Binding force of Appeals Chamber decisions on each other

Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

92. The Appeals Chamber adopts the findings of ICTY Appeals Chamber in the Aleksovski case[1] and recalls that in the interests of legal certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. […]

[1] Case No. IT-95-14/1-A, The Prosecutor v. Zlatko Aleksovski, "Decision", Appeals Chamber, 24 March 2000, paras. 107-109: "The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice [para. 107]. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been ‘wrongly decided, usually because the judge or judges were ill-informed about the applicable law’ [para. 108]. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts" [para. 109].

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Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

101. The fundamental purpose of the Tribunal is the prosecution of persons responsible for serious violations of international humanitarian law.[1]  The Appeals Chamber considers that this purpose is best served by an approach which, while recognising the need for certainty, stability and predictability in criminal law, also recognises that there may be instances in which the strict, absolute application of that principle may lead to injustice.

102. The principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases. […]

107. The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.

108. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law.”[2]

109. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception.  The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.

110. What is followed in previous decisions is the legal principle (ratio decidendi), and the obligation to follow that principle only applies in similar cases, or substantially similar cases.  This means less that the facts are similar or substantially similar, than that the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision.  There is no obligation to follow previous decisions which may be distinguished for one reason or another from the case before the court.

111. Where, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.

See also paras. 102-106.

[1] See Article 1 of the Statute.

[2] Black’s Law Dictionary (7th ed., 1999).

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Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

15. […] while not bound by the jurisprudence of the ICTR or the ICTY, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTR or the ICTY Appeals Chambers and depart from them only for cogent reasons in the interests of justice.

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Notion(s) Filing Case
Decision on a Motion for Reconsideration and Certification to Appeal Decision on a Request for Provisional Release - 08.06.2018 MLADIĆ Ratko
(MICT-13-56-A)

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RECALLING that the Appeals Chamber treats its pre-appeal and interlocutory decisions as binding in ongoing proceedings as to all issues decided therein, and that, in the interests of justice, this principle forecloses re-litigation of such issues;[1]

OBSERVING that the only exception to this principle is where the Appeals Chamber may reconsider its prior decision;[2]

CONSIDERING, therefore, that there is no legal basis for appealing an order or a decision of the Appeals Chamber;

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FINDING, therefore that, Mladić’s request for certification to appeal the Impugned Decision to be without merit; 

[1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 127; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005 (“Naletilić and Martinović Decision”), para. 20; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”), para. 202.

[2] See Nyiramasuhuko et al. Appeal Judgement, para. 127; Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203. In a tribunal such as the Mechanism with only one tier of appellate review, the exception providing for reconsideration of appeal decisions is important to give the Appeals Chamber a meaningful opportunity to correct any mistakes it may have made. See Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203.

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Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

116. The Appeals Chamber recalls that decisions on taking judicial notice of adjudicated facts fall within the discretion of trial chambers.[1] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

117. Rule 94(B) of the ICTY Rules provides that, at the request of a party or proprio motu, a trial chamber, after hearing the parties, may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the ICTY relating to the matter at issue. Adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding”.[3] Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of an accused.[4]

118. It is not disputed that the practice of taking judicial notice of adjudicated facts is well-established in the jurisprudence of the ICTY and the ICTR,[5] and it is accepted as a method of achieving judicial economy while ensuring the right of an accused to a fair and expeditious trial.[6] In this respect, a number of procedural safeguards are set out in the jurisprudence,[7] which are intended to ensure that trial chambers exercise their discretion cautiously and in accordance with the rights of the accused, including the right to be presumed innocent until proven guilty pursuant to Article 21(3) of the ICTY Statute.[8]

