Mico Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6.

[2] Clarification Decision [Prosecutor v. Ante Gotovina, Ivan Čermak and Mladen  Markač, Case Nos. IT-01-45-AR73.1, IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Appellant Mladen Markač’s Motion for Clarification, 12 January 2007], p. 4. See also, Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision on Defence Counsel”), para. 9.

[3] Lukić Provisional Release Decision, para. 4; Stanišić Provisional Release Decision, para. 6.

[4] Lukić Provisional Release Decision, para. 5; Stanišić Provisional Release Decision, para. 6.

[5] Milošević Decision on Defence Counsel, para. 10, Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.4, Decision on Appeal Against the Trial Chamber’s Decision (No.2) on Assignment of Counsel, 8 December 2006, para. 16. 

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Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

24. […] It is well established in the jurisprudence of the Tribunal that Trial Chambers are bound by the ratio decidendi of the Appeals Chamber.[1] Whereas a Trial Chamber may follow a decision of another Trial Chamber, should it find it persuasive, Trial Chambers’ decisions have no binding force upon each other.[2] Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s decision not to follow precedents of earlier Trial Chambers as suggested by Čermak.[3] […]

[1] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 113.

[2] Ibid., para. 114.

[3] See Čermak Appeal, paras 10, 12, 17, referring, inter alia, to Čermak’s Consolidated Response [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Ivan Čermak’s Consolidated Response to the Prosecution’s Motion to Reopen its Case and its Further Submission in Support of the Motion, 17 March 2010], paras 5-13, 16. 

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Decision on Modification of Provisional Release - 12.12.2002 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65)

[I]n matters of provisional release as in all other matters, where the Appeals Chamber finds an error in a Trial Chamber decision, and where it is sufficiently  apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision for that of the Trial Chamber;

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

At paras 219-220 of the Judgement, the Appeals Chamber recalled that when reviewing a Trial Chamber’s finding of fact based on inference, the standard is the same at that applied for direct evidence: the question before the Appeals Chamber is whether no reasonable trier of fact could have excluded or ignored other inferences that lead to the conclusion that an element of the crime was not proven.[1]

219. A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.[2] This standard applies whether the evidence evaluated is direct or circumstantial.[3] Where the challenge on appeal is to an inference drawn to establish a fact on which the conviction relies, the standard is only satisfied if the inference drawn was the only reasonable one that could be drawn from the evidence presented.[4] In such instances, the question for the Appeals Chamber is whether it was reasonable for the Trial Chamber to exclude or ignore other inferences that lead to the conclusion that an element of the crime was not proven.[5] If no reasonable Trial Chamber could have ignored an inference which favours the accused, the Appeals Chamber will vacate the Trial Chamber’s factual inference and reverse any conviction that is dependent on it.[6]

See also Ntagerura Appeal Judgement, paras 304-306.

[1] Čelebići Appeal Judgement, para. 458.

[2] Vasiljević Appeal Judgement, para. 120; Ntakirutimana Appeal Judgement, para. 171; Semanza Trial Judgement, para. 148; Musema Trial Judgement, para. 108; Čelebići Trial Judgement, para. 601.

[3] Kupreskić Appeal Judgement, para. 303; Kordić Appeal Judgement, para. 834.

[4] Čelebići Appeal Judgement, para. 458; Krnojelac Trial Judgement, para. 67. With respect to a Trial Chamber’s findings of fact on which the conviction does not rely, the Appeals Chamber will defer to the findings of the Trial Judgement where such findings are reasonable.

[5] Čelebići Appeal Judgement, para. 458; Kvočka Appeal Judgement, para. 18.

[6] The Accused must present clearly and in detail any such alternative inference he wishes the Appeals Chamber to consider. See Vasiljević Appeal Judgement, para. 12. See also Blaškić Appeal Judgement, para. 13; Kunarac Appeal Judgement, paras 43, 48; Niyitegeka Appeal Judgement, para. 10

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

9. […] Where the convicted person is appealing, the Appeals Chamber will reverse only if it finds that no reasonable trier of fact could have made the particular finding of fact beyond reasonable doubt and the conviction relied on this finding. […]

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

145. The Appeals Chamber has previously noted that, although a Trial Chamber’s factual findings are governed by the legal rule that facts essential to establishing the guilt of an accused have to be proven beyond reasonable doubt, this does not affect their nature as factual conclusions.[1] A party arguing that a Trial Chamber based its factual conclusions on insufficient evidence therefore submits that the Trial Chamber committed an error in fact, not an error in law.

[1] Blagojević and Jokić, Decision on Motion to Strike [Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion to Strike Ground One of Jokić Appeal Brief, 31 August 2006], para. 8.

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Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Appeals Chamber summarily dismissed a number of grounds on the following basis:

14. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing.[1] […] A party may not merely repeat on appeal arguments that did not succeed at trial. […] Additionally, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.[2]

The Appeals Chamber will dismiss the following categories of errors, as outlined in paras. 16-21:

  • challenges to factual findings on which a conviction does not rely;
  • arguments that fail to identify the challenged factual findings, that misrepresent the factual findings, or that ignore other relevant factual findings;
  • mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner;
  • mere assertions unsupported by any evidence; and
  • arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence.

