Judicial notice

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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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 Additional Evidence - 01.06.2006 SIMIĆ Blagoje
(IT-95-9-A)

At para. 26, the Appeals Chamber recalled that Rule 94 of the Rules cannot be used to circumvent the requirements of Rule 115:

26. […] [T]he Appeals Chamber recalls that “Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise.”[1] The Appeals Chamber emphasises that to admit on appeal a fact capable of judicial notice, the requirements provided for by Rule 115 of the Rules must also be satisfied,[2] which is not the case in this instance. Had the Medical Reports and the Silverman Report met the requirements of Rule 94(A), they would not have been admitted on appeal.

[1] Ibid, para. 17.

[2] Ibid, paras 17, 18.

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ICTR Rule Rule 94;
Rule 115
ICTY Rule Rule 94;
Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.06.2006 SIMIĆ Blagoje
(IT-95-9-A)

See para. 25:

25. The Appeals Chamber has held that the basis on which judicial notice is taken pursuant to this sub-Rule is that the material is notorious.[1] Facts of common knowledge under Rule 94(A) of the Rules have been considered to encompass common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature, as well as those facts that are generally known within a tribunal’s territorial jurisdiction.[2] Once a Chamber deems a fact to be of common knowledge, it must also determine that the matter is not the subject of reasonable dispute.[3] […]

[1] Momir Nikolić v. Prosecutor, Case No.: IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Judicial Notice Decision”), para. 10, referring to 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, pp. 3 and 4.

[2] Nikolić Judicial Notice Decision, para. 10.

[3] Idem.   

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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
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

225. […] [T]he underlying purpose of [judicial notice] is to dispense with future proof of officially recorded facts that are indisputable.

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

After recalling the case-law on judicial notice of facts of common knowledge,[1] the Appeals Chamber held:

23. Whether a fact qualifies as a “fact of common knowledge” is a legal question.  By definition, it cannot turn on the evidence introduced in a particular case, and so the deferential standard of review ordinarily applied by the Appeals Chamber to the Trial Chamber’s assessment of and inferences from such evidence has no application. Mr. Nzirorera suggests that the Appeals Chamber should defer to the Trial Chamber’s discretion as to “admissibility of evidence” and “the manner in which facts are to be proven at trial”.[2] But the general rule that the Trial Chamber has discretion in those areas is superseded by the specific, mandatory language of Rule 94(A); as noted above, the Trial Chamber has no discretion to determine that a fact, although “of common knowledge”, must nonetheless be proven through evidence at trial.  For these reasons, a Trial Chamber’s decision whether to take judicial notice of a relevant[3] fact under Rule 94(A) is subject to de novo review on appeal.

[1] Decision, para. 22, referring to Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 194.

[2] Nzirorera’s Response, para. 41-42.

[3] As Mr. Nzirorera suggests, see Nzirorera’s Response, para. 41, a Trial Chamber is not obligated to take judicial notice of facts that are not relevant to the case, even if they are “facts of common knowledge”.  Of course, it remains the case that the Trial Chamber “shall not require proof” of such facts, see Rule 94(A), since evidence proving an irrelevant fact would in any event be inadmissible under Rule 89(C) of the Rules.  Cf. Prosecutor v. Hadzihasanović and Kubura, Case No. IT-01-47-T, Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004 (holding that “before taking judicial notice of these four Definitively Proposed Facts the Chamber is obliged to verify their relevance, pursuant to Rule 89(C) of the Rules”).  Relevance determinations are circumscribed by various standards of law, but within the appropriate legal framework the Trial Chamber enjoys a margin of discretion.

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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))

29. […] It is true that “widespread and systematic attack against a civilian population” and “armed conflict not of an international character” are phrases with legal meanings, but they nonetheless describe factual situations and thus can constitute “facts of common knowledge”.  The question is not whether a proposition is put in legal or layman’s terms (so long as the terms are sufficiently well defined such that the accuracy of their application to the described situation is not reasonably in doubt).  The question is whether the proposition can reasonably be disputed.  Neither the Trial Chamber nor any of the Accused has demonstrated any reasonable basis for disputing the facts in question. (emphasis added).

