130. Further, the Appeals Chamber recalls that “[w]here a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice to it as to amount to an error of law invalidating the judgement”.[1] Thus, the element of prejudice forms an essential aspect of proof required of an appellant in relation to the appeal alleging a violation of his fair trial rights. […].

9. […] The settled standard of review for appeals against judgements also applies to appeals against convictions for contempt.[1]

10. In reviewing this exercise of discretion, the question is not whether the Appeals Chamber agrees with the Trial Chamber’s conclusion, but rather “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[1]  In order to challenge a discretionary decision, appellants must demonstrate that “the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of the discretion,” or that the Trial Chamber “[gave] weight to extraneous or irrelevant considerations, . . . failed to give weight or sufficient weight to relevant considerations, or . . . made an error as to the facts upon which it has exercised its discretion,” or that the Trial Chamber’s decision was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”[2]  In practice, this array of factors boils down to the following simple algorithm:  a Trial Chamber’s exercise of discretion will be overturned if the challenged decision was (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.  Absent an error of law or a clearly erroneous factual finding, then, the scope of appellate review is quite limited:  even if the Appeals Chamber does not believe that counsel should have been imposed on Milošević, the decision below will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.

Pursuant to Rule 108 of the Rules, the Appeals Chamber summarily dismissed a number of Prosecution arguments on the ground that they exceeded the scope of its Notice of Appeal: (i) that the Trial Chamber erred in applying mens rea for the first category of JCE (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of  17 August 2006); (ii) that the Trial Chamber erred in not taking into account the Appellant’s sadism and zeal as an aggravating factor (para. 319); (iii) that the Trial Chamber erred in According Weight in Mitigation to the Selective Assistance Provided by the Appellant to Members of his Family (paras 325-326); (iv) that the Sentence is Inconsistent with the Tribunal’s Sentencing Practice (para. 238); (v) that the Sentence is Inconsistent with the Rwanda’s Sentencing Practice (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of 17 August 2006).

252. Although this sub-ground of appeal is presented as relating to an alleged error of law, the Appeals Chamber is of the view that it is more accurately characterized as a mixed error of law and fact. Hence, the Appeals Chamber will determine whether the conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached. However, before doing so, the Appeals Chamber will clarify the legal standard employed by the Trial Chamber in the Trial Judgement.

269. At the outset, the Appeals Chamber notes that, although Strugar qualifies the relevant alleged errors of the Trial Chamber as errors of law, it understands him to challenge both the Trial Chamber’s legal and factual conclusions with respect to defining the mens rea requirement of the crimes in question and its application to the conduct of JNA forces in the region of Dubrovnik on 6 December 1991.[1] Hence, the Appeals Chamber will first examine the applicable law and then determine whether the factual conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached.

11. The same standard of reasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. Thus, when considering an appeal by the Prosecution, the Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the impugned finding.[1] However, since the Prosecution must establish the guilt of the accused at trial, the significance of an error of fact occasioning a miscarriage of justice takes on a specific character when alleged by the Prosecution.[2] In this context, the Appeals Chamber has endorsed the following holding by the ICTR Appeals Chamber:

[b]ecause the Prosecution bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution faces a more difficult task. It must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.[3]

16. The Appeals Chamber notes that Halilović does not identify any authority for his assertion that the Prosecution’s right to appeal against acquittals should be exercised only exceptionally, nor does he provide support for his claim that such an appeal would have to reach a higher threshold of “diligence” to be exercised by the appellant in such a case.[4] Similarly, Halilović fails to specify on what ground he bases his assertion that an appeal against acquittal by the Prosecution would have, as a pre-condition, to serve the “purposes for which th[e] [International] Tribunal has been created”,[5] in a manner different from all other appeals against judgements rendered by the International Tribunal. The Appeals Chamber also stresses that it is not its task, as suggested by Halilović, to ascertain whether the Prosecutor has fulfilled her responsibilities in accordance with the Completion Strategy laid out in Security Council Resolution 1503 (2003).[6] The Appeals Chamber further considers that Halilović has failed to point to any element suggesting that the Prosecution abused its discretion in appealing his acquittal. It should also be recalled that the Appeals Chamber has already dismissed Halilović’s request to dismiss the appeal without hearing the parties’ arguments.[7] Thus, Halilović’s request for summary dismissal of the entire appeal is denied.

