Elements of the crimes
|Appeal Judgement - 27.02.2014||
NDINDILYIMANA et al. (Military II)
292. The Appeals Chamber observes that the Trial Chamber did not make express findings on the mens rea and actus reus related to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute. The Trial Chamber’s reasoning fails to specify when, where, how, and to whom Nzuwonemeye and Sagahutu issued instructions to commit an offence upon which their ordering liability for the killing of the Prime Minister could be founded. Similarly, the Trial Chamber failed to identify in the Trial Judgement what conduct on the part of Nzuwonemeye and Sagahutu had a “direct and substantial effect” on the killing of the Prime Minister.
293. The Appeals Chamber recalls that, as part of fair trial guarantees, a trial chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules. Consequently, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis on which it reached the decision to convict or acquit an accused. In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged. The Appeals Chamber finds that the Trial Chamber’s failure to make mens rea and actus reus findings in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering amounts to a failure to provide a reasoned opinion. The Trial Chamber’s failure to provide a reasoned opinion amounts to an error of law which allows the Appeals Chamber to consider the relevant evidence and factual findings in order to determine whether a reasonable trier of fact could have found beyond reasonable doubt that the requisite actus reus and mens rea were established in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute.
 Trial Judgement [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Judgement and Sentence, pronounced on 17 May 2011, filed in writing on 17 June 2011], paras. 2093, 2146.
 Trial Judgement, paras. 2093, 2146.
 Trial Judgement, paras. 2093, 2146.
 See, e.g., Nchamihigo Appeal Judgement, para. 165; Krajišnik Appeal Judgement, para. 139; Muvunyi I Appeal Judgement, para. 144.
 See Hadžihasanović and Kubura Appeal Judgement, para. 13.
 Renzaho Appeal Judgement, para. 320; Kajelijeli Appeal Judgement, para. 60; Kordić and Čerkez Appeal Judgement, para. 383. Cf. Orić Appeal Judgement, para. 56.
 Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 683; Kalimanzira Appeal Judgement, paras. 100, 200. See also Perišić Appeal Judgement, para. 92.
|Decision on Judicial Notice - 16.06.2006||
KAREMERA et al.
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30. Likewise, it is not relevant that these facts constitute elements of some of the crimes charged and that such elements must ordinarily be proven by the Prosecution. There is no exception to Rule 94(A) for elements of offences. Of course the Rule 94(A) mechanism sometimes will alleviate the Prosecution’s burden to introduce evidence proving certain aspects of its case. As the Appeals Chamber explained in Semanza, however, it does not change the burden of proof, but simply provides another way for that burden to be met […]. (footnotes omitted).
See also para. 37.
|ICTR Rule Rule 94 ICTY Rule Rule 94|
|Appeal Judgement - 17.12.2004||
KORDIĆ & ČERKEZ
Kordić argued that the Trial Chamber erred in failing to make explicit findings and to give a “reasoned explanation” with respect to each of the elements of the crimes charged. The Appeals Chamber found that:
382. […] the Trial Chamber correctly stated that it “will only deal with such evidence as is necessary for the purposes of the Judgement”, meaning that not each and every piece of evidence has to be discussed.
383. However, this approach does not relieve the Trial Chamber from its obligation pursuant to Article 23(2), sentence 2, of the Statute, translated into Rule 98ter(C), sentence 2, of the Rules to give a reasoned opinion, meaning that all the constituent elements of a crime have to be discussed and supporting evidence has to assessed by the Trial Chamber. Where, as in this case, “a vast amount of detail has been presented”, in fact “too much” – an opinion with which the Appeals Chamber agrees – the obligation to give a reasoned opinion continues to apply. Apparently, this presentation of too much detail has hindered the Trial Chamber from focusing on the evidence underlying the crimes charged.
384. The Appeals Chamber notes that the Trial Chamber did not in most cases make specific explicit factual findings with regard to each element of the crimes, but expressly concluded that the crimes were established. The Appeals Chamber considers that by finding that the crimes were established, the Trial Chamber implicitly found all the relevant factual findings required to cover the elements of the crimes.
385. The Trial Judgement must enable the Appeals Chamber to discharge its task pursuant to Article 25 of the Statute based on a sufficient determination as to what evidence has been accepted as proof of all elements of the crimes charged, and, if discussed, its assessment of, inter alia, the credibility and demeanour of a witness. Relying in part on a catch-all phrase cannot substitute the Trial Chamber’s obligation to give “a reasoned opinion in writing” as envisaged in the afore-mentioned Article 23(2), sentence 2, of the Statute.
 Trial Judgement, para. 20.
 Trial Judgement, para. 20.
 Referring to para. 20 of the Trial Judgement: “In its discussion the Trial Chamber will only deal with such evidence as is necessary for the purposes of the Judgement. It will, thus, concentrate on the most salient parts and briefly summarise (or not mention at all) much of the peripheral evidence. A vast amount of detail has been presented in this case (too much, in the view of the Trial Chamber). The fact that a matter is not mentioned in the Judgement does not mean that it has been ignored. All the evidence has been considered by the Trial Chamber and the weight to be given it duly apportioned. However, only such matter as is necessary for the purposes of the Judgement is included in it.”
 Appeal Judgement, para. 385.
|Appeal Judgement - 30.11.2006||
Galić was charged under Count 1 under the heading “Actual Infliction of Terror” and was convicted of acts of violence with the intent to spread terror among the civilian population. He argued that the Trial Chamber impermissibly departed from the charges stated in his Indictment (Judgement, para. 70). The Appeals Chamber, after pointing to the differences between the duties of a Judge confirming an indictment and those of the Trial Chamber (para. 71), found that the Trial Chamber was “acting within the confines of its jurisdiction in determining that the elements of this crime do not comprise the actual infliction of terror on that population” (para. 73). However, it made clear that the “[t]he core issue remains […] that the accused has to be properly informed of the nature and cause of the charges against him so that he can adequately prepare his defence” and decided upon Galić’s argument in light of this finding (para. 74).
 The obligation of the Prosecution to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and 21(4)(a) and (b) of the Statute, which state that, in the determination of the charges against him, an accused is entitled to a fair hearing and, more particularly, has to be informed of the nature and cause of the charges against him and to have adequate facilities for the preparation of his defence. See Prosecutor v. Ivan Čermak and Mladen Markac., Case No. IT-03-73-PT, Decision on Ivan Čermak and Mladen Markač’s Motion on Form of Indictment, 8 March 2005, para. 5; Kupreškić et al. Appeal Judgement, para. 88; Blaškić Appeal Judgement, para. 209.
|ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Rule 47(C) ICTY Rule Rule 47(C)|