Presumption of innocence

Notion(s) Filing Case
Decision on the Outcome of Proceedings - 29.06.2010 DELIĆ Rasim

14. […] In this regard, the Appeals Chamber has clarified, although not directly in relation to the matter at hand, that the presumption of innocence does not apply to persons convicted by Trial Chambers pending the resolution of their appeals.[1] This interpretation of the Appeals Chamber’s jurisprudence is further consistent with the standard of review applicable in appellate proceedings whereby the appealing party has the burden of showing an error of law or of fact that invalidates the trial judgement, or leads to a miscarriage of justice, rather than attempting to initiate a trial de novo.[2] This burden is clearly different from the one operative at trial, where the presumption of innocence does apply and the Prosecution has to prove its case beyond reasonable doubt.

[1] See e.g., Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 9; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.8, Decision on Prosecution’s Appeal against Decision on Gvero’s Motion for Provisional Release, 20 July 2009 (public redacted version), para. 11.

[2] Article 25 of the Statute; see also, e.g., Prosecutor v. Ljube Boškoski and Johan Tarčulovksi, Case No. IT-04-82-A, Judgement, 19 May 2010, paras 9 et seq.; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009, paras 12 et seq.; Prosecutor v Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1, Judgement, 5 May 2009, paras 10 et seq.; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, paras 11 et seq.; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008, paras 8 et seq.; François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009, paras 7 et seq.; Athanase Seromba v. The Prosecutor, Case No. ICTR-2001-66-A, Judgement, 12 March 2008, paras 9 et seq., all affirming, inter alia, the standard of reasonableness and deference to factual findings made in a trial judgement.

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

28. The right of an accused to be tried before an independent tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] […] The independence of the Judges of the Tribunal is guaranteed by the standards for their selection,[2] the method of their appointment, their conditions of serviceand the immunity they enjoy. The Appeals Chamber further notes that the independence of the Tribunal as a judicial organ was affirmed by the Secretary-General at the time when the Tribunal was created,[6] and the Chamber reaffirms that this institutional independence means that the Tribunal is entirely independent of the organs of the United Nations[7] and of any State or group of States.[8] Accordingly, the Appeals Chamber considers that there is a strong presumption that the Judges of the Tribunal take their decisions in full independence, and it is for the Appellant to rebut this presumption.

32. […][T]he Appeals Chamber considers that the fact that pressures were exerted is not enough to establish that the Judges who ruled in this context on the Prosecutor’s Request for Review or Reconsideration were influenced by those pressures.

[1] Galić Appeal Judgement, para. 37; Kayishema and Ruzindana Appeal Judgement, paras. 51 and 55; Furundžija Appeal Judgement, para. 177.

[2] See Article 12 of the Statute, which provides that the Judges of the Tribunal “shall be persons of high moral character, impartiality and integrity, who possess the qualifications required in their respective countries for appointment to the highest judicial offices”.

[3] See Articles 12 bis and 12 ter of the Statute. In particular, the Judges of the Tribunal shall be elected by the General Assembly from a list submitted by the Security Council, which prevents abusive or discriminatory nominations and ensures that no State or group of States shall play a dominating role in the nomination of Judges.

[4] The conditions of service and compensation for Judges of the Tribunal are established by the General Assembly (see for example, Questions relating to the programme budget for the biennium 1998–1999, UN Doc. A/RES/53/214, 11 February 1999, section VIII). These ensure that Judges have financial security during and after their mandate.

[5] The Judges' privileges and immunities set out in Article 29(2) of the Statute guarantee their independence by protecting them from personal civil suits for improper acts or omissions in the exercise of their judicial functions.

[6] Report of the Secretary-General pursuant to paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995 (U.N. Doc S/1995/134) (“UN Secretary-General’s Report, 13 February 1995”), para. 8.

[7] Kayishema and Ruzindana Appeal Judgement, para. 55.

[8] UN Secretary-General’s Report, 13 February 1995, para. 8.