64.     Where the Appeals Chamber is satisfied that a Trial Chamber has erred, the Appeals Chamber may substitute the exercise of its own discretion for that of the Trial Chamber if it considers it appropriate to do so.  In the ordinary case involving an evidentiary question before a Trial Chamber, the Appeals Chamber may consider sending the matter back to the Trial Chamber with an order that it consider the factors identified as relevant by the Appeals Chamber and exercise its discretion afresh.  In this case, however, the parties are awaiting the Appeals Chamber decision so that they may file their final submissions and close the trial.  Accordingly, the Appeals Chamber has determined that it is more appropriate in this instance for it to substitute its discretion for that of the Trial Chamber.

17. Article 24 of the Statute sets forth the circumstances under which a convicted person and/or the Prosecutor may appeal against the judgement and/or sentence of a Trial Chamber. Under this provision, a party wishing to appeal must specify the error alleged[1] and show that such error falls under the jurisdiction of the Appeals Chamber, it being understood that Article 24 of the Statute limits the jurisdiction of the Appeals Chamber in the following manner:

[…] appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds:

(a) An error on a question of law invalidating the decision; or

(b) An error of fact which has occasioned a miscarriage of justice. […]

18. Accordingly, where a party alleges that an error of law or of fact has been committed, that party must go on to show that the alleged error invalidates the decision or occasions a miscarriage of justice. Discharging this burden of proof is primordial for the appeal to succeed.[2] Indeed, the Appeals Chamber is, in principle, not required to consider the arguments of a party if they do not allege an error of law invalidating the decision, or an error of fact occasioning a miscarriage of justice.[3] It is therefore quite useless for a party to repeat on appeal arguments that did not succeed at trial, unless that party can demonstrate that rejecting them occasioned such error as would warrant the intervention of the Appeals Chamber. Where a party is unable to explain in what way an alleged error invalidates a decision or occasions a miscarriage of justice, it should, as a general rule, refrain from appealing on grounds of such error.[4] Logically, therefore, where the arguments presented by a party do not have the potential to cause the impugned decision to be reversed or revised, the Appeals Chamber may immediately dismiss them as being misconceived, and would not have to consider them on the merits.[5]

19. With regard to requirements as to form, the ICTY Appeals Chamber in the Kunarac case stated that “[O]ne cannot expect the Appeals Chamber to give detailed consideration to submissions of the parties if they are obscure, contradictory, vague, or if they suffer from other formal and obvious insufficiencies.”[6] An appellant must therefore clearly set out his grounds of appeal as well as the arguments in support of each ground; he must also refer the Appeals Chamber to the precise parts of the record on appeal invoked in support of his allegations.[7] From a procedural point of view, the Appeals Chamber has the inherent discretion, pursuant to Article 24 of the Statute, to determine which submissions of the parties merit a “reasoned opinion in writing”.[8] The Appeals Chamber cannot be expected to provide comprehensively reasoned opinions in writing on evidently unfounded submissions. The Appeals Chamber should focus its attention on the essential issues of the appeal.[9] In principle, therefore, the Appeals Chamber will dismiss, without providing detailed reasons, those submissions made by appellants in their briefs or in their replies, or presented orally during the appeal hearing, which are evidently unfounded.[10]

[…]

505. […] [T]he Appeals Chamber, in accordance with the established practice of the Tribunal, cannot substitute its own finding for that of the Trial Chamber.[11] It is settled case-law that an appeal is not a de novo review.[12] Based on this principle, therefore, it does not fall to the Appeals Chamber to conduct a de novo trial of the Appellant […] and/or to determine whether a different assessment of the evidence presented at trial would have sustained a finding guilt. According to the standards applicable on appeal, the Appeals Chamber must enter a judgement of acquittal “if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it.” [13] Considering the Judgement in the instant case, such a standard requires the Appeals Chamber to assess the evidence presented at trial as an indivisible whole.

