IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of:
27 September 2000

PROSECUTOR

v.

DUSKO SIKIRICA
DAMIR DOŠEN
DRAGAN KOLUNDŽIJA


DECISION ON PROSECUTION MOTION FOR
JUDICIAL NOTICE OF ADJUDICATED FACTS


Office of the Prosecutor:

Mr. Dirk Ryneveld
Mr. Daryl Mundis

Counsel for the Accused:

Mr. Veselin Londrovic, for Dusko Sikirica
Mr. Vladimir Petrovic, for Damir Došen
Mr. Dušan Vucicevic, for Dragan Kolundžija

 

THIS TRIAL 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 ("the International Tribunal"),

BEING SEISED of a "Prosecution’s Motion for Judicial Notice of Adjudicated Facts" filed by the Office of the Prosecutor ("Prosecution") on 4 April 2000 ("First Motion"), in which it is proposed that judicial notice be taken of 561 facts from the Tadic and Celebici Judgments1,

NOTING the "Defence Response to Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Admission of Documentary Evidence", filed by the Defence for the accused Damir Došen on 26 May 2000 ("Došen Defence Response"),

NOTING the "Kolundzija’s Defence Response to Prosecution’s Motion for Judicial Notice of Adjudicated Facts" filed by the Defence for the accused Dragan Kolundzija, on 26 May 2000 ("Kolundzija Defence Response"),

NOTING the "Prosecution’s Notice of Additional Authority in Support of the ‘Prosecution’s Motion for Judicial Notice of Adjudicated Facts’ filed on 4 April 2000", filed by the OTP on 22 June 2000,

NOTING the initial appearance of the accused Duško Sikirica on 7 July 2000,

NOTING the "Order on Prosecution Motion for Judicial Notice of Adjudicated Facts" issued by the Trial Chamber on 1 August 2000, in which the OTP was ordered to serve a similar Motion on the Defence for the accused Duško Sikirica and the accused was ordered to respond to the Motion,

NOTING the "Prosecution’s Motion for Judicial Notice of Adjudicated Facts as Against Duško Sikirica" filed on 7 August 2000 ("Second Motion") and "Defence Response to Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Admission of Documentary Evidence", filed by the Defence for the accused Duško Sikirica on 4 September 2000 ("Sikirica Defence Response"),

HAVING HEARD the arguments of the parties in open session on 23 June and 15 September 2000,

NOTING the arguments of the Prosecution, inter alia, that

1. The Tadic and Celebici Judgments contain factual findings which are relevant to this case, including those from the Tadic Judgment relevant to events in the Prijedor municipality and the Omarska, Keraterm and Trnopolje camps;

2. The Tadic Judgment has been subjected to appellate scrutiny and none of the relevant facts set out in the Motions were contradicted by the findings of the Appeals Chamber;

3. The facts referred to in the Motions equate to adjudicated facts as envisaged by Rule 94 (B) of the Rules of Procedure and Evidence ("Rules");

4. The facts referred to in the Motions establish the necessary background to place the crimes charged in context and are relevant to establishing a number of relevant matters, including:

(a) motive, intent, knowledge, preparation and planning by the accused;

(b) that there was a widespread or systematic attack on the Bosnian Muslim and Bosnian Croat population in the Prijedor municipality (an element of proof under Article 5 of the Statute of the International Tribunal ("Statute")) and that the operation of the Omarska, Keraterm and Trnopolje camps was one aspect of this attack;

(c) the maltreatment in the camps reflected the objective of the Bosnian Serb authorities to "ethnically cleanse" the area of Bosnian Muslims and Bosnian Croats, amounting to persecution;

(d) at the time of the commission of the crimes alleged there was an ongoing armed conflict in the Prijedor area;

5. Admission of the facts referred to in the Motions is consistent with the objective of judicial economy, is consistent with the rights of the accused and serve the interests of justice;

6. Admission of the facts referred to in the Motions would expedite the trial and reduce the resources required by the parties to present their cases; and

7. The Trial Chamber should apply the same rationale as Trial Chamber I in the Kvocka case2, which, on the basis of 444 agreed facts, proceeded to make findings of law as to those facts and decided upon elements of the offences3,

NOTING the position of the Defence for Damir Došen and Duško Sikirica that, of the facts set out in the Motions, 64 could be agreed, and the position of the Defence for Dragan Kolundzija that 101 of the facts set out in the Motions could be agreed,

