Standard of proof

Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić contested the Trial Chamber’s use of the term “high degree of probability” as being the applicable standard of proof. The Appeal Chamber dismissed this ground of appeal but provided guidance as to the applicable standard.

55. The Appeals Chamber observes that for a finding of guilt on an alleged crime, a reasonable trier of fact must have reached the conclusion that all the facts which are material to the elements of that crime have been proven beyond reasonable doubt by the Prosecution. At the conclusion of the case, the accused is entitled to the benefit of the doubt as to whether the offence has been proved.[1]

56. In its Judgement, the Trial Chamber clearly referred to the principle laid down in Article 21(3) of the Statute that an accused must be considered innocent until proven guilty.[2] Moreover, the Trial Chamber recalled that, according to Rule 87(A) of the Rules, it is for the Prosecution to prove beyond reasonable doubt that the accused is guilty.[3] In a footnote, the Trial Chamber specified that it interpreted the “beyond reasonable doubt” standard as a “high degree of probability”, but not as “certainty or proof beyond a shadow of doubt”.[4]            

57. The Appeals Chamber finds that the Trial Chamber’s reference to a “high degree of probability” in one of the footnotes to the section on standard of proof is confusing and not in accordance with the standard of proof of a criminal trial. […]

61. […] the Appeals Chamber notes that it is unhelpful to try and explain the standard of proof other than by stating that the standard requires a finder of fact to be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[5]

[1] Čelebići Trial Judgement, para. 601. See also Halilović Appeal Judgement, para. 109.

[2] Trial Judgement, para. 21.

[3] Trial Judgement, para. 21, referring, inter alia, to Krnojelac Trial Judgement, para. 66.

[4] Trial Judgement, fn. 19.

[5] Cf. Halilović Appeal Judgement, para. 109.

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ICTR Statute Article 20(3) ICTY Statute Article 21(3) ICTR Rule Rule 87(A) ICTY Rule Rule 87(A)
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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 - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

129. […] a trier of fact is called upon to make findings beyond reasonable doubt based on all of the evidence on the trial record – direct or circumstantial – not only on facts which are essential to proving the elements of the crimes and the forms of responsibility. There might be other facts that need to be proven beyond reasonable doubt due to the way in which the case was pleaded in the indictment and presented during trial to the Defence and to the Trial Chamber. All facts underlying the elements of the crime or the form of responsibility alleged as well as all those, which are indispensable for entering a conviction, must be proven beyond reasonable doubt.[1]

130. In Vasiljević, for example, the Appeals Chamber addressed very clearly the issue that a specific factual finding may or may not be necessary to reach a conclusion beyond reasonable doubt as to the element of a crime, depending on the specific circumstances of the case and on the way the case was pleaded.[2]

[1] Ntagerura et al. Appeal Judgement, para. 174; Blagojević and Jokić Appeal Judgement, para. 226.

[2] The Vasiljević Trial Chamber had found that Mitar Vasiljević had forcibly transported seven Muslim men to the eastern bank of the Drina River, where they were shot. Despite not being satisfied that Vasiljević had personally killed any of the victims, the Trial Chamber considered other factual findings (reached beyond reasonable doubt) and concluded that Vasiljević indeed shared the intent to kill them (Vasiljeviæ Trial Judgement, paras 112, 113 and 208). It convicted him for persecution pursuant to Article 5(h) of the Statute and for murder pursuant to Article 3 of the Statute (Vasiljeviæ Appeal Judgement, paras 2 and 88). The Appeals Chamber subsequently reversed one of the findings underpinning Vasiljević’s conviction, namely that “he had knowledge that the seven Muslim men were to be killed and not exchanged based on the information provided to him” (Vasiljeviæ Appeal Judgement, para. 124). The Appeals Chamber then concluded that, since the Trial Chamber had found that Vasiljević knew that the seven men would be killed when he escorted them to the bank of the Drina River and stood behind them shortly before the shooting occurred, it had been able to establish his mens rea beyond reasonable doubt, despite the fact that he had not fired his weapon. However, after the Appeals Chamber overturned the finding that Vasiljević knew that the men were to be killed at the time he accompanied the group, the remaining factual findings did not suffice to reach the conclusion, as the only reasonable inference available on the evidence, that he had the intent to kill the seven Muslim men (Vasiljeviæ Appeal Judgement, para. 131). In the circumstances of that case, that finding was necessary to reach a conclusion beyond reasonable doubt as to one element of the crime. Nonetheless, this was not strictly a finding on an element of the crime in abstracto; it had become indispensable for entering a conviction due to the way the case had developed on the basis of the pleadings and of the evidence presented.