[1] Strugar Appeal Judgement, para. 16; Orić Appeal Judgement, para. 13; Halilović Appeal Judgement, para. 12; Brđanin Appeal Judgement, para. 16; Gacumbitsi Appeal Judgement, para. 10; Kamuhanda Appeal Judgement, para. 10.

[2] Brđanin Appeal Judgement, para. 16; Orić Appeal Judgement, para. 14; Limaj et al. Appeal Judgement, para. 15; Blagojević and Jokić Appeal Judgement, para. 11.

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

128.    […] [T]he Chamber recalls that it is not conducting a trial de novo.[1]

[…]

137.    The Appeals Chamber notes at the outset that, in respect of alleged errors of fact, the burden of showing that the Trial Chamber’s findings were unreasonable is on Kayishema.  This standard of appellate review means that the “task of hearing, assessing and weighing the evidence presented at trial is left” to the Trial Chamber. Hence, the Appeals Chamber must give “a margin of deference” to factual findings reached by the Trial Chamber.[2]  One aspect of such burden is that it is up to the Appellant to draw the attention of the Appeals Chamber to the part of the record on appeal, which in his view supports the claim he is making.  From a practical standpoint, it is the responsibility of the Appellant to indicate clearly which particular evidentiary material he relies upon. Claims that are not supported by such precise references to the relevant parts of the record on appeal[3] will normally fail, on the ground that the Appellant has not discharged the applicable burden.

[…]

143.    […] As noted by ICTY Appeals Chamber, “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence”.[4] Accordingly, in his submissions, an appellant must not limit himself to proposing alternative conclusions that may have been open to the Trial Chamber on the basis of the evidence that was before it. In order for the Appeals Chamber to act, an appellant has to demonstrate that the particular findings made by the Trial Chamber were, in light of the evidence that was before it, unreasonable. […]

[…]

253.    […] The Chamber reiterates its position as regards the allegations of errors of fact and recalls that unless the Appellant shows the unreasonableness of the Chamber’s findings and the miscarriage of justice occasioned by the alleged errors, the Appeals Chamber does not find it necessary to review the trial judges’ findings established beyond reasonable doubt. […]

See also paras. 146, 237, 244, 255, 258, 295 and 320.

[1] See, for instance: “Decision relating to the Appellant’s motion for extension of time-limits and admission of additional evidence” in The Prosecutor v. Tadic, Case No. IT-94-I-A, 15 October 1998, ICTY Appeals Chamber, para. 41; see also, in the same connection, Furundžija Appeal Judgement, para. 40.

[2] Tadić Appeal Judgement, para. 64, Aleksovski Appeal Judgement, para. 63, and Čelebiči Appeal Judgement para. 506. 

[3] References should be made to relevant transcript page(s) and/or exhibit(s).

[4] Tadić Appeal Judgement, para. 64.  

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ICTR Statute Article 24 ICTY Statute Article 25
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

115.    […] [I]t is the duty of the trial Judges to hear, assess and weigh the evidence adduced by the parties at the hearing.[1] The Trial Chamber thus determines if a witness is credible and if the evidence presented is reliable.[2]

[…]

129.    The Appeals Chamber affirms once again that it is incumbent on the Trial Chamber to assess the credibility of a witness as well as the reliability of the evidence given by the parties.  Therefore, the Appeals Chamber cannot and must not set aside the Trial Judge’s findings except when a reasonable court would not have relied on the evidence for its decision or when the assessment of the evidence is completely erroneous.  The Appeals Chamber stresses that it is the duty of the Trial Chamber to determine the probative value of each exhibit or witness testimony, based on their relevance and credibility.

[…]

187.    […] As held by the Appeals Chamber in the Tadić Appeal Judgement,[3] the Aleksovski Appeal Judgement[4] and the Čelebići Appeal Judgement,[5] the Trial Chamber is best placed to hear, assess and weigh the evidence, including witness testimonies presented at trial. Whether a Trial Chamber will rely upon a single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in light of the circumstances of each case. The Appeals Chamber therefore has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.

[…]

222.    As regards the impugned demeanour of certain witnesses which should have “reasonably” caused the Trial Chamber to disqualify them, the Appeals Chamber is of the view that the trial judges are in the most appropriate position to assess the credibility of a testimony and the demeanor of a witness at a hearing. […]

[…]

230.    Moreover, it is for the trier of fact to assess the probative value of a testimony, such discretionary power also covering the manner in which the Trial Chamber decides to deal with apparent contradictions. […]

[…]

319.    […] [I]t is neither possible nor proper to draw up an exhaustive list of criteria for the assessment of evidence, given the specific circumstances of each case and the duty of the judge to rule on each case in an impartial and independent manner.[6] The Appeals Chamber concurs with the argument of the Trial Chamber that it is “for the Trial Chamber to decide upon the reliability of the witness’ testimony in light of its presentation in court and after its subjection to cross-examination.”[7]

[…]

325.    […] The Appeals Chamber affirms that in a case where there are two conflicting testimonies, it falls to the Trial Chamber, before which the witnesses testified, to decide which of the testimonies has more weight.