NOTING that the Defence for the three accused each assert that the Motions should be otherwise rejected, arguing, inter alia, that

1. Rule 94 of the Rules relates to facts of common knowledge and the facts in the Motions cannot be so categorised;

2. The facts in the Motions are simplified, inaccurate and misleading and cannot form the basis for making conclusions about events relevant to the amended indictment in these proceedings;

3. The facts in the Motions directly imply individual criminal responsibility of the accused and, in fact, their acceptance would lead to an indirect plea of guilty by the accused;

4. The facts in the Motions taken from the Celebici judgment are not in the proper sense adjudicated as they are the subject of ongoing appellate proceedings;

5. The adoption of facts from the Tadic Judgment violate the right of an accused

(a) to challenge particular facts relevant to the circumstances of his own case;

(b) to challenge facts which in the Tadic case led to legal findings on the application of Articles 3 and 5 of the Statute;

(c) because there was very little cross-examination in that trial on the facts now sought to be admitted as adjudicated facts;

6. The facts admitted under Rule 94 in the Kvocka case were admitted by agreement of the parties, which is not the case here; and

7. The admission of the facts in the Motions would have the effect of shifting the burden of proof onto the accused.

NOTING that the Motion is made pursuant to Sub-rule 94 (B), which provides

"…

(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."

CONSIDERING that the purpose of judicial notice is to achieve judicial economy and a balance between judicial economy and the right of the accused to a fair trial must be achieved,

CONSIDERING that the Trial Chamber can only take judicial notice of facts which are not the subject of reasonable dispute and that facts involving interpretation or legal characterisations of facts are not capable of admission under Rule 944,

CONSIDERING that it is appropriate for the Trial Chamber to take judicial notice of facts which are agreed between the parties,

CONSIDERING that, otherwise, the facts which are sought to be admitted by the Prosecution pursuant to Rule 94 (B) are mainly facts which can be characterised either as controversial, or involving legal conclusions or mixed findings of fact and law,

CONSIDERING that the Prosecution also invites the Trial Chamber to draw legal conclusions from the facts sought to be admitted on the basis that this was done by another Trial Chamber of the International Tribunal,

CONSIDERING FURTHER that this Trial Chamber is not bound by decisions of another Trial Chamber and that it is not the purpose of Rule 94 (B) to allow findings on contested matters of law at this stage of the proceedings, the purpose of Rule 94 (B) being to narrow the factual issues in dispute in the relevant proceedings,

CONSIDERING that the Prosecution seek to have admitted under Rule 94 (B) findings of fact from two judgments, one of which is the subject of an uncompleted appeal and that, as regards facts which involve interpretation, both parties should be able to present arguments and evidence on them,

PERSUANT TO Rule 94

HEREBY ALLOWS the Motions in respect of the following facts set out in the Annex to the First Motion which are agreed between the parties:

Paragraphs 1, 2, 5, 11, 12, 13, 21, 22, 23, 24, 25, 29, 35, 37, 38, 39, 41, 46, 63, 78, 79, 80, 83, 84, 85, 96, 97, 99, 100, 101, 103, 104, 105, 106, 107, 108, 113, 115, 119, 120, 123, 126, 127, 268, 269,

of which the Trial Chamber will take judicial notice.

AND OTHERWISE DENIES the Motion.

 

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

___________________________
Richard May
Presiding

Dated this twenty-seventh day September of 2000
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Prosecutor v. Duško Tadic, "Opinion and Judgment", Case No. IT-94-1-T, 7 May 1997; Prosecutor v Zejnil Delalic & Ors., "Judgement", Case No. IT-96-21-T, 16 Novemebr 1998.
2. Prosecutor v. Kvocka & Ors., "Decision on Judicial Notice", Case No. IT-98-30-1-T, 8 June 2000 (hereafter "Kvocka Decision").
3. Ibid. This argument appears in "Prosecution’s Notice of Additional Authority in Support of the ‘Prosecution’s Motion for Judicial Notice of Adjudicated Facts’", 4 April 2000 and the Transcript of these proceedings, 23 June 2000, in particular page 359.
4. See, for example, Prosecutor v. Blagoje Simic &Ors., "Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina", Case No. IT-95-9-PT, 25 March 1999.