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Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

318. Renzaho does not specify whether he contends that, by law, no conviction could be entered against him for ordering the killing of Tutsis unless based on direct evidence or whether he challenges the Trial Chamber’s findings themselves. To the extent that Renzaho challenges the Trial Chamber’s reliance on circumstantial evidence for a conviction, the Appeals Chamber recalls that ordering, as a mode of responsibility, can be inferred from circumstantial evidence, so long as it is the only reasonable inference.[1] The Trial Chamber was fully aware of this standard.[2]

319. The Appeals Chamber considers, however, that in finding that Renzaho gave a distinct order to kill Tutsis at roadblocks, the Trial Chamber failed to explain how this was the only reasonable inference that could be drawn from the evidence. The Trial Chamber enumerated the factors that it took into account: Renzaho’s “authority, his actions in support of roadblocks, their role in the ‘defence’ of the city, their widespread and continuous operation, as well as his order to distribute weapons”.[3] However, no explanation is provided to show how the combination of these factors necessarily leads to the conclusion that Renzaho ordered killings. Even if all of these factors consistently show that Renzaho’s actions were aimed at the killing of Tutsis at roadblocks or that he was aware of the risk that Tutsis would be killed at roadblocks, there is an insufficient basis to make the factual finding that Renzaho “ordered” such killings. Judge Güney and Judge Pocar dissent on this point.

[1] See D. Milošević Appeal Judgement, para. 265 (“the actus reus and the mens rea of ordering can be established through inferences from circumstantial evidence, provided that those inferences are the only reasonable ones”). See also Kamuhanda Appeal Judgement, para. 76; Galić Appeal Judgement, para. 178.

[2] See Trial Judgement, para. 764, fn. 855, referring to Galić Appeal Judgement, paras. 177, 178, 389.

[3] Trial Judgement, para. 764.

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

488. […] The reasonable doubt standard in criminal law cannot consist in imaginary or frivolous doubt based on empathy or prejudice. It must be based on logic and common sense, and have a rational link to the evidence, lack of evidence or inconsistencies in the evidence. […] 

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

The Appeals Chamber affirmed that the Prosecution has to prove each element essential for a conviction. It is not sufficient to apply the standard of proof only at the very last stage of the decision-making process, when considering the “ultimate issue of guilt or innocence” (paras 169-175):

169.    As to the first argument, the Prosecution relies on a decision of the Supreme Court of Canada, R. v. Morin, to support its position that the standard of proof has to be applied at the verdict stage only, but not to the individual facts of the case. However, this decision does not support the contention that the individual facts of the case do not have to be proven beyond a reasonable doubt:

During the process of deliberation, the jury must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt.

In fact, Judge Sopinka, speaking for the majority, endorsed the conclusion in another case of the Supreme Court of Canada, Nadeau v. The Queen:

The jurors cannot accept his [a ‘Crown witness’] version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation.