[1] Tadić Appeal Judgement, 1999, para. 64.

[2] Aleksovski Appeal Judgement, 2000, para. 63

[3] Tadić Appeal Judgement, para. 65.

[4] Aleksovski Appeal Judgement, para. 63.

[5] Čelibići Appeal Judgement, para. 506.

[6] Cf. supra, para. 54 et seq. on the independence of  the Tribunal.

[7] Trial Judgement, para. 70.

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ICTR Statute Article 24 ICTY Statute Article 25
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

177.    The task of the Appeals Chamber, as defined by Article 24 of the Statute, is to hear appeals from the decisions of Trial Chambers on the grounds of an error on a question of law invalidating the decision or of an error of fact which has occasioned a miscarriage of justice. An appellant must show that the Trial Chamber erred in law or in fact, and the Appeals Chamber expects his arguments to be directed to that end. In the Kambanda Appeal Judgement, the Appeals Chamber was confronted with a similar situation, where the appellant in that case put forward no arguments in support of certain grounds of appeal. The Appeals Chamber found nevertheless that in cases of errors of law it “is not wholly dependent on the arguments of the parties.” In such cases it found that it retained the discretion “in proper cases to consider an issue raised on appeal even in the absence of substantial argument.” […]

See also para. 344.

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ICTR Statute Article 24 ICTY Statute Article 25
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Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

23. The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge’s ruling may have resulted in injustice to the appellants.”[1]

[…]

27. The Appeals Chamber does not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. The discretion to continue the trial with a substitute judge is a discretion; the Appeals Chamber can only interfere with the way in which the discretion has been exercised if it has been incorrectly exercised in the circumstances mentioned above.  The stage reached in each case need not always be the same. […]

[1] See R. v. McCann, (1991), 92 Cr. App. R. 239 at 251, per Beldam, L.J., reading the judgment of the Court of Appeal and citing Evans v. Bartlam, [1937] A.C.473. A civil case can likewise be interpreted to mean that, even if there is no other vitiating error, an appellate court could interfere with the exercise by the lower court of its discretion where the latter “has exceeded the generous ambit within which a reasonable disagreement is possible”.  See Lord Fraser of Tullybelton in G. v. G. (Minors: Custody Appeal), [1985] 2 All ER 210, H.L., at 228.

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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)

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

[1] Prosecutor v. Milosević, 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. 5 (footnotes omitted).

[2] Ibid., para. 4.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1) ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
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Decision on Dismissing Prosecution's Ground 1 - 05.05.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

[1] Statute of the International Tribunal, Art. 25.

[2] Prosecutor v. Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 247 and 281; Prosecutor v. Jean-Paul Akeyesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement), para. 19; Prosecutor v. Delalić, Mucić, Delić, and Landžo et al., Case No. IT-96-21-A, Judgement, 20 February 2001, paras. 218 and 221.

[3] Akayesu Appeal Judgement, para. 24.

[4] Id. para 23.

[5] Id. paras. 21-22.

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

8.       The Trial Chamber’s determination of whether the engagement of certain staff would lead to actual bias or the appearance of bias is a discretionary decision to which the Appeals Chamber must accord deference.[1] […]

[…]

23.     […] The Appeals Chamber considers that the Impugned Decision concerns the engagement of staff to assist the Trial Chamber and recalls that a trial chamber’s determination in this respect is a discretionary decision to which the Appeals Chamber must accord deference.[2] However, the Appeals Chamber emphasizes that trial chambers must exercise their discretion consistently with Articles 20 and 21 of the Statute, which require trial chambers to ensure that a trial is fair and expeditious.[3]

[1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 (“Bizimungu et al. Appeal Decision”), para. 4.

[2] Bizimungu et al. Appeal Decision, para. 4.  See also supra, para. 8.

[3] See Nyiramasuhuko et al. Appeal Judgement, para. 138; Ildéphonse Nizeyimana v. The Prosecutor, Case No. ICTR‑00-55C-A, Judgement, 29 September 2014, para. 286; 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. 22.

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Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

Fn. 38. The Appeals Chamber also dismisses Niyitegeka’s further request that it provide guidance as to the appropriate procedures for generally challenging decisions related to confidential material not issued under Rule 86 of the Rules and rendered after the close of an applicant’s trial and appeal proceedings in addition to what has already been stated in this decision. Article 23 of the Statute of the Mechanism (“Statute”) provides that the Appeals Chamber may affirm, reverse or revise the decisions taken by a Single Judge or Trial Chamber. However, the Appeals Chamber does not have advisory power and Niyitegeka’s submission fails to demonstrate that this is an issue of general importance whose adjudication would contribute substantially to the Mechanism’s jurisprudence. See, e.g., Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p.3; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2011, para. 23.

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MICT Statute Article 23
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Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

14. The Appeals Chamber recalls that decisions related to witness protection and disclosure of evidence are discretionary decisions.[1] In order to successfully challenge such a decision, Niyitegeka must demonstrate that the Single Judge committed a discernible error resulting in prejudice to him.[2] […]

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), paras. 137, 431; Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 85; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 68; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 131.

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