University of Amsterdam
Judicial Notice at the International Criminal Tribunal for the former Yugoslavia
and the International Criminal Tribunal for Rwanda: A Clash with the Fair Trial
Rights of the Defendant?
Marie Claire Pedrotti
Student Number 6161235
January 2014
MASTER THESIS FOR DUTCH CRIMINAL LAW MASTERS DEGREE
Thesis Supervisor: dhr. mr. drs. K.C.J. Vriend
Table of contents 1. Introduction...1 2.Judicial Notice 2.1 General...8 2.2 Different Legal Systems...10 2.3 Judicial Notice at the ICTY and ICTR...13 2.3.1 Judicial Notice of Facts of Common Knowledge...13 2.3.2 Judicial Notice of Adjudicated Facts...14 2.3.3 Judicial Notice of ‘Legal Characterizations and Judicial Notice of Genocide…..23 2.3.4 Judicial Notice of Documentary Evidence………27 3.Fair Trial Rights and Judicial Notice 3.1 General...30 3.2 Equality of Arms...34 3.2.1 General……….34 3.2.2 Cross‐examination………36 3.2.3 Adequate Preparation of the Defence………37 3.3 The Right to be Presumed Innocent……….39 3.3.1 General………39 3.3.2 Burden of Proof……….40 3.3.3 Impartial Tribunal……….41 3.4 The Expediency of a Trial...42 4.Conclusion...45 Bibliography...48
1. Introduction Karadžić, founding member of the Serbian Democratic Party and former President of Republika Srpska, is currently on trial at the International Criminal Tribunal for the Former Yugoslavia (ICTY). He is indicted with genocide, crimes against humanity and violations of the laws and customs of war during his membership of the Serbian Democratic Party of Bosnia and Herzegovina, Srpska Demokratska Stranka.1 He is representing himself and has often claimed his right to a fair trial has been compromised by judicial notice.2 Mladić, Commander of the Main Staff of the Bosnian Serb Army and later Colonel General of that army, is charged with the same offences as Karadžić.3 Mladić is another ‘big fish’ who is being prosecuted at the ICTY and who is arguing that his right to a fair trial is being jeopardised by judicial notice.4 Judicial notice at the ICTY can be taken of facts of common knowledge under Rule 94 (A) of the Rules of Procedure and Evidence (RPE) of the ICTY and of adjudicated facts under Rule 94 (B) RPE. Rule 94 RPE provides: “(A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof. (B) At the request of a party or propio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.” During his trial Karadžić submitted that “the Chamber has already taken judicial notice of, or has a decision pending on, more than 2700 adjudicated facts” and that he “will be so far behind the Prosecution at the trial’s opening bell that the trial will proceed with a presumption of guilt”.5 1 Prosecutor v. Karadžić, IT‐95‐5/18‐PT, Appendix 1 of the Prosecution’s Marked‐up Indictment, 19 October 2009, p. 1‐2 2 Prosecutor v. Karadžić, IT‐95‐5/18‐T, Decision on Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010 [Karadžić Fifth Decision on Judicial Notic’], para. 8 3 Prosecutor v. Mladić, IT‐09‐92‐PT, Annex A of the Prosecution’s Submission of the Fourth Amended Indictment and Schedules of Incidents, 16 December 2011, p. 1 4 Inter alia: Prosecutor v. Mladić, IT‐09‐92‐PT, First Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 February 2012 [Mladić First Decision on Judicial Notice], para. 5 5 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 8
In other words, he argued that the taking of judicial notice of adjudicated facts and the admission of written evidence violate the presumption of innocence, and deny him the right to a fair trial.6 This is a strong claim on Karadžić’s part, as it concerns a right that is formulated in the most important international treaties. It is expressed in article 14 of the International Covenant on Civil and Political Rights (ICCPR), article 6 of the European Convention of Human Rights (ECHR), article 8 of the American Convention on Human Rights (ACHR) and article 7 of the African Charter on Human and Peoples’ Rights (ACHPR). A balance must be struck between the fair trial right of the accused and the aim of judicial notice, i.e. promotion of judicial economy.7 Through judicial notice of adjudicated facts, a Chamber is avoiding the “presentation of evidence in relation to facts, which a previous Chamber established on the basis of evidence which left no reasonable doubt in the mind of the judges of that Chamber when adjudicating those facts”.8 Judicial notice shortens the duration of trials because it restricts the relevant proceedings to what is crucial for the case without re‐examining and proving facts that have already been proven in other proceedings.9 Judicial economy as part of the right to a fair trial of the accused at the ICTY is expressed in Articles 20(1) and 21(4)(c) of the ICTY‐Statute which holds that an accused has the right to an expeditious trial and the right to be tried without undue delay.10 The expediency of trials at the ICTY is important because such trials often take long: Milošević’s trial had been going on for more than four years at the time of his death.11 6 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 8 7 Mladić First Decision on Judicial Notice (supra note 4), para. 8 and 11 8 Prosecutor v. Mladić, IT‐09‐92‐PT, Fourth Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts concerning the Rebuttal Evidence Procedure, 2 May 2012 [Mladić Fourth Decision on Judicial Notice], para. 13 9 Prosecutor v. Krajišnik, IT‐00‐39‐PT, Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92bis, 28 February 2003 [Krajišnik 92bis Decision], para. 11 10 Id. 11 http://icty.org/x/cases/slobodan_milosevic/cis/en/cis_milosevic_slobodan_en.pdf (consulted 30 December 2013)
Similarly, Prlić, former Prime Minister of the Croatian Republic of Herceg‐Bosna, and his co‐ defendants have been in court for almost seven years.12 Šešelj, former President of the Serbian Radical Party, has been in court for almost six years.13 The question that arises is how long the trials of main figures like Mladić and Karadžić are going to last.14 In order to prevent unnecessary delays at the ICTY and ICTR, in 1999 the United Nations Security Council panel of experts recommended the use of judicial notice.15 It recommended “greater use of judicial notice in a manner that fairly protects the rights of the accused and at the same time reduces or eliminates the need for identical repetitive testimony and exhibits in successive cases.”16 The Expert Group argued that judicial notice can reduce the amount of time devoted to litigating background facts that have already been established in previous trials, noting that successive trials have often related to similar areas of law and issues of criminality.17 The Judges of the ICTY commented on the Expert Group’s recommendation about a possible greater use of judicial notice and declared that judicial notice was more often an option as a result of an increase of appeal judgements.18 The decision of a Trial Chamber to take judicial notice of adjudicated facts is a discretionary one19 and such decisions are afforded deference by the Appeals Chamber.20 In certain circumstances, however, an Appeals Chamber can overturn decisions within a Trial Chamber's discretion. 12 http://icty.org/x/cases/prlic/cis/en/cis_prlic_al_en.pdf (consulted 30 December 2013) 13 http://icty.org/x/cases/seselj/cis/en/cis_seselj_en.pdf (consulted 30 December 2013) 14 The trials of Karadžić and Mladić began respectively 26 October 2009 and 16 May 2012 (http://icty.org/x/cases/karadzic/cis/en/cis_karadzic_en.pdf and http://icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf consulted 30 December 2013) 15 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, U.N. Doc. A/54/634, 11 November 1999, [Expert Group Report], para. 85 16 Id. 17 Id. 18 U.N. G.A., A/56/853, Comprehensive report on the results of the implementation of the recommendations of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 4 March 2002 [‘Implementation Report’], Recommendation 11, para. 40, p.9 19 Prosecutor v. Mladić, IT‐09‐92‐AR73.l, Decision on Ratko Mladić’s Appeal against the Trial Chamber’s Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 12 November 2013, para. 9 and note 21 20 Prosecutor v. Zdravko Tolirnir, IT‐05‐88/2‐AR73.1, Decision on Interlocutory Appeal Against Oral Decision of the Pre‐Trial Judge of 11 December 2007, 28 March 2008, para. 7; Prosecutor v. Mladić, IT‐09‐92‐AR73.l, Decision on Ratko Mladić’s Appeal against the Trial Chamber’s Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 12 November 2013, para. 9
