Adjudicated facts

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

622. […] The Appeals Chamber considers that a trial chamber may exercise its discretionary power to determine whether to take judicial notice of an adjudicated fact,[1] even if the fact may have been less central to the charges in the previous proceedings of the Tribunal than in the current proceedings,[2] so long as the adjudicated fact has been “established by the Trial Chamber [in the previous proceedings] on the basis of evidence”.[3] […]

[1]           See supra, para. 620.

[2]           See Blagojević and Jokić Appeal Judgement, para. 34.

[3]           The Prosecutor v. Théoneste Bagosora and Anatole Nsengiyumva, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010, para. 11 (emphasis omitted).

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

197. The Trial Chamber did not refer to evidence on the trial record in the present case when noting that informal or regional civil defence measures existed before the establishment of a civil defence on a national scale. Rather, it appears to have relied on an extraneous source, namely a discussion of facts in the Bagosora et al. Trial Judgement.[1]

198. In doing so, the Trial Chamber in fact took judicial notice of facts from another proceeding before the Tribunal. The only legal basis for such an approach would have been Rule 94 of the Rules […].

199. The existence of informal or regional civil defence measures prior to the implementation of civil defence on a national scale in Rwanda cannot be qualified as a fact of common knowledge under Rule 94(A) of the Rules.[2] The relevant parts of the Bagosora et al. Trial Judgement could therefore have been judicially noticed in Setako’s trial only as adjudicated facts pursuant to Rule 94(B) of the Rules.

200. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the Rules is a method of achieving judicial economy and harmonizing judgements of the Tribunal while ensuring the right of the accused to a fair, public, and expeditious trial.[3] For this reason, Rule 94(B) of the Rules requires a trial chamber to hear the parties before deciding to take judicial notice. In addition, the fact in question has to be “adjudicated”. According to established jurisprudence, this latter requirement is only met if the fact is determined in a final judgement, meaning that no appeal has been instituted against it or, if instituted, the fact in question has been upheld.[4] Here, the Trial Chamber took judicial notice of facts addressed in the Bagosora et al. Trial Judgement without hearing the parties and while the Bagosora et al. Trial Judgement was still pending appeal.[5] The Appeals Chamber therefore finds that the Trial Chamber violated Rule 94(B) of the Rules.

[1] While it is apparent that the Bagosora et al. Trial Judgement was only among several sources, the Trial Chamber did not disclose any other sources upon which it relied. See Trial Judgement, fn. 446.

[2] This category is confined to facts, which are not subject to reasonable dispute, that is commonly accepted or universally known facts, such as general facts of history or geography. See Bikindi Appeal Judgement, para. 99; Semanza Appeal Judgement, para. 194.

[3] 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, para. 39; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts, 24 March 2005, para. 12.

[4] 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, para. 7; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Bicamumpaka’s Motion for Judicial Notice, 11 February 2004, paras. 4, 5.

[5] The Appeals Chamber notes that the Bagosora et al. Trial Chamber’s findings on the existence of civil defence programmes as such were not appealed. Only Nsengiyumva challenged the adequacy of his notice of the allegations and the Trial Chamber’s findings on his responsibility over civil defence forces in 1994. See Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Nsengiyumva’s Appeal Brief, filed 1 February 2010 (confidential) and 2 February 2010 (public), paras. 20-22, 35, 41, 59, 61, 63, 64, 77, 80, 121, 136.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice of Adjudicated Facts - 12.11.2013 MLADIĆ Ratko
(IT-09-92-AR73.1)

92.    The Appeals Chamber held in the Kupreškić et al. case that proposed facts may be subject to judicial notice if the original judgement has not been appealed or where the judgement is finally settled on appeal.[1] It clarified that:

Since the Appeals Chamber may in the course of that appeal revise the findings of the Trial Chamber, the Appeals Chamber thinks it unwise to assume that the facts contained in the Trial Chamber’s judgement are ‘adjudicated’. Only facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed ‘adjudicated facts’ within the meaning of Rule 94(B).[2]

In a subsequent Appeals Chamber decision, Judge Shahabuddeen appended a separate opinion, elaborating that “if a particular finding on a fact is not the subject of appeal, judicial notice may be taken of it in other proceedings notwithstanding the pendency of an appeal on other aspects.”[3] In addition, trial chambers have interpreted the holding in the Kupreškić et al. Appeal Decision broadly to allow judicial notice of adjudicated facts from judgements pending appeal or review which are not themselves clearly at issue in the appeal, before the appeal is finally concluded.[4] The Appeals Chamber finds this interpretation of the Kupreškić et al. Appeal Decision to be persuasive. However, when determining whether proposed facts are subject to appeal or review, the Appeals Chamber emphasises that trial chambers should take a cautious approach and err on the side of excluding proposed facts which could be altered on appeal.

