8. The Appeals Chamber further considers that in rendering a decision on provisional release under the requirements of Rule 65(B), a Trial Chamber is required to provide a reasoned opinion.[1] Thereby, it is obliged “to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2] What exactly constitute the relevant factors to be considered and the weight to be given to them depend upon the particular circumstances of each case.[3] This is due to the fact that “[d]ecisions on motions for provisional release are fact intensive and cases are considered on an individual basis . . . in light of the particular circumstances of the individual accused.”[4] The Trial Chamber is required to assess these circumstances not only as they exist at the time when it reaches its decision on provisional release but also, as much as can be foreseen, at the time the case is due for trial and the accused is expected to return to the International Tribunal.[5]  

34. The Appeals Chamber notes […] that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction.  […]

[…]

39. In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances.  While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”.  In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence.  As stated by the Canadian Court of Appeal in R. v Harper:

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[1]

[…]

See also paras. 33-38, 40.

61. […] The Appeals Chamber finds that there was a need for an evidentiary basis for the Trial Chamber’s conclusions, particularly because these conclusions relate to a highly technical subject: the margin of error of artillery weapons in particular conditions. However, the Trial Chamber adopted a margin of error that was not linked to any evidence it received; this constituted an error on the part of the Trial Chamber. The Trial Chamber also provided no explanation as to the basis for the margin of error it adopted; this amounted to a failure to provide a reasoned opinion, another error. […]

64. The Appeals Chamber recalls that the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at targets that offered a definite military advantage,[1] including the broad spread of individual artillery impact sites and the number of projectiles falling far from identified artillery targets.[2] However, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that the distance between a given impact site and one of the artillery targets identified by the Trial Chamber was the cornerstone and the organising principle of the Trial Chamber’s Impact Analysis.[3] In each of the Four Towns, the Trial Chamber found at least one target which the HV could have believed possessed military advantage.[4] With no exceptions, it concluded that impact sites within 200 metres of such targets were evidence of a lawful attack, and impact sites beyond 200 metres from such targets were evidence of an indiscriminate attack.[5] The Appeals Chamber recalls that it has found that the Trial Chamber failed to provide a reasoned opinion in deriving the 200 Metre Standard,[6] a core component of its Impact Analysis.[7] In view of this legal error, the Appeals Chamber will consider de novo the remaining evidence on the record to determine whether the conclusions of the Impact Analysis are still valid.[8]