[1] For instance, it is routine for courts to take judicial notice of the existence of a state of war, despite the fact that such a description has a legal meaning.  See, e.g., Mead v. United States, 257 F. 639, 642 (U.S. 9th Cir. Ct. App. 1919); see also infra note 46 (listing other examples of judicial notice incorporating legal concepts).

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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))

30. Likewise, it is not relevant that these facts constitute elements of some of the crimes charged and that such elements must ordinarily be proven by the Prosecution.  There is no exception to Rule 94(A) for elements of offences.  Of course the Rule 94(A) mechanism sometimes will alleviate the Prosecution’s burden to introduce evidence proving certain aspects of its case.  As the Appeals Chamber explained in Semanza, however, it does not change the burden of proof, but simply provides another way for that burden to be met […]. (footnotes omitted).

See also para. 37.

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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))

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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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
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

194. At the time of the Decision on Judicial Notice, Rule 94 provided that “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.”[1]  The Rule was later amended[2] to provide, in addition, for the taking of judicial notice of adjudicated facts or documentary evidence.[3]  The provision relating to facts of common knowledge, provided under paragraph (A) of Rule 94, remained the same.[4]  As the ICTY Appeals Chamber explained in Prosecution v. Milošević, Rule 94(A) “commands the taking of judicial notice” of material that is “notorious.”[5]  The term “common knowledge” encompasses 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.[6]  Such facts are not only widely known but also beyond reasonable dispute.[7]  As stated above, the fact that the Appellant did dispute some of the facts judicially noticed before the Trial Chamber did not prevent the Trial Chamber from qualifying the facts as facts of common knowledge since, as explained by the Trial Chamber, “[h]aving entered a plea of not guilty to all the counts in the indictment, the Accused has placed even the most patent of facts in dispute. However, this alone cannot rob the Chamber of its discretion to take judicial notice of those facts not subject to dispute among reasonable persons.”[8]  Having regard to the arguments submitted by the Appellant before the Trial Chamber to challenge the nature of the facts adduced by the Prosecution and to the facts themselves, the Appeals Chamber considers that the said facts were not the subject of a “reasonable” dispute. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in considering that the facts enumerated in the Decision on Judicial Notice were “facts of common knowledge” within the meaning of Rule 94 of the Rules.

[1] Rule 94(A).

[2] See amendments adopted at the ninth session, 3 November 2000.

[3] Rule 94(B).

[4] Rule 94(A).

[5] [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 Adjudicative Facts,” 28 October 2003, p. 3. 

[6] Decision on Judicial Notice, para. 23.  See M. Cherif Bassiouni & P. Manikas, The Law of the International Tribunal for the Former Yugoslavia (United States of America, 1996), p. 952.

[7] Decision on Judicial Notice, para. 24.

[8] Decision on Judicial Notice, para. 31.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

192. The Statute of the Tribunal provides that “[t]he accused shall be presumed innocent until proven guilty according to the provisions of the . . . Statute.”[1] The Trial Chamber in this case was careful to note that it could take judicial notice of facts of common knowledge under Rule 94 of the Rules, but that it could not “take judicial notice of inferences to be drawn from the judicially noticed facts.”[2] The Chamber emphasized that the “burden of proving the Accused’s guilt, therefore, continue[d] to rest squarely upon the shoulders of the Prosecutor for the duration of the trial proceeding,” and it stated that “the critical issue [was] what part, if any, . . . the Accused play[ed] in the events that took place.”[3] As these passages suggest, the Trial Chamber struck an appropriate balance between the Appellant’s rights under Article 20(3) and the doctrine of judicial notice by ensuring that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility. Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; that Rwanda became a state party to the Convention on the Prevention and Punishment of the Crime of Genocide (1948) on 16 April 1975; and that, at the time at issue, Rwanda was a state party to the Geneva Conventions of 12 August 1949 and their additional Additional Protocol II of 8 June 1977.[4] The Appeals Chamber finds that these judicially noted facts did not relieve the Prosecution of its burden of proof; they went only to the manner in which the Prosecution could discharge that burden in respect of the production of certain evidence which did not concern the acts done by the Appellant. When determining the Appellant’s personal responsibility, the Trial Chamber relied on the facts it found on the basis of the evidence adduced at trial.

[1] Article 20(3).

[2] Decision on Judicial Notice [The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-I, Decision on the

Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000],para. 42.