[9] The Appeals Chamber notes that the European Court of Human Rights ruled in the case of Naletilić v. Croatia (European Court of Human Rights, Decision as to the Admissibility of Application No. 51891/99, 4 May 2000, para. (1) on the impartial and independent character of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“ICTY”), and found that ICTY was “an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence, in view of the content of its Statute and Rules of Procedure”. It should be emphasised that these same guarantees were reproduced in the Statute and Rules of the Tribunal, the Statute of the Tribunal being an adaptation of that of ICTY and the Rules of the Tribunal being based on those of ICTY (see paragraphs 9 and 18 of the UN Secretary-General’s Report of 13 February 1995 and Article 14 of the Statute which provides that the Judges would adopt the Rules of Evidence and Procedure of ICTY (“ICTY Rules”) with such changes as they deemed necessary).

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA

55.     As a rule, a fair trial requires that a set of procedural rules be established to ensure equality between the parties to the case and guarantee the independence of the Tribunal and the impartiality of the judges. A judge is presumed to be impartial until proven otherwise[1]. This is a subjective test: impartiality relates to the judge’s personal qualities, his intellectual and moral integrity. A judge is bound only by his conscience and the law. That does not mean that he rules on cases subjectively, but rather according to what he deems to be the correct interpretation of the law, ensuring for an unbiased and knowledgeable observer that his objectivity does not give the impression that he his impartial, even though, in fact, he is. Moreover, before taking up his duties, each judge makes a solemn declaration obliging him to perform his duties and exercise his powers as a judge “honourably, faithfully, impartially and conscientiously.”[2] The independence of the Tribunal is measured by an objective test: as a judicial organ with jurisdiction, as established by Security Council resolution 955, it is entirely independent of the organs of the United Nations.

[1] See Furundžija Appeal Judgement, paras. 196 and 197. See also Akayesu Appeal Judgement, para. 90 et seq., Čelebići Appeal Judgement, para. 682 et seq., and para. 698 et seq.

[2] Article 14(A) of the Rules.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA

77.     The Appeals Chamber cannot accept the argument that the phrase “persons responsible for” used in resolution 955 implies that the Tribunal was unable to discharge its judicial functions. The Appeals Chamber recalls that the principle of the presumption of innocence is reiterated in Article 20(3) of the Statute:

“The accused person shall be presumed innocent until proven guilty according to the provisions of the present Statute.”

The Appeals Chamber reiterates with force its holding in Barayagwiza.[1]


107.    […] The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement,[2] supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.

[1] The Prosecutor v. Barayagwiza, Decision (Prosecutor’s Request for Review and Reconsideration), Case No. ICTR-97-19-AR72, 31 March 2000, para. 35.

[2] See also the section of this Judgement on fair trial (III, A, paras. 50-51).

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ICTR Statute Article 20(3) ICTY Statute Article 21(3)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)

2891.            The Appeals Chamber notes that the Trial Chamber’s statement that “Ndayambaje’s testimony must be treated with appropriate caution as he has a personal interest in demonstrating that he was not present at Ngiryi Bridge on the morning of 20 April 1994”[1] followed the Trial Chamber’s assessment of Ndayambaje’s and Witness Tiziano’s evidence placing Ndayambaje at his home around 9.00 a.m.[2] The Trial Chamber did not find this aspect of Ndayambaje’s and Witness Tiziano’s testimonies credible as it was contradicted by Witness RV’s evidence.[3] The Appeals Chamber finds that a reasonable trier of fact could have considered the possibility of Ndayambaje’s incentive to provide exculpatory evidence in the context of all the relevant evidence and that the Trial Chamber’s consideration does not denote a violation of the presumption of innocence.[4]

See also para. 3226.

[1] Trial Judgement, paras. 1203, 1401.

[2] Trial Judgement, para. 1200.

[3] Trial Judgement, para. 1200.

[4] Cf. Musema Appeal Judgement, para. 50 (“It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document. Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.”).

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