21. With regard to errors of fact, the party alleging this type of error in support of an appeal against conviction must show the error that was committed and the miscarriage of justice resulting therefrom.[1] It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber.[2] Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying,[3] and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility,[4] and to determine the probative value to ascribe to the evidence presented at trial.[5]

[…]

367. […] In the absence of any showing by the Appellant that no reasonable trier of fact could have discounted [the] evidence, the Appeals Chamber must a priori give a margin of deference to the Trial Chamber’s assessment of the evidence presented at trial and to its factual findings, as the Trial Chamber is best placed to hear the witnesses and assess the probative value of their evidence.[6] […]

[…]

512. The Appeals Chamber recalls that with regard to errors of fact, the appealing party must show both the error that was committed and the miscarriage of justice resulting there from.[7] It is therefore futile on appeal to repeat arguments that failed at trial, unless it can be demonstrated that the dismissal of such arguments actually resulted in an error. With respect to miscarriage of justice, the Appeals Chamber has already specified that the Appellant must show that it was critical to the verdict reached by the Trial Chamber[8] or that the assessment of the evidence was totally erroneous,[9] and that, therefore, flagrant injustice resulted there from.

See also paras. 362, 386.

64. The two parties agree that the standard to be used when determining whether the Trial Chamber’s factual finding should stand is that of unreasonableness, that is, a conclusion which no reasonable person could have reached.  The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.

264. The Trial Chamber considered that “for an accused to be convicted of ‘committing’ pursuant to a theory of [joint criminal enterprise], it must be established that he or she participated in the execution of the common plan or purpose of the enterprise”.[1] The Trial Chamber reasoned that, while Kanyarukiga participated in the planning of the destruction of the Nyange church, there was no evidence to suggest that he ordered, instigated, encouraged, or provided material assistance to the attackers.[2] Accordingly, it concluded that the evidence was insufficient to establish that Kanyarukiga “significantly contributed to the execution or commission of the crimes charged.”[3]

267. The Appeals Chamber notes that the Prosecution does not seek the invalidation of the Trial Judgement, but merely requests clarification on an issue of general importance to the development of the Tribunal’s case law.[4] The Appeals Chamber recalls that the Statute empowers it to hear appeals concerning an alleged error on a question of law “invalidating the decision”.[5] While, in exceptional circumstances, the Appeals Chamber has discretion to hear appeals where a party has raised a legal issue that would not invalidate the judgement,[6] it declines to do so in this case.[7]

12. The Appeals Chamber recalls the applicable standards of appellate review pursuant to Article 24 of the Statute of the Tribunal (“Statute”). The Appeals Chamber reviews errors of law which invalidate the decision of the Trial Chamber and errors of fact which have occasioned a miscarriage of justice. This standard of review, applicable for appeals against judgements, also applies to appeals against convictions for contempt.[1]

177.    As stated by ICTY Appeals Chamber, an appeal is not, from the point of view of the Statute, a de novo review.[1] The Appeals Chamber may hear only appeals brought pursuant to Article 24 of the Statute. The standards applied by the Appeals Chamber to pass on both errors of fact and of law are derived from consistent ICTY Appeals Chamber case-law. The Appeals Chamber reiterates and upholds those standards in the instant Judgment.

179.    Where errors of law are concerned, the Appeals Chamber holds that the burden placed on the Appellant is somewhat different, although the Appellant must, similarly, prove the errors of law committed by the Trial Chamber and set forth arguments in support of his allegations:

A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point. The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.[1]

63. Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial.  Whether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.[1]  In a similar vein, it is for a Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.  The Appeals Chamber, therefore, has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.  The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal[2] or where the evaluation of the evidence is wholly erroneous.

9. When considering an alleged error of fact with respect to a particular ground where no additional evidence has been admitted on appeal, the Appeals Chamber will apply a standard of reasonableness in reviewing the finding.[1] […] In determining whether or not a Trial Chamber’s finding was reasonable, the Appeals Chamber does not lightly disturb findings of fact made by a Trial Chamber.[2] The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in the Kupreškić et al. case, wherein it was stated that […].