[…]

94.    While it is within a trial chamber’s discretion to determine whether proposed facts are subject to appeal or review for the purposes of taking judicial notice pursuant to Rule 94(B) of the Rules, as with all discretionary decisions, that discretion is subject to review.[5] The Appeals Chamber recalls that judicial notice of adjudicated facts is an exception to the ordinary burden of producing evidence.[6] Consequently, the Appeals Chamber considers that trial chambers should err on the side of exclusion of proposed facts which could be altered on appeal because judicial economy is poorly served in circumstances where parties in one proceeding are required to follow the status of another proceeding on appeal to determine which adjudicated facts are operative in their case.

[…]

96.    The Appeals Chamber has reviewed the grounds of appeal raised by the Popović et al. appellants to which Mladić refers[] and has found that some of those grounds could have a bearing not only on general issues of trial fairness, but also on the veracity of specific Proposed Facts. […] The Appeals Chamber notes the difficulty in assessing the likely outcome of grounds of appeal in a separate proceeding and considers that it is not for this Bench of the Appeals Chamber to do so. The question before the Appeals Chamber is merely whether, if these grounds of appeal were successful, the integrity of the entire Popović et al. Trial Judgement could be undermined such that Proposed Facts from the judgement could not be considered truly adjudicated.[7] In these circumstances, the Appeals Chamber considers that it could potentially be so undermined. Consequently, the Appeals Chamber finds that the Trial Chamber failed to give these grounds of appeal sufficient weight in determining whether the Proposed Facts in question are subject to appeal, and therefore committed a discernible error.[8]

[1] [Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001 (“Kupreškić et al. Appeal Decision”)], para. 6. See also for e.g. Popović et al. Decision, para. 14; [Prosecutor v. Momčilo Perišić, Case No. IT-04-81-PT, Decision on Second Motion for Judicial Notice of Facts Relevant to the Sarajevo Crime Base, 17 September 2008 (“Perišić Decision 17 September 2008”)], para. 18; [Prosecutor v. Momčilo Perišić, Case No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of Facts Relevant to the Srebrenica Crime Base, 22 September 2008 (“Perišić Decision 22 September 2008”)], para. 37; [Prosecutor v. Delić, Case No. IT-04-83-PT, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Joint Motion Concerning Agreed Facts, 9 July 2007 (“Delić Decision”)], para. 13.

[2] Kupreškić et al. Appeal Decision, para. 6; [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, 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 (“Slobodan Milošević Appeal Decision”)], p. 4, fn. 10.

[3] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, Separate opinion of Judge Shahabuddeen Appended to the Appeals Chamber’s Decision Dated 28 October 2003 on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 31 October 2003 (“Separate Opinion of Judge Shahabuddeen”), para. 34.

[4] Prosecutor v. Momčilo Krajišnik, Case No. 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 Trial Chamber Decision, 28 February 2003”), para. 14. See also Prosecutor v. Paško Ljubičić, Case No. IT-00-41-PT, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts, 23 January 2003 (“Ljubičić Pre-Trial Decision”), pp. 4-5. See for example [Prosecutor v. Prlić et al., Case No. IT-04-74-PT, Decision on Motion for Judicial Notice of Adjudicated Facts pursuant to Rule 94(B), 14 March 2006 (“Prlić et al. Pre-Trial Decision”)], para. 15; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence, 19 December 2003 (“Blagojević and Jokić Trial Chamber Decision 19 December 2003”), paras 16, 19.

[5] See supra, para. 9.

[6] See for example Karemera et al. Appeal Decision, para. 42.

[7] See Delić Decision, para. 14.