For example, when a Trial Chamber’s decision is based on “incorrect interpretation of the governing law, on a patently incorrect conclusion of fact or so unfair or unreasonable as to constitute an abuse of the trial chamber's discretion.”21 It is thus possible for an Appeals Chamber to review the decision of the Trial Chamber and turn to the application of judicial notice, or, on the other hand, to the refusal of judicial notice that has been taken by a Trial Chamber. In the commentary on the Expert Group Report, the ICTY together with the representatives from the defence stressed the importance of the right to a fair trial of the Accused when taking judicial notice.22 The prosecution of the ICTY added that it is important to determine before a trial which facts ”are not required to be proved by leading evidence.”23 By making judicial notice determinations after witnesses and evidence have been brought to the court it would forfeit the benefits judicial notice might offer.24 In line with the panel’s recommendations25, a plan was adopted to accelerate court proceedings at the ICTY and International Criminal Tribunal for Rwanda (ICTR).26 Trial capacity was increased by the addition of ad litem judges,27 and a new rule 65ter was adopted to create the possibility for the judges to delegate pre‐trial activities to the Senior Legal Officers.28 Also, written evidence was admitted under certain circumstances, releasing some witnesses from the duty to travel to The Hague to testify orally in court.29 21 Prosecutor v. Mladić, IT‐09‐92‐AR73.l, Decision on Ratko Mladić’s Appeal against the Trial Chamber’s Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 12 November 2013, para. 9 and note 24 22 Comments on the Report of the Expert Group to Conduct a Review on the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, para. 46, UN Doc A/54/850 (27 April 2000) [Comments on Expert Group Report] 23 Comments on the Expert Group Report (supra note 22) para. 48 24 Id. 25 Expert Group Report (supra note 15) 26 Implementation Report (supra note 18), para. 5, p.2 27 Id. 28 Id. para. 6, p.2 29 Id.
The judges of the ICTR in their commentary on the Expert Group Report of 27 April 2000 commented that they favoured “greater use of judicial notice to reduce identical, repetitive testimony and exhibits.”30 This was only related to judicial notice of facts of common knowledge (Rule 94(A)) as the rule on judicial notice of adjudicated facts (94(B)) was adopted only in November 2000 at the ICTR.31 In the Implementation Report of 4 March 2002 the ICTR considered the recommendation on a greater use of judicial notice of adjudicated facts of limited importance for the ICTR, because “the judges have been disinclined to rely extensively on adjudicated facts to the fullest extent possible due to concerns about the protection of the rights of the accused.”32 An illustration of this cautious approach is the ICTR Decision of 22 November 2001 Prosecutor v Elizaphan Ntakirutimana and Gerard Ntakirutimana in which the Trial Chamber denied a request by the prosecutor to take judicial notice of the fact that “there were widespread and systematic attacks throughout Rwanda”, in order to protect the rights of the accused.33 The Trial Chamber declared that it could not take judicial notice because the facts the prosecution had proposed related to the situation throughout Rwanda, whereas the Tribunal’s findings related only to certain regions.34 The Expert Group Report with its recommendations did not come as a surprise. The judges of the ICTY expressed their concerns about the speed of the proceedings already in August 1999 before the Expert Group Report was issued.35 30 Comments on Expert Group Report (supra note 22), para. 61 31 http://www.unictr.org/Portals/0/English/Legal/Evidance/English/amend9.pdf (consulted 30 December 2013) 32 Implementation Report (supra note 18), para. 41, p. 9 33 Prosecutor v. Elizaphan and Gérard Ntakirutimana, ICTR‐96‐10‐T and ICTR‐96‐17‐T, Judgement and Sentence, 21 February 2003 34 Implementation Report (supra note 18), para. 41, p. 9 35 Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, para. 13, U.N. Doc. A/54/187 (25 August 1999) (‘The Tribunal’s judges are concerned about the length of time many of the trials and other proceedings are taking to complete.’); Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, para. 4, 7, U.N. Doc. A/55/273 (7 August 2000) (pointing out that one of the two major problems that the Tribunal had to overcome was trying all the accused within a reasonable timeframe); see also Máximo Langer & Joseph W. Doherty, ‘Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms’, The
This concern was especially based on the number of judgements the ICTY had issued so far. By July 1998, more than five years after its creation, the ICTY had issued only two Judgements: Erdemović and Tadić.36 In the same period Rule 94(B) RPE ICTY was established in an amendment of 10 July 199837, a year and a half before the Expert Group Report recommended greater use of judicial notice. The Judges of the ICTY held their 18th Plenary Session on Thursday 9 and Friday 10 July 1998 and the focus of the meeting was on the completion of discussions on a series of amendments to the Rules of Procedure including Rule 94(B) RPE with the aim of streamlining and expediting the proceedings before the ICTY.38 Rule 94(B) RPE ICTR was adopted 3 November 2000 during the ninth plenary session of the ICTR, this was approximately one year after the Expert Group Report recommended a greater use of judicial notice in order to expedite proceedings.39 Although there is considerable concern on the expediency of trials at the Tribunals, it is no surprise that trials at the ICTY and ICTR can take long. First, accused at the ICTY are being prosecuted in another country than where the alleged crimes occurred, so the defence and the prosecution have to gain of the country to gather evidence. It is true that a state has to cooperate with the Tribunal40, but there are some exceptions to this rule.41 Second, the
different languages and cultural backgrounds of the accused, judges, witnesses and prosecutor can present obstacles during the proceedings as well. Third, trial proceedings at the ICTY and ICTR are held in slow‐motion, because interpreters from different countries have to translate every word. Yale J. Int’L., Vol. 36:241 (2011), p. 246 and note 11 (http://www.yjil.org/docs/pub/36‐2‐langer‐doherty‐ managerial‐judging.pdf consulted 30 December 2013) 36 Prosecutor v. Erdemović, IT‐96‐22‐Tbis, Sentencing Judgment, 26 November 1996; Prosecutor v. Tadić, IT‐94‐ 1‐T, Opinion and Judgment, 7 May 1997; see also Máximo Langer & Joseph W. Doherty, ‘Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms’, The Yale J. Int’L., Vol. 36:241 (2011), p. 246 and note 12 (http://www.yjil.org/docs/pub/36‐2‐langer‐doherty‐ managerial‐judging.pdf 37 http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev13_en.pdf (consulted 30 December 2013) 38 http://www.icty.org/sid/7652 (consulted 30 December 2013) 39 http://www.unictr.org/Portals/0/English/Legal/Evidance/English/amend9.pdf (consulted 30 December 2013) 40 Article 29 ICTY‐Statute 41 See for example Rule 54bis RPE
A fourth factor that contributes to the long duration of the trials is the extent of the alleged international crimes. A conviction for genocide, for example, requires more proof than a conviction can for a simple murder.