[3] Ibid., para. 43.

[4] Ibid., Annex A, paras 1-6.

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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: […] that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; […]

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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; […]

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

62. The Appeals Chamber finds no error in the fact that the Trial Chamber took into consideration the judicially-noticed fact that “during 1994, there was a campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda’s Tutsi population”.[1] […]

63. As the Appeals Chamber’s jurisprudence underscores, Rukundo is correct in contending that judicial notice and evidence of the general context cannot be a substitute for specific findings on mens rea. However, the Trial Chamber’s analysis does not use the general context in Rwanda and in Gitarama Prefecture as the sole basis for finding that Rukundo possessed the mens rea for genocide. Instead, it appropriately used the judicially-noticed finding of widespread attacks against Tutsis in Rwanda, and the contextual evidence about the targeting of Tutsis in Gitarama Prefecture, as a frame or context in which to interpret numerous other indicators of Rukundo’s mens rea. […]

[1] Trial Judgement, para. 565, citing 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. Appeal of Decision on Judicial Notice”), para. 35.

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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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Decision on Judicial Notice - 29.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

12. In addition, the Appeals Chamber notes that paragraphs 26 and 27 of the Bagaragaza Sentencing Judgement which Nsengiyumva also seeks to have judicially noticed contain legal conclusions on Michel Bagaragaza’s criminal responsibility and not facts. The Appeals Chamber recalls that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings.”[1] Therefore, the Appeals Chamber finds that paragraphs 26 and 27 of the Bagaragaza Sentencing Judgement cannot be subject to judicial notice under Rule 94(B) of the Rules.

[1] 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. 22.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

[1] Momir Nikolić Appeal Decision, para. 17.

[2] Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 189; Momir Nikolić Appeal Decision, para. 17.

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ICTR Rule Rule 94 ICTY Rule Rule 94
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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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Decision on Clarification - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

11. […] The Appeals Chamber […] stresses the need for a clear distinction between the issue of the existence of genocide in Rwanda in 1994, a fact judicially noticed by the Appeals Chamber in the Karemera Decision,[1] from the separate questions regarding the existence of a conspiracy to commit genocide between the three co-appellants in the present case, and the Appellant’s participation in such a conspiracy. The Appeals Chamber finds that there is nothing in the Appellant’s arguments to suggest that the judicially noticed facts in the Karemera Decision would prevent him either from challenging the existence of a conspiracy to commit genocide or from disputing his participation therein. The Karemera Decision is clear in that its direction to the Trial Chamber to take judicial notice of facts of common knowledge does not shift the ultimate burden of persuasion, which remains on the Prosecution,[2] with respect to the personal responsibility of each accused. It has been subsequently specified by the Appeals Chamber that with regard to the Karemera Decision, “taking of judicial notice of this fact does not imply the existence of a plan to commit genocide”.[3] Therefore, the Appeals Chamber, noting that the Appellant indeed challenges the Trial Chamber’s findings of conspiracy, both in his Notice of Appeal and in his Appeal Brief,[4] considers that he has failed to demonstrate how the Karemera Decision, if applicable to his case, could impact on his ability to dispute that “he was party to a plan to commit genocide”.

12. […] The Appeals Chamber, finding that the Appellant has failed to raise on appeal any argument challenging the occurrence of genocide, considers therefore that he has not shown how the judicially noticed facts in the Karemera Decision, if applicable to his case, could adversely affect his appeal. His request for clarification in this regard is therefore denied as unfounded.

[1] [The Prosecutor v. Edouard 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. 35.

[2] [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], paras 30 and 42; see also Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 192.

[3] [Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73(C), Decision on Motions for Reconsideration, 1 December 2006], para. 21.

[4] Notice of Appeal, Ground 30 and Appeal Brief paras 243-249.

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ICTR Rule Rule 94 ICTY Rule Rule 94
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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

99. […] The term “common knowledge” encompasses facts that are widely known and 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.[1]

[1] See Semanza Appeal Judgement, para. 194; Karemera et al., Decision on Judicial Notice, paras. 22, 23. 