[8] See supra, para. 9.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice of Adjudicated Facts - 12.11.2013 MLADIĆ Ratko
(IT-09-92-AR73.1)

26.    Although not clearly contested by either party, the Appeals Chamber will address the issue of whether and to what extent it is within a trial chamber’s discretion to reformulate proposed adjudicated facts prior to taking judicial notice of them. The Appeals Chamber notes that several trial chambers have held that it is within their discretion to make minor corrections to proposed facts to render their formulation consistent with the meaning intended by the original judgement, as long as the corrections do not introduce any substantive changes.[1] For example, the Popović et al. Trial Chamber held that:

[…] if the moving party’s formulation contains only a minor inaccuracy or ambiguity as a result of its abstraction from the context of the original judgement, the Chamber may, in its discretion, correct the inaccuracy or ambiguity proprio motu. In such circumstances, the correction should introduce no substantive change to the proposed fact, and the purpose of such correction should be to render the formulation consistent with the meaning intended by the original Chamber. The fact corrected in this manner may then be judicially noticed, as long as it fulfils all the other admissibility requirements of Rule 94(B).[2]

Moreover, in the Mićo Stanišić Decision, the Trial Chamber corrected proposed facts by adding information on their temporal and/or geographic scope drawn from the trial judgement from which the proposed fact was taken.[3]

27.    The Appeals Chamber also recalls that:

[a] Trial Chamber can and indeed must decline to take judicial notice of facts if it considers that the way they are formulated – abstracted from the context in the judgement from whence they came – is misleading or inconsistent with the facts actually adjudicated in the cases in question. A fact taken out of context in this way would not actually be an ‘adjudicated fact’ and thus is not subject to judicial notice under Rule 94(B).[4]

28.    The Appeals Chamber, Judge Robinson dissenting, considers that the approach taken by the trial chambers as set out above would not fall outside a chamber’s discretion to take judicial notice of adjudicated facts. However, only minor modifications or additions, which do not alter the meaning of the original judgement from which the proposed adjudicated fact originates, are permissible.

[…]

32.    The Appeals Chamber notes that the Trial Chamber frequently corrected or added information to Proposed Facts which it found did not meet one or more of the criteria for judicial notice. The Appeals Chamber is mindful of the Trial Chamber’s discretion to take judicial notice of adjudicated facts on a proprio motu basis pursuant to Rule 94(B) of the Rules. However, the Appeals Chamber considers that this does not provide the Trial Chamber with the authority to substantively alter facts as proposed by a moving party and that any such exercise of a trial chamber’s discretion should form a separate analysis.[5]

33.    As indicated above, the Appeals Chamber considers that it is within a trial chamber’s discretion to make minor corrections or additions to proposed facts to render them clearer and consistent with the meaning intended in the original judgement.[6] However, the Appeals Chamber considers that it is not permissible for a trial chamber to do so in a manner that introduces new information, which is extraneous to the proposed fact as submitted by the moving party.

[1] [Prosecutor v. Vujadin Popović et al. Case No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex, 26 September 2006 (“Popović et al. Decision”)], para. 7; [Prosecutor v. Mićo Stanišić, IT-04-79-PT, Decision on Judicial Notice, 14 December 2007 (“Mićo Stanišić Decision”)], para. 38; [Prosecutor v. Karadžić, Case No. ICTY-95-5/18-PT, Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts, 5 June 2009 (“Karadžić First Decision”)], paras 20-22; [Prosecutor v. Karadžić, Case No. ICTY-95-5/18-T, Decision on Third Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 July 2009 (”Karadžić Third Decision”)], para. 28; [Prosecutor v. Karadžić, IT-95-5/18, Decision on Fourth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010 (“Karadžić Fourth Decision”)], para. 65; [Prosecutor v. Karadžić, Case No. ICTY-95-5/18-T, Decision on Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010 (“Karadžić Fifth Decision”)], paras 37, 39; [Prosecutor v. Tolimir, Case No. IT-05-88/2-PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B), 17 December 2009 (“Tolimir Decision”)], para. 17. See also [Prosecutor v. Krajišnik, Case No. IT-00-39-T, Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts, 24 March 2005 (“Krajišnik Decision”)], para. 21.

[2] Popović et al. Decision, para. 7 (references omitted).

[3] Mićo Stanišić Decision, para. 38.

