Powers of the Prosecutor in the Appeal Proceedings

Institute of Law Studies, Polish Academy of Sciences, Warsaw, Poland



The right to appeal in international criminal proceedings has developed steadily. Although in the beginning the judgments issued by international military tribunals were final, the ICTY and ICTR provided for the right to appeal. The fundamental feature for the model of accusation adopted by these tribunals became the prosecutor’s right to appeal on equal terms with the accused. But even the acceptance of the existence of the prosecutor’s right to appeal does not end the discussion on the scope of his powers in the appeal proceedings. There is the crucial question of whether the prosecutor should act as a guardian of law and lodge an appeal in favour of the accused. Equally important is the establishment of whether the prosecutor should be granted the right to appeal acquittals. For the model of accusation, it is also decisive to outline the grounds for prosecutorial appeal, as well as to define the extent to which the prosecutor is allowed to use evidence in proceedings before the appellate court. All these issues could be resolved in one of the two ways: either as adopted in common law states or in a manner known from continental states.

8.1 The Right to Appeal Before International Criminal Tribunals

At the initial stage of the functioning of the international administration of justice, the mere possibility of performing an instance review over the judgments issued by international criminal tribunals gave rise to serious doubts. Judgments of the IMTs in Nuremberg and Tokyo were final. Article 27 of the IMT in Nuremberg Charter provided that “the Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just”. The only opportunity to influence the character and dimension of the sanction was provided in Article 29 of the Charter, which stated that “in case of guilt, sentences shall be carried out in accordance with the orders of the Control Council for Germany, which may at any time reduce or otherwise alter the sentences, but may not increase the severity thereof”.

Currently, there is no doubt that the proceedings before international criminal tribunals have to be two-instance proceedings.1 In the time that passed between the establishment of the IMT Charters and the Statutes of the ad hoc tribunals, numerous legal acts protecting human rights were enacted, which recognise the right to an appeal as a fundamental component of due process in criminal proceedings. Both Article 14(5) of the International Covenant on Civil and Political Rights and Article 2(1) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms provide that “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal”. The ICTY was the first international criminal tribunal that provided for the right to appeal. It was also the first time when a two-instance appeal structure was introduced with the establishment of the Appeals Chamber. Thanks to this solution, it was possible to sustain the principle of devolution of the appellate measures. When analysing the necessity to secure the right to appeal against a judgement of the Tribunals, the ICTY indicated that a right to appeal is imposed not only by the Statute but also by customary law: “The right to a fair trial requires and ensures the correction of errors made at trial”.2

During the development of the proceedings before the ICC, it was not initially obvious that the proceedings were intended to be two instance. The opposition against the introduction of the right of appeal resulted not only from the conviction that this Court should follow the assumptions of the Anglo-Saxon tradition but also from the view that “judgments rendered by the highest criminal Court should not be subject to appeal”.3 Ultimately, however, it was decided that judgments issued by the ICC’s Trial Chamber may be subjected to instance review. Article 81 of the Rome Statute provides that the parties are entitled to “an appeal against decision of acquittal or conviction or against sentence”. It seems to have been a good decision that in the Polish version of the Statute this measure is not referred to as apelacja (an “appeal”) but rather as odwołanie (“referral”), which differentiates it from the classically understood continental concept of the “appeal”.

8.2 Power of the Prosecutor to Appeal

The introduction of the two-instance system does not mean, however, that the prosecutor is also entitled to appeal. The international human rights acts clearly give the right to appeal only to the defendant. None of them orders the states to allow the state authority to appeal against a court’s judgment. Indeed, it is not a right in the narrow sense but rather a prerogative of a state authority that must be rooted in adequately drafted law.