In addition, the Appeals Chamber notes that some of the language used in R. v. Morin, which could be construed to support the Prosecution’s position at first view, is due to the fact that the issue in R. v. Morin was the instruction given to the jury by the trial judge. When considering this case in the context of the Tribunal, it has to be borne in mind that here the trier of fact is not a jury, but a panel of professional judges. In the case of the jury, the one question which has to be answered is the question of guilty or not guilty, and the factual findings supporting this conclusion are neither spelled out nor can they be challenged by one of the parties. The instruction given to the jury concentrates on this “ultimate issue” of the case. In this Tribunal, on the other hand, Trial Chambers cannot restrict themselves to the ultimate issue of guilty or not guilty; they have an obligation pursuant to Article 22(2) of the Statute, translated into Rule 88(C) of the Rules, to give a reasoned opinion.

170.    The Appeals Chamber recalls that Article 20(3) of the Statute provides that an accused shall be presumed innocent until proven guilty. This Article embodies a general principle of law, that the Prosecution bears the onus of establishing the guilt of the accused beyond reasonable doubt. With respect to the Trial Chamber’s Judgement, Rule 87(A) of the Rules clearly states that a finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt. Although the Rules are silent as to whether the same standard applies at the fact-finding stage, and, if so, with respect to which facts, the ICTY Appeals Chamber has left no doubt that the standard of proof “beyond reasonable doubt” is not limited to the ultimate question of guilt: […]

171.    To support its argument that the Trial Chamber erroneously adopted a piecemeal approach to the evidence, the Prosecution refers to the Musema Appeal Judgement. There, the Appeals Chamber endorsed the view of the ICTY Appeals Chamber in the Tadić Judgement on Allegations of Contempt:

[A] tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all the evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear at first to be of poor quality, but it may gain strength from other evidence in the case. The converse also holds true.

172.    In the Appeals chamber’s view, the case law referred to by the Prosecution does not address the issue of the standard of proof applicable to any particular fact. The duty of the Trial Chamber to consider all the evidence does not relieve it from the duty to apply the required standard of proof to any particular fact.

173.    The Prosecution quotes as one of the examples for the alleged error of law by applying the standard of proof to individual items of evidence the Trial Chamber’s conclusions in paragraph 118 of the Trial Judgement. The Appeals Chamber notes that the Trial Chamber did not look at the testimony of the different witnesses in isolation, but considered it in the light of other evidence. It took into account the testimony of a Defence witness (Witness BLB), which created doubts as to the credibility of Witness LAH in general, and also that of Prosecution Witness NL, but found that it did not corroborate the testimony of Witness LAH. The Trial Chamber’s approach clearly follows the principle enunciated in the Tadić Judgement on Allegations of Contempt. Only at the end of this analysis does the Trial Chamber apply the standard of proof and determine whether the fact in question was proved beyond a reasonable doubt.

174.    It appears to the Appeals Chamber that the Prosecution’s argument does not clearly distinguish between the different stages of the fact-finding process which a Trial Chamber undertakes before it can enter a conviction: […]

In light of the above analysis, the Appeals Chamber agrees with the Prosecution that “applying the criminal standard of proof piecemeal to individual items of evidence” would amount to an error.

175.    The Appeals Chamber recalls that the presumption of innocence requires that each fact on which an accused’s conviction is based must be proved beyond a reasonable doubt. The Appeals Chamber agrees with the Prosecution’s argument that “if facts which are essential to a finding of guilt are still doubtful, notwithstanding the support of other facts, this will produce a doubt in the mind of the Trial Chamber that guilt has been proven beyond a reasonable doubt”. Thus, if one of the links is not proved beyond a reasonable doubt, the chain will not support a conviction.

[1] Ibid., paras. 227-228.

[2] R. v. Morin, [1988] 2 S. C. R. 345 (emphasis added).

[3] Nadeau v. The Queen, [1984] 2 S.C.R. 570, at p. 571, per Judge Lamer (emphasis added).

[4] Kordić and Čerkez Appeal Judgement, para. 383.

[5] Kayishema and Ruzindana Appeal Judgement, para. 107.

[6] Tadić Judgement on Allegations of Contempt, para. 92, quoted by Musema Appeal Judgement, 134.

