The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-AR73.5

“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”

28 October 2003
Appeals Chamber (Judges Pocar [Presiding], Shahabuddeen, Hunt, Güney and Weinberg De Roca)

Procedural Background

· On 12 December 2002, the Prosecution requested Trial Chamber II to take judicial notice of adjudicated facts derived from four cases which had been the subject of final appeal decisions.¹

· On 6 February 2003, the amici curiae filed their reply and requested that the Trial Chamber deny the Motion.²

· On 2 April 2003, the Prosecution called to the attention of the Trial Chamber the 28 February 2003 Decision in the Krajisnik case (“Krajisnik Decision”) in which Trial Chamber I took judicial notice of certain facts. Those included the facts whose admission the Prosecution was seeking in the present case.³

· On 10 April 2003, the Trial Chamber rendered its “Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts” (“Impugned Decision”) in which it admitted some of the facts in question while rejecting the others on the basis that they could have been the subject of “reasonable dispute”.⁴

· On 22 April 2003, the Prosecution requested certification to appeal the Impugned Decision. Certification was granted on 6 May 2003. The Trial Chamber took into account the fact that, in the Krajisnik Decision, Trial Chamber I had reached a different conclusion and that the issue would benefit from resolution by the Appeals Chamber.⁵

· On 21 May 2003, the Prosecution filed its Interlocutory Appeal.⁶

The Decision

The Appeals Chamber 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. Judge Hunt appended a dissenting opinion and Judge Shahabuddeen a separate opinion. Other judges reserved the right to append opinions.

The Reasoning

Legal test for admission of adjudicated facts under Rule 94(B)⁷

The Appeals Chamber considered the legal test for admission of adjudicated facts under Rule 94(B).

Recalling its previous finding that “[o]nly facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed ‘adjudicated facts’ within the meaning of Rule 94(B)”⁸, the Appeals Chamber held:

“[B]y 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”.⁹

Dissenting Opinion of Judge David Hunt¹⁰

Judge Hunt dissented since he found it “inappropriate to impose rebuttable presumptions of fact in favour of the prosecution in relation to the proof of its own case” (para. 6). In his view, “[t]o identify an adjudicated fact as a presumption, necessarily (as the prosecution concedes) places some burden of proof upon the accused, and this is contrary to the presumption of innocence which the Statute provides” (para. 7).

He explained that it was the Prosecution which was seeking to have judicial notice taken of these facts, and that it was therefore for the Prosecution to establish its entitlement to such relief:

“It is for the prosecution to establish that the facts are not the subject of reasonable dispute, not for the accused to show that the facts are unsafe. It is, however, insufficient for the accused merely to say that he disputes the facts in question. Just as in the case of the ‘defence’ of alibi, he must point to evidence given (or material available) which demonstrates a genuine dispute” (para. 11).¹¹

Judge Hunt recalled that a basic right of the Accused enshrined in the Tribunal’s Statute is that he or she is innocent until proven guilty by the Prosecution. He concluded: “Proof by way of presumptions of fact such as will be permitted by the majority decision offends against that basic right. It should only be where a fact is not the subject of reasonable dispute that judicial notice may be taken of it, and thus it cannot be challenged” (para. 14).

Separate Opinion of Judge Shahabuddeen¹²

Judge Shahabuddeen agreed with the decision of the Appeals Chamber but wished to clarify certain matters. He pointed out the differences between Rule 94(A) and Rule 94(B) of the Rules. The former provides for judicial notice of facts of “common knowledge ” and the latter provides for judicial notice of “adjudicated facts or documentary evidence”. One of the differences between the two Rules is that, under Rule 94(A ), neither party is permitted to adduce evidence in rebuttal (para. 4) whereas under Rule 94(B) the opposing party has a right to rebut the evidence so given (para. 6). In the absence of such a right of rebuttal, he argued that there could be an impairment of the presumption of innocence (para. 23). He further explained that the burden of proof is not changed under Rule 94(B) as it is still for the Prosecution to prove the accused’s guilt:

“A distinction has to be drawn between facilitating proof and dispensing with proof . It is not said that the accused must prove his innocence; the position still is that the prosecution must prove guilt. All that the law does is that it facilitates proof by allowing a party to adduce required evidence in a certain way. What is the value of that evidence is then a matter for the parties in the ordinary way. In establishing the value of the evidence – including evidence given by judicial notice being taken of adjudicated facts - the accused is entitled to a right of rebuttal.” (para. 24).

Judge Shahabuddeen could not find any reason why Rule 94(B) should be confined to material which is not in reasonable dispute between the parties (para. 29).

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1. Milosevic, IT-02-54-T, Prosecution Motion for Judicial Notice of Adjudicated Facts (“Motion”), 12 December 2002.
2. Milosevic, IT-02-54-T, Amici Curiae Observations on the “Prosecution Notice of Adjudicated Facts” filed on 12 December 2002, 6 February 2003.
3. Krajisnik, IT-00-39-PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92 bis (“Krajisnik Decision”), 28 February 2003, Judicial Supplement No. 40.
4. Milosevic, IT-02-54-T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 10 April 2003. The Trial Chamber relied on previous applications made under Rule 94(B) and identified the “relevant features” of that rule: (a) the purpose of taking judicial notice is to promote judicial economy and narrow the factual issues; (b) a balance between judicial economy and the right of the accused to a fair trial must be achieved; (c) Trial Chambers may take judicial notice of factual findings in other cases but not of the legal characterisation of such facts; (d) the Trial Chamber may only take judicial notice of facts which are not the subject of reasonable dispute; and (e) for a fact to be capable of admission under Rule 94(B) it should have been the subject of adjudication and not based upon an agreement between parties in previous proceedings. It noted the holding made in the Krajisnik Decision that taking judicial notice of a fact has the effect of creating a presumption and that the burden of proof thereafter shifts to the opposing party, which may challenge the fact thereafter by submitting its own evidence (paras 15-16).
5. Milosevic, IT-02-54-T, Decision on Two Prosecution Requests for Certification of Appeal against Decision of the Trial Chamber, 5 May 2003.
6. Milosevic, IT-02-54-T, Prosecution’s Interlocutory Appeal against the Trial Chamber’s 10 April 2003 “Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts”, 21 May 2003.
7. Rule 94(B) states: “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”.
8. 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. 6, Judicial Supplement No. 24.
9. The Appeals Chamber followed in part paragraph16 of the Krajisnik Decision which states: “By taking judicial notice of an adjudicated fact, thus, the Chamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial – unless the other party brings out new evidence and successfully challenges and disproves the fact at trial”.
10. Filed the same day as the Appeals Chamber Decision.
11. On the defence of “alibi”, see Kunarac et al, IT-96-23&23/1-T, Judgement, 22 February 2001, para. 625: “The Prosecution bore the onus of establishing the facts alleged in the Indictment. Having raised the issue of alibi, the accused bore no onus of establishing that alibi. It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the Indictment were nevertheless true”.
12. Separate Opinion of Judge Shahabuddeen Appended to the Appeals Chamber's Decision dated 28 October 2003 on the Prosecution's Interlocutory Appeal against the Trial Chamber's 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 31 October 2003.