The prosecutor’s power to appeal against the judgments adjudicating guilt and sentences depends on the development of the internal national proceedings, as well as on the assumptions as to the tasks of the public prosecutor’s office. The states following the continental law tradition usually opt for equal rights to appeal for the parties of the proceedings (e.g., Article 444 CCP, § 312 StPO). The prosecutor, as a guardian of the law, is obliged to challenge the judgments of first instance courts if there is a basis for appeal. The continental tradition sees the process continuing until the time appeal is recognised or the time limit for lodging an appeal has expired. In turn, the Anglo-Saxon systems provide solely for limited powers of the prosecutor to appeal. First, there is still a conviction in the legal science of these states that the ne bis in idem principle should apply from the moment a court of first instance issues its judgment. Second, there is the frequently asked question of whether the powers to challenge a state authority’s judgment by another state authority do not violate human rights. And third, in a situation when there is a jury that decides on the guilt, it is rather difficult to subject their decision to instance review. This power is also limited by the prosecutor’s inability to lodge an appeal—or to undertake any other action—in favour of the accused. Such a limitation leads, in consequence, to a situation in which the prosecutor may only appeal against acquittals—in relation to the adjudication of guilt—or sentences that are too lenient.4

Faced with the major differences between the legal systems, international criminal tribunals had to choose a specific solution. Proceedings before the ad hoc tribunals had mainly features of the common law system. But already during the functioning of these tribunals, similar to the case of other legal institutions, it turned out that it was necessary to make use of certain solutions from the continental appeal proceedings, which, according to the judges of the ad hoc tribunals, was to ensure efficiency and reliability of the proceedings; for example, it was necessary to accept the possibility of bringing new evidence to the appeal proceedings or amending a judgment by the appellate court (rather than only accept the powers to reverse a judgment back to the first instance). But the fundamental feature of this model of accusation, implemented from the early days of the ad hoc tribunals, is the prosecutor’s right to appeal on equal terms with the accused.

Article 25 of the ICTY Statute empowers both the accused and the Prosecutor to appeal against the decision of the Trial Chamber: “The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor”. The grounds for an appeal are the same for both parties. The model of appeal adopted by the ICTY allows the Prosecutor to act in order to correct errors of justice by way of an appeal acknowledging in this way that such errors may take place not only to the detriment of the accused.5

During the works on the Rome Statute, negotiations were initiated on the scope of powers of the Prosecutor in the appeal proceedings. There was a clash of two opposite views: whereas a group of lawyers coming from continental states were forcing the idea of equal rights for both parties to the trial, the lawyers hailing from common law states were defending the argument that the Prosecutor should have a power to appeal against the judgment of the Trial Chamber solely on grounds of errors of law.6 In the end, the system argument turned out to be decisive: the ad hoc tribunals had already established a precedent of ensuring equal powers to both parties in the proceedings.7 Currently, both the accused and the Prosecutor have equal rights to appeal in proceedings before the ICC. On the ground of Article 81(1), the Prosecutor may appeal against a decision of acquittal or conviction, and on the ground of Article 81(2)(a), against a sentence.

But even the acceptance of the existence of the ICC Prosecutor’s right to appeal does not end the discussion on the scope of his powers in the appeal proceedings. There is also the crucial question of whether the Prosecutor should act as a guardian of law and lodge an appeal in favour of the accused. Equally important from the practical point of view is the establishment of whether the Prosecutor should be granted the right to appeal acquittals. For the model of accusation, it is also decisive to outline the grounds for prosecutorial appeal against a first instance court’s decision, as well as to define the extent to which the prosecutor is allowed to use evidence to achieve this goal in proceedings before the appeal court. The actual scope of examination of a case depends not only on the manner in which the prosecutor has drafted charges but also on the extent the appeal court may go beyond the scope of appeal. All these issues could be resolved in one of the two ways: either as adopted in common law states or in a manner known from continental states. Ultimately, the appeal proceedings before the ICC came to be the second stage of proceedings (next to the Prosecutor’s power, or rather lack thereof, of consensual termination of the proceedings) in which the continental model of accusation prevailed.

8.2.1 Appeal in Favour of the Accused

In the discussion on the development of the model of accusation before international criminal tribunals, the basic issue at dispute pertaining to the powers of the prosecutor was whether he should be allowed to act in favour of the accused, or in other words, used in the continental nomenclature, what “the direction of the appeal” should be (in favour of the accused or to the detriment of the accused).

As a rule, a party may appeal against a decision only to the extent that the latter violates its rights or harms its interests. A court will accept the appeal if it finds that there is a gravemen, i.e., that a party has legal interest in appealing against a verdict. Continental systems adhere to the rule that the public prosecutor is the only party that may appeal the decision in any direction, as he is also entitled to file appellate measures in favour of the accused (Article 425 § 4 CCP, § 296 II StPO).8 The prosecutor may use this power in a situation where he considers it necessary to bring an appeal to “defend law”, which appeal is, as a rule, considered to benefit the accused, or when the interests of the accused have not been properly represented, e.g., the lack of proper representation did not guarantee the accused a fair trial. This solution is characteristic of the systems in which the prosecutor is considered to be the guardian of the law. But it is quite obvious that in common law states the principle of strict adversality of trial seen as a contest of two opposite parties prevents the application of this type of solution.