[7] Prosecution Appeal Brief, para. 193, fn. 257. Prosecution Witness LAH had testified that he had taken part in a meeting at the Bushenge market, where, according to the witness, Ntagerura had said that in a short time President Habyarimana would no longer be there, “and at that time, the fate of the Tutsi will be sealed”. (See Trial Judgement, para. 114, referring to T.10 October 2000, pp. 63, 104, 109-110; T.11 October 2000, pp. 25, 26. The Trial Chamber found that the testimony of another Prosecution witness, Witness NL, did not corroborate Witness LAH’s testimony. The Trial Chamber therefore concluded that it was not satisfied beyond a reasonable doubt that Ntagerura took part in the meeting (Judgement, para. 118).

[8] Prosecution Appeal Brief, para. 258.

[9] AT. 6 February 2006, p. 52.

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ICTR Statute Article 20(3)
Article 22(2)
ICTR Rule Rule 87(A)
Rule 88(C)
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

103. The Appeals Chamber recalls that the Prosecution bears the burden of establishing facts material to the guilt of an accused beyond reasonable doubt, and that suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[1] In this case, the Trial Chamber essentially took the view that the Defence evidence on the events at Gisagara market was not inconsistent with the Prosecution evidence. It reasoned that since two credible and reliable Prosecution witnesses saw Ntawukulilyayo at the market, the fact that the Defence witnesses did not see him or hear of his presence at the market did not necessarily suggest that he was not there.[2]

104. The Appeals Chamber finds no error in the Trial Chamber’s preference for positive eyewitness testimony, and does not consider that the Trial Chamber’s assessment of the Defence evidence in this regard suggests that Ntawukulilyayo was required to present witnesses who were able to negate the Prosecution evidence. The Trial Chamber found that “Witnesses AYQ and BAU provided convincing and consistent accounts of Ntawukulilyayo’s order to refugees to go to Kabuye hill.”[3] It then considered the evidence that Ntawukulilyayo presented to show that he was not at the market that day.[4] The Trial Chamber also considered Ntawukulilyayo’s evidence that the refugees had already left the market before he allegedly instructed them to move.[5] In the Appeals Chamber’s view, the fact that the Trial Chamber considered that such evidence was “of limited probative value”[6] and did “not raise doubt”[7] or “concerns”[8] about the Prosecution evidence does not constitute a reversal of the burden of proof.

[1] Milošević Appeal Judgement, para. 231.

[2] See Trial Judgement, paras. 253-262. See also ibid., para. 250.

[3] Trial Judgement, para. 240.

[4] Trial Judgement, paras. 247-262. The Appeals Chamber notes that, in analyzing the Defence evidence seeking to discredit Witness AYQ based on her association with Avega and alleged procurement of false testimony, the Trial Chamber explicitly bore “in mind that the Defence carries no independent burden when seeking to raise doubt with elements of the Prosecution case.” See ibid., para. 245.

[5] Trial Judgement, para. 255. See also ibid., paras. 159, 161, 167, 179.

[6] Trial Judgement, paras. 253, 259, 261. See also ibid., para. 12.

[7] Trial Judgement, para. 250. See also ibid., para. 12.

[8] Trial Judgement, para. 258.

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

226. The standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt.[1] This standard applies whether the evidence evaluated is direct or circumstantial.[2] The Appeals Chamber has previously endorsed an approach where, similar in parts to the present case, a Trial Chamber individually examined evidence with respect to a number of incidents and subsequently assessed the accused’s criminal responsibility for those incidents.[3]

[1] See, e.g., Stakić Appeal Judgement, para. 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.”); Ntagerura et al. Appeal Judgement, para. 174.

[2] Stakić Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 303; Kordić and Čerkez Appeal Judgement, para. 834.

[3] Kvočka et al. Appeal Judgement, para. 70 (citing with approval the approach of the Trial Chamber in Prosecutor v. Stanislav Galić to determine whether certain incidents occurred beyond reasonable doubt before determining Galić’s individual criminal responsibility for those incidents).

