II. STANDARD FOR APPELLATE REVIEW

15. In the instant case, the parties do not take issue with the standards applicable to appellate review of allegations of errors of law and of fact. Nevertheless, the Appeals Chamber deems it necessary to recall those standards because the approach taken by Counsel for Rutaganda in the appeal has been, inter alia, to question the entire proceedings and to challenge most of the findings of the Trial Chamber that appeared to be unfavourable to him. The Appeals Chamber points out that, in general, this kind of approach is totally inadmissible. By contrast with the procedure in certain national legal systems, the appeals procedure laid down by Article 24 of the Statute—as well as by Article 25 of the ICTY Statute—is of a corrective nature, and is thus “not an opportunity for the parties to reargue their case.” [19] This system of appeal necessarily affects the nature of arguments that a party may lawfully put forward on appeal and the general burden of proof that such party must discharge for the Appeals Chamber to step in. These standards have been recalled time and again by the Appeals Chambers of the International Tribunal and of the ICTY, and are reiterated under Sub-section A infra.

16. The Appeals Chamber further noted that Rutaganda put forward similar arguments in support of the different grounds of appeal referred to in distinct parts of his Defence Appeal Brief. To avoid repetition, the Appeals Chamber has thus grouped together some of his conclusions that apply to more than one ground of appeal in Sub-section B infra.

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 [20] 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. [21] 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. [22] 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. [23] 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. [24]

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.” [25] 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. [26] 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”. [27] 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. [28] 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. [29]

20. With regard to the burden of proof specifically associated with allegations of errors of law, the Appeals Chamber recalls that in its capacity as the final arbiter of the law of the international Tribunal, it must, in principle, determine whether an error of procedural or substantive law was indeed made, where a party raises an allegation in this connection. [30] Indeed, case law recognizes that the burden of proof on appeal in respect of errors of law is not absolute. [31] In fact, the Appeals Chamber does not cross-check the findings of the Trial Chamber on matters of law merely to determine whether they are reasonable, but indeed to determine whether they are correct. Nevertheless, the party alleging an error of law must, at the very least, identify the alleged error, present arguments in support of his contention, [32] and explain in what way the error invalidates the decision. An alleged legal error that does not have the potential to cause the impugned decision to be reversed or revised is, in principle, not legal [33] and may thus be dismissed as such.

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. [34] 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. [35] 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, [36] 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, [37] and to determine the probative value to ascribe to the evidence presented at trial. [38]

22.Therefore, with regard to errors of fact, the Appeals Chamber applies the standard of the “unreasonableness” of the impugned finding. [39] In other words, “[i]t is only when the evidence relied on by the Trial Chamber could not have been accepted by any reasonable person” [40] or where “the evaluation of the evidence is ‘wholly erroneous’” [41] that the Appeals Chamber can substitute its own finding for that of the Trial Chamber. [42] Hence, the Appeals Chamber will not question factual findings where there was reliable evidence on which the Trial Chamber could reasonably base it findings. [43] It is further admitted that two judges, both acting reasonably, can come to different conclusions, both of which are reasonable. [44] A party that limits itself to alternative conclusions that may have been open to the Trial Chamber has little chance of succeeding in its appeal, [45] unless it establishes that no reasonable tribunal of fact “could have reached the finding of guilt beyond reasonable doubt.” [46]

23. Where a party succeeds in establishing that an error of fact has been committed in the light of the aforementioned standards, the Appeals Chamber must still be satisfied that such error occasioned a miscarriage of justice, in order to overturn or revise the impugned finding. The party alleging a miscarriage of justice must, inter alia, establish that the error was critical to the verdict reached by the Trial Chamber [47] , and that a grossly unfair outcome has resulted from the error, as when an accused person is convicted despite lack of evidence on an essential element of the crime. [48]

24. The Appeals Chamber in Bagilishema held that the same standard of unreasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. [49] 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. [50] 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 when the error is alleged by the Prosecution. 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. [51]

25.The Appeals Chamber notes that a good part of the issues raised in the appeals concern the manner in which the Trial Chamber assessed the evidence. Many arguments of the same nature have, moreover, been raised in support of the different grounds of appeal. To avoid repetition, the Appeals Chamber will set out some of its conclusions below as to the law applicable to more than one ground of appeal.