There is no precedent in international criminal law concerning the prosecutor appealing on behalf of the accused. In the case of proceedings before the ICTY, there was no legal basis to adopt the powers of the ICTY Prosecutor to act in favour of the accused in the appeal proceedings. Although formally the regulations do not forbid the Prosecutor to lodge an appeal on behalf of the accused, he has not been unequivocally designated as an authority searching for material truth, neither in the regulations nor in the case law. Even the legal science does not offer views supporting the existence of the Prosecutor’s competence to act in favour of the accused by lodging an appeal against the Trial Chamber’s judgments. Neither the Prosecutor has yet used his (supposed) power to lodge an appeal in favour of the accused.

It was only in proceedings before the ICC that it was confirmed that the ICC Prosecutor should be granted such a right. This right stems directly from the content of the provision in Article 81(1)(b) of the Statute, which states that the Prosecutor is also entitled to appeal on behalf of the convicted person: “The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds (…)”. As a result, if the convicted person fails to appeal on his own behalf, the Prosecutor may, based on the same grounds, request the amendment of the judgment in favour of the convicted person. Thus, the Prosecutor may appeal not only against judgments that are too lenient but also against those that are too severe. The Rules of Procedure and Evidence provide also that if the Prosecutor has filed an appeal on behalf of a convicted person before filing any notice of discontinuance, he may discontinue the appeal only if the convicted person agrees. Thus, he should give him the opportunity to step into the position of the appealing party and to continue the appeal proceedings (Rule 152(2)).

This power arose from the general provisions pertaining to the tasks of the ICC Prosecutor. The fact that he had been entrusted with the task of searching for material truth turned out to be of major importance for the Prosecutor’s role in the appeal proceedings. This assumption meant that consistently at all stages of the proceedings, the Prosecutor should be able not only to act as an accusatory authority but also to undertake actions that benefit the accused. At the stage of the appeal proceedings, this could only be achieved through granting the Prosecutor the power to file an appeal on behalf of the accused. Such regulation of the direction of filing an appeal neutralises the Prosecutor’s role as an accusatory authority and, again, emphasises his task as a seeker and defender of the material truth.9 It is one of the provisions of the Rome Statute that order the Prosecutor to act in the broadly understood “interests of justice”. The ICC Prosecutor’s power to lodge an appeal in favour of the accused represents one of the instances in which the authors of the Rome Statute departed from the Anglo-Saxon trial model that affected many other provisions of the Statute pertaining to the role of the Prosecutor and adopted a solution based on the continental model of accusation.

8.2.2 Appeal from an Acquittal

Another crucial element of the model of accusation in the appeal proceedings is the Prosecutor’s right to appeal against an acquittal. It was a problem most debated when the international criminal tribunals were established.10

Common law states reject this possibility as contrary to the principle of res iudicata and violating international human rights standards.11 It is worth remembering, however, that the differentiation between acquittals and convictions is a direct consequence of the existence of the two decisions finalising proceedings: foremost, the court (jury) delivers a convicting verdict, and only when the accused has been found guilty may the court adjudicate on the sentence; this model of adjudication arises from the assumption that the sentence may not be determined before the accused is found guilty of the acts charged against him. In the first model, submission and evidence on sentencing may be considered at one (or more) distinct (from hearings on guilt) hearing, to be held only after a verdict of guilt is pronounced (bifurcated trial). The other approach, characteristic of continental tradition, allows for hearing evidence and submissions together, without issuing two separate decisions on the guilt and on the sentence (single trial).12

In the United States, the concept of granting a sort of “automatic” right to challenge acquittals is, for a majority of lawyers, an “uncivilized” and “disturbing”13 concept. The prosecutor’s filing of an appeal against an acquittal verdict has been considered to be an infringement of the double jeopardy clause of The Fifth Amendment to the US Constitution. It aims to prevent the state from repeatedly subjecting a person to prosecution for offences arising out of the same behaviour. In most states, the first instance rulings can sometimes be appealed by the prosecution—but only those besides those deciding the issue of guilt: “in a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence (…). An appeal by the United States shall lie to a court of appeals from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release”.14