[4] [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. Appeal Decision”)], para. 55.

[5] In this regard, the Appeals Chamber notes the Trial Chamber’s Decision on Proprio Motu Taking Judicial Notice of Two Adjudicated Facts, 5 June 2012, in which it decided to take judicial notice of two adjudicated facts after first hearing from the parties and indicating that it had carefully considered the applicable law in relation to taking judicial notice of adjudicated facts (See Decision on Proprio Motu Taking Judicial Notice of Two Adjudicated Facts, 5 June 2012, paras 1, 6).

[6] See supra, paras 26-28.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice - 16.06.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

At paras 40-42, the Appeals Chambers explained the differences between judicial notice under Rule 94(A) and judicial notice under Rule 94(B).

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice - 29.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

7. Rule 94(B) of the Rules provides that, at a request of a party or proprio motu, a Trial Chamber may decide to take judicial notice of adjudicated facts from other proceedings of the Tribunal relating to the matter at issue in the current proceedings.[1] The Appeals Chamber previously held that 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.”[2] Only facts which are not under challenge before the Appeals Chamber or, if challenged, have been upheld by the Appeals Chamber can be deemed “adjudicated” within the meaning of Rule 94(B) of the Rules.[3] By taking judicial notice of an adjudicated fact, a Chamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial.[4]

[1] See Momir Nikolić v. Prosecutor, Case No. IT-02-60/l-A, Decision on Appellant's Motion for Judicial Notice, 1 April 2005 (“Momir Nikolić Appeal Decision”), para. 11.

[2] 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. Appeal Decision”), para. 40.

[3] Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić 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. See also The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-I, Decision on Prosecution’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94, 2 December 2003, para. 34, cited in Momir Nikolić Appeal Decision, para. 45; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, 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 (“Slobodan Milošević Appeal Decision”), p. 4, fn. 10.

[4] Momir Nikolić Appeal Decision, para. 11; Slobodan Milošević Appeal Decision, p. 4. See also Karemera et al. Appeal Decision, para. 42;

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice - 29.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

10. Nsengiyumva requests that judicial notice be taken of portions of a sentencing judgement based on a guilty plea. In this respect, the Appeals Chamber notes that Trial Chambers of this Tribunal and of the International Criminal Tribunal for the former Yugoslavia have held that in order to be judicially noticed, facts must not be based on an agreement between the parties to the original proceedings,[1] and that, as such, facts shall not be deemed “adjudicated” if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings.[2] This position is based on the consideration that such facts 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,[3] and that the accused’s admissions “speak neither to the general currency of the fact nor to its indisputable character.”[4]

11. The Appeals Chamber agrees that facts based on an agreement between parties in previous proceedings cannot be deemed “adjudicated facts” within the meaning of Rule 94 of the Rules because they have not been established by the Trial Chamber on the basis of evidence. Rather, such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than the one applied to instances where the Prosecution must prove the facts upon which convictions are based beyond reasonable doubt. In light of this reasoning, the Appeals Chamber finds that the facts admitted by Michel Bagaragaza as set out in paragraphs 24 and 25 of the Bagaragaza Sentencing Judgement are not subject to judicial notice under Rule 94(B) of the Rules.

[1] See, e.g., The Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Prosecution Motion for Judicial Notice of Facts Adjudicated by Krajišnik Case, signed on 23 July 2010, filed on 4 August 2010, para. 7(5); Prosecutor v. Radovan Karad‘ić, Case No. IT-95-5/18-T, Decision on Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010, para. 14(g); Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts, 25 November 2009 (“Stanišić and Simatović Decision”), para. 56; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts, 22 August 2008, para. 20(g); Prosecutor v. Momčilo Perišić, Case No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Concerning Sarajevo, 26 June 2008 (“Perišić Decision”), para. 27; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 26 September 2006 (“Popović et al. Decision”), para. 11; Prosecutor v. Željko Mejakić et al,, Case No. IT-02-65-PT, Decision on Prosecution Motion for Judicial Notice Pursuant to Rule 94(B), 1 April 2004, p. 4; Prosecutor v. Momčilo Krajišnik, Case No. 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 Decision”), para. 14; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brcko, 5 June 2002 (“Slobodan Milošević Decision”), p. 3.