The Appeals Chamber considered that the existing standards on appeal necessitated a “further examination”.[1] It first noted the standard of review when additional evidence has been admitted on appeal set out by the Appeals Chamber in Kupreškić:

The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.[2]

The Appeals Chamber then considered that:

23. However, if in a given case, the outcome were that a reasonable trier of fact could reach a conclusion of guilt beyond reasonable doubt, the Appeals Chamber considers that, when the Appeals Chamber is itself seized of the task of evaluating trial evidence and additional evidence together, and in some instances in light of a newly articulated legal standard, it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal. […]

The Appeals Chamber then summarised the “standard of review to be applied on appeal by the International Tribunal in relation to findings challenged only by the Defence, in the absence of a Prosecution appeal”:

24. (a) The Appeals Chamber is confronted with an alleged error of fact, but the Appeals Chamber has found no error in the legal standard applied in relation to the factual finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will determine whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If a reasonable trier of fact could have reached such a conclusion, then the Appeals Chamber will affirm the finding of guilt.

(b) The Appeals Chamber is confronted with an error in the legal standard applied in relation to a factual finding, and an error of fact has been alleged in relation to that finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt.

(c) The Appeals Chamber is confronted with an alleged error of fact, and – contrary to the scenario described in (a) – additional evidence has been admitted on appeal. There is no error in the legal standard applied in relation to the factual finding. There are two steps involved.

The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.

If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.

(d) The Appeals Chamber is confronted with an error in the legal standard applied in relation to the factual finding and an alleged error of fact, and – contrary to the scenario described in (b) –  additional evidence has been admitted on appeal. There are two steps involved.

(i) The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt, on the basis of the trial record. If it is not convinced, then no further examination of the matter is necessary as a matter of law.

(ii) If, however, the Appeals Chamber, applying the correct legal standard to the evidence contained in the trial record, is itself convinced beyond reasonable doubt as to the finding of guilt, it will then proceed to determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself still convinced beyond reasonable doubt as to the finding of guilt.

See also the Partial Dissenting Opinion of Judge Weinberg de Roca.

9.       Orić contends that the Single Judge committed errors of law and fact when deciding that his prosecution in Bosnia and Herzegovina does not violate the non bis in idem principle.^[…] The Appeals Chamber considers that, to succeed on appeal, Orić would have to demonstrate that the Single Judge committed a discernible error in his decision because this was based on an incorrect interpretation of the governing law, a patently incorrect conclusion of fact, or because it was so unfair or unreasonable as to constitute an abuse of discretion.[1]

433. Delić has filed two grounds of appeal in relation to each of the convictions which he has challenged.  The first is that the evidence was not what was described as legally sufficient to sustain the convictions; the second is that the evidence was not what was described as factually sufficient to sustain the convictions. 

434. The issue as to whether there is a legal basis to sustain a conviction usually arises at the close of the Prosecution case at trial, a situation now covered by Rule 98bis(B),[1] following the earlier practice of seeking a judgement of acquittal upon the basis that, in relation to one or more charges, there is no case to answer.  The test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.[2]  In the present case, the Trial Chamber ruled that there was a case to answer,[3] and there was no appeal from that decision.  The test to be applied in relation to the issue as to whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.[4] 

435. If an appellant is not able to establish that the Trial Chamber’s conclusion of guilt beyond reasonable doubt was one which no reasonable tribunal of fact could have reached, it follows that there must have been evidence upon which such a tribunal could have been satisfied beyond reasonable doubt of that guilt.  Under those circumstances, the latter test of legal sufficiency is therefore redundant, and the appeal must be dismissed.  Similarly, if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it, the appeal against conviction must be allowed and a judgement of acquittal entered.  In such a situation it is unnecessary for an appellate court to determine whether there was evidence (if accepted) upon which such a tribunal could have reached such a conclusion. 

[RULE 98BIS WAS AMENDED ON 8 DECEMBER 2004.]