The Supreme Court of the United States made an explicit statement on this subject: “appeals by the Government in criminal cases are something unusual, exceptional, not favoured. The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by the Congress, and after that a close restriction of its uses to those authorized by the statute”.15 Much more significant are interlocutory appeals, which, when filed at the right moment of the trial, may have similar effects as the appeal. This power may be exemplified by the prosecutor’s right to lodge an interlocutory appeal of a district court’s decision to suppress or exclude evidence from trial (which is usually a result of the defence challenging the legality of its acquisition), but this always takes place during the first instance proceedings. The prosecutor must restrict himself to this type of response and use it reasonably because if the evidence he presented to support the accusation is considered unacceptable, he may not appeal from the acquittal verdict.

Also in England, the prosecutor, as a rule, has no right to file an appeal against an acquittal (the doctrine known as autrefois acquit which prevents the defendant from being re-tried for the same offence). The English system provides, however, for some exceptions to this rule, the most prominent of which has been implemented quite recently.

First, pursuant to the Criminal Justice Act 2003, the prosecution is to have the rights of appeal in relation to a trial on indictment to the Court of Appeal; however, such an appeal may be brought only with the leave of the judge or the Court of Appeal.16 This Act allows the prosecutor to file an appeal against acquittals in the most serious cases, which are defined as cases punishable with imprisonment for life and whose consequences for the victims and the society as a whole are particularly serious. This right can be exercised in a situation when new evidence has appeared that makes it “highly likely” that the accused committed an offence. It also follows from the Act that the complaint is considered the most prominent appellate measure in the English system. Under the Criminal Justice Act 2003, the prosecution may also appeal in respect of a “qualifying evidentiary ruling”, that is, an evidentiary ruling of a judge that is made before the opening of the case for the defence. The relevant condition is that the ruling significantly weakens the prosecution’s case. This may be regarded as a way for the prosecutor to affect the judgment of the court before it has been issued.17

The second unique structure is the appeal against the judgment issued in the summary trial procedure when the case is heard by lay magistrates before a magistrates’ court, where the prosecutor may question the proceedings before the High Court on the ground that it is wrong in law or is in excess of jurisdiction. According to Magistrates’ Courts Act 1980, the prosecutor can apply for the opinion of the High Court on the question of law or jurisdiction involved, also in the case of acquittal (the Act mentions the right of “any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court”).18 This procedure has not, however, been considered an “appeal”, but rather a review of the expertise of persons who are not specialists, using certain specific grounds. This procedure is normally used where the magistrates made an error of substantive law or acted in excess of jurisdiction. The prosecution is then responsible for pointing to a wrong ruling on a point of law “before it spreads dangerously around the lower courts”.19

There are also two procedural institutions that aim at challenging the decision of the first instance court, which allow the prosecutor to exert his impact where a person tried on indictment has been acquitted. These powers, however, do not constitute “an appeal” in the strict sense. The first of these is the power granted in 1972 to the Attorney General who, if he desires the opinion of the Court of Appeal on a point of law that has arisen in the case before the Crown Court, may refer that point to the court.20 Regardless of the opinion expressed by the Court of Appeal, even if it decides that the first instance court was wrong to find the accused not guilty, the acquittal may not be challenged. Following the judgment of the Court of Appeal, which can “consider the point and give their opinion on it”, confirming that the law has been infringed, the Attorney General may only obtain the Court’s opinion to which he may refer in other cases.21 Second, in 1988 the prosecution was granted the power to file an appeal against the sentencing ruling issued by the Crown Court. This power is also extraordinary because only the Attorney General may refer the case for them to review the sentencing if he considers “that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient”.22 He may use this competence only with the leave of the Court of Appeal. On such a reference, the Court of Appeal may quash any sentence passed on him in the proceeding and in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him. Implementation of this power was related to the assumption that the court may infringe the rules regulating the severity of sentence not only to the convict’s detriment. However, the Court of Appeal stressed that it will not intervene unless there was some error of principle in the Crown Court sentence, so that public confidence would be damaged if the sentence were not altered. Moreover, even where the sentence is increased, in most cases it will be mitigated because of the fact that the “offender has had to face the prospect of being sentenced twice over”.23

In continental systems, the prosecutor’s appealing powers are not limited. The judgment at trial is not considered to constitute the end of criminal proceedings, and the appeal only leads to another stage of criminal proceedings. According to “hierarchical system of judicial organisation, associated with the continental tradition, a regular and comprehensive system of appeals is regarded as an essential guarantee of fair and orderly administration of justice”.24 At the same time within the “coordinated”, Anglo-Saxon, model of judicial organisation, the adjudicator at first instance is primarily responsible for decision-making, and appellate review is in the nature of an extraordinary and independent proceeding.