An increase of judicial economy is favourable to both the defendant and the Trial Chambers. The defendant, assuming that no other fair trial rights are being violated, receives an
expeditious trial42 without undue delay43, while the Tribunals save valuable time and money. In some situations judicial notice can be a means to expedite trials. As will be explained in the rest of this thesis, however, the importance of a fair trial cannot be underestimated. Taking the foregoing into account, the central question in this thesis will be: To what extent does judicial notice at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda constitute a threat to the fair trial rights of the defendant? To answer this question properly it must first be examined what judicial notice is, where it comes from and how it is applied by the ICTY and ICTR (Chapter 2). Then the fair trial rights of the defendant will be examined, especially the principle of equality of arms, the right to be presumed innocent and the right to an expeditious trial. After each aforementioned fair trial right is discussed, it will be examined if judicial notice constitute a threat to these rights (Chapter 3). In Chapter 4 the thesis concludes that judicial notice is a solution in some cases, but that the rights of the defendants must prevail over the time‐saving argument of the ad hoc Tribunals and the UN. Every case must be examined properly, meaning that the facts and the role of the defendant must be clear, and that judicial notice must be limited to facts rather than legal conclusions. The criminal responsibility of the accused should not be affected by judicial notice because this constitutes a severe threat to the fair trial rights of the defendant. 42 Article 20(1) ICTY Statute; Article 19 ICTR Statute 43 Article 21(4)(c) ICTY; Article 20 (4)(c) ICTR Statute
2. Judicial Notice 2.1 General Rule 94 of the RPE of the ICTY and its equivalent in the RPE of the ICTR mention the rule of judicial notice for the two respective ad hoc Tribunals. Judicial notice in general can be explained as the principle that some facts do not require direct proof in the current proceedings. Judicial notice of adjudicated facts can expedite trials, because facts are being incorporated from other judgements and no additional proof has to be produced to come to a final judgement. As international criminal law is constituted by states, it is important to look at the different legal systems to determine where the definition of judicial notice at the ICTY and ICTR originated. The history and use of judicial notice will be examined because this shows the development of judicial notice in international criminal law. Unlike judicial notice of adjudicated facts which is not typically incorporated in national legal systems44, judicial notice of facts of common knowledge is a widespread principle in national jurisdictions.45 The proceedings at the ICTY and ICTR are, however, not governed by these national rules.46 The Chambers must “apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”.47 Judicial notice of facts of common knowledge has a long history; it is part of the practice of the international criminal tribunals since the Nuremberg trials.48 44 Goran Sluiter en Koen Vriend, “Defending the ‘Undefendable’? Taking Judicial Notice of Genocide”, in Harmen vd Wilt, Jeroen Vervliet a.o., The Genocide Convention: The Legacy of 60 Years, (Nijhoff 2012), p. 84; Krajišnik 92bis Decision (supra note 9) para. 13 45 Prosecutor v. Norman, Fofana and Kondewa, SCSL‐2004‐14‐AR73, Fofana Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, 16 May 2005, paragraph 6 of the Separate Opinion of Justice Robertson; Krajisnik 92bis Decision (supra note 9), para. 13 46 Rule 89(A) Rules of Procedure and Evidence ICTY and ICTR 47 Prosecutor v Delalić et al., IT‐96‐21‐A, Judgement, 20 February 2001, para. 538 48 Nina Jorgensen, ‘Genocide as a fact of common knowledge’, (2007) 56 Int’l & Comp. L.Q. 885 at 885
Article 21 of the Charter of the International Military Tribunal for Germany (IMT) provided that: “The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigations of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.” The International Military Tribunal for the Far East (IMTFE) had similar rules on judicial notice.49 Under article 21 of the Charter the IMT accepted comprehensive reports on concentration camps and of official German laws and decrees such as the Nazi suspension the accused’s right of habeas corpus.50 Some documents subject to judicial notice were not read into the record, which means that they were not translated from the original language in which they were written.51 As a result, those documents were not very useful for the judges because, unless they were read into the record, “it was difficult, if not impossible, for the judges who did not understand the language in which the document was written to utilise it for a basis of decision.”52 49 Article 13(d) of the Charter of the International Military Tribunal for the Far East provided: ‘The Tribunal shall neither require proof of facts of common knowledge, nor of the authenticity of official government documents and reports of any nation nor of the proceedings, records, and findings of military or the agencies of any of the United Nations.’ Article XI of Control Council Law No.10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity provided: ‘The Tribunals shall not require proof of facts of common knowledge but shall take judicial notice thereof. They shall also take judicial notice of official governmental documents and reports of any of the United Nations, including the acts and documents of the committees set up in the various Allied countries for the investigation of war crimes, and the records and findings of military or other tribunals of any of the United Nations.’ See also: James G. Stewart, ‘Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent’, (2003) 3 INT’L CRIM. L. REV. 245 at 248 50 Thomas J. Dodd, ‘The Nurnberg Trials’, J. of Crim. Law and Criminology, Vol. 37, No. 5 (1947), pp. 357‐367 at p. 366 51 Id.; Patricia Wald, ‘Running the Trial of the Century: The Nuremberg Legacy’, 27 Cardozo L. Rev. 1572 (2005‐ 2006) 1559 at 1572‐1573 52 Id.
