Case no. IT-01-47-T

IN TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti

Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr Hans Holthuis

Decision of:
27 February 2004

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

_________________________________________

DECISION ON JUDICIAL NOTICE OF ADJUDICATED FACTS

_________________________________________

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr Daryl Mundis
Mr Chester Stamp
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

TRIAL CHAMBER II (“Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”),

BEING SEISED of the “Joint Defence Motion for Judicial Notice of Adjudicated Facts” filed by counsel for the two Accused (“Defence”) on 12 January 2004 (“Motion ”), in which the Defence requests the Chamber to take judicial notice of 237 adjudicated facts from other proceedings of the Tribunal contained in Annex A of the Motion (“Provisionally Proposed Facts”) pursuant to Rule 94(B) of the Rules of Procedure and Evidence (“Rules”),

NOTING that, in the Motion, the Defence maintains that judicial notice should be taken of these facts because (i) it would reduce the number of witnesses called by the Defence and thus achieve judicial economy by reducing the duration of the trial, (ii) it would reduce the time necessary for the Office of the Prosecutor (“Prosecution”) to examine the witnesses appearing at trial, (iii) the subsequent shortening of the trial would allow the Chamber to comply with Article 20 of the Statute of the Tribunal, which provides that a Trial Chamber must ensure that a trial is fair and expeditious, and (iv) the shortening of the trial would also serve the public interest by allowing other trials involving other accused appearing before the Tribunal to commence sooner;1

NOTING that the Defence also submits that (i) the Provisionally Proposed Facts are relevant to the current case and allow for a better evaluation of the circumstances and context in which the Accused carried out their military responsibilities during the period covered by the Indictment, (ii) all of the Provisionally Proposed Facts were truly adjudicated and are not based on a plea agreement, (iii) the Provisionally Proposed Facts contain no legal findings, and (iv) although the consent of the parties may prove helpful to the Trial Chamber, it is not required for Rule 94(B) of the Rules to apply;2

NOTING that the Defence further submits that the Provisionally Proposed Facts are drawn from the trial judgments rendered in The Prosecutor v. Zoran Kupreskic et al.3 (“Kupreskic”), The Prosecutor v. Tihomir Blaskic4 (“Blaskic”) and The Prosecutor v. Dario Kordic and Mario Cerkez5 (“Kordic”) and that the Tribunal has not rendered a final judgment on appeal in the said Blaskic and Kordic cases;6

NOTING that the Defence maintains that the Chamber may take judicial notice of the Provisionally Proposed Facts drawn from the Blaskic and Kordic cases, even though the appeals proceedings in these cases have not been completed, since (i) Rule 94(B) of the Rules does not expressly restrict a Chamber to notice of facts taken from judgments for which the appeal proceedings have been finalised and (ii) nothing prevents a Trial Chamber, pursuant to Rule 89(D) of the Rules, from excluding or modifying the evidential value of an adjudicated fact taken on notice from a judgment under appeal, should that supposed fact be reversed or modified by the Appeals Chamber;7

NOTING that, in the “Prosecution Response to Joint Defence Motion for Judicial Notice of Adjudicated Facts” filed on 26 January 2004 (“Response”), the Prosecution requests the Chamber to deny the Motion submitting that (i) Rule 94(B) of the Rules authorises a Chamber to take judicial notice of an adjudicated fact from another set of proceedings of the Tribunal only if that fact is relevant, (ii) the Defence has failed to meet its burden of demonstrating the relevance of the Provisionally Proposed Facts to the current trial, (iii) even if the Chamber were to consider the Provisionally Proposed Facts relevant, the Defence has failed to demonstrate that they satisfy the criteria set out by the Trial Chamber in The Prosecutor v. Momcilo Krajisnik8 (“Krajisnik ”), and (iv) far from achieving judicial economy, taking judicial notice of the Provisionally Proposed Facts would only broaden the scope of the issues raised during the case unnecessarily and might result in the Prosecution asking to call additional witnesses in order to clarify the context of the Provisionally Proposed Facts;9

NOTING that, after being granted leave to do so by the Chamber on 29 January 2004,10 the Defence filed the “Joint Defence Reply to Prosecution Response to Joint Defence Motion for Judicial Notice of Adjudicated Facts” on 5 February 2004 (“Reply”), in which it (i) submits that the Provisionally Proposed Facts are relevant since if, as the Prosecution alleges, soldiers under the command of the Accused committed crimes, the Provisionally Proposed Facts will make it possible to clarify the context in which the Accused exercised their command and to assess whether the Accused took the necessary and reasonable measures within the meaning of Article 7(3) of the Statute, but (ii) nevertheless agrees not to ask for judicial notice of 13 of the Provisionally Proposed Facts - in light of their relevance - in order to facilitate the work of the Chamber;11

NOTING furthermore that, in the same Reply, the Defence (i) agrees that the criteria set out by another Trial Chamber in the Krajisnik case may assist this Chamber in reaching its decision as to whether or not to allow the Defence’s request, as the Prosecution contends in its Response, (ii) agrees, in light of the Krajisnik criteria, not to ask for judicial notice of 18 of the Provisionally Proposed Facts and to modify a further 36 of them, in order to facilitate the work of the Chamber, (iii) states that, after these modifications were made to the Provisionally Proposed Facts, a definitive list of 206 facts was drawn up and appended to the Reply (“Definitively Proposed Facts”), (iv) submits that the Prosecution's argument that judicial economy would not be achieved by granting the Defence’s request is ill-founded, and (v) requests the Chamber to take judicial notice of the Definitively Proposed Facts;12

