Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Mr. Hans Holthuis
16 December 2003
The Office of the Prosecutor
Ms. Carla Del Ponte Ms. Hildegard Uertz-Retzlaff
Mr. Geoffrey Nice Mr. Dermot Groome
Mr. Slobodan Milosevic
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Timothy L.H. McCormack
1. On 12 December 2002, the Prosecution filed its “Prosecution Motion for Judicial Notice of Adjudicated Facts” (“Initial Motion”), in which the Prosecution requested the Trial Chamber to take judicial notice of 482 adjudicated facts derived from four cases which have been the subject of final appeal decisions.1 On 10 April 2003, the Trial Chamber issued its “Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts” (“Trial Chamber Decision”), in which it admitted 130 facts containing historical and geographical background information not the subject of reasonable dispute, and otherwise rejected the Initial Motion. On 6 May 2003, the Trial Chamber granted a Prosecution request for certification of an appeal on the Trial Chamber Decision and referred the matter to the Appeals Chamber. On 28 October 2003, the Appeals Chamber issued its “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” (“Appeals Chamber Decision”), by which it returned “the matter to the Trial Chamber for it to review the taking of judicial notice of the adjudicated facts in accordance with the present decision”.2
2. Subsequently on 6 November 2003, the Trial Chamber issued a “Further Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts”, in which it required the parties and Amici Curiae to make submissions on the effect of the Appeals Chamber ruling. On 18 November 2003, the Amici Curiae filed their response ,3 in which it is submitted that the Prosecution should be put to the task of persuading the Trial Chamber that a revised and less extensive list of facts could be admitted without compromising the right of the Accused to a fair trial. On 26 November the Prosecution filed its response ,4 in which it adhered to its initial application.
3. The Trial Chamber now renders its final decision on the Prosecution application for admission of the adjudicated facts in its Initial Motion and sets out its reasons, in line with the Appeals Chamber Decision.
4. Rule 94 (B) provides as follows:
(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 facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.
5. The Appeals Chamber gives a Trial Chamber the discretion to take judicial notice of an adjudicated fact on the basis that it has been the subject of adjudication by another Chamber, meaning that the fact has not been the subject of an appeal or appellate proceedings have concluded.5 According to the Appeals Chamber, by taking judicial notice of an adjudicated fact, the Trial Chamber establishes a presumption of the accuracy of that fact, which therefore does not have to be proved again at trial, but which can be challenged at trial,6 i.e. a rebuttable presumption .7
6. The Prosecution, in its further submissions, argues that the adjudicated facts in its Initial Motion are ideally suited to create a “rebuttable presumption” and therefore presses admission of all of the remaining 332 facts8 pursuant to Rule 94 (B), as interpreted by the Appeals Chamber.
7. The Amici Curiae, in their further submissions, argue that it would be a proper exercise of the discretion referred to by the Appeals Chamber to refuse all or some of the outstanding facts, if the Trial Chamber considers that the large number of facts and detail contained in those facts put too onerous a burden of rebuttal upon the Accused.9 At the heart of this argument is the proposition that the wholesale nature of the application to admit the remaining 332 facts is capable of offending the principle of a fair trial, as enshrined in Articles 20 and 21 of the Statute of the Tribunal.10
8. The Trial Chamber finds force in these arguments of the Amici Curiae.
9. Furthermore, as we said in our Initial Decision, the wholesale admission of facts taken from a judgement based on an assessment of evidence by another Trial Chamber is not an appropriate exercise of the Trial Chamber’s discretion under Rule 94 ( B),11 and this is a matter the Trial Chamber will take into consideration in determining the admissibility of the facts.
10. In the exercise of our discretion, the Trial Chamber may also consider the tendentiousness of the facts sought to be admitted. In particular, there have been areas of evidence the Accused has strongly challenged and which the Trial Chamber, in its determination of applications for the admission of Rule 92 bis evidence, has consistently allowed the Accused to cross-examine. The starkest example of this is the evidence of participation by the JNA (or Serb paramilitaries) in the perpetration of crimes alleged in the Indictment. In one decision concerning the admission of transcripts under Rule 92 bis (D), the Trial Chamber ruled that witnesses whose evidence concerned the participation by the JNA (or Serb paramilitaries) in the takeover of Foca relating, as it did, to a live issue between the parties (i.e. the role of the JNA and Serb paramilitaries in the takeover of municipalities and villages in Croatia and Bosnia and Herzegovina), must be called for cross-examination by the Accused.12 Indeed, the Prosecution conceded this point.13 The Trial Chamber may accordingly take such matters into consideration in the exercise of its discretion to admit the adjudicated facts.
