Case No. IT-95-14-R77.2

IN THE TRIAL CHAMBER

Before:
Judge O-Gon Kwon, Presiding
Judge Patrick Robinson
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
13 January 2006

PROSECUTOR

v.

IVICA MARIJACIC
MARKICA REBIC

_______________________________________________

DECISION ON PROSECUTION MOTION FOR JUDICIAL NOTICE AND ADMISSION OF EVIDENCE

_______________________________________________

The Office of the Prosecutor:

Mr. David Akerson
Ms. Rebecca Graham
Mr. Salvatore Cannata

Counsel for Ivica Marijacic:

Mr. Marin Ivanovic

Counsel for Markica Rebic:

Mr. Kresmir Krsnik

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 (“International Tribunal”),

BEING SEIZED OF a “Prosecution Motion for Judicial Notice and Admission of Evidence”, filed by the Office of the Prosecutor (“Prosecution”) on 21 December 2005 (“Motion”), in which the Prosecution requests the Trial Chamber to take judicial notice, pursuant to Rule 94(A) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), of documents organised under one of three categories: (a) newspaper articles; (b) court documents of the International Tribunal; and (c) selected Croatian laws, or, in the alternative, to admit these documents into evidence pursuant to Rule 89(C) of the Rules,1

NOTING the “Response of the Accused Markica Rebic to the Prosecution Motion for Judicial Notice and Admission of Evidence”, filed by the Defence of Markica Rebic (“Rebic Defence”) on 4 January 2006 (“Rebic Response”), in which the Rebic Defence opposes the Motion in its entirety,

NOTING the “Prosecution Notification in Relation to ‘Response of the Accused Marki(c(a Rebic to the Prosecution Motion for Judicial Notice and Admission of Evidence’ ”, filed by the Prosecution on 5 January 2006, in which the Prosecution informs the Trial Chamber that it will not be seeking leave to file a reply to the Rebic Response,

NOTING the “Defendant Ivica Marija(c(i(c(’s Response to the Prosecutor’s Request to Take Judicial Notice” filed by the Defence of Ivica Marijacic (“Marijacic Defence”) on 6 January 2006 (“Marijacic Response”), in which the Marijacic Defence opposes the Motion in its entirety by adopting the submissions in the Rebic Response,2

NOTING that the documents which are the subject of the Motion were included in the Prosecution exhibit list filed on 9 November 2005 pursuant to Rule 65 ter (E) of the Rules (“Rule 65 ter Exhibit List”),3

(i) Rule 94(A)

NOTING that the Prosecution requests the Trial Chamber to take judicial notice of the existence and authenticity of the documents organised under categories (a ) newspaper articles and (b) court documents of the International Tribunal, and to take judicial notice of the existence, authenticity, and contents of the documents organised under category (c) selected Croatian laws,

NOTING that Rule 94(A) of the Rules provides that “(a( Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof ” and that the Appeals Chamber has described “facts of common knowledge” as that encompassing “common or universal 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,”4

NOTING that the Prosecution submits that the existence and authenticity of all the documents are ‘generally known or capable of ready determination and can not be reasonably disputed,’5 and that the “content of (the selected Croatian) laws can also not be the subject of reasonable dispute,”6

NOTING that the Defence teams submit that the existence, authenticity, and contents of all the documents under the three categories are not common knowledge and questions the authenticity of some of the materials,7

NOTING that the Marijacic Defence additionally submits that “(i(f the Prosecution wanted to authenticate newspaper articles, ICTY court documents, and Croatian Laws, then the proper procedure would have been for the Prosecution to prepare statements of witnesses who would have been capable of authenticating such documents at trial ” and to submit these statements pursuant to Rule 92bis of the Rules,8

CONSIDERING that the Prosecution has not shown that (1) the existence and authenticity of the documents organised under categories (a) newspaper articles and (b) court documents of the International Tribunal; and (2) the existence, authenticity, and contents of the documents organised under category (c) selected Croatian laws are “facts of common knowledge” within the meaning of Rule 94(A) of the Rules,

(ii) Rule 89(C)

NOTING that, in the alternative, the Prosecution requests the Trial Chamber to admit the documents organised under the three categories into evidence pursuant to Rule 89(C) of the Rules,

NOTING that Rule 89(C) of the Rules provides that “[a] Chamber may admit any relevant evidence which it deems to have probative value,”

NOTING that the Prosecution submits that the documents are “inherently reliable, relevant and probative,”9

NOTING that the Defence teams submit that the documents are not reliable, relevant, or probative,10

CONSIDERING that the article in the 18 November 2004 edition of Hrvatski List written by the accused Ivica Marijacic, the publication of which gave rise to the Indictment,11 and the article published in the 05 May 2005 edition of Hrvatski List written also by the accused Ivica Marijacic regarding the Indictment and referring to his co-accused Markica Rebic, are relevant and probative,

CONSIDERING that the Trial Chamber is satisfied with the authenticity of the two Hrvatski List articles in the aforementioned paragraph,

CONSIDERING that the court documents of the International Tribunal are relevant and probative since they directly relate to this case at hand as indicated by the pre-trial briefs of the parties,12

CONSIDERING HOWEVER that, at this stage of the proceedings, the Trial Chamber is not in a position to determine the relevance and probative value of the remaining documents, and that it is in the interests of justice to make a determination on their admissibility at a later stage of the proceedings,

PURSUANT TO Rules 54, 73, 89, and 94 of the Rules,

HEREBY GRANTS the Motion in part and ORDERS AS FOLLOWS:

The following documents are admitted as Prosecution evidence in this case:

the article published in the 18 November 2004 edition of Hrvatski List that is identified as Rule 65 ter Exhibit List No. 9;

the article published in the 05 May 2005 edition of Hrvatski List that is identified as Rule 65 ter Exhibit List No. 17; and

the court documents of the International Tribunal that are directly related to this case at hand, which are identified as Rule 65ter Exhibit List Nos. 1, 2, 4, 5, 6, 8, 10, 12, and 50.

The Registry of the International Tribunal shall, in due course, give the appropriate exhibit numbers to these items of evidence.

The Motion is denied without prejudice in all other respects.

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

__________________
O-Gon Kwon
Presiding

Dated this thirteenth day of January 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - The Annex attached to the Motion sets outs the documents.
2 - Marijacic Response, para. 1.
3 - Confidential Corrigenda To Prosecution’s Pre-Trial Brief, 9 November 2005.
4 - Prosecutor v. Nikolic, Case No. IT–02–60/1–A, Decision on Appellant’s Motion for Judicial Notice,1 April 2005, para. 10 citing Prosecutor v. Semanza, ICTR–97–20–I, Decision on the Prosecutor’s Motion for Judicial Notice and Presumption of Facts Pursuant to Rules 94 and 54, 3 November 2000.
5 - Motion, paras. 22, 26, 28, 32, 35.
6 - Motion, para. 35.
7 - Rebic Response, paras. 6–12, 14, 18–19, 23, 25–26, 29 ; Marjiacic Response, para. 1.
8 - Marijacic Response, para. 3.
9 - Motion, paras. 4, 10, 24, 27, 30–31, 33, 36–37.
10 - Rebic Response, paras. 13, 15-17, 21–22, 27; Marjiacic Response, para. 1.
11 - Indictment, 14 October 2005, para. 5.
12 - Supra note 3; Confidential The Accused Markica Rebic’s Pre-Trial Brief Pursuant to Rule 65ter(F), 28 November 2005; Confidential Defendant Ivica Marija[c]i[c]’s Pre-Trial Brief Pursuant to Rule 65[ter(F)], 1 December 2005.