Manifest failure to provide a reasoned opinion

Notion(s)	Filing	Case
Reasoned opinion \| Manifest failure to provide a reasoned opinion	Appeal Judgement - 30.06.2014	BIZIMUNGU Augustin (ICTR-00-56B-A)
18. The Appeals Chamber recalls that, under Article 22(2) of the Statute and Rule 88(C) of the Rules, trial chambers are required to provide a reasoned opinion.[1] Accordingly, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused.[2] A reasoned opinion in the trial judgement is essential to ensuring that the Tribunal’s adjudications are fair, and, inter alia, allows for a meaningful exercise of the right of appeal by the parties, and enables the Appeals Chamber to understand and review the trial chamber’s findings.[3] 19. The Appeals Chamber finds that the absence of any relevant legal findings in the Trial Judgement constitutes a manifest failure to provide a reasoned opinion. Indeed, the Appeals Chamber considers the magnitude of this error to be unprecedented in the history of the Tribunal. Rather than engaging in “the most careful of analyses”, as it was required to do,[4] the Trial Chamber failed to even attempt to address in the Trial Judgement the most fundamental of issues: whether the evidence adduced was sufficient to prove Bizimungu’s individual criminal responsibility for genocide.[5] 20. In light of these omissions and to safeguard Bizimungu’s right to an effective appeal, the Appeals Chamber ordered that the appeals concerning Bizimungu be severed.[6] For these same reasons, the Appeals Chamber also ordered additional submissions from the parties on the evidentiary basis for Bizimungu’s conviction for genocide.[7] […] 23. The Appeals Chamber recalls that a trial chamber’s failure to provide a reasoned opinion constitutes 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 established beyond reasonable doubt the findings challenged by the appellant.[8] 24. Mindful of the extraordinary nature of the Trial Chamber’s omissions and the gravity of a conviction for genocide, the Appeals Chamber shall assess the findings and evidence relevant to each incident supporting Bizimungu’s genocide conviction to determine whether the elements of genocide are established beyond reasonable doubt.[9] In light of the additional submissions, Bizimungu has had a full and focused opportunity to appeal his genocide conviction and to respond to the Prosecution’s case in this regard. In these circumstances, considerations of fairness do not preclude the Appeals Chamber from conducting this review, and, given the Trial Chamber’s conclusions that genocide was committed and that Bizimungu was responsible for this crime, it is necessary in the interests of justice for the Appeals Chamber to determine whether such findings are sustained by the record.[10] show footnotes [1] See, e.g., Nchamihigo Appeal Judgement, para. 165; Krajišnik Appeal Judgement, para. 139; Muvunyi I Appeal Judgement, para. 144. [2] See Hadžihasanović and Kubura Appeal Judgement, para. 13. [3] Hadžihasanović and Kubura Appeal Judgement, para. 13. See also Nchamihigo Appeal Judgement, para. 165; Karera Appeal Judgement, para. 20. [4] Zigiranyirazo Appeal Judgement, para. 75. [5] By contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions. See, e.g., Trial Judgement [The Prosecutor v. Augustin Ndindiliyimana, Case No. ICTR-00-56-T, Judgement and Sentence, pronounced on 17 May 2011, filed in writing on 17 June 2011], paras. 2077-2085 (making legal findings on the crime of genocide in relation to Ndindiliyimana). [6] Order for Further Submissions and Severance, 7 February 2014, p. 2. [7] Order for Further Submissions and Severance, 7 February 2014, pp. 1, 2. [8] Ndindiliyimana et al. Appeal Judgement, para. 293. See also supra para. 11. [9] Such course of action has precedent. See, e.g., Ndindiliyimana et al. Appeal Judgement, paras. 292-312; Bagosora and Nsengiyumva Appeal Judgement, paras. 683-689; Rukundo Appeal Judgement, paras. 174, 175; Kalimanzira Appeal Judgement, paras. 89-91. See also Kordić and Čerkez Appeal Judgment, paras. 392-409. The Appeals Chamber undertakes this assessment below in paragraphs 195-201, 272-277, 309-314, and 343-348 of the judgement. [10] See Kordić and Čerkez Appeal Judgment, paras. 384-388. Download full document
Notion(s)	Filing	Case
Manifest failure to provide a reasoned opinion \| Manifest failure to adjudicate essential elements of JCE liability \| Joint criminal enterprise	Appeal Judgement - 09.12.2015	STANIŠIĆ & SIMATOVIĆ (IT-03-69-A)
78. The Appeals Chamber further recalls that pursuant to Article 23(2) of the Statute and Rule 98ter(C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), trial chambers are required to give a reasoned opinion in writing.[1] In order to provide a reasoned opinion, a trial chamber should set out in a clear and articulate manner “the legal and factual findings on the basis of which it reached the decision to convict or acquit an individual”.[2] In particular, a trial chamber is required to make findings on those facts which are essential to the determination of guilt on a particular count.[3] The absence of any relevant legal findings in a trial judgement also constitutes a manifest failure to provide a reasoned opinion.[4] A reasoned opinion in the trial judgement is essential, inter alia, for allowing a meaningful exercise of the right of appeal by the parties and enabling the Appeals Chamber to understand and review the trial chamber’s findings as well as its evaluation of the evidence.