Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
14 April 2005

The Office of the Prosecutor:

Mr Daryl Mundis
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”);

SEISED of the Joint Defence Motion for Judicial Notice of Adjudicated Facts (“Motion”) filed on 20 January 2005 by counsel for Enver Hadzihasanovic and Amir Kubura (“Defence”), in which the Defence requests the Chamber, pursuant to Rule 94(B) of the Rules of Procedure and Evidence (“Rules”), to admit 73 adjudicated facts from other cases before the Tribunal, set out in Annex A of the Motion (“Proposed Facts”), in order to provide the Chamber with information about the context and circumstances in which the two Accused carried out their functions as high-ranking commanders;

NOTING the Prosecution's Response to the Joint Defence Motion for Judicial Notice of Adjudicated Facts (“Response”) and the Correction to the Prosecution's Response to the Joint Defence Motion for Judicial Notice to Adjudicated Facts, filed on 7 February 2005 and 9 February 2005 respectively by the Office of the Prosecutor (“Prosecution”);

NOTING that, in its Response, the Prosecution submits that the Defence Motion for judicial notice of the Proposed Facts should be dismissed since (i) most of the facts are not relevant to this case,¹ (ii) the Defence has not provided detailed information on the direct or indirect relevance of each of the Proposed Facts with regard to the categories set out by the Chamber in the Decision on Judicial Notice of Adjudicated Facts dated 27 February 2004 (“Initial Decision”) and engages in generalisations and assertions² and (iii) that, consequently, the Defence request does not satisfy any of the conditions set out by the Chamber in the Initial Decision;³

NOTING moreover that the Prosecution states that the Proposed Facts do not satisfy the criteria for judicial notice set out in a decision rendered on 28 February 2003 by Trial Chamber I in the case The Prosecutor v. Momcilo Krajisnik (“Krajisnik”)⁴ since the Defence failed to meet its burden of demonstrating that the facts drawn from other cases before the Tribunal (i) were distinct, concrete and identifiable,⁵ (ii) are only factual findings and do not contain legal characterisations,⁶ (iii) were contested at trial⁷ and (iv) have not been the subject of reasonable dispute between the parties in the present case;⁸

NOTING the oral decision of 16 February 2005 in which the Chamber requested the Defence to submit a reply to the Prosecution Response within a week;⁹

NOTING the Joint Defence Reply to Prosecution Response to Joint Defence Motion for Judicial Notice of Adjudicated Facts (“Reply”) filed by the Defence on 23 February 2005;

NOTING that, in its Reply, the Defence states that other than Proposed Fact 42, all the Proposed Facts (i) meet the requirements of the Krajisnik test,¹⁰ in particular the first,¹¹ second,¹² third¹³ and sixth¹⁴ criteria, and (ii) are relevant since the Chamber held that elements relating to the historical, political and military context at the time of the facts may be relevant with regard to the alleged criminal responsibility of both Accused as such elements may make it possible to establish the circumstances prevailing in the zone of operations of the two Accused at the material time;¹⁵

NOTING Initial Decision rendered on 27 February 2004 in which the Chamber requested the Defence to explain in writing the direct or indirect relevance of each of the facts proposed, in this given context, with regard to the following categories: (i) offences referred to in the Indictment, (ii) the superior-subordinate relationship, (iii) reason to know that a subordinate had committed an offence or was about to do so, (iv) measures which could be taken to prevent the commission of offences, (v) measures which could be taken to punish the perpetrators of crimes, and (vi) any other ground justifying judicial notice being taken of the fact in question;

NOTING the Final Decision on Judicial Notice of Adjudicated Facts (“Second Decision”) rendered on 20 April 2004, in which the Chamber admitted four factual findings on the grounds that they meet the requirements of the Krajisnik test and that they were relevant to the historical, political and military context at the material time in this case;

CONSIDERING that Rule 94(B) of the Rules provides that, ?agt 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, although Rule 94(B) of the Rules does not define the concept of an adjudicated fact, the Appeals Chamber stated that “?ag 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”;¹⁶

CONSIDERING that the Chamber recalls that the fact that taking judicial notice of adjudicated facts is left to the “discretion”¹⁷ of the Trial Chambers and that this Chamber retains the discretion to refuse judicial notice of adjudicated facts if the interests of justice, including the right of the Accused to a fair, public and expeditious trial, so require;¹⁸

CONSIDERING that, as set out in the Initial Decision and the Second Decision, by taking judicial notice of adjudicated facts, a Trial Chamber is assuming that the fact is accurate, that it therefore need not be established at trial but that, since it is a presumption, the other party may present at trial proof which challenges its truthfulness,

CONSIDERING that the Chamber notes that the trial in this case has reached the advanced stage in the proceedings where both the Prosecution and Defence for Enver Hadzihasanovic have finished presenting their cases,

CONSIDERING that in order to ensure a fair trial, the Chamber must take this stage in the proceedings into account when assessing the Motion,

CONSIDERING that the Proposed Facts are taken from judgements rendered by the Trial Chambers in the cases The Prosecutor v. Zoran Kupreskic et al.¹⁹ (“Kupreskic”), The Prosecutor v. Tihomir Blaskic²⁰ (“Blaskic”) and The Prosecutor v. Dario Kordic and Mario Cerkez²¹ (“Kordic”) and appeals judgements rendered by the Appeals Chamber in the Blaskic²² and Kordic ²³ cases,