NOTING that, on 11 February 2004, the Prosecution stated in court in reference to the Reply that it stood by the position it had taken in its Response;13

CONSIDERING that Rule 94(B) of the Rules stipulates that, 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 ;

CONSIDERING that, contrary to Rule 94(A) of the Rules which, for instance, commands the taking of judicial notice on the basis that the material is notorious, Rule 94(B) of the Rules gives the Trial Chambers a “discretion” to take notice of adjudicated facts from other proceedings;14

CONSIDERING that by taking judicial notice of an adjudicated fact, a Trial Chamber establishes a presumption for the accuracy of this fact, which therefore does not have to be proven again at trial, but which, subject to that presumption, may be challenged at that trial;15

CONSIDERING that, pursuant to Rule 89(C) of the Rules, a Chamber must verify the relevance and evidential value of a fact proposed for judicial notice;

FURTHER CONSIDERING that, in its decision of 28 January 2004, the Chamber stated that evidence relating to the historical, political and military context at the time of the facts may be relevant to the alleged criminal responsibility of the Accused since it may make it possible to establish the circumstances prevailing in the zone in which the Accused were operating at the material time;16

CONSIDERING that the issue of the relevant context for assessing the Accused’s alleged responsibility has divided the Prosecution and Defence since the trial commenced;

CONSIDERING that this issue goes beyond the object of the Definitively Proposed Facts and applies, for example, to questions that might be put to witnesses in court and to evidence that might be admitted and that it is therefore advisable for the Chamber to provide further clarification which may offer the parties guidance;

CONSIDERING that, in its Reply, the Defence stated that “it […] appears that the Prosecution is confusing the ‘context’ stricto sensu in which the alleged crimes were committed with the ‘context’ in which the Accused – senior level Commanders – exercised their command, which is the true issue in this case”17 and that “the political activity of the Bosnian Croat side – aiming at breaking up Bosnia and Herzegovina – and the tendency of the Bosnian Croat side to spread alarm among the Croat population are highly relevant to the resulting tensions between Bosnian Muslims and Bosnian Croats, to the movement of populations in Central Bosnia, to the burning of their own homes and goods by Bosnian Croats leaving their villages at the instigation of the Bosnian Croat leadership and ultimately to the ability of military commanders to take necessary and reasonable measures to prevent the commission of crimes or to punish the perpetrators thereof”;18

CONSIDERING, therefore, that the Defence argues that judicial notice of the Definitively Proposed Facts would enlighten the Chamber as to the context in which the Accused carried out their duties as senior level commanders;

CONSIDERING that this assertion by the Defence is a general and abstract statement which requires further clarification;

CONSIDERING that, for the purposes of obtaining complete information whilst remaining mindful of the need to respect the strategy of the Defence, the Chamber invites the Defence, should it so wish, to explain the direct or indirect relevance of each of the Definitively Proposed Facts, within the context cited, in relation to the following points: (i) offences specified in the Indictment, (ii) subordination relationship, (iii) reason for knowing that a subordinate had committed or was about to commit an offence, (iv) measures that might have been taken to prevent the offences from being committed, (v) measures that might have been taken to punish the perpetrators of the offences, and (vi) any other ground warranting the taking of judicial notice of the fact in question;

FOR THE FOREGOING REASONS,

PURSUANT to Rules 89(C) and 94(B) of the Rules,

THE CHAMBER INVITES the Defence, should it so wish, to provide the clarification sought in written submissions not exceeding 20 pages before 12 March 2004;

AUTHORISES the Prosecution to present its observations in a written response not exceeding 20 pages before the 19 March 2004 should the Defence provide the clarification sought.

Done in French and English, the French version being authoritative.

Done this twenty-seventh day of February 2004
At The Hague
The Netherlands

___________________
Judge Jean-Claude Antonetti
Presiding

[Seal of the Tribunal]


1 - See paras. 5 and 14-16 of the Motion.
2 - See paras. 5, 8, 17-19 and 23 of the Motion.
3 - Case no. IT-95-16-T.
4 - Case no. IT-95-14-T.
5 - Case no. IT-95-14/2-T.
6 - See paras. 4 and 21 of the Motion.
7 - See paras. 20 and 22 of the Motion.
8 - Case no. IT-00-39-PT.
9 - See paras. 2-21 of the Response.
10 - T. 2166.
11 - See paras. 7-9 and 14 of the Reply.
12 - See paras. 16-24 of the Reply.
13 - T. 2713.
14 - The Prosecutor v. Slobodan Milosevic, 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 rendered on 28 October 2003 (“Milosevic Decision”).
15 - See Milosevic Decision.
16 - See Decision on Defence Motion for Clarification of the Oral Decision of 17 December 2003 Regarding the Scope of Cross-Examination Pursuant to Rule 90(H) of the Rules rendered on 28 January 2004.
17 - See para. 12 of the Reply.
18 - See para. 13 of the Reply.