Judicial notice of facts of common knowledge was particularly controversial at the time of the IMT.53 Judicial notice of “official government documents” was only challenged in the Medical case about a report set up by the Dutch War Crimes Investigation Bureau.54 These official government reports documented the scope and nature of war crimes and were the principal source of proof of war crimes and crimes against humanity.55 In other tribunals, however, the defence often challenged judicial notice of “records and findings” of other Tribunals.56 The Tribunal accepted this counter‐plea only in the Justice case, in which it rejected prosecutor’s claim that the Tribunal was entitled to take judicial notice of any item of evidence in the IMT record, without the need of reliance on that evidence in its judgement.57 2.2 Different Legal Systems It is important to look at the various legal systems to establish the character of international criminal proceedings at the ad hoc Tribunals. This will clarify the role judicial notice may have in the proceedings and the role the defence must play in international proceedings before the ad hoc Tribunals. These Tribunals are set up by the United Nations with a specific task. The rules of the Tribunals, however, had to be made in cooperation with judges from different legal systems and had to reflect the backgrounds of the affected countries. It should come as no surprise that the ICTY and ICTR Statutes and RPE combine elements of civil law and common law systems. Traditionally, two kind of criminal procedures exist: the adversarial and the inquisitorial.58 In adversarial proceedings which occur e.g. United States of America, the defence has a responsibility of its own to look for evidence and the proceedings are dominated by the parties rather than the judge. Also, there is no active judge in an adversarial system, as the proceedings are led mostly by 53 Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) p. 154‐155 54 Id. 55 Patricia Wald, ‘Running the Trial of the Century: The Nuremberg Legacy’, 27 Cardozo L. Rev. 1572 (2005‐ 2006) 1559 at 1580‐1581 56 Id. 57 Id. 58 See generally: M. Damaška, ‘Evidentiary barriers to conviction and two models of criminal procedure: a comparative study’, 1972‐1973 University of Pennsylvania Law Review 121, 506
the parties itself while the inquisitorial procedure relies more on judicial direction.59 The defence has to be able to provide its own witnesses and has to cross‐examine the witnesses of the prosecutor as well. In the adversarial system, party equality is assumed and the judge plays an arbitrary role.60 Evidence and witnesses are examined in front of the judge or jury in an adversarial atmosphere. The equality of arms is crucial in adversarial proceedings, because defence and prosecution are two ‘adversarial’ parties that should have the same means to adequately make their case. Although the prosecutor in the adversarial system is also required to adhere to the principles of truth and objectivity,61 the civil law system is structurally different in that it does not operate in terms of a prosecution and defence case and therefore the prosecutor is considered an independent agent rather than a party.62 International criminal proceedings are mainly of an adversarial nature.63 Initially, the ad hoc Tribunals were more influenced by the adversarial system where the evidence produced by the prosecution had to come in the form of live witness testimony.64 When the judges of the ICTY adopted the RPE in 1994, they gave them a strong adversarial orientation.65 Defence and prosecution had to run their own trials, judges had a passive role and decided only the controversies that the parties presented to them, and there was a preference for live witness testimony.66 The ICTY and ICTR have a hybrid of adversarial trial practice and civil‐continental procedures.67 In the Blaškić case about hearsay evidence,68 the Chamber held that 59 Michael Bohlander, International Criminal Justice: Critical Analysis of Institutions and Procedures (Cameron May 2007), p. 491 60 Id. At 563 61 Id. p. 449 and note 146 62 Id. p. 449 and note 147 63 Alexander Zahar and Goran Sluiter, International Criminal Law – A Critical Introduction (OUP 2008), p. 37‐45 64 Patricia M. Wald, ‘To Establish Incredible Events by Credible Evidence: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, (2001) 42 Harv. Int’l L.J. 535 at 537 65 Máximo Langer & Joseph W. Doherty, ‘Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms’, The Yale J. Int’L., Vol. 36:241 (2011), p. 245 and note 9 (http://www.yjil.org/docs/pub/36‐2‐langer‐doherty‐managerial‐judging.pdf consulted 30 December 2013) 66 Id. 67 Patricia M. Wald, ‘To Establish Incredible Events by Credible Evidence: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, (2001) 42 Harv. Int’l L.J. 535 at 537 68 Prosecutor v. Blaškić,, IT‐95‐14‐T, Decision on Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its reliability, 21 January 1998
“[n]either the rules issuing from the common law tradition in respect of the admissibility of hearsay evidence nor the general principle prevailing in the civil law systems, according to which […] all relevant evidence is admissible […] are directly applicable before this Tribunal. The International Tribunal is, in fact, a sui generis institution with its own rules of procedure which do not merely constitute a transposition of national legal systems.”69 This shows the ambiguity of the Tribunal, as the Trial Chamber examined both civil and common law systems and concluded by saying that none of the two systems provided for a provision about evidence that was directly applicable in the current case. An example of a rule in the RPE of the ICTY and ICTR which suits an inquisitorial legal system is Rule 89. In accordance with Rule 89, which sets out the general provisions of the Tribunal’s rules of evidence, a Chamber at the ICTY and ICTR may admit any relevant evidence which it deems to have probative value.70 Furthermore, in circumstances not otherwise provided for under the Tribunal’s rules of evidence, the Chamber is bound to apply rules of evidence which best favour a fair determination of the matter before it and which are consonant with the spirit of the Statute and the general principles of law. The Chamber is not bound by national rules of evidence.71 Rule 89 suits an inquisitorial legal system, relying on the Chamber to determine the probative value of the evidence with certain ambiguous criteria fulfilled to ensure a fair trial. 2.3 Judicial notice at the ICTY and ICTR The ICTY and the ICTR have a two‐tiered system in Rule 94, which allows for judicial notice 69 D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT’L L. 57, 80 (1999) (citing Prosecutor v. Blaškić,, IT‐95‐14‐T, Decision on Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its reliability, 21 January 1998, para. 5); ICTY Press Release 23 January 1998, CC/PIO/286‐E, Blaškić case: Defence objection to the admission of hearsay is rejected (http://www.icty.org/sid/7700,consulted 30 December 2013) 70 Prosecutor v. Ntagerura, ICTR‐99‐46‐T, Judgement and Sentence, 25 February 2004, para. 25 71 Id.
