1. I cannot agree with the view expressed by the majority of the Appeals Chamber on the second ground of appeal of the Prosecution, concerning the consequences of the test to be applied under Rule 98bis(B) of the Rules of Procedure and Evidence, which establishes that “the Trial Chamber shall order the entry of judgement of acquittal… if it finds that the evidence is insufficient to sustain a conviction on that or those charges”. According to the majority view, the test to be applied to the evaluation of the evidence under this provision, 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. The consequences of the test as applied by the Appeals Chamber to the Rule 98bis(B) situation are, on the one hand, that if a Trial Chamber comes to the conclusion that no reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the charge at issue, then the Chamber must acquit on that charge. On the other hand, if a Trial Chamber’s conclusion is that a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused, then the Chamber must continue the proceedings and hear the Defence case.

2. While I agree with the majority as far as the first consequence is concerned, my views diverge on the scope of the second consequence drawn from the above mentioned test.

3. It is undisputed that, in requiring the Trial Chamber to assess whether a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused, the test envisages a situation, whereby different reasonable triers of fact at that stage could reach different conclusions concerning the guilt or innocence of the accused. It is also undisputed that at that stage a Trial Chamber is not required to reach its final conclusions as to whether it would be satisfied beyond a reasonable doubt of the guilt of the accused,¹ and that the Trial Chamber may reserve its position as to whether, on the basis of the prosecution’s evidence, it would convict or acquit.

4. However, such considerations do not imply that a Trial Chamber is under the obligation not to reach its own final conclusions, and to continue the proceedings, even if it has concluded that, on the face of the evidence heard, that Chamber itself would not be satisfied beyond reasonable doubt of the guilt of the accused. In my view, if a Trial Chamber employing the above articulated test finds that, while a different trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused, that Chamber itself would not, then it should enter an acquittal and put an end to the proceedings.

5. It should be noted that the conclusion reached by the majority of the Appeals Chamber is certainly suited to a system in which cases are eventually sent to a jury or to a trier of fact other than the judge who evaluates the evidence at that stage.² In such a system, if a judge finds that, while he himself cannot be satisfied of the guilt of the accused, a different trier of fact could come to a conclusion of guilt, he cannot stop the proceedings. Should he apply a higher standard of evaluation of the evidence , he would try the facts himself, instead of leaving the task of doing so to the jury.

6. In this International Tribunal however, there is no jury; the judges are the final arbiters of the evidence. There is no point in leaving open the possibility that another trier of fact could come to a different conclusion if the Trial Chamber itself is convinced of its own assessment of the case. Therefore, if at the close of the prosecution case, the judges themselves are convinced that the evidence is insufficient, then the Chamber must acquit. Such an approach is not only consistent with the text of Rule 98bis(B), which obliges the Chamber to acquit if it finds that the evidence is insufficient to sustain a conviction. It also preserves the fundamental rights of the accused, who is entitled not only to be presumed innocent during the trial, but also not to undergo a trial when his innocence has already been established. Further, the principle of judicial economy is also preserved, in that proceedings are not unnecessarily prolonged: for what is the point in continuing the proceedings if the same judges have already reached the conclusion that they will ultimately adopt at a later stage?

7. In the present case, the Trial Chamber concluded that “it has not been proved beyond all reasonable doubt that the accused was motivated by the dolus specialis of the crime of genocide”, and acquitted Goran Jelisic on this count. On this basis, the majority of the Appeals Chamber has found that the Trial Chamber applied the wrong standard under Rule 98bis(B) at the close of the prosecution case in chief - indeed, a higher standard than was warranted at that stage - and in so doing, wrongly assessed the evidence pertaining to the genocide count. However, for the reasons stated above, I believe that the Trial Chamber did not err in this regard. Consequently, I cannot join the majority in its evaluation of the evidence in light of the standard that it considers should have been applied . As to the conclusions drawn by the Trial Chamber in light of the higher standard it applied, there is no indication that it made any error in its application; therefore , I am of the view that the Appeals Chamber should not disturb the factual findings made by the Trial Chamber³ in this case.

Done in both English and French, the English text being authoritative.

____________________
Fausto Pocar

Dated this fifth day of July 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - See para. 37, note 66, of this judgement, where the Delalic appeal judgement, para. 434, p. 148, and the Kunarac decision on motion for acquittal, 3 July 2000, para. 10, p. 6, are cited.
2 - The authorities cited in the judgement to sustain the majority’s position refer largely to cases which are eventually sent to a jury, and even if a few do not, it is my view that the issue should be approached prudently, avoiding the application, in a mechanical fashion, of national solutions without assessing whether they may require adaptations to the needs of the procedure before this Tribunal, and taking into account also the fact that they may result in disregarding the fundamental rights of the accused as applicable under the Statute of this Tribunal.
3 - It has been constantly affirmed by the Appeals Chamber that a Trial Chamber is best placed to hear, assess, and weigh the evidence, and that the Appeals Chamber has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial. It has also been affirmed that 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 or where the evaluation of the evidence is wholly erroneous.” See Aleksovski appeal judgement, para. 63. See also Tadic appeal judgement, para. 64, and Delalic appeal judgement, para. 506.