17. […] [T]he Appeals Chamber recalls that it has identified the types of deficient submissions on appeal which are bound to be summarily dismissed.[1] In particular, the Appeals Chamber will dismiss without detailed analysis (i) arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings; (ii) mere assertions that the Trial Chamber must have failed to consider relevant evidence, without showing that no reasonable trier of fact, based on the evidence could have reached the same conclusion as the Trial Chamber did; (iii) challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding; (iv) arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence, without explaining why the conviction should not stand on the basis of the remaining evidence; (v) arguments contrary to common sense; (vi) challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the appealing party; (vii) mere repetition of arguments that were unsuccessful at trial without any demonstration that their rejection by the Trial Chamber constituted an error warranting the intervention of the Appeals Chamber; (viii) allegations based on material not on record; (ix) mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error; and (x) mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner.[2]

6. The Appeals Chamber recalls that the Mechanism was established pursuant to United Nations Security Council Resolution 1966 (2010) and continues the material, territorial, temporal, and personal jurisdiction of the ICTR.[1] The Statute and the Rules of the Mechanism reflect normative continuity with the Statutes and Rules of the ICTR and ICTY.[2] The Appeals Chamber considers that it is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ICTR and ICTY.[3] Likewise, where the respective Rules or Statutes of the ICTR or ICTY are at issue, the Appeals Chamber is bound to consider the relevant precedent of these tribunals when interpreting them.[4]

37. As to an allegation that there was an error of fact, this Chamber agrees with the following principle set forth by the Appeals Chamber for the International Criminal Tribunal for Rwanda (“the ICTR”)[1] in Serushago:

Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstance is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice.[2]

Similarly, under Article 25(1)(b) of the ICTY Statute, it is not any and every error of fact which will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but one which has led to a miscarriage of justice.  A miscarriage of justice is defined in Black’s Law Dictionary as “a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.”[3]  This Chamber adopts the following approach taken by the Appeals Chamber in the Tadić case[4] in dealing with challenges to factual findings by Trial Chambers:

[t]he task of hearing, assessing and weighing the evidence presented at trial is left to the judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.[5]

The position taken by this Chamber in the Tadić Appeals Judgement has been reaffirmed in the Aleksovski Appeals Judgement.[6]  The reason the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known; the Trial Chamber has the advantage of observing witness testimony first-hand, and is, therefore, better positioned than this Chamber to assess the reliability and credibility of the evidence.

35. Errors of law do not raise a question as to the standard of review as directly as errors of fact.  Where a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake.  A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point.  The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.

36. Furthermore, this Chamber is only empowered to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) when there is an error of law that invalidates that decision. It is not any error of law that leads to a reversal or revision of the Trial Chamber’s decision; rather, the appealing party alleging an error of law must also demonstrate that the error renders the decision invalid.

13. The duty Judge’s decision as to whether to deal with an application out of normal Registry hours is a discretionary one once the Judge is satisfied as to its urgency.[1] […] [T]he finding of fact as to whether the matter is or is not urgent is, however, the same as any other finding of fact. The finding by the duty Judge that there was no urgency in the Appellant’s application cannot be reversed on appeal unless it is one which no reasonable tribunal of fact could have reached.[2] This is so whether the finding related to the application being dealt with out of, or during, normal Registry hours.

13. The ICTR Appeals Chamber in Rutaganda and Bagilishema held that the same standard of reasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. The Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the impugned finding.[1] Under Article 25(1)(b) of the Statute, the Prosecution, like the accused, must demonstrate “an error of fact that occasioned a miscarriage of justice”. For the error to be one that occasioned a miscarriage of justice, it must have been “critical to the verdict reached”.[2] Considering that it is the Prosecution that bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.[3]

44. […] The appeal process is not designed for the purpose of allowing parties to remedy their own failings or oversights at the trial.