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ICTR Rule Rule 94 ICTY Rule Rule 94
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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

99. […] Rule 94(A) of the Rules states: “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.” This standard is not discretionary; if a Trial Chamber determines that a fact is “common knowledge”, it must take judicial notice of it.[1] […]

[1] Karemera et al., Decision on Judicial Notice [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. 22.

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ICTR Rule Rule 94 ICTY Rule Rule 94
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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

101. The Appeals Chamber considers that the Trial Chamber could have taken into account the fact that the request was made late in the proceedings in assessing, for example, whether the facts sought to be judicially noticed were relevant to the Appellant’s case. However, the Trial Chamber erred in rejecting the Defence Motion for Judicial Notice solely on the basis of its late filing. The Trial Chamber should have considered whether the facts at issue were facts of common knowledge and, if so, whether they were relevant to the Appellant’s case. While the Trial Chamber erred in dismissing the application on the grounds that it was untimely, the Appeals Chamber is not satisfied that the facts submitted by the Appellant were capable of being judicially noticed by the Trial Chamber. The information contained in these documents regarding the movements of the troops of Operation Turquoise would certainly not qualify as facts that are commonly accepted or universally known or beyond reasonable dispute. As a consequence, the Appeals Chamber finds that the Trial Chamber erred in rejecting the Defence Motion for Judicial Notice for lateness but considers that this error did not invalidate the decision.

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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

7. The Trial Chamber’s decision in this case to deny admission of a transcript of evidence under Rule 92bis(D) of the Rules to rebut a judicially noticed fact is a discretionary decision to which the Appeals Chamber accords deference.[1]

14. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that the Defence may rebut the presumption by introducing “reliable and credible” evidence to the contrary.[2] The requirement that the evidence be “reliable and credible” must be understood in its proper context, through the lens of the general standard for admission of evidence at trial set out in Rule 89(C) of the Rules: “[a] Chamber may admit any relevant evidence which it deems to have probative value”. Only evidence that is reliable and credible may be considered to have probative value.[3]

15. It follows that, as for any other evidence for which no additional requirements have been specified in the Rules, the threshold for admission of this type of rebuttal evidence is relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia.[4] The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.[5]

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[6] [...]

20. Lastly, the Trial Chamber reasoned that “the very purpose of admitting adjudicated facts would be undermined by permitting a party to admit such evidence” because “[j]udicial economy would not be achieved if parties were entitled to challenge adjudicated facts with evidence that has already been rejected in relation to that finding.”[7] In this respect, the Appeals Chamber underscores that the principle of judicial economy must yield to the fundamental right of the accused to a fair trial. A Trial Chamber cannot deny the Defence its right to put the adjudicated fact into question by introducing evidence to the contrary simply because it would frustrate judicial economy. Further, the Appeals Chamber emphasizes that Rule 94(B) of the Rules fosters judicial economy by avoiding the need for evidence in chief to be presented in support of a fact already previously adjudicated. Hence, the purpose of judicial economy underlying Rule 94(B) of the Rules is not frustrated by the admission of rebuttal evidence.

21. Similarly, the fact that the judicial notice mechanism was also created to favour consistency and uniformity of the case-law cannot be a matter that weighs against the admissibility of rebuttal evidence. In this respect, the Appeals Chamber stresses that adjudicated facts that are judicially noticed by way of Rule 94(B) of the Rules remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial. The Rule 94(B) mechanism does not allow a Chamber to simply defer to the assessment of the evidence by another Chamber on the ground that this mechanism was fashioned to favour consistency and uniformity in the Tribunal’s case-law. 

22. The Appeals Chamber concludes that the Trial Chamber incorrectly applied the governing law in finding that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[8] This approach would have the effect of denying to the opposite party its fundamental right to contest the material admitted by rebutting the presumption created by the admission of the adjudicated fact. In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

[1] As regards the general discretion afforded to Trial Chambers in determining the admissibility of evidence, see, e.g.: Prosecutor v. Jadranko Prlić et al., Case No. IT-04-14-AR73.13, Decision on Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prlić et al. Appeal Decision”), para. 5; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”), para. 19; Pauline Nyiramasuhuko v. The Prosecutor, Decision on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, Case No. ICTR-98-42-AR73.2, 4 October 2004 (“Nyiramasuhuko Appeal Decision”), para. 7.