[2] See, e.g., Stanišić and Simatović Decision, para. 27(iv); Perišić Decision, paras. 16(iv), 27; Popović et al. Decision, para. 11; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts of 14 and 23 June 2006, signed on 7 September 2006, filed in French on 8 September 2006, in English on 29 November 2006, para. 18(6); Krajišnik Decision, para. 15(vii); Slobodan Milošević Decision, p. 3; The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. 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 (“Ntakirutimana Decision”), para. 26; The Prosecutor v. Laurent Semanza, Case No. 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 (“Semanza Decision”), para. 34.

[3] Ntakirutimana Decision, para. 26.

[4] Slobodan Milošević Decision, p. 3, fn. 2; Semanza Decision, para. 34.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice - 26.06.2007 MILOŠEVIĆ Dragomir
(IT-98-29/1-AR73.1)

13. […] the Trial Chamber correctly held that the adjudicated facts sought to be judicially noticed must be relevant to the matters at issue in the current proceedings.[1]

14. […] Even though these Proposed Facts fall outside the time period charged in the Amended Indictment and are related to the acts, conduct and mens rea of his predecessor, Galić, the Appeals Chamber finds that they are clearly relevant to the present case inasmuch as they concern the campaign against civilians between September 1992 and August 1994.

[1] Impugned Decision [Prosecutor v. Dragomir Milošević, Case No. 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. 27; See, inter alia, regarding this issue, Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005, para. 11; Prosecutor v. Elizaphan Ntakirutimana and Gerard Ntakirutimana, Case Nos. ICTR-96-10 and ICTR-96-17-T, Decision on the Prosecutor’s Motion for Judicial Notice of Adjudicated Facts – Rule 94(B) of the Rules of Procedure and Evidence, 22 November 2001, para. 27; Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94(B) and 54, 6 February 2002, para. 14.    

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Additional Evidence and Judicial Notice - 08.05.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

6. […] The Rules are silent on this point of whether a judgement of a Trial Chamber can amount to either “adjudicated facts” or “documentary evidence” within the province of Rule 94(B).[1] The Appeals Chamber notes that the judgement in Prosecutor v. Kordić and Cerkez is currently being appealed by both the accused and the Prosecution. Since the Appeals Chamber may in the course of that appeal revise the findings of the Trial Chamber, the Appeals Chamber thinks it unwise to assume that the facts contained in the Trial Chamber’s judgement are “adjudicated”. Only facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed “adjudicated facts” within the meaning of Rule 94(B). As to Rule 94(B)’s authorisation for judicial notice of “documentary evidence” in a different set of proceedings, the Appeals Chamber believes this Rule envisioned permitting a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.

12. […] The Appeals Chamber considers that a vague and generalised request to take notice of an entire judgement is insufficient to invoke Rule 94(B). A request must specifically point out the paragraph(s) or parts of the judgement of which it wishes judicial notice to be taken, and refer to facts, as found by the Trial Chamber. Equally, as expressed earlier with regard to the Second Josipovi} Request, an entire judgement may not be the object of judicial notice.

[1] NOTE: AT THE TIME OF THE PRESENT DECISION RULE 94(B) OF THE RULES PROVIDED:

 (B) At the request of a party or proprio 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.

AS A RESULT OF AN AMENDMENT ON 8 DECEMBER 2010 RULE 94(B) OF THE RULES READS:

 (B) At the request of a party or proprio 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.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

261. Further, the Appeals Chamber recalls that adjudicated facts of which a trial chamber takes judicial notice pursuant to Rule 94(B) of the Rules “are merely presumptions that may be rebutted […] with evidence at trial”.[1] In this context, the Appeals Chamber emphasises that the final assessment of a piece of evidence is based on the totality of the evidence in a given case, as the same piece of evidence can be assessed differently in different cases because of other evidence on the record.[2] The mechanism of Rule 94(B) of the Rules does not allow a trial chamber to defer to the assessment of the evidence by another trial chamber on the ground that it was fashioned to favour consistency and uniformity in the Tribunal’s case-law.[3] The Trial Chamber therefore had the obligation to assess the evidence and reach its own conclusion.[4] The Appeals Chamber therefore finds that the Trial Chamber did not err in law in finding that the adjudicated fact in question, namely the accuracy of the Užice Hospital Records, was rebutted by the evidence presented at trial.