The Appeals Chamber has reiterated the standard of review applicable to interlocutory appeals against discretionary decisions of a Trial Chamber:

11. The Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision.[1] Since decisions on matters relating to the calling of witnesses and assignment of counsel at trial fall squarely within the discretion of the Trial Chamber,[2] the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The party challenging a discretionary decision by the Trial Chamber must demonstrate that the Trial Chamber has committed a “discernible error”.[4] The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion”.[5]

[I]n matters of provisional release as in all other matters, where the Appeals Chamber finds an error in a Trial Chamber decision, and where it is sufficiently  apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision for that of the Trial Chamber;

9. […] Where the convicted person is appealing, the Appeals Chamber will reverse only if it finds that no reasonable trier of fact could have made the particular finding of fact beyond reasonable doubt and the conviction relied on this finding. […]

The Appeals Chamber summarily dismissed a number of grounds on the following basis:

14. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing.[1] […] A party may not merely repeat on appeal arguments that did not succeed at trial. […] Additionally, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.[2]

The Appeals Chamber will dismiss the following categories of errors, as outlined in paras. 16-21:

• challenges to factual findings on which a conviction does not rely;
• arguments that fail to identify the challenged factual findings, that misrepresent the factual findings, or that ignore other relevant factual findings;
• mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner;
• mere assertions unsupported by any evidence; and
• arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence.

115.    […] [I]t is the duty of the trial Judges to hear, assess and weigh the evidence adduced by the parties at the hearing.[1] The Trial Chamber thus determines if a witness is credible and if the evidence presented is reliable.[2]

[…]

129.    The Appeals Chamber affirms once again that it is incumbent on the Trial Chamber to assess the credibility of a witness as well as the reliability of the evidence given by the parties.  Therefore, the Appeals Chamber cannot and must not set aside the Trial Judge’s findings except when a reasonable court would not have relied on the evidence for its decision or when the assessment of the evidence is completely erroneous.  The Appeals Chamber stresses that it is the duty of the Trial Chamber to determine the probative value of each exhibit or witness testimony, based on their relevance and credibility.

[…]

187.    […] As held by the Appeals Chamber in the Tadić Appeal Judgement,[3] the Aleksovski Appeal Judgement[4] and the Čelebići Appeal Judgement,[5] the Trial Chamber is best placed to hear, assess and weigh the evidence, including witness testimonies presented at trial. Whether a Trial Chamber will rely upon a single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in light of the circumstances of each case. The Appeals Chamber therefore has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.

[…]

222.    As regards the impugned demeanour of certain witnesses which should have “reasonably” caused the Trial Chamber to disqualify them, the Appeals Chamber is of the view that the trial judges are in the most appropriate position to assess the credibility of a testimony and the demeanor of a witness at a hearing. […]

[…]

230.    Moreover, it is for the trier of fact to assess the probative value of a testimony, such discretionary power also covering the manner in which the Trial Chamber decides to deal with apparent contradictions. […]

[…]

319.    […] [I]t is neither possible nor proper to draw up an exhaustive list of criteria for the assessment of evidence, given the specific circumstances of each case and the duty of the judge to rule on each case in an impartial and independent manner.[6] The Appeals Chamber concurs with the argument of the Trial Chamber that it is “for the Trial Chamber to decide upon the reliability of the witness’ testimony in light of its presentation in court and after its subjection to cross-examination.”[7]

[…]

325.    […] The Appeals Chamber affirms that in a case where there are two conflicting testimonies, it falls to the Trial Chamber, before which the witnesses testified, to decide which of the testimonies has more weight.

23. The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge’s ruling may have resulted in injustice to the appellants.”[1]

[…]

27. The Appeals Chamber does not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. The discretion to continue the trial with a substitute judge is a discretion; the Appeals Chamber can only interfere with the way in which the discretion has been exercised if it has been incorrectly exercised in the circumstances mentioned above.  The stage reached in each case need not always be the same. […]

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

Fn. 38. The Appeals Chamber also dismisses Niyitegeka’s further request that it provide guidance as to the appropriate procedures for generally challenging decisions related to confidential material not issued under Rule 86 of the Rules and rendered after the close of an applicant’s trial and appeal proceedings in addition to what has already been stated in this decision. Article 23 of the Statute of the Mechanism (“Statute”) provides that the Appeals Chamber may affirm, reverse or revise the decisions taken by a Single Judge or Trial Chamber. However, the Appeals Chamber does not have advisory power and Niyitegeka’s submission fails to demonstrate that this is an issue of general importance whose adjudication would contribute substantially to the Mechanism’s jurisprudence. See, e.g., Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p.3; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2011, para. 23.