Facts going to the criminal responsibility of an accused

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

Emphasis added are in bold, emphasis from the original decision are in italics.

47. […] in Semanza the Appeals Chamber made reference to the need to ensure “that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility”.  This reference was made in the context of a discussion of Rule 94(A), and the Appeals Chamber did not discuss the implications for Rule 94(B).  In both contexts, however, it remains the case that the practice of judicial notice must not be allowed to circumvent the presumption of innocence and the defendant’s right to a fair trial, including his right to confront his accusers.  Thus, it would plainly be improper for facts judicially noticed to be the “basis for proving the Appellant’s criminal responsibility” (in the sense of being sufficient to establish that responsibility), and it is always necessary for Trial Chambers to take careful consideration of the presumption of innocence and the procedural rights of the accused.

48. The Appeals Chamber, however, has never gone so far as to suggest that judicial notice under Rule 94(B) cannot extend to facts that “go directly or indirectly” to the criminal responsibility of the accused (or that “bear” or “touch” thereupon).  With due respect to the Trial Chambers that have so concluded,[1] the Appeals Chamber cannot agree with this proposition, as its logic, if consistently applied, would render Rule 94(B) a dead letter.  The purpose of a criminal trial is to adjudicate the criminal responsibility of the accused.  Facts that are not related, directly or indirectly, to that criminal responsibility are not relevant to the question to be adjudicated at trial, and, as noted above, thus may neither be established by evidence nor through judicial notice.[2]  So judicial notice under Rule 94(B) is in fact available only for adjudicated facts that bear, at least in some respect, on the criminal responsibility of the accused.[3]

49.     How can this observation be reconciled with the presumption of innocence?  First, as noted above, judicial notice under Rule 94(B) does not shift the ultimate burden of persuasion, but only the initial burden of production (the burden to produce credible and reliable evidence sufficient to bring the matter into dispute).  Analogously, in the context of alibi evidence, for instance, the accused bears the burden of production with respect to a matter centrally related to the guilt of the accused; yet this shift does not violate the presumption of innocence because, as the Appeals Chamber has repeatedly recognized, the prosecution retains the burden of proof of guilt beyond a reasonable doubt.[4]

50.     Notwithstanding this point, there is nonetheless reason for caution in allowing judicial notice under Rule 94(B) of facts that are central to the criminal responsibility of the accused—for ordinarily in criminal cases the burdens of production and persuasion are on the prosecution.  Although the latter always remains on the prosecution, even shifting the former has significant implications for the accused’s procedural rights, in particular his right to hear and confront the witnesses against him.[5]  The Appeals Chamber considers that as a result an exclusion from judicial notice under Rule 94(B) is appropriate, but one narrower than that adopted by the Trial Chamber: judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of the accused.  

51.     There are two reasons that this category of facts warrants complete exclusion, while other facts bearing less directly on the accused’s criminal responsibility are left to the Trial Chamber’s discretion.  First, this interpretation of Rule 94(B) strikes a balance between the procedural rights of the Accused and the interest of expediency that is consistent with the one expressly struck in Rule 92 bis, which governs the proof of facts other than by oral evidence—another procedural mechanism adopted largely for the same purpose as was Rule 94.[6]  Second, there is also a reliability concern—namely, there is reason to be particularly skeptical of facts adjudicated in other cases when they bear specifically on the actions, omissions, or mental state of an individual not on trial in those cases.  As a general matter, the defendants in those other cases would have had significantly less incentive to contest those facts than they would facts related to their own actions; indeed, in some cases such defendants might affirmatively choose to allow blame to fall on another.

52.     As to all other adjudicated facts relating to the criminal responsibility of the accused, it is for the Trial Chambers, in the careful exercise of their discretion, to assess each particular fact in order to determine whether taking judicial notice of it—and thus shifting the burden of producing evidence rebutting it to the accused—is consistent with the accused’s rights under the circumstances of the case.  […]

[1] See supra note 77 (cases cited by Nzirorera Response).

[2] See supra note 29.

[3] In theory, there is one exception to this statement: facts bearing on the Tribunal’s jurisdiction but not (directly or indirectly) on the accused’s criminal responsibility under international law, such as the location of the territorial boundaries of Rwanda, or the Rwandan citizenship of a person accused of committing a serious violation of international humanitarian law in a neighbouring State.  This category is quite limited, however, and it has never been suggested that the scope of Rule 94(B) should be limited to such facts.

[4] See, e.g., Kajelijeli Appeal Judgement, paras 40-41; Niyitegeka Appeal Judgement, paras 60-61.

[5] Statute of the International Tribunal, art. 20(e).  For similar reasons, Article 20(d), referring to the right of the accused to be tried in his or her presence, is also implicated by the practice of resolving facts fundamental to the guilt of the accused in other trials where the accused is not present.

[6] Rule 92 bis (in paragraphs (A) and (D) limits admission of witness statements and transcripts from other proceedings to matters “other than the acts and conduct of the accused as charged in the indictment”.  The Appeals Chamber has interpreted this phrase as extending to the mental state of the accused.  See Prosecutor v. Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis (C), 7 June 2002, paras 10-11 (“Galić Decision”).

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

16. The Karemera Appeals Decision established that it is prohibited to take judicial notice of “adjudicated facts relating to the acts, conduct, and mental state of the accused.” This means that, when an accused is charged with crimes committed by others, while it is possible to take judicial notice of adjudicated facts regarding the existence of such crimes, the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question must be proven by other means than judicial notice. Thus, the Appeals Chamber sees no reason why judicial notice could not be taken of adjudicated facts providing evidence as to the existence of crimes committed by others and which the accused is not even charged with, as in the instant case, as long as the burden remains on the Prosecution to establish, by means other than judicial notice, that the accused had knowledge of their existence. The Appeals Chamber recalls, in this respect, that judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” and that the facts “established under Rule 94(B) are merely presumptions that may be rebutted by the defence with evidence at trial”.[3]

17. […] the Appeals Chamber finds ambiguous the Prosecution’s statement that “if the Proposed Facts were judicially noticed the Trial Chamber could rely on them, together with other evidence, to draw inferences about notice to the Accused of crimes committed by SRK forces”,[4] and recalls that evidence of the accused’s notice of the crimes has to be produced separately from judicial notice of their existence. 

[1] Karemera Appeals Decision [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. 50.

[2] Ibid., para. 52.

[3] Ibid., para. 42.

[4] Prosecution’s Interlocutory Appeal [Prosecution’s Interlocutory Appeal Brief against Trial Chamber’s 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 May 2007], para. 15.

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