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]

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.”

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.