[2] Karemera et al. Appeal Decision on Judicial Notice [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], paras. 42, 49. See also Dragomir Milošević Appeal Decision [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. 17.

See Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement (“Naletilić and Martinović Appeal Judgement”), para. 402, citing Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić et al. Appeal Decision”), para. 20: “The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value.”  See also Prosecutor v. Zlatko Aleksovski, Case No. IT- 95-14/1-AR73, Decision on Prosecution’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15 (dealing with hearsay evidence); Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 (“Kordić Appeal Decision”), paras. 22-24; The Prosecution v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001 (“Akayesu Appeal Judgement”), para. 286; Alfred Musema v. The Prosecution, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”), para. 46; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008 (“Popović et al. Appeal Decision”), para. 22; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Prlić et al. Appeal Decision, para. 15. In this respect, the Appeals Chamber repeatedly held that a piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative: Prlić et al. Appeal Decision, para. 15; Nyiramasuhuko Appeal Decision, para. 7; Georges Rutaganda v. The Prosecution, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras. 33, 266; Musema Appeal Judgement, para. 46; Akayesu Appeal Judgement, para. 286; Kordić Appeal Decision, para. 24

[4] Naletilić and Martinović Appeal Judgement, para. 402; Delalić et al. Appeal Decision, paras. 17, 20. See also Prlić et al. Appeal Decision, para. 15; Popović et al. Appeal Decision, para. 22; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, paras. 33, 266; Musema Appeal Judgement, para. 47; Akayesu Appeal Judgement, para. 286. The Appeals Chamber notes that the large majority of the appeal decisions on the issue of admissibility of evidence at trial only refer to the requirement of “reliability”, without explicitly mentioning the requirement of “credibility”. Given the large meaning of the term “reliability”, the Appeals Chamber considers that the requirement of prima facie reliability indisputably encompasses the requirement of prima facie credibility.

[5] See, e.g., Popović et al. Decision, para. 21; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, fns. 63, 425. 

[6] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Application for Certification to Appeal the Decision Denying His Motion to Admit Testimony of Elizaphan Ntakirutimana, 24 March 2009], para. 12.

[7] Impugned Decision, para. 12.

[8] Impugned Decision, para. 12. 

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ICTR Rule Rule 89(C);
Rule 94
ICTY Rule Rule 89(C);
Rule 94
Notion(s) Filing Case
Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

13. The Appeals Chamber recalls that facts judicially noticed pursuant to Rule 94(B) of the Rules are merely presumptions that may be rebutted with evidence at trial.[1] The legal effect of judicially noticing an adjudicated fact is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may put the adjudicated fact into question by introducing evidence to the contrary.[2]

[1] 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 Appeal Decision”), para. 16, citing Karemera et al. Appeal Decision on Judicial Notice, para. 42;  See also Momir Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Appeal Decision”), para. 11; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against 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.

[2] Dragomir Milošević Appeal Decision, para. 16; Karemera et al. Appeal Decision on Judicial Notice, paras. 42, 49. 

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Decision on Reconsideration - 01.12.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

At para. 16, ICTR Appeals Chamber held:

 

There is a significant difference between the taking of a judicial notice of a fact of genocide and the determination that an accused is individually criminally responsible for the crime of genocide. The former gives a factual context to the allegations of the crime of genocide. The latter requires a finding of whether the elements of the crimes of genocide, such as actus reus and mens rea, exist in order to ascertain whether an accused is responsible for the crime.” Consequently, the taking of judicial notice of genocide does not, in itself, go to the alleged conduct or acts of the Applicants as charged in the indictment.[1]

[1] Semanza Appeal Judgment, para.192

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At para. 21, the Appeals Chamber recalled that:

[T]he existence of a plan or policy is not a legal ingredient of the crime of genocide. While the existence of such plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent and does not become the legal ingredient of the offence.[1]

As a result it held that “if the existence of a plan to commit genocide is vital to the Prosecution’s case, this must be proved by evidence.” (para. 21).