of adjudicated facts and judicial notice of facts of common‐knowledge.72 2.3.1 Judicial Notice of Facts of Common Knowledge The jurisprudence of the ICTY and ICTR recognises facts of common knowledge under rule 94(A) as “encompassing facts that are not reasonably subject to dispute, in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature”.73 Such facts are not only widely known, but also beyond reasonable dispute.74 Included are “matters so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authorative sources that evidence of their existence is unnecessary.”75 Common knowledge must be recognised as such by “sources whose accuracy cannot reasonably be called into question.”76 Rule 94 (A) is, unlike Rule 94(B), an article with a mandatory nature as it states: “A Chamber… shall take judicial notice”. The Chambers of the ICTY and ICTR shall accept the fact as conclusively proven which means that no counterarguments can be accepted. An example of the mandatory procedure of Rule 94 (A) RPE can be found in the Karemera Appeals Decision where the Appeals Chamber stated that the Trial Chamber was required to take judicial notice of the facts deemed to be ‘common knowledge’.77 72 Nina Jorgensen, ‘Genocide as a fact of common knowledge’, (2007) 56 Int’l & Comp. L.Q. 885 at 885 73 Mladić First Decision on Judicial Notice (supra note 4), para. 17 and note 43; Prosecutor v. Laurent Semanza, ICTR‐07‐20‐A, Judgement, 20 May 2005, para. 194; Nikolić v. Prosecutor, IT‐02‐60/1‐A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005, para. 10 74 Id. 75 Prosecutor v. Semanza, ICTR‐97‐20‐T, Decision on the Prosecutor’s Motion for Judicial Notice and Presumption of Facts Pursuant to Rules 94 and 54, 3 November 2000 [Semanza Judicial Notice 3 November 2000], cited in Prosecutor v Norman, Fofana and Kondewa, SCSL‐2004‐14‐AR73, Fofana‐Decision on Appeal against Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 16 May 2005, para. 21 76 Semanza Judicial Notice 2 November 2000 (supra note 75), para. 24 77 Prosecutor v Karemera, Ngirumpatse, and Nzirorera, ICTR‐98‐44‐AR73(C), Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 [Karemera Appeals Decision], para. 22‐23
A Chamber can only take judicial notice under Rule 94(A) if the fact of common knowledge is relevant to the current proceedings 78 pursuant to Rule 89(C) of the RPE.79 Trial Chambers have regularly taken judicial notice of facts of common knowledge, such as the shooting down of Rwandan President Habyarimana’s plane80or the Yugoslav ratification of the Geneva Conventions.81 2.3.2 Judicial Notice of Adjudicated Facts Rule 94(B) of the RPE of the ICTY and ICTR provides as follows: “At the request of a party or propio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or of the authenticity of documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.”82 Rule 94(B) allows a Trial Chamber to take judicial notice of relevant facts adjudicated in a previous trial or appeal judgement, after having heard the parties, even if a party objects to judicial notice of a particular fact.83 The aims of Rule 94(B) are to achieve judicial economy and harmonise the judgements of the Tribunals by granting Trial Chambers the discretion to take judicial notice of facts or documents from other proceedings. 78 Prosecutor v. Popović, IT‐05‐88‐T, Decision on Prosecution Motion for Judicial Notice of Facts of Common Knowledge pursuant to Rule 94 (A), 26 September 2006 [Popović Judicial Notice Common Knowledge], para. 11; Rule 89(C) provides that a Chamber may admit evidence that has probative value. 79 Popović Judicial Notice Common Knowledge (supra note 78), para. 11 and note 19 80 Prosecutor v. Nyiramasuhuko et al., ICTR‐97‐21‐T, Trial Chamber Decision On the Prosecutor’s Motion For Judicial Notice and Admission of Evidence, 15 May 2002, para 105 81 Prosecutor v. Kovacevic, IT‐97‐24‐PT, p. 2, Prosecutor’s Request For Judicial Notice, 20 April 1998 82 An amendment to Rule 94 was adopted during a plenary session held on 8 December 2010, and entered into force on 20 December 2010 (it added the words ‘authenticity of’); Prosecutor v. Karadžić, IT‐95‐5/18‐T, Decision on the Prosecution’s Motion for Judicial Notice of Intercepts Related to the Sarajevo Component and Request for Leave to Add one Document to the Rule 65ter Exhibit List, 4 February 2011, para. 6 83 See Prosecutor v. Popović, et. al., IT‐O5‐88‐T, Decision of Prosecution Motion of Judicial Notice of Adjudicated Facts with Annex, 26 September 2006 [Popović, Judicial Notice Adjudicated Facts], para. 3; Prosecutor v. KupreIkic, IT‐9S‐16‐A, Decision on the Motions to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to Be Taken pursuant to Rule 94(B), 8 May 2001, para. 6; Prosecutor v. Blagojevic and Jokic, IT‐02‐60‐T, Decision on Prosecution's Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence, 19 December 2003 , para. 15; Prosecutor v. Milosević, IT‐98‐29/1‐T, Decision on Prosecution's Motion for Judicial Notice of Adjudicated Facts and Prosecution's Catalogue of Agreed Facts with Dissenting Opinion of Judge Harhoff', 10 April 2007, para. 23
When applying Rule 94(B), tribunals must achieve a balance between promoting these aims and safeguarding the fundamental right of the accused to a fair trial.84 There are also some restrictions on the use of Rule 94(B). Facts that derived from guilty pleas or voluntary admissions cannot be used for judicial notice85, nor can facts from judgements that are under appeal.86 Facts that are under appeal are still being challenged by one of the parties and therefore cannot be adjudicated within the meaning of Rule 94(B) of the RPE ICTY and ICTR.87 Facts derived from guilty pleas are not proper sources of judicial notice because they have not been subjected to the same level of scrutiny as in other trial situations where one of the parties has the burden of proof.88 The admissions of the accused “speak neither to the general currency of the fact nor to its indisputable character.”89 When a Chamber takes judicial notice of a fact referring to a document, the Chamber does not take judicial notice of the veracity of the facts stated in the documents, but merely of the fact that a certain issue was reported or stated in a document.90
