51. The Appeals Chamber agrees that the legal sufficiency test in a decision pursuant to Rule 98bis of the Rules – that is, the question of whether a reasonable trier of fact could convict the accused on the Prosecution evidence – is not applicable in an appeal against judgement. Rather, in an appeal against judgement, the test to be applied in determining whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable trier of fact could have reached.[1] Here, however, the issue raised by Hadžihasanović regards the alleged violation of his right to a fair trial resulting from a wrong statement and the application of the legal sufficiency test by the Trial Chamber in its Rule 98bis Decision. Insofar as an infringement on his right to a fair trial is concerned, this issue is therefore not redundant on appeal.

52. Regarding Hadžihasanović’s second and third grounds of appeal concerning the Rule 98bis Decision, which the Prosecution also contends cannot be raised in an appeal against judgement, the Appeals Chamber notes that an appellant is not, as a matter of law, prevented from challenging a finding of the Trial Chamber in a decision pursuant to Rule 98bis of the Rules. The Prosecution’s reliance to the contrary on the Appeals Chamber’s finding in Čelebići is misplaced. In Čelebići, the Appeals Chamber clarified the applicable test on appeal for alleged errors of fact, for which the legal sufficiency test applied in the Rule 98bis Decision is indeed redundant in an appeal against judgement. The allegation at hand, however, is that the Trial Chamber committed an error in its Rule 98bis Decision, which as a consequence violated Hadžihasanović’s rights to a fair trial.

2. It has been the practice in this Tribunal that appeals against decisions of a Trial Chamber denying an accused’s Rule 98bis motion require certification of the Trial Chamber for the Appeals Chamber to be properly seised.[1] Motions to the Trial Chamber to acquit an accused at the end of the Prosecution case are other motions falling within the purview of Rule 73 of the Rules.

3. In this Appeal, however, the Appellant says that the amendment to Rule 98bis removes the requirement of certification.[2] The Appellant grounds this argument on the removal of the word “motion” from Rule 98bis. He says that under the previous Rule the accused would move the Trial Chamber by way of motion to enter a judgement of acquittal. The amended version of the Rule does not require the submission of a motion by a party. Instead it places an obligation on a Trial Chamber, “after hearing the oral submissions of the parties, to enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction”.[3] The Appellant claims that the practical effect of the amendment is that any appeal pursuant to the amended version of Rule 98bis falls within the scope of Rule 108.[4] That Rule states:

 A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgment was pronounced, file a notice of appeal, setting forth the grounds. The Appellant shall also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought. The Appeals Chamber may, on good cause being shown by the motion, authorise a variation of the grounds of appeal.

[…]

5. The amendment to Rule 98bis was not intended to impinge upon the already established practice of the Tribunal that appeals against judgements denying acquittal require certification of a Trial Chamber. The Appellant is correct to point out that under the old Rule 98bis the accused was required to submit a motion to the Trial Chamber to enter a judgement of acquittal and that there is no such requirement under the amended Rule. However, the logical extension of the Appellant’s argument is that every time a Trial Chamber acts (or declines to act) propio motu an accused would have a right to appeal. That is clearly not the case. Under the Rules of the Tribunal the only time a party has a right of interlocutory appeal is under the specific grounds identified in Rule 72 or when another rule specifically so provides. All other interlocutory appeals have to go through the certification procedure set forth by Rule 73.