CONSIDERING that the Proposed Facts generally appear to reflect faithfully the findings of the Trial Chambers and Appeals Chamber in the three aforementioned cases,²⁴

CONSIDERING that the Prosecution and the Defence submit that the Defence request should be examined with regard to the criteria set out in the Krajisnik Decision;

CONSIDERING that this Chamber reiterated the criteria from the Krajisnik case in the Second Decision;

CONSIDERING that the Trial Chamber in the Krajisnik case found that, for a fact to be admissible pursuant to Rule 94(B) of the Rules, it must actually have been admitted in previous judgements, so that:²⁵

i) it is distinct, concrete and identifiable;
ii) it is restricted to factual findings and does not include legal characterisations ;
iii) it was contested at trial and forms part of a judgement which has either not been appealed or has been finally settled on appeal; or
iv) it was contested at trial and now forms part of a judgement which is under appeal, but falls within issues which are not in dispute during the appeal;
v) it does not affect the criminal responsibility of the Accused;
vi) it is not the subject of (reasonable) dispute between the Parties in the present case;
vii) it is not based on plea agreements in previous cases; and
viii) it does not impact on the right of the Accused to a fair trial.

CONSIDERING that the Chamber holds that this Defence request should be examined also with regard to the criteria drawn from the jurisprudence of the Krajisnik case,

CONSIDERING that, concerning the first criterion, the Chamber notes that the adjudicated facts admitted in other cases for which judicial notice has been requested, must be understood in the context of the judgement or appeals judgement from which they have been taken; that when the Proposed Facts taken from judgements or appeals judgements are not sufficiently clear in their original context, judicial notice should not be taken of them by the Chamber;²⁶

CONSIDERING that since the Second Decision was rendered, the appeals judgements in the Blaskic and Kordic cases were rendered on 29 July 2004 and 17 December 2004 respectively;

CONSIDERING that, in view of all the criteria in the jurisprudence of the Krajisnik case, judicial notice should not be taken of the Proposed Facts bearing the numbers:²⁷

- 12, 18, 22, 27, 29, 30, 31, 34, 35, 41, 44, 45, 46, 57, 58, 59, 60, 64, 65, 73 on the grounds that, although these facts have not been examined or amended on appeal, the Chamber now holds that they are not distinct, concrete or identifiable or that they contain legal characterisations,
- 21, 36, 37, 38, 39, 67 and 68 on the grounds that these new facts are not distinct, concrete or identifiable or that they contain legal characterisations,
- 69 to 71 on the grounds that, after re-examining the submissions of the parties and the Blaskic judgement, these facts had not been challenged during trial in the Blaskic case,²⁸
- 23-24 on the grounds that they have been reasonably challenged by the Prosecution in this case,

CONSIDERING that it should be noted that Proposed Fact 54 was dismissed in the Second Decision;

CONSIDERING, moreover, that the Defence withdrew its request for judicial notice of Proposed Fact 42;²⁹

CONSIDERING that, consequently, Proposed Facts 1 to 11, 13 to 17, 19 to 20, 25, 26, 28, 32, 33, 40, 43, 47, 48, 49, 50, 51, 52, 53, 55, 56, 61, 62, 63, 66 and 72 meet the requirements of the Krajisnik test;

CONSIDERING, nevertheless, that, with regard to Rule 89(C) of the Rules, the Chamber has the duty to verify the relevance of these 39 Proposed Facts before taking judicial notice of them,

CONSIDERING that the only explanations provided by the Defence regarding the relevance to this case of the said 39 Proposed Facts are set out in the Additional Clarification on Joint Defence Motion for Judicial Notice of Adjudicated Facts at the Request of the Trial Chamber, filed by the Defence on 12 March 2004, pursuant to the Initial Decision;

CONSIDERING that it must be noted that these explanations do not preclude a degree of uncertainty regarding the specific relevance to this case of those 39 Proposed Facts,

CONSIDERING, however, that in its decision dated 28 January 2004, the Chamber specified that elements relating to the historical, political and military context at the time of the facts may be relevant, since these elements may make it possible to establish the circumstances which were prevalent in the area in which the Accused were operating at the material time;³⁰

CONSIDERING nonetheless that it should be recalled that the application of this principle cannot prejudice the probative value which the Chamber may decide at the end of the trial to attribute to a fact of which it has taken judicial notice ;

CONSIDERING, consequently, that the Chamber holds that Proposed Facts 1 to 11, 13 to 17, 19 to 20, 25, 26, 28, 32, 33, 40, 43, 47, 48, 49, 50, 51, 52, 53, 55, 56, 61, 62, 63, 66 and 72 are relevant to the historical, political and military context at the material time in this case, and that they should be admitted;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 94(B) of the Rules,

GRANTS the Defence motion and takes judicial notice of Proposed Facts 1 to 11, 13 to 17, 19 to 20, 25, 26, 28, 32, 33, 40, 43, 47, 48, 49, 50, 51, 52, 53, 55, 56, 61, 62, 63, 66 and 72;

RECALLS that Proposed Fact 54 was dismissed in the Second Decision;

NOTES the withdrawal by the Defence of its request for judicial notice of Proposed Fact 42;

AND DISMISSES the Motion and Reply in all other respects.

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

___________________
Jean-Claude Antonetti
Presiding

Done this fourteenth day of April 2005
At The Hague
The Netherlands

[Seal of the Tribunal]