119. […] Karadžić challenges the “constitutionality” of the practice of taking judicial notice of adjudicated facts, notwithstanding the express provision for it in the ICTY Rules.[9] The Appeals Chamber recalls that, where the respective Rules or Statute of the ICTY are at issue, it is bound to consider the relevant precedent when interpreting them.[10] This Appeals Chamber is presently being called upon to assess the propriety of decisions taken by an ICTY trial chamber, that was bound by the ICTY Rules and the ICTY Statute as well as by decisions of the ICTY Appeals Chamber.[11] Bearing this context in mind, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTY and the ICTR Appeals Chambers and depart from them only where cogent reasons in the interests of justice exist, that is, where a previous decision has been decided on the basis of a wrong legal principle or has been “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[12] Therefore, in order to succeed on appeal, Karadžić must demonstrate that there are cogent reasons in the interests of justice that justify departure from jurisprudence on judicial notice of adjudicated facts.

120. The Appeals Chambers of the ICTY and the ICTR have consistently held that judicial notice of adjudicated facts is merely a presumption that may be rebutted by defence evidence at trial.[13] Judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” but only relieves the Prosecution of the initial burden to produce evidence on the given point.[14]

121. The Appeals Chamber notes that the concern that accused in other cases may have focused their defence on arguing that they were not responsible for the perpetrators of crimes rather than on contesting the existence of crimes is one of the reasons why judicial notice may not be taken of adjudicated facts from other cases relating to the acts, conduct, and mental state of the accused.[15] It is, nevertheless, permissible to take judicial notice of adjudicated facts relating directly or indirectly to an accused’s guilt,[16] for example, of facts relating to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible.[17] This is as long as the burden remains on the Prosecution to establish the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question by evidence other than judicial notice.[18] In addition, the discretion to accept adjudicated facts is limited by the need to ensure the accused’s right to a fair and expeditious trial.[19] Apart from disagreeing with the case law, Karadžić fails to demonstrate that there are cogent reasons in the interests of justice to depart from consistent jurisprudence of the ICTR and the ICTY on this matter.

122. The Appeals Chamber does not consider that by taking judicial notice of the existence of a crime committed by Karadžić’s alleged subordinates,[20] for example, the Trial Chamber relieved the Prosecution from proving the actus reus of the crimes charged in the Indictment. The Appeals Chamber recalls that there is a distinction between facts related to the conduct of physical perpetrators of a crime for which an accused is being alleged criminally responsible through another mode of liability and those related to the acts and conduct of the accused himself.[21] The burden remained on the Prosecution to establish by evidence other than judicial notice that Karadžić possessed the relevant mens rea and engaged in the required actus reus to be held responsible for the crimes established by way of judicial notice of adjudicated facts.  

123. Finally, the Appeals Chamber finds without merit Karadžić’s submission that judicial notice of adjudicated facts deprives an accused of the possibility that a trial chamber would reach a different conclusion had it heard the evidence itself. The Appeals Chamber recalls that adjudicated facts are not accepted as conclusive in proceedings involving parties who did not have the chance to contest them,[22] and, as noted above, are merely presumptions that may be rebutted with evidence at trial.[23]

[…]

219. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the ICTY Rules is a method of achieving judicial economy while ensuring the right of the accused to a fair, public, and expeditious trial.[24] Rule 94(B) of the ICTY Rules requires a trial chamber to hear the parties before deciding to take judicial notice.[25] Moreover, facts admitted under Rule 94(B) of the ICTY Rules are merely presumptions that may be rebutted by the defence with evidence at trial.[26] Consequently, judicial notice of adjudicated facts does not shift the ultimate burden of proof or persuasion, which remains squarely on the Prosecution.[27]

220. […] The fact that the Trial Chamber took judicial notice of considerably more adjudicated facts than in other cases does not, in itself, render the trial unfair as long as the Trial Chamber followed the procedure provided for in the ICTY Rules. In this respect, Karadžić’s comparison of the number of judicially noticed adjudicated facts in his case with other cases fails to account for factors such as the unprecedented scope and size of his own trial in relation to others.

See also paras. 221, 222.