Although the international criminal tribunals seem to incline towards the second approach (as the ICTY Appeals Chamber stressed on several occasions that it does not lightly disturb findings of fact made by a Trial Chamber, as “the task of hearing, assessing and weighting the evidence is left primarily to the Trial Chamber”), it was obvious that the prosecutor may file appeals against both convictions and acquittals.25

The wording of Article 25 of the ICTY Statute provides clear grounds for assuming that both parties to the proceedings are given equal rights to appeal: the accused may appeal against the conviction, whereas the Prosecutor may do so both against the acquittal and the conviction.26 Both parties may also appeal the sentence. The granting of equal appeal rights to the parties to proceedings gives rise to the assumption that if the accused may appeal against a sentence that is unfavourable for him, it should be accepted that the Prosecutor may proceed similarly. His powers to appeal are not dependent on the content of a ruling. As in the continental tradition, it has been understood that the accused is not the only party that may be harmed by a court’s mistake. The Rules of Procedure and Evidence also provide a basis for this power. They mention that it is possible to deliver the judgment resulting from the appeal from the prosecution where the accused is not present because of having been acquitted on all charges. In such a situation, the Appeals Chamber may deliver its judgment in the absence of the accused and shall, unless it pronounces an acquittal, order the arrest or surrender of the accused to the Tribunal (Rule 118(B)).

In proceedings before the ICC, appeals against convictions and acquittals are filed pursuant to identical rules. The Rome Statute provides that, first, “a decision under article 74 may be appealed” (Article 81(1)) and, second “a sentence may be appealed” (Article 81(2)(a)). Decisions under Article 74 are treated as one group: it may be both decision of acquittal or conviction. Therefore, the rules pertaining to appealing judgments by both the accused and the Prosecutor apply to both of them. This principle is also confirmed by the Rules of Procedure and Evidence, providing that an appeal can be filed against a decision of conviction or acquittal under article 74 (Rule 150(1)). The Rome Statute also directly mentions the possibility of filing an appeal against an acquittal by the Prosecutor in Article 81(3)(c)(i), which provides that “in case of an acquittal, the accused shall be released immediately”; however, “under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal”. This provision clearly indicates that not only does the Prosecutor enjoy such a power but also that this power may be applied to maintain temporary detention of the accused. As a matter of fact, on 20 December 2012, the Prosecutor filed the Notice of Appeal against the Acquittal Decision in the case of The Prosecutor v. Ngudjolo Chui. 27 In this case, the ICC Appeals Chamber established a method of dealing with appeals against acquittals. It adopted the standard articulated by the Appeals Chamber of the ad hoc tribunals with respect to alleged factual errors in an acquittal decision and assumed that “considering that it is the Prosecution that bears the burden at trial of proving the guilt of the accused beyond 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. A convicted person 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. Furthermore, the Appeals Chamber notes that the ICTY Appeals Chamber held in relation to an acquittal decision that “[it] will reverse only if it finds that no reasonable trier of fact could have failed to make the particular finding of fact beyond reasonable doubt and the acquittal relied on the absence of this finding”.28

As we have seen, in relation to the prosecutor’s power to appeal an acquittal, the solution typical for the continental model of accusation has been adopted in proceedings before the international criminal tribunals. Both the ad hoc tribunals and the ICC grant the prosecutor the power to appeal against acquittals. Although the Anglo-Saxon division into two rulings ending proceedings has been maintained—there is the decision on guilt and the decision on the sentence29—which further leads to the distinction between convictions and acquittals, both of these groups of sentences can be appealed according to the same rules. The view that the prosecutor of the international criminal tribunal is the representative of the international community, which should have the right to challenge an acquittal, provided the basis for adopting this approach. It has also been assumed that constant control over the prosecutor (the ad hoc tribunals’ prosecutors are controlled by the Security Council and the UN finance, and the ICC Prosecutor by the judicial authority) will prevent any abuse of this right, bullying of the accused and repeated prosecution for the same act.30 Indeed, in several cases the ICTY Prosecutor’s appeal led to the challenging of acquittal (in relation to some charges) by the Appeals Chamber.31

