The Prosecutor v. Momcilo Krajisnik - Case No. IT-00-39-PT

“Decision on the Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92bis”

10 March 2003
Trial Chamber I (Judges Liu [Presiding], El Madhi and Orie)

Procedural Background

· Trial Chamber I is seized of a series of motions submitted by the Prosecutor relating to (a) the taking of judicial notice of adjudicated facts¹, and to (b) admission of evidence in the form of witness statements under Rule 92 bis of the Tribunal’s Rules of Procedure and Evidence.²

The Decision

The Trial Chamber allowed the motions in part following the criteria described infra.

The Reasoning

Judicial Notice

The purpose of Rule 94³

The Trial Chamber stated that Rule 94 “is for the purpose of achieving judicial economy in the sense that it condenses the relevant proceedings to what is essential for the case of each party without rehearing supplementary allegations already proven in past proceedings and thereby shortens the duration of the trial”. It declared that “judicial economy has been held up as one of the procedural legal principles of the International Tribunal in Articles 20(1) and 21(4)(c), i.e. the right of the Accused to an expeditious trial and the right to be tried without undue delay”. It emphasised that “its first concern is always to ensure that the Accused is offered a fair trial” and that “[a]s long as the principle is accomplished, the Chamber is under a duty to avoid that unnecessary time and resources are wasted on unnecessary disputes”.

Facts capable of admission under Rule 94(B)

The Trial Chamber conducted a review of the International Tribunal’s case law and thereby identified the various criteria set out in previous decisions. It found that “for a fact to be capable of admission under Rule 94(B), it should be truly adjudicated in previous judgements in the sense that: (i) it is distinct, concrete and identifiable⁴; it is restricted to factual findings and does not include legal characterisations ⁵; (iii) it was contested at trial and forms part of a judgement which has either not been appealed or has been finally settled on appeal⁶; (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 appeal⁷; (v) it does not attest to 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 cases⁸; and (viii) it does not impact on the right of the Accused to a fair trial.”⁹

Legal consequences of Rule 94(B)

The Trial Chamber noted that the facts contemplated in Rule 94(B) are “substantially different in character from the facts contemplated in Rule 94(A)”.¹⁰ While judicial notice of “facts of common knowledge” under Rule 94(A) “normally implies that such facts cannot be challenged during trial”, facts under Rule 94(B) are only facts for which the Chamber establishes a “well-founded presumption” of their accuracy and “therefore does not have to be proven at trial –unless the other party brings out new evidence and successfully challenges and disproves the fact at trial”.¹¹ In other words , the Trial Chamber held that “the procedural legal impact of taking judicial notice of an adjudicated fact is not that the fact cannot be challenged or refuted at trial, but rather that the burden of proof to disqualify the fact is shifted to the disputing party”.¹²

Consequently “[i]f, during a trial, a party wishes to dispute an adjudicated fact of which the Trial Chamber has taken judicial notice, accordingly, that party must then bring out evidence in support of its contest and request the Chamber to entertain the challenge”.¹³ “If the Chamber accepts the challenge, the other party will be provided with an opportunity to respond within a short time frame set out by the Chamber and the Chamber will then decide on the matter”.¹⁴

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1. Rule 94 (Judicial Notice)
(A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.
(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.
2. Only the legal developments related to the taking of judicial notice will hereby be considered.
3. Para. 11.
4. Kupreskic et al., IT-95-16-A, Decision on the Motions of Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001, para. 12: “A 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”. Summarised in Judicial Supplement No. 24.
5. Simic et al., IT-95-9-PT, 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, 25 March 1999, page 3, Judicial Supplement No. 3. Sikirica et al., IT-95-8-PT, Decision on Prosecution for Judicial Notice of Adjudicated Facts, 27 September 2000, page 5.
6. Milosevic, IT-02-54-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brcko, 5 June 2002, Judicial Supplement No. 34.
7. Ljubicic, IT-00-41-PT, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts (the “Ljubicic Decision”), 23 January 2003, Judicial Supplement No. 39.
8. See supra note 6.
9. Para. 15.
10. Para. 16.
11. Ibid. See the Ljubicic Decision.
12. Para. 16.
13. Para. 17.
14. Ibid.