[1] [Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.1, 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 (“Mladić Decision of 12 November 2013”)], para. 9; Prosecutor v. Dragomir Milošević, Case No. 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 (“Dragomir Milošević Decision of 26 June 2007”), para. 5.

[2] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

[3] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010 (“Bagosora et al. Decision of 29 October 2010”), para. 7; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Decision of 16 June 2006”), para. 40.

[4] Mladić Decision of 12 November 2013, para. 25; Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 50.

[5] See generally Bagosora et al. Decision of 29 October 2010; Dragomir Milošević Decision of 26 June 2007; Karemera et al. Decision of 16 June 2006. See also, e.g., Tolimir Appeal Judgement, paras. 23-26, 30-36; Popović et al. Appeal Judgement, paras. 622, 623.

[6] Tolimir Appeal Judgement, para. 23; Mladić Decision of 12 November 2013, para. 24; Karemera et al. Decision of 16 June 2006, para. 39.

[7] Mladić Decision of 12 November 2013, para. 25 (“[a] trial chamber must first determine whether a proposed adjudicated fact meets the admissibility criteria for judicial notice, and then consider whether, even if all admissibility criteria are met, it should nonetheless decline to take judicial notice on the ground that doing so would not serve the interests of justice […]. To be admissible, proposed adjudicated facts must [inter alia] not differ in any substantial way from the formulation of the original judgement; […] not be unclear or misleading in the context in which they are placed in the moving party’s motion; […] not contain characterisations of an essentially legal nature; […] not be based on an agreement between the parties to the original proceedings; […] not relate to the acts, conduct, or mental state of the accused; and […] not be subject to pending appeal or review.”); Bagosora et al. Decision of 29 October 2010, paras. 10 (“[…] facts shall not be deemed ‘adjudicated’ if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings”), 11, 12 (“[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”).

[8] Mladić Decision of 12 November 2013, para. 24; Karemera et al. Decision of 16 June 2006, paras. 47, 52.

[9] Karadžić Appeal Brief, paras. 116, 134; T. 23 April 2018 p. 108.

[10] See [Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”)], para. 6.

[11] See Aleksovski Appeal Judgement, paras. 112, 113.

[12] Šešelj Appeal Judgement, para. 11; Stanišić and Župljanin Appeal Judgement, para. 968; Bizimungu Appeal Judgement, para. 370; Đorđević Appeal Judgement, para. 23; Galić Appeal Judgement, para. 117; Rutaganda Appeal Judgement, para. 26; Aleksovski Appeal Judgement, para. 107. Cf. Munyarugarama Decision of 5 October 2012, para. 5 (noting the “normative continuity” between the Mechanism’s Rules and Statute and the ICTY Rules and the ICTY Statute and that the “parallels are not simply a matter of convenience or efficiency but serve to uphold principles of due process and fundamental fairness, which are the cornerstones of international justice”).

[13] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[14] Tolimir Appeal Judgement, para. 24; Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[15] Mladić Decision of 12 November 2013, para. 80, referring to Karemera et al. Decision of 16 June 2006, para. 51.

[16] Mladić Decision of 12 November 2013, para. 81; Karemera et al. Decision of 16 June 2006, paras. 48, 53.

[17] Mladić Decision of 12 November 2013, para. 81; Karemera et al. Decision of 16 June 2006, paras. 52, 53.

[18] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, paras. 49, 52. See also Mladić Decision of 12 November 2013, para. 81.

[19] Karemera et al. Decision of 16 June 2006, paras. 41, 51, 52.

[20] See Karadžić Appeal Brief, para. 128.

[21] Karemera et al. Decision of 16 June 2006, para. 52.

[22] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, paras. 40, 42.

[23] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[24] Mladić Decision of 12 November 2013, para. 24. See also Setako Appeal Judgement, para. 200; Karemera et al. Decision of 16 June 2006, para. 39.

[25] Setako Appeal Judgement, para. 200.

[26] See Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[27] See Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

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ICTY Statute Article 21(3) ICTY Rule Rule 94(B)