A Trial Chamber has a discretionary power91 over the taking of judicial notice of adjudicated facts that has to be exercised “on the basis of a careful consideration of the accused’s right to a fair and expeditious trial”.92 The consequence of judicial notice of adjudicated facts is that the facts establish a rebuttable presumption of the accuracy of these facts and relieves the proposing party of its initial burden to produce evidence on that fact. The challenging party has the opportunity to contradict the judicially noticed fact with evidence.93 84 Prosecutor v Nikolić, IT‐02‐60/1‐A, Decision on Appellant's Motion for Judicial Notice, 1 April 2005, para. 12. 85 Prosecutor v Nyiramashuko, 97‐21‐T, Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 15 May 2002, para. 36 86 Prosecutor v KupreIkic et al., IT‐95‐16‐A, Appeal Decision, 23 October 2001, para. 5, 6 87 Prosecutor v. Bagosora et al., ICTR 98‐41‐A, Appeals Chamber Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010, para. 7 88 The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, ICTR‐96‐10‐T and ICTR‐96‐17‐T, Decision on the Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, signed on 22 November 2001, filed on 23 November 2001, para. 26 89 Prosecutor v. Milosević, IT‐02‐54‐T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brcko, 5 June 2002 p. 3.; The Prosecutor v. Laurent Semanza ICTR‐97‐20‐T, Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, signed on 3 November 2000, filed on 6 November 2000, para. 34 90 Mladić First Decision on Judicial Notice (supra note 4) para. 13 91 Prosecutor v Perisić, IT‐01‐84‐PT, Decision on Prosecution’s Motion for Judicial Notice of adjudicated facts concerning Sarajevo, 26 June 2008, para. 14; Karemera Appeals Decision (supra note 77), para. 41; Prosecutor v Milosević, IT‐02‐S4‐AR73.S, Decision on the Prosecution's Interlocutory Appeal Against the Trial Chamber's 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, para. 3‐4 92 Karemera Appeals Decision (supra note 77), para. 41 93 Mladić Fourth Decision on Judicial Notice (supra note 8), para. 13‐14
The challenging party can reopen the evidentiary debate by presenting contradicting evidence if this evidence is sufficiently relevant and probative to be considered pursuant to Rule 89(C).94 The prosecution can rely on the judicially noticed facts and due to this, he is also relieved of the initial burden, even when the defence has shared the intent to challenge the facts, but only until the moment the challenging party introduces evidence to the contrary.95 The application of Rule 94(B) is a two‐step process:96 The Trial Chamber first examines the ‘Admissibility Requirements’97 and then examines whether taking judicial notice in that particular case serves the interests of justice.98 In the following paragraphs the admissibility requirements will be examined to understand the scope of judicial notice under Rule 94(B). The Admissibility Requirements The admissibility requirements are: (i) The fact must be distinct, concrete and identifiable and the judicial notice must not be used as a mechanism to circumvent the general Rules governing the admissibility of evidence; (ii) It must be relevant to the matters at issue in the current proceedings; (iii) The fact as formulated by the moving party must not differ in any substantial way from the facts actually adjudicated in the original judgement. (iv) It must not include findings or characterisations that are of an essentially legal nature. (v) It must not be based on a plea agreement or on facts voluntarily admitted in a previous case; (vi) It must not have been contested on appeal, or, if it has, the fact has been settled on appeal; 94 Id. 95 Id. para. 17 96 Popović Judicial Notice Adjudicated facts (supra note 83), para. 6 97 Prosecutor v. Zdravko Tolimir, IT‐05‐88/2‐PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts pursuant to Rule 94(B), 17 December 2009, para. 8; Prosecutor v. Milosević, IT ‐98‐29/1‐ AR73.1, Decision on Interlocutory Appeals against Trial Chamber's Decision on Prosecution's Motion for Judicial Notice of Adjudicated Facts and Prosecution's Catalogue of Agreed Facts, 26 June 2007, para. 16‐17,21‐ 22; Prosecutor v. Milosević, IT‐98‐29/l‐T, Decision on Appeals Chamber Remand of Judicial Notice of Adjudicated Facts with Separate Opinion of Judge Robinson, 18 July 2007, para. 11; Prosecutor v. Milosević, IT‐ 98‐29/1‐T, Decision on Defence Request for Judicial Notice of Adjudicated Facts, 29 August 2007, p. 2; See also Nina Jorgensen, ‘Genocide as a fact of common knowledge’, (2007) 56 Int’l & Comp. L.Q. 885 at 889‐890 98 Prosecutor v. Delić, IT‐04‐83‐PT, Decision on Prosecution's Motion for Judicial Notice of Adjudicated Facts and Joint Motion Concerning Agreed Facts, 9 July 2007, para. 11.
(vii) It must not relate to the acts, conduct or mental state of the accused. The exclusion of Proposed Facts relating to the acts, conduct or mental state of the accused does not apply to the conduct of other persons for whose criminal acts and omissions the accused is allegedly responsible through one or more of the forms of responsibility enumerated in the Statute.99 Moreover, a fact must be truly adjudicated in the sense that it is not unclear or misleading in the context in which it is placed in the moving party’s motion and that it cannot impact upon the right of the Accused to a fair trial. 100The various requirements will be discussed in the following paragraphs. (i) The fact must be distinct, concrete and identifiable To establish whether proposed facts are sufficiently concrete, distinct and identifiable, the Chamber must examine those facts in the context of the original judgement with “specific reference to the place referred to in the judgement and to the indictment period of that case.101 A chamber should deny judicial notice when facts are too much interlaced to each other that they alone cannot survive the admissibility test.”102 A distinct, concrete and identifiable fact cannot consist of a subjective qualification103 and must be of a purely factual nature.104 Contradictory, unclear, vague and overly broad facts do not apply for judicial notice of adjudicated facts.105 Facts that cannot clearly be linked to a time or a place, for example, are not clear, distinct and identifiable.106 99 Mladić First Decision on Judicial Notice (supra note 4), para. 8 100 Nina Jorgensen, ‘Genocide as a fact of common knowledge’, (2007) 56 Int’l & Comp. L.Q. 885 at 890 under (iv); Karemera Appeals Decision (supra note 77), para. 55; Popovic Judicial Notice Adjudicated facts (supra note 83), para. 8; Nina Jorgensen, ‘Genocide as a fact of common knowledge’, (2007) 56 Int’l & Comp. L.Q. 885 at 890 under (x) 101 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 23 note 57 102 Id. Para. 23 103 Such as Proposed Fact No. 945 in Mladić First Decision on Judicial Notice (supra note 4), para. 27, which states: ‘Perhaps the most notorious of the camps, where the most horrific conditions existed, was the Omarska camp.’ The words ‘perhaps’, ‘notorious’ and ‘horrific’ are not of a purely factual nature, but are subjective qualifications. 104 Prosecutor v. Stanisic and Zupljanin, IT‐08‐91‐T, Decision granting in part Prosecution’s Motions for Judicial Notice of Adjudicated Facts, 1 April 2010, para. 47 105 Mladić First Decision on Judicial Notice (supra note 4) para. 29‐30 106 Prosecutor v. Mladić, IT‐09‐92‐PT, Second Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 21 March 2012 [Mladić Second Decision on Judicial Notice], para. 19