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

99. The Trial Chamber found that there was no direct evidence of the circumstances in which Muharem Ramadani was killed.[1] Its conviction was based on circumstantial evidence. In light of the circumstances established on the evidence, the Trial Chamber found that the only reasonable conclusion was that the police, directed by Tarčulovski, killed Muharem Ramadani.[2] […]. Tarčulovski fails to demonstrate any error in the findings of the Trial Chamber.[3] […]

[1] Trial Judgement, para. 324.

[2] See Hadžihasanović and Kubura Appeal Judgement, para. 286; Galić Appeal Judgement, para. 218; Stakić Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 303; Čelebići Appeal Judgement, para. 458.

[3] Trial Judgement, para. 325.

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

458. A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him […].  Such a conclusion must be established beyond reasonable doubt.  It is not sufficient that it is a reasonable conclusion available from that evidence.  It must be the only reasonable conclusion available.  If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

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

20. […] The Appeals Chamber recalls that the standard of proof “requires a finder of fact to be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused”.[1] The Appeals Chamber also emphasizes that “for a finding of guilt on an alleged crime, a reasonable trier of fact must have reached the conclusion that all the facts which are material to the elements of that crime have been proven beyond reasonable doubt by the Prosecution”.[2] Therefore, not each and every fact in the Trial Judgement must be proved beyond reasonable doubt, but only those on which a conviction or the sentence depends.[3] The Appeals Chamber also recalls that as a general rule, the standard of appellate review, namely whether “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, permits a conclusion to be upheld on appeal even where other inferences sustaining guilt could reasonably have been drawn at trial”.[4] However, an inference drawn from circumstantial evidence to establish a fact that is material to the conviction or sentence cannot be upheld on appeal if another reasonable conclusion consistent with the non-existence of that fact was also open on that evidence, given that such inference should be the only reasonable one.[5]

The Appeals Chamber overturned the Trial Chamber’s conclusions with respect to one incident where it found that the origin of fire was not established beyond reasonable doubt:

230. […] Accordingly, given the presence of both ABiH and SRK positions in the same direction, but located at different distance from the Baščaršija flea market, an analysis of the charge could have determined with greater precision the position where the shell was fired from. […] The Trial Chamber failed to address these deficiencies and to articulate its reasons for dismissing other possible conclusions with respect to the origin of fire. The Appeals Chamber therefore notes that whereas the evidence presented was sufficient to establish the direction of the fire, it was insufficient to establish beyond reasonable doubt its origin, taking into account the positions of the warring parties at the time of the incident.

232. In light of the above, the Appeals Chamber finds that the evidence on the record could lead a reasonable Trial Chamber to conclude that it was most likely that the shells that hit the Baščaršija flea market on 22 December 1994 were fired from SRK-held territory, but not to establish this beyond reasonable doubt.

[1] Mrkšić and Šljivančanin Appeal Judgement, para. 220; Martić Appeal Judgement, para. 61.

[2] Martić Appeal Judgement, para. 55; Čelebići Trial Judgement, para. 601; Halilović Appeal Judgement, para. 109. See also Kvočka et al. Appeal Judgement, para. 23:

The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules. However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record. […] (footnotes omitted).

[3] Ntagerura et al. Appeal Judgement, paras 174-175. See also Mrkšić and Šljivančanin Appeal Judgement. para. 217, recalling that “a trier of fact should render a reasoned opinion on the basis of the entire body of evidence and without applying the standard of proof 'beyond reasonable doubt' with a piecemeal approach”.

[4] Ntagerura et al. Appeal Judgement, para. 305, citing Kordić and Čerkez Appeal Judgement, para. 288.

[5] Čelebići Appeal Judgement, para. 458. The Appeals Chamber recalls that, in such cases, “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” (Stakić Appeal Judgement, para. 219). See also Karera Appeal Judgement, para. 34.