[1] The Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgment, 19 April 2004,para.225 which refers to   The Prosecutor V. Goran Jelisic, Case No. IT-95-10-A,Judgment , 5 July 2001, para.48

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      At paras 24-26, the Appeals Chamber recalled its previous finding that a Trial Chamber has no    discretion to order that a fact of common knowledge be proved at trial:

That the Trial Chamber has no discretion to rule that a fact of common knowledge must be proved through evidence at trial. This determination was based on an interpretation of Rule 94(A) of the Rules. Such discretion only exists for matters of judicial notice which fall within the ambit of Rule 94(B) of the Rules, that is, adjudicated facts or documentary evidence from other proceedings of the Tribunal.

At para. 27, The Appeals Chamber emphasised:

The practice of judicial notice must not be allowed to circumvent the presumption of    innocence and the defendant’s right to a fair trial. Thus, it is always necessary for Trial  Chambers to take a careful consideration of the procedural rights of the accused.

Consequently, it reiterated that judicially noticed facts do not relieve the Prosecution of its burden of proof.

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At para. 11, the Appeals Chamber recalled its previous finding and held that:

The existence of a non-international armed conflict is a notorious fact not subject to a reasonable dispute.[1]Whether a fact is one of common knowledge is a legal question, the answer to which does not turn on the evidence introduced in a particular case.

[1] The Prosecutor v. Semanza, Case No. ICTR-97-20-A,Judgment,20 May 2005, para.192

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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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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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21. [In the Karemera Appeals Decision] the Appeals Chamber held that the key question regarding admission of facts of common knowledge, pursuant to Rule 94(A) of the Rules, is “whether the proposition can reasonably be disputed” and “not whether a proposition is put in legal or layman’s terms.”[1] When a Trial Chamber determines that a fact is notorious and not subject to reasonable dispute, it is obliged to take judicial notice of it under Rule 94(A) of the Rules. It has no discretion to act otherwise.[2] It is irrelevant whether the fact in question is defined by terms with a legal meaning as long as these terms describe factual situations.[3] In this respect, the Appeals Chamber does not agree with the Prosecution that the Trial Chamber held “that legal conclusions could be judicially noticed under Rule 94(A)” of the Rules.[4] The Trial Chamber limited itself to noting that the Appeals Chamber in Karemera ruled that “the submission that the term ‘genocide’ is a legal characterisation” could not even be considered given that “Rule 94(A) does not provide the Trial Chamber with discretion to refuse judicial notice on this basis.”[5] This constitutes an accurate reflection of the Karemera Appeals Decision.[6] Furthermore, “whereas judicial notice under Rule 94(A) is mandatory, judicial notice under Rule 94(B) is discretionary.”[7] Thus, the Trial Chamber correctly interpreted the Karemera Appeals Decision when it ruled that its conclusions with regard to Rule 94(A) could not be apposite to Rule 94(B) of the Rules.

22. The Appeals Chamber additionally notes that the Trial Chamber correctly held that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”.[8] To determine “whether a proposed fact is truly a factual finding”, the Trial Chamber referred to the Krajišnik Decision which adjudicated that “many findings have a legal aspect, if one is to construe this expression broadly. It is therefore necessary to determine on a case-by-case basis whether the proposed fact contains findings or characterizations which are of an essentially legal nature and which must, therefore, be excluded.”[9] Thus, the Prosecution does not accurately represent the findings in the Impugned Decision when it claims that the Trial Chamber held “that facts could not be judicially noticed if they were described with legal language”.[10] The Appeals Chamber also observes that the Trial Chamber’s conclusion is fully in line with the jurisprudence of the Trial Chambers on this issue[11] – including after the issuance of the Karemera Appeals Decision.[12]

[1] Karemera Appeals Decision, para. 29.

[2] Ibid., paras 29, 37.

[3] Ibid.

[4] Prosecution’s Interlocutory Appeal, para. 29.

[5] Impugned Decision, para. 35, citing the Karemera Appeals Decision, para. 37.

[6] Karemera Appeals Decision, para. 37.

[7] Ibid.,  para. 41.

[8] Impugned Decision, para. 33.

[9] Impugned Decision, para. 33, quoting 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 (“Krajišnik Decision”), para. 15 (In this decision, the Trial Chamber further observed that findings of an essentially legal nature “must, therefore, be excluded. In general, findings related to the actus reus or the mens rea of a crime are deemed to be factual findings. As long as they also comply with the other criteria […] they may be admitted.” (para. 15)).

[10] Prosecution’s Interlocutory Appeal, para. 33.