(ii) The fact must be relevant to the matters at issue in the current proceedings; “A Chamber may admit any relevant evidence which it deems to have probative value.”107 The Appeals Chamber in Semanza has acknowledged that Rule 94 cannot be used to circumvent this ordinary requirement of relevance, because doing so would clutter the record with matters that otherwise would not be admitted.108 Since taking judicial notice of an adjudicated fact effectively admits that fact into evidence109, judicial notice of irrelevant facts implies the danger of overburdening the evidentiary record.110 If a particular fact has been relevant in a previous case, it does not necessarily mean it will be in other cases as well. Even in the same case a fact can become irrelevant after a Chamber’s Decision. In the Karadžić case there were many facts that were relevant at the moment the motion was filed, but failed to meet the requirement of relevance after the Trial’s Decision on Rule 73bis.111 Under Rule 73bis a Trial Chamber can invite the Prosecutor to reduce the number of counts charged in the indictment and limit its case to a number of crime sites or incidents. This goes against the right to an adequate preparation of the defence, as the defence has spent time to look for exculpatory evidence regarding the facts in the prior indictment. Additionally, events that occurred more than 45 years before the indictment period were not admitted into evidence, because although these facts gave some historical background, they were irrelevant to the facts that were at issue.112 When facts are directly linked to both the local and the chronological scope of the indictment, they can be considered as relevant.113 It should be examined whether proposed evidence relates to a material issue114 which can be found in the indictment.115 A fact can be considered irrelevant to the proceedings when it relates to a different time period or geographical location. 107 Rule 89(C) RPE 108 Prosecutor v. Semanza, ICTR‐97‐20‐A, Appeals Chamber Judgement, 20 May 2005, para. 189 109 Id.; Prosecutor v. Nikolic, IT‐02‐60/1‐A, Decision on Appelant’s Motion for Judicial Notice, 1 April 2005, para. 52; Prosecutor v. Krajišnik, IT‐00‐39‐T, Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts, 24 March 2005, para. 17, p. 10 110 Popović Judicial Notice Adjudicated Fact (supra note 83), para. 5 111 Prosecutor v. Karadžić, IT‐95‐5/18‐PT, Decision on Second Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 October 2009 [Karadžić Second Decision on Judicial Notice], para. 22 112 Id. Para. 23 113 Id. Para. 25 114 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 18 115 Id.
The defence can object against the relevance of a proposed fact on such grounds, arguing that it refers to a time period or a geographical location that fall outside the scope of the indictment.116 However, as the Chamber assesses each fact on a case by case basis, it is possible that such facts will be considered relevant, even though they relate to another time and place.117 (iii) The fact as formulated by the moving party must not differ in any substantial way from the facts actually adjudicated in the original judgement. If a proposed fact contains only a minor inaccuracy or ambiguity, it is within the Chamber’s discretion to correct such an ambiguity or inaccuracy, as long as the correction reflects the fact adjudicated in the original judgement.118 If, however, a proposed fact is substantially different than the fact stated in the original judgement, the Chamber will deny judicial notice.119 (iv) It must not include findings or characterisations that are of an essentially legal nature. A finding is a legal conclusion when it involves the interpretation or application of legal principles.120 The Trial Chamber, however states that some facts have both a legal and factual meaning.121 To determine whether a term is of a factual or legal nature, the Trial Chamber looks at the context122 and will examine whether the findings or conclusions are essentially legal in nature or constitute factual content.123 Many findings have a ‘legal aspect’ in the broad sense of the term which is why the Chambers decide on a case by case basis whether a fact must be excluded of judicial notice.124 116 Id. Para. 34 117 Mladić First Decision on Judicial Notice (supra note 4), para 34, 36 118 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 39 119 Karadžić Second Decision on Judicial Notice (supra note 112), para. 36 120 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 46 121 Mladić First Decision on Judicial Notice (supra note 4), para. 37 122 Id. 123 Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 46 and note 132 124 Id. Para. 46
Several proposed facts in the Karadžić case use legally significant terms like ‘attack’, ‘armed conflict’, ‘civilian population’ and ‘systematically’, but the Chamber did not find that these terms were used in such a way as to render them essentially legal in nature.125 Other proposed facts, such as “did not leave on their own free will”, “the measure was intended to”, “with the specific purpose” and “departures were involuntary in nature” were not admitted to judicial notice. The reasoning of the Chamber was that the facts amount to legal findings pertaining to the charge of deportation and therefore were not appropriate for judicial notice under Rule 94(B).126 Thus, the reason for exclusion of these facts from judicial notice was that they were legal elements of a charge in the current case. In section 2.3.3 judicial notice of facts with a legal characterization will be examined extensively together with judicial notice of genocide. (v) It must not be based on a plea agreement or on facts voluntarily admitted in a previous case Agreed facts can be the result of a plea agreement under Rules 62bis and 62ter or an agreement based on Rule 65ter(H) of the RPE ICTY and ICTR. It is difficult to establish whether a fact is based on an agreement between the parties, as it is not explicitly mentioned as such in judgements, especially when no source reference is added.127 If no explicit indication is found in the original judgement, the Chamber considers that the Trial Chambers’ findings are not based on an agreement between the parties.128 The reason judicial notice of facts based on agreement should be dismissed, is that the person in the previous trial made an agreement with possible conditions. The accused in the precedent trial could have had no reason to object to some facts, while the person in the current proceedings would have objected to those facts. Another reason to exclude such facts is that, in most cases, the person who pleaded guilty did not complete all the stages of the proceeding which means the examination of the facts is less extensive than in a situation where an accused does complete all the stages of the proceeding. In such a case the factual basis might be too shaky to come to a conviction with only those facts. (vi) A fact must not have been contested on appeal, or, if it has, the fact has 125 Karadžić Second Decision on Judicial Notice (supra note 112), para. 44 126 Id. para. 45 127 Mladić First Decision Judicial Notice (supra note 4), para. 40 and 42 128 Id. para. 40