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

22. The Appeals Chamber further observes that in several instances, the Trial Chamber uses confusing language which could be viewed as shifting of the burden of proof onto the Defence to disprove the Prosecution’s case. In such instances, the Trial Chamber stated that “nothing in the evidence suggests” that a conclusion opposite to the one adopted by the Trial Chamber could be reached.[1] The Appeals Chamber finds this language misleading and stresses that the Trial Chamber is required not only to apply the appropriate standard but also to articulate it correctly. That said, the Appeals Chamber considers that, subject to the analysis of the parties’ specific challenges below, the Trial Chamber in fact meant to state that all reasonable doubt was eliminated on the basis of the evidence cited in all such instances.

231. […] It recalls that the Prosecution bears the burden of establishing beyond reasonable doubt facts material to the guilt of an accused and suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[2] […]

[1] E.g., Trial Judgement, paras 250, 266, 276, 289, 310, 324, 341, 354, 364, 393.

[2] See supra, Section III.A.1.

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Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

17. […] [The Trial Chamber] correctly recalled that “[t]here is clear statutory language and jurisprudence which emphasize the individual nature of criminal responsibility in this Tribunal [and that] [e]ven if Accused persons are joined together into one trial, this in no way diminishes the Prosecution’s burden to prove each element of each crime individually against each of the co-Accused.”[1][…]

21. […] As noted above, the Trial Chamber explicitly recalled the principle of individual criminal responsibility and that the Prosecution must prove each element of each crime individually against each of the co-Accused.[2] To the extent that they are charged with joint criminal enterprise and may thus be held accountable for acts of others in accordance with the common criminal purpose, the Appeals Chamber notes that Nzirorera’s death does not affect the burden to be met by the Prosecution in relation to Karemera and Ngirumpatse.

[1] Reasons for Impugned Decision, para. 14.

[2] Reasons for Impugned Decision, para. 14.

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Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.
(ICTR-98-44-AR73.6)

The Appeals Chamber recalled the standard of proof for alleged Rule 68 violations:

13. To establish a violation of the Rule 68 disclosure obligation, the Defence must (i) establish that additional material exists in the possession of the Prosecution; and (ii) present a prima facie case that the material is exculpatory.[1]

16. […] The responsibility for disclosing exculpatory material rests on the Prosecution, and the determination of what material meets Rule 68 disclosure requirements is primarily a facts-based judgement, falling within the Prosecution’s responsibility.[2]

17. The Appeals Chamber cannot fault the Trial Chamber for requesting Mr. Nzirorera to provide an “evidentiary basis” for his claims that the material fell within the scope of Rule 68, contrary to the assertions of the Prosecution.[3] The Trial Chamber is entitled to assume that the Prosecution is acting in good faith.[4] […]

[1] Kajelijeli Appeal Judgement, para. 262; Kordić and Čerkez Appeal Judgement, para. 179; The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3.

[2] Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Decision, p. 3. See also Kajelijeli Appeal Judgement, para. 262.

[3] See Impugned Decision, pp. 7, 8; T. 13 February 2006 p. 6 (“If you're saying the Prosecutor has not honoured a commitment and you're asking us to provide a remedy for doing so, we would need some evidence that would enable us to say that.”).

[4] Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Decision, p. 3.

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Decision on Legal Aid - 07.02.2003 KVOČKA et al.
(IT-98-30/1-A)

12.     […] The burden upon the accused in the first instance to establish that he lacks the means to remunerate counsel, and upon the Registrar in the second instance to establish that the accused does have the means to do so, is not satisfaction beyond reasonable doubt, as in a criminal trial, but merely satisfaction that, more probably than not, what is asserted is true, or (as it is sometimes described) satisfaction on the balance of probabilities.  Satisfaction that what is asserted is more probably true than not will in turn depend on the nature and the consequences of the matter to be proved.  The more serious the matter asserted, or the more serious the consequences flowing from a particular finding, the more difficult it will be to satisfy the relevant tribunal that what is asserted is more probably true than not.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

149. The Appeals Chamber recalls that there is no requirement that the body of a victim be recovered in order to prove death beyond a reasonable doubt, and that a victim’s death can be inferred circumstantially from all the evidence presented to the Trial Chamber.[1] Consequently, the evidence of an eye-witness can be the sole basis for a finding that a person is dead. The Appeals Chamber also recalls that, in order to successfully challenge the trial chamber’s assessment of circumstantial evidence on appeal, an appellant must show that no reasonable trier of fact could have found that the conclusion reached by the trial chamber was the only reasonable inference.[2].