[1] See 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, para. 16, referring to 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, para. 42.

[2] Édouard Karemera et al. v. The Prosecutor, Case No. ICTR 98-44-AR73.17, Decision on Joseph Nzirorera’s Appeal of Decision on Admission of Evidence Rebutting Adjudicated Facts, 29 May 2009 (“Karemera et al. Decision”), para. 19.

[3] Karemera et al. Decision, para. 21.

[4] See Karemera et al. Decision, para. 22.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Judicial Notice - 01.04.2005 NIKOLIĆ Momir
(IT-02-60/1-A)

45. With respect to the Prosecution’s argument to the effect that documentary evidence must also be adjudicated evidence, the Appeals Chamber concurs with the Trial Chamber in the Bizimungu case which concluded that the wording of Rule 94(B) of the Rules suggests that the term “adjudicated” only relates to “facts” and does not extend to “documentary evidence”. Thus, the Trial Chamber held that:

“…under Sub-Rule 94(B), both facts (which have been previously adjudicated) and documents (which have been received and admitted in previous proceedings) may be judicially noticed. Therefore, to be taken judicial notice of, the facts must be adjudicated facts, meaning facts upon which, on a previous occasion, in another case, this Tribunal in any of its several Chambers has deliberated and made a decision. Such decision must be conclusive in that it is not under challenge before the Appeals Chamber or if challenged, the Appeals Chamber upheld it. Regarding the second part of Sub-Rule 94(B), to be taken judicial notice of, documents must constitute “documentary evidence from other proceedings of the Tribunal” and must “relate to the matter at issue in this case”. [1]

[…] Documents do not need to be “adjudicated” i.e. the Chamber in other proceedings does not need to have pronounced a specific and unchallenged or unchallengeable decision on the admissibility of the document. It is enough that the document was admitted into evidence or “admis lors d’autres affaires portées devant le Tribunal”[2]

[…]

47. The Appeals Chamber notes that concerning “documentary evidence”, Rule 94(B) of the Rules enables a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.[3] Accordingly, the Appeals Chamber could take judicial notice of the section of the report proffered […] if it was satisfied that it meets the requirements set out in Rules 94(B) and 115 of the Rules. […] The Appeals Chamber finds nonetheless, that it would not serve judicial economy to grant the Appellant’s request and judicially notice entire sections of a report or document, since the Appellant has not  demonstrated  exactly which part of the section is relevant to the current proceedings.  The mere reference to whole sections or paragraphs of “documentary evidence” of a previous judgement is insufficient to trigger the exercise of the Chamber’s discretion under Rule 94(B) of the Rules.[4]

[…]

55. […] Bearing in mind the text of Rule 94(B) of the Rules, the Appeals Chamber notes that one paragraph in a judgement can contain more than one fact. Accordingly, a request pursuant to Rule 94(B) of the Rules must be specific if the facts sought to be judicially noticed are to be clearly determined. A motion under Rule 94(B) of the Rules should specify exactly which fact is sought to be judicially noticed and how each fact relates to the matters at issue in the current proceedings, in the instant case, to the grounds of appeal raised.[5]

[1] Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on Prosecution’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94,  2 December 2003, para. 34.

[2] Ibid., para. 35.

[3] Ibid. [Prosecutor v. Zoran Kupreškić et al,  IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić 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, ad finem.]]

[4] Regarding “adjudicated facts” sought to be judicially noticed through the reproduction of whole paragraphs of a judgement, see: Bizimungu 10 December 2004 Decision on Defence Motion [Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on Prosper Mugiraneza’s First Motion for Judicial Notice Pursuant to Rule 94(B), 10 December 2004]], para. 13 and Bizimungu 10 December 2004 Decision on Prosecution Motion [Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on the Prosecutor’s Motion and Notice of Adjudicated Facts (Rule 94(B) of the Rules of Procedure and Evidence),10 December 2004]], para. 19.

[5] Bizimungu 10 December 2004 Decision on Defence Motion, para. 13; Bizimungu 10 December 2004 Decision on Prosecution’s Motion, para. 19.

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ICTR Rule Rule 94(B) ICTY Rule Rule 94(B)