8.3 Grounds of Appeal

Grounds of appeal in proceedings before international criminal tribunals are limited, which might suggest that this institution is akin to the Anglo-Saxon appeal while remaining the characteristic feature of the continental review (cassation). The appeal is intended to be an extraordinary measure. According to the ICTY jurisprudence, “the appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing”.32 Thus, in the opinion of the Tribunal’s judges, the Prosecutor should appeal a judgment issued by the Trial Chamber not to have a case re-examined but rather to identify and eliminate law infringement.33

Grounds of appeal in proceedings before the international criminal tribunals were grouped pursuant to the common law model into two categories: those pertaining to a decision on guilt and those pertaining to the sentence. Depending on the grounds of the scope of appeal, the powers of the prosecutor are also different.

In the case of proceedings before the ad hoc tribunals, similar to the common law systems, a decision was made to divide the grounds of appeal related to the decision on the guilt into two groups. The grounds to appeal, pursuant to Article 25 of the ICTY Statute, include an error on a question of law invalidating the decision and an error of fact which has occasioned a miscarriage of justice.

Not every “error on a question of law” is an error “invalidating the decision”. According to the ICTY jurisprudence, an appellant must demonstrate that the Trial Chamber committed a factual error and the error resulted in a miscarriage of justice. Moreover, the appellant must establish that the error of fact was “critical to the verdict reached by the Trial Chamber”, thereby resulting in 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.34 Not every error can lead to a reversal or revision of the Trial Chamber’s decision; the appellate party must demonstrate that “the error renders the decision invalid” and that it has occasioned “a miscarriage of justice”.35 The Appeals Chamber has also emphasised that it would not handle charges that were presented in an unclear, unjustified manner without a precise reference to specific fragments of the ruling of the Trial Chamber.

“An error of fact which has occasioned a miscarriage of justice” is, in turn, an error in factual findings. It has always been the most controversial ground of appeal. Error in factual findings cannot be, as a rule, used in appeals in Anglo-Saxon systems. It would mean challenging the decision of the jury. It was decided, however, in the proceedings before the ICTY that errors of fact may provide a ground for appeal. These errors may pertain to the manner of evaluation of evidence or to reliance on insufficient evidence.

The Appeals Chamber stressed that they will not lightly disturb findings of fact by a Trial Chamber: “The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’ testimony to prefer”.36 It is also the responsibility of the Trial Chamber to resolve any inconsistencies that may arise within and/or among witnesses’ testimonies. Such a view did not prevent the Appeals Chamber from acknowledging in the Prosecutor v. Kupreškić case that the Trial Chamber had wrongly assessed the witness’s statements as reliable. Relying solely on the trial record, the Appeals Chamber concluded, although it had not seen the witness and had not heard her statement, that there was an error of fact. It concluded that “there are several strong indications on the trial record that her absolute conviction in her identification evidence was very much a reflection of her personality and not necessarily an indicator of her reliability”.37

The Appeals Chamber’s restraint in adjudication on facts is related to its practice of reversing judgments of the Trial Chamber: the Appeals Chamber refers cases for revision rather than amends judgements on its own on the basis of new facts. The Appeals Chamber believes that it is not competent to perform an assessment of facts. It may only establish whether or not the first instance court made an error and infringed law in a given trial.38 The ICTY Appeals Chamber held that it may substitute its own finding for that of the Trial Chamber only if evidence relied on by the Trial Chamber “could not have been accepted by any reasonable tribunal” or where the evaluation of the evidence is “wholly erroneous”, especially, as “it must be borne in mind that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence”.39 This, however, has been changing recently. We can even speak of a new standard in the Appeals Chamber’s adjudication practice: it has started amending the judgments of the Trial Chamber instead of reversing them, e.g., in Prosecutor v. Blaškić it concluded that based on both trial record and additional evidence (when admitted) it can examine whether the accused’s guilt has been proved beyond reasonable doubt.40 More and more frequently, the Appeals Chamber accepts the admissibility of new facts and evidence in the appeal proceedings, thus acquiring competencies for adjudicating “in place” of the Trial Chamber. The Appeals Chamber, however, will amend the judgment of the Trial Chamber only when the former makes “a discernible error” in the exercise of discretion with regard to its analysis that is serious enough for the Appeals Chamber to issue a decision reversing the Appeals Chamber’s decision.41 This tendency stemmed from the need to prevent remitting the case back for re-investigation in the first instance; it was intended to prevent making the lengthy proceedings before the Tribunal even longer. But in the opinion of common law commentators, such practice is unacceptable, as it does not allow the parties to challenge the new factual findings made by the second instance court.