been settled on appeal129 Before a Chamber can take judicial notice of a fact under Rule 94(B), a fact must be truly adjudicated. 130 A fact is truly adjudicated when it is not contested on appeal, or, if it has, this fact has been settled on appeal. 131If a particular finding on a fact is not the subject of appeal, judicial notice may be taken of it in other proceedings notwithstanding an appeal pending on other aspects.132 (vii) It must not relate to the acts, conduct or mental state of the accused. The Appeals Chamber in Karemera considered that judicial notice should not be taken of adjudicated facts relating to acts, conduct and mental state of the accused.133 The Appeals Chamber also stated, however, that facts that do not relate, in a direct or indirect manner, to the criminal responsibility of the accused, are not relevant to be judicially noticed under Rule 94(B).134 One could be sceptical of facts adjudicated in other cases when these facts concern on the actions, omissions or mental state of an accused who is not on trial in that particular case.135 Facts that bear on the actions, omissions or mental state of the accused are central to the criminal responsibility of the accused and the exclusion of such facts “focuses on the deeds, behaviour, and mental state of the accused‐ that is, on the conduct of the accused fulfilling the physical and mental elements of the form of responsibility through which he or she is charged with responsibility.”136 It is improper for such facts judicially noticed to be the basis to establish the individual 129 Prosecutor v. Kupreskić, IT‐95‐16‐A, Decision on the Motions of Drago Josipovic, Zoran Kupreskić and Vlatko Kupreskić to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to Be Taken pursuant to Rule 94(B), 8 May 2001, para. 6; Prosecutor v. Prlić, Decision on Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B), 24 March 2006, para. 12; Mladic Second Decision Judicial Notice (supra note 107) para. 33 130 Mladić Second Decision Judicial Notice (supra note 107) para. 33 131 Id. para. 33 132 Id. 133 Karemera Appeal Decision (supra note 77), para. 50 134 Id. para. 48 135 Id. para. 51 136 Popović Judicial Notice Adjudicated Facts (supra note 83), para. 13
criminal responsibility of the accused, because this would infringe the presumption of innocence and the procedural rights of the accused.137 Moreover, the reliability of facts adjudicated in previous cases that bear on the actions, omissions or mental state of the accused can be put in question.138 The person in the previous proceedings may have had less interest to contest some facts or may have expressly agreed on some facts to lay the blame on someone else.139 Judicial notice of such facts may impermissibly infringe the accused’s right to hear and confront the witnesses against him or her.140 The Interests of Justice When it is established that a purported adjudicated fact meets all the admissibility requirements, a Chamber may take judicial notice of it.141 The Chamber can, however, withhold judicial notice when it is not in the interests of justice to take judicial notice.142 According to the Trial Chamber in Popović, a fair and expeditious trial is in the interest of justice.143 Moreover, the other rights of the defendant stated in Article 20 and 21 of the Statute must be respected.144 The central question is whether the use of judicial notice will achieve judicial economy while preserving the right of the accused to a fair, public and expeditious trial.145 Judicial notice can advance judicial economy by limiting the relevant proceedings to what is essential for the case without rehearing supplementary allegations already proven in past proceedings.146 137 Karemera Appeals Decision (supra note 77), para. 47 138 Id. para. 51 139 Id; Popović Judicial Notice Adjudicated Facts (see note 83), para. 12 140 Popović Judicial Notice Adjudicated Facts (supra note 83) para. 12; Karemera Appeals Decision (supra note 77), para. 47 141 Popović Judicial Notice Adjudicated Facts (supra note 83), para. 15 142 Karemera Appeals Decision (supra note 77), para. 41; Prosecutor v. Krajisnik, IT‐00‐39‐T, Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts, 24 march 2005, paragraph 12; Prosecutor v. Milosević, IT‐02‐54‐AR73.5, Decision on Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, p. 3‐4 143 Popović Judicial Notice Adjudicated Facts (supra note 83), para. 16 144 Id. 145 Id. Paragraph 16 and note 54; Karemera Appeals Decision (supra note 77), para. 39, 41; Prosecutor v. Krajisnik, IT‐00‐39‐T, Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts, 24 march 2005, para. 12 146 Prosecutor v. Krajisnik, IT‐00‐390T, Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses pursuant to rue 92bis, 28 February 2003, para11
Judicial notice of adjudicated facts establishes a presumption of its accuracy that can be rebutted by the other party.147 This means that the accused may take up excessive time and resources to rebut this presumption, which can go at the expense of the principle of judicial economy.148 Especially when a proposed fact goes to the core of the case, this practice can jeopardise the accused’s right to a fair trial.149 A proposed fact can go to the core of the case when it relates to a specific allegation against the accused, pertains to an objective of the joint criminal enterprise, relates to acts and conduct of persons for whose criminal conduct the accused is allegedly responsible, and when it relates to a highly contested issue.150 Proposed facts that go to the core of the case are not inadmissible, but can be a reason for the Trial Chamber to decide, under its discretion, not to take judicial notice of it.151 Another reason to deny judicial notice is when a fact appears to be repetitive.152 Moreover, proposed facts that contain subjective inferences cannot be considered to be of a factual nature and there judicial notice in such a case should be denied.153 2.3.3 Judicial Notice of ‘Legal Characterizations’ and Judicial Notice of Genocide Judicial Notice of Legal Characterizations As Judge Robertson said, in the case an accused pleads ‘not guilty’ he puts in issue his mens rea or guilty mind which cannot be the subject of judicial notice. Judicial notice may only be taken of facts that are relevant to characterise actions, but those actions themselves must be proven by evidence.154 147 Karemera Appeals Decision (supra note 77), para. 42; Prosecutor v. Tolimir, IT‐05‐88/2‐PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B), 17 December 2009, para. 32 148 Prosecutor v. Tolimir, IT‐05‐88/2‐PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B), 17 December 2009, para. 32; Popović Judicial Notice Adjudicated Facts (supra note 83), para. 16; Karadžić Fifth Decision on Judicial Notice (supra note 2), para. 53 149 Prosecutor v. Tolimir, IT‐05‐88/2‐PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B), 17 December 2009, para. 32 150 Id. Para. 33 151 Id. 152 Id. Para 34 153 Prosecutor v. Hadžić, IT‐04‐75‐T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts and Documents, 23 May 2003, para. 13 154 Prosecutor v. Norman et al., SCSL‐2004‐14‐AR73, Decision on Appeal against Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 16 May 2005, Separate Opinion of Justice Robertson, para. 16, p. 10