11. An additional issue concerns the basis for the admission of adjudicated facts. As the Appeals Chamber acknowledges in its Decision, the principle behind the exercise by the Chamber of its discretion to admit facts pursuant to Rule 94 (B) is judicial economy.14 It is clear, however, that the admission on a wholesale basis of the 332 remaining facts the Prosecution seeks now to have admitted, may have the contrary effect on the proceedings. This is because, as the Appeals Chamber states, the admission of a fact only creates a presumption as to the accuracy of that fact, which may be rebutted by the Accused by way of evidence. Not only does this raise the possibility of placing a heavy burden upon the Accused in the preparation and conduct of his case, but attempts by an accused to rebut these facts may absorb considerable time and resources during the course of the proceedings,15 thereby not promoting judicial economy or expeditiousness.16
12. The Trial Chamber must therefore determine, in the exercise of its discretion, which of the remaining 332 facts are admissible underRule 94 (B). In doing so, the Chamber will concentrate on the salient facts, exclude those facts which, when taken together, will result in such a large number as to compromise the principle of a fair and expeditious trial. Moreover, the Trial Chamber will apply the other considerations discussed above.17
13. The remaining adjudicated facts for which the Prosecution seeks admission are dealt with by category as follows:
(a) Political background (facts 151 to 171)
14. These facts, taken from the Tadic and Celebici Judgments, cover wide -ranging assertions with respect to the political background of the conflict in Bosnia and Herzegovina, the relevance and role of political parties, the JNA, VRS and TO. The facts are broad and tendentious and when placed in the context of the overall breadth of the application, as well as the Accused’s right to rebut the facts, may place an undue burden on the Accused. The Trial Chamber will, in the exercise of its discretion, deny admission of these facts under Rule 94 (B).
(b) Prijedor, including background and general facts, the attack on Kozorac, the existence of an armed conflict and the detention camps (facts 172 to 367)
15. The Trial Chamber has considered the 195 facts concerning the Prijedor municipality and applied the considerations set out above in exercising its discretion. These facts have all been taken from the Tadic Judgment. We will admit the following 141 facts as numbered in the Initial Motion: 175-178, 182-188, 190-201, 205-209, 213, 220-223, 243, 260-367. These facts concern relevant matters relating to the Serb takeover of Prijedor; the attack on the Kozorac area, and relevant facts pertaining to the detention of civilians at the Omarska, Keraterm and Trnopolje camps. The remainder of the facts sought to be admitted concerning Prijedor shall be refused. This finding is made in the context of the case as a whole, of which this municipality is a small part. All that is required with respect to the crime base matters is an overall picture. The excluded paragraphs are either not sufficiently significant, too detailed, too numerous or otherwise too tendentious to be admitted in the Trial Chamber’s discretion.
(c) Foca, including background, the conflict there, sexual abuse in detention facilities, and the detention of civilians in the KP Dom (facts 369 to 415)
16. The Trial Chamber has already admitted into evidence the testimony of 11 witnesses who have dealt with the range of issues contained in these facts, which the Prosecution now seeks to have admitted.18 The testimony of witnesses B-154219 and B-154320, dealt with the takeover of Foca, as well as the rape and mistreatment of others. Witnesses B-153321, B-112022 and B-153623, who the Prosecution conceded should be required to attend for cross-examination, dealt with the circumstances surrounding the takeover of Foca and conditions in the KP Dom detention facility.24 Finally , witnesses B-112125, B-153726, B-153827 and B-154028 dealt with the outbreak of conflict in Foca, as well as conditions in the KP Dom detention facility.29
17. Judge Hunt, in his dissenting opinion to the Appeals Chamber Decision, stated:
In the present case, the prosecution will be able to prove very expeditiously the facts of which the Trial Chamber refused to take judicial notice by the tender, pursuant to Rule 92bis(D), of the transcripts of the evidence upon which the various Trial Chambers had made the findings of fact which it had tendered pursuant to Rule 94(B).30
The Prosecution has in fact adduced nine witnesses in respect of the Foca municipality . To admit any of the facts set out in the Initial Motion in respect of this part of the Indictment would be repetitive.
(d) Crimes committed by Bosnian Serb Individuals During 1992 (facts 416 to 482)
18. This final category of facts the Prosecution seeks to admit concerns the criminal conduct of other persons convicted of crimes by the International Tribunal for events in Bosnia and Herzegovina during 1992. Such facts are not sufficiently relevant to this case and the Trial Chamber will not, in the exercise of its discretion, admit these facts under Rule 94 (B).
19. Finally, as noted above, the Appeals Chamber has ruled that “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, but which, subject to that presumption, may be challenged at that trial”.31 Judge Shahabuddeen, in his Separate Opinion, refers to the admission of adjudicated facts under Rule 94 (B) as judicial notice of “matters at issue”, meaning that Rule 94 (B) would only be used to admit facts that were disputed. The opposing party retains a right to contest that material by rebutting the presumption created by admission of that fact.32 The facts the Trial Chamber have admitted shall be subject to this right of the Accused to challenge them.
20. For the foregoing reasons, the Trial Chamber:
(a) ADMITS facts 175-178, 182-188, 190-201, 205-209, 213, 220-223, 243 and 260-367, as set out by the Prosecution in its Initial Motion;
(b) DOES NOT ADMIT the remainder of the facts set out by the Prosecution in its Initial Motion; and
(c) ORDERS that the 141 facts referred to in Order (a) are admitted subject to the right of the Accused to challenge those facts.
Done in English and French, the English text being authoritative.
Dated this sixteenth day of December 2003
At The Hague
[Seal of the Tribunal]