[11] Krajišnik Decision, para. 15; See also, inter alia, Prosecution v. Enver Hadžihasanović et al., Case No. IT-01-47-T, Decision on Judicial Notice of Adjudicated Facts Following the Motion Submitted by Counsel for the Accused Hadžihasanović and Kubura on 20 January 2005, 14 April 2005, p. 5, and Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004, pp. 7, 8; Prosecutor v. Željko Mejakić, Case No. IT-02-65-PT, Decision on Prosecution Motion for Judicial Notice pursuant to Rule 94(B), 1 April 2004, p. 4; Prosecution v. Vidoje Blagojević et al., Case No. IT-02-60-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence, 19 December 2003, para. 16; Prosecution v. Jadranko 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, para. 12.

[12] Prlić Decision [Prosecution v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative aux requêtes des 14 et 23 juin 2006 de l’Accusation aux fins de dresser le constat judiciaire de faits admis, 7 September 2006], para. 23, (“Quant à la condition nº 3 relative à l’absence de qualification juridique, la Chambre considère qu’elle doit être appréciée au cas par cas et interprétée de façon restrictive. En effet, certains paragraphes de jugements et arrêts proposés pour constat judiciaire, tout en décrivant essentiellement des réalités factuelles, renferment également, souvent, des termes juridiques. Ces paragraphes sont susceptibles d’être admis en application de l’article 94 B) du Règlement. Ce n’est que lorsque des paragraphes tirent principalement des conclusions juridiques qu’ils ne feront pas l’objet de constat judicaire. ” (footnotes omitted)); Popović Decision [Prosecutor v. Vujadin Popović at al., Case No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex, 26 September 2006], para. 10 (The Trial Chamber endorsed the above-quoted position in the Krajišnik Decision).

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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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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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The Appeals Chamber ruled that Trial Chambers must take judicial notice of the following facts:

-          Existence of Hutus, Tutsis and Twas as protected group falling under the Genocide Convention (para. 25);

-          Existence of widespread or systematic attacks against a civilian population based on Tutsi ethnic identification (paras 28-29, referring to Semanza Appeal Judgement, para. 192; see also para. 31);

-          Existence of Genocide against Tutsis in Rwanda between 6 April 1994 and 17 July 194 (paras 35-36).

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8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

[1] Momir Nikolić Appeal Decision, para. 17.

[2] Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 189; Momir Nikolić Appeal Decision, para. 17.

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The Appeals Chamber held that “customary international law permits imposition of third category JCE liability on an accused for crimes committed by fellow participants in a JCE of ‘vast scope’” (para. 12).  Accordingly, the Appeals Chamber upheld (paras 12-18) the Trial Chamber’s decision not to find that third category JCE liability can be imposed only when the JCE is “limited to a specific operation and a restricted geographical area, and where the Accused was not structurally remote from the actual perpetrators of the crimes.”[1] 

The Appeals Chamber, however, cautioned that (para. 17):

Third category JCE liability can be imposed only for crimes that were foreseeable to an accused. In certain circumstances, crimes committed by other participants in a large-scale enterprise will not be foreseeable to an accused.

[1] Prosecutor v. Karemera et al., Case No. ICTR-98-44, Decision on Defence Motion Challenging the Jurisdiction of the Tribunal – Joint Criminal Enterprise Rules 72 and 73 of the Rules of Procedure and Evidence, 5 August 2005, para. 4 (internal footnotes omitted).

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17. The Appeals Chamber emphasizes that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise. Accordingly, on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted.  For a fact capable of judicial notice to be admitted on appeal, the requirements provided for by Rule 115 of the Rules need to be satisfied.

18. Accordingly, the Appeals Chamber finds that a motion filed solely under Rule 94 of the Rules, without addressing the requirements of Rule 115 of the Rules, is an incorrect way to seek to have facts or documentary evidence admitted on appeal. Contrary to the argument of the Appellant, the Appeals Chamber finds that this will not “eviscerate” Rule 94 of the Rules in relation to all appellate proceedings, since the legal consequences attached to the taking of judicial notice remain the same. In this respect, the Appeals Chamber recalls that the taking of judicial notice under Rule 94(A) or 94(B) of the Rules entails specific consequences for the moving party.

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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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