The ICTY Statute does not provide for a legal basis for appealing against decisions on the sentence. But such an option has been admitted in the case law of this Tribunal, where it was assumed that it is a particular type of error in substantive law. Concerning the general overall standard of review in appeals against sentence, it was established that the Appeals Chamber will only intervene if it finds that the Trial Chamber’s error in exercising its discretion in sentencing was “discernible”. The Appeals Chamber indicated that the Trial Chamber’s decision may be disturbed on appeal if it is demonstrated that “the Trial Chamber imposed sentences outside the discretionary framework provided by the Statute and the Rules”42 or by abusing its discretion “either by taking into account what it ought not to have or by failing to take into account what it ought to have taken into account in the weighing process involved in the exercise of its discretion”.43 This interpretation, however, is narrower than the “disproportion between the crime and the sentence” grounds used in the Rome Statute.

Also, appeals before the ICC must be filed exceptionally. Not every infringement of law in a trial must necessarily lead to reversal or amendment of a judgment: it must have a significant effect on the contents of judgment. During the work on the Rome Statute, the International Law Commission explained that it would be “desirable, having regard to the existence of only a single appeal from decisions at trial”.44 It is the appeal model applied in Anglo-Saxon states (where the right to appeal depends on whether the court of higher instance issued a leave for its filing, independently and making a decision at the very beginning whether the infringement of law indicated in the appeal “might have been significant for the contents of judgement”). This model is also characteristic of continental cassation (or German Revision, that is an appeal on the point of law only), where it needs to be demonstrated that the indicated infringement of law (not only being “a flagrant breach of law”) might have had a significant effect on the contents of judgement (e.g., Article 523 § 1 CCP) or where “the judgment was based upon a violation of the law” (§ 337 StPO). What is typical for such a limited form of appeal is referring to the accused as “the convicted person” in the regulations on the appeal proceedings.

In the case of proceedings before the ICC, the grounds of appeal are defined differently compared to the ad hoc tribunals. They also cover a much broader spectrum of cases. Indeed, the manner in which they are drafted mostly resembles the model adopted in continental systems (as they expressly allow for the appeal on grounds of both fact and law, e.g. Article 438 CCP, § 312 StPO). The ICC Prosecutor may appeal against a decision of guilt on the following grounds:


procedural error;



error of law;



error of fact;



disproportion between the crime and the sentence.


Making an appeal on the ground of a procedural error may include non-compliance with mandatory procedural requirements of the Statute and the Rules by the Trial Chamber. But it may also relate to a failure to comply with mandatory requirements by the Prosecutor (as in the case of disclosure of evidence) or the Registry.45 This ground of appeal may also be presented in a case when a Trial Chamber exercised discretion (as to admit or exclude certain evidence), but the appealing party considers it to be exercised erroneously. Regarding procedural errors in The Prosecutor v. Lubanga, the Appeals Chamber stated that “an allegation of a procedural error may be based on events which occurred during the pre-trial and trial proceedings. However, as with errors of law, the Appeals Chamber will only reverse a decision of acquittal if it is materially affected by the procedural error. In that respect, the appellant needs to demonstrate that, in the absence of the procedural error, the decision would have substantially differed from the one rendered”.46 As procedural errors can relate to alleged errors in a Trial Chamber’s exercise of its discretion, the Appeals Chamber has stressed that it will not interfere with the Pre-Trial Chamber’s exercise of discretion “merely because the Appeals Chamber, if it had the power, might have made a different ruling. To do so would be to usurp powers not conferred on it and to render nugatory powers specifically vested in the Pre-Trial Chamber”.

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