26.As a preliminary observation, the Appeals Chamber should also point out that under Rule 89 of the Rules, Trial Chambers are not bound by domestic rules of evidence. They apply rules of evidence which, in the spirit of the Statute and of general principles of law, permit a fair outcome of the case. The Appeals Chamber recalls that Rutaganda founded several of his contentions on authorities of national jurisdictions, mostly from judgements rendered by the Supreme Court of Canada. Interpretation of some of the Rules may indeed be guided by the domestic system it is patterned after, but under no circumstances can it be subordinated to it. [52] The Appeals Chamber recalls that, once it has determined the law applicable to a particular issue, it should in principle follow its previous decisions, in the interests of certainty and predictability of the law. [53]

27. Rutaganda raised arguments concerning the corroboration of testimonies before the International Tribunal in his grounds of appeal relating to crimes committed at the Amgar garage, and to the murder of Emmanuel Kayitare.

28. The Appeals Chamber recalls that, as a general rule, a Trial Chamber is primarily responsible for assessing and weighing the evidence presented at trial, and that, in this regard, it is incumbent on the Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible. [54] In this exercise, the Trial Chamber has the inherent discretion to decide what approach is most appropriate for the assessment of evidence in the circumstances of the case. [55]

29.Similarly, the issue as to whether it is necessary to rely on one or several witness testimonies to establish proof of a material fact depends on different factors that have to be assessed in the circumstances of each case. [56] It is possible for one Trial Chamber to prefer that a witness statement be corroborated, but neither the jurisprudence of the International Tribunal nor of the ICTY makes this an obligation. [57] Where testimonies are divergent, it is the duty of the Trial Chamber, which heard the witnesses, to decide which evidence it deems to be more probative, [58] and to choose which of the two divergent versions of the same event it may admit.

30. Rutaganda raised arguments concerning the right to cross-examination in his grounds of appeal pertaining to general errors of law and to crimes committed at the Amgar garage.

31.Under Rule 85(B) of the Rules, each witness may, following his examination-in-chief, be subjected to cross-examination and re-examination. As to the procedure for cross-examination, Rule 90 (F) (sic) stipulates that cross-examination shall be limited to points raised in the examination-in-chief or to matters affecting the credibility of the witness. The Rules provide no other indication as to the scope of cross-examination or the form it should take, and only give general rules on examination and cross-examination of witnesses that are patterned after the U.S Federal Rules of Evidence. [59] With regard to leading questions in particular, the Rules do not contain any specific provision thereon, but, as the Appeals Chamber pointed out in the Akayesu case: [60]

[…] leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief. Still, in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption. Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.

32. Rutaganda raised arguments concerning hearsay evidence in his grounds of appeal pertaining to general errors of law, distribution of weapons and crimes committed at the Amgar garage.

33.The Appeals Chamber emphasizes that the Rules of both this Tribunal and the ICTY generally reflect a preference for direct, live, in-court testimony. Nevertheless, the jurisprudence of both ad hoc Tribunals admits that Rule 89(C) of the Rules grants a Trial Chamber a broad discretion in assessing admissibility of evidence it deems relevant, including indirect evidence. [61] This discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous. It was thus ruled that “a piece of evidence may be so lacking in terms of the indicia of reliability that it is not ‘probative’ and is therefore inadmissible.” [62] The Appeals Chamber is of the opinion that this principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. At the stage of admissibility, the beginning of proof that evidence is reliable, in other words, that sufficient indicia of reliability have been established, is quite admissible. [63]

34. With regard to hearsay evidence, it should be pointed out that this is not inadmissible. The Trial Chamber has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case, in accordance with the provisions of Rule 89 of the Rules. ^[64]

35.The Appeals Chamber observes that in the instant case, as in Akayesu, some of Rutaganda’s grounds of appeal concern the admission of hearsay evidence in the form of live testimony by witnesses on events which they had not witnessed personally. The Appeals Chamber concurs with the analysis made by the Appeals Chamber in the Akayesu Appeal Judgement [65] wherein it was held that when a witness testifies, their evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts, and that the main safeguard applicable to the reliability of the evidence in this case is the preservation of the right to cross-examine the witness on the hearsay evidence which has been called into question. [66] The Appeals Chamber also holds that in these circumstances, although the decision will always depend on the facts of the case, it is unlikely, considering the stage of the proceedings and, in particular, in the absence of any objection, that a Trial Chamber would find that the live testimony of a witness it had just heard, was so lacking in terms of indicia of reliability as to be inadmissible.

[19] Bagilishema Appeal Judgement (Reasons), para. 11. The ICTY Appeals Chamber in the Kupreskic case pointed out unequivocally that “[…] an appeal is not an opportunity for the parties to reargue their case. It does not involve a trial de novo” (Kupreskic Appeal Judgement, para. 22).