[5] 79. The Trial Chamber found neither Stanišić nor Simatović responsible for committing the crimes charged in the Indictment pursuant to JCE liability, on the ground that it was unable to conclude beyond reasonable doubt that Stanišić or Simatović shared the intent to further the common criminal purpose of the JCE.[6] Before arriving at this conclusion on their mens rea, the Trial Chamber did not first adjudicate whether the elements of the actus reus of JCE liability – namely, the existence of a common criminal purpose, a plurality of persons, and Stanišić’s and Simatović’s contribution – were fulfilled.[7] 80. For the reasons set out below, the Appeals Chamber, Judge Afanđe dissenting, finds that, in so doing, the Trial Chamber erred in law by failing to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability. 81. The Appeals Chamber observes that the Trial Chamber found that there was no direct evidence establishing Stanišić’s and Simatović’s intent.[8] However, the Appeals Chamber recalls that the requisite intent for a conviction under JCE liability can be inferred from circumstantial evidence, such as a person’s knowledge of the common criminal purpose or the crime(s) it involves, combined with his or her continuing participation in the crimes or in the implementation of the common criminal purpose.[9] In the circumstances of the present case, the Appeals Chamber, Judge Afanđe dissenting, is of the view that the Trial Chamber could only adjudicate, and provide a reasoned opinion on, Stanišić’s and Simatović’s mens rea under JCE liability after having established the existence and scope of the common criminal purpose shared by a plurality of persons and having assessed whether Stanišić’s and Simatović’s acts contributed to this common criminal purpose. 82. In the view of the Appeals Chamber, Judge Afanđe dissenting, determining the existence and scope of a common criminal purpose shared by a plurality of persons (including its geographical and temporal limits) was a necessary prerequisite to determining whether the acts performed by Stanišić and Simatović (including those not directly involving the commission of a crime) were related, and contributed, to the perpetration of the common criminal purpose. The Trial Chamber was therefore required to examine whether Stanišić’s and Simatović’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanišić’s and Simatović’s words in the context of that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanišić’s and Simatović’s mens rea for JCE liability could be inferred from the circumstances. […] 87. In the absence of a thorough analysis and prior findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as on Stanišić’s and Simatović’s contribution to it, the Trial Chamber could not have properly adjudicated Stanišić’s and Simatović’s mens rea. 88. Accordingly, the Appeals Chamber, Judge Afanđe dissenting, finds that the Trial Chamber erroneously failed to make findings on the existence and scope of a common criminal purpose shared by a plurality of persons, prior to finding that the mens rea of Stanišić and Simatović for JCE liability was not met. In so doing, the Trial Chamber failed to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability. Without the circumstances provided by the findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as the assessment of Stanišić’s and Simatović’s words and acts in light of this purpose, the Trial Chamber could not have determined whether it was able to infer beyond reasonable doubt Stanišić’s and Simatović’s mens rea from these circumstances and whether it should ultimately convict or acquit them. show footnotes [1] Kvočka et al. Appeal Judgement, para. 23. See also Popović et al. Appeal Judgement, paras 1123, 1367, 1771; Hadžihasanović and Kubura Appeal Judgement, para. 13; Kunarac et al. Appeal Judgement, para. 41. [2] Hadžihasanović and Kubura Appeal Judgement, para. 13; Bizimungu Appeal Judgement, para. 18. See also Popović et al. Appeal Judgement, para. 1906; Haradinaj et al. Appeal Judgement, paras 77, 128. [3] Popović et al. Appeal Judgement, para. 1906, referring to Hadžihasanović and Kubura Appeal Judgement, para. 13. [4] Cf. Bizimungu Appeal Judgement, para. 19. [5] Bizimungu Appeal Judgement, para. 18, referring, inter alia, to Hadžihasanović and Kubura Appeal Judgement, para. 13. See also Popović et al. Appeal Judgement, paras 1367, 1771; Kunarac et al. Appeal Judgement, para. 41. [6] Trial Judgement [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement, 30 May 2013], paras 2336, 2354, read together with Trial Judgement, paras 2362-2363. See also supra, paras 27, 61. [7] Trial Judgement, paras 2305-2354. See also supra, para. 45. [8] See Trial Judgement, paras 2317, 2354. See also supra, paras 55-56. [9] See, e.g., Popović et al. Appeal Judgement, para. 1369; Đorđević Appeal Judgement, para. 512. See also, e.g., Krajišnik Appeal Judgement, paras 202, 697; Blagojević and Jokić Appeal Judgement, paras 272-273; Kvočka et al. Appeal Judgement, para. 243. Cf., e.g., Tolimir Appeal Judgement, paras 378, 380, 390-391, 396-397, 404-405, 413‑414; Popović et al. Appeal Judgement, paras 937, 942-1028, 1363, 1370-1397; Đorđević Appeal Judgement, para. 513; [ainović et al. Appeal Judgement, paras 995, 1004, 1048-1052, 1180, 1183, 1242, 1250, fn. 3862; Krajišnik Appeal Judgement, paras 200, 204. Download full document		ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter(C)