208. At the outset, the Appeals Chamber recalls that proof beyond reasonable doubt that a person was killed does not necessarily require proof that the dead body of that person has been recovered. Rather, a victim’s death may be inferred circumstantially from all the evidence presented to the Trial Chamber.[3] […]

316. As the Appeals Chamber noted above, proof beyond a reasonable doubt that a person is dead does not necessarily require that the body of that person was recovered.[4] A victim’s death can be inferred circumstantially from all of the evidence presented to a trial chamber.[5] […]

[1] Kvočka et al. Appeal Judgement, para. 260.

[2] See supra [Appeal Judgement,] para. 13.

[3] See supra [Appeal Judgement,] para. 149.

[4] See supra [Appeal Judgement,] para. 149.

[5] See supra [Appeal Judgement,] para. 149.

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At paras 174 and 175, the Appeals Chamber recalled that, when facts upon which a finding of guilt or the sentence depend are under consideration, such finding must be made beyond reasonable doubt.

See also :

-          Stakić Appeal Judgement, para. 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.[1]”

-          Čelebići Appeal Judgement, para. 763: “[O]nly those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”

[1] 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.

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At paras 304-306, the Appeals Chamber recalled the law applicable to circumstantial evidence, as enounced in the Čelebići Appeal Judgement and recently confirmed in Stakić:

304.    In the Čelebići Appeal Judgement, the ICTY Appeals Chamber set out the standard of proof applicable to circumstantial evidence as follows:

A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him – here that he participated in the second beating of Gotovac. Such a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

The same standard was applied in theVasiljević, Krstić and Kvočka et al. Appeal Judgements in relation to the establishment of the state of mind of the accused by inference and, more recently, in the Stakić Appeal Judgement.

305.    As the ICTY Appeals Chamber made clear in the Kordić and Čerkez Appeal Judgement, the Čelebići standard on circumstantial evidence has to be distinguished from the standard of appellate review. The Appeals Chamber notes that the Tribunal’s law on appellate proceedings, namely wheter “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, permits a conclusion to be upheld on appeal even where other inferences sustaining guilt could reasonably have been drawn at trial”.[5]

306.    It is settled jurisprudence that the conclusion of guilt can be inferred from circumstantial evidence only if it is the only reasonable conclusion available on the evidence. Whether a Trial Chamber infers the existence of a particular fact upon which the guilt of the accused depends from direct or circumstantial evidence, it must reach such a conclusion beyond reasonable doubt. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the non-existence of that fact, the conclusion of guilt beyond reasonable doubt cannot be drawn.

[1] Čelebići Appeal Judgement, para. 458.

[2] Vasiljević Appeal Judgement, para. 120; Krstić Appeal Judgement, para. 41; Kvočka et al. Appeal Judgement, para. 237.

[3] Stakić Appeal Judgement, para. 219.

[4] Kordić and Čerkez Appeal Judgement, paras. 289-290.

[5] Ibid., para. 288.

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Appeal Judgement - 25.02.2004 VASILJEVIĆ Mitar
(IT-98-32-A)

120. The Appeals Chamber further recalls that the standard of proof to be applied is beyond a reasonable doubt, and the burden lies on the Prosecution as the accused enjoys the benefit of the presumption of innocence. The Appeals Chamber agrees with the test adopted by the Trial Chamber according to which, when the Prosecution relies upon proof of the state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence.[1]

[1] Judgement [Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002], para. 68.

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