Phrases with legal meaning
|Decision on Judicial Notice - 16.06.2006||
KAREMERA et al.
29. […] It is true that “widespread and systematic attack against a civilian population” and “armed conflict not of an international character” are phrases with legal meanings, but they nonetheless describe factual situations and thus can constitute “facts of common knowledge”. The question is not whether a proposition is put in legal or layman’s terms (so long as the terms are sufficiently well defined such that the accuracy of their application to the described situation is not reasonably in doubt). The question is whether the proposition can reasonably be disputed. Neither the Trial Chamber nor any of the Accused has demonstrated any reasonable basis for disputing the facts in question. (emphasis added).
 For instance, it is routine for courts to take judicial notice of the existence of a state of war, despite the fact that such a description has a legal meaning. See, e.g., Mead v. United States, 257 F. 639, 642 (U.S. 9th Cir. Ct. App. 1919); see also infra note 46 (listing other examples of judicial notice incorporating legal concepts).
|ICTR Rule Rule 94 ICTY Rule Rule 94|
|Decision on Judicial Notice - 29.10.2010||
BAGOSORA et al. (Military I)
12. In addition, the Appeals Chamber notes that paragraphs 26 and 27 of the Bagaragaza Sentencing Judgement which Nsengiyumva also seeks to have judicially noticed contain legal conclusions on Michel Bagaragaza’s criminal responsibility and not facts. The Appeals Chamber recalls that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings.” Therefore, the Appeals Chamber finds that paragraphs 26 and 27 of the Bagaragaza Sentencing Judgement cannot be subject to judicial notice under Rule 94(B) of the Rules.
 Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007, para. 22.
|ICTR Rule Rule 94 ICTY Rule Rule 94|
|Decision on Judicial Notice - 26.06.2007||
21. [In the Karemera Appeals Decision] the Appeals Chamber held that the key question regarding admission of facts of common knowledge, pursuant to Rule 94(A) of the Rules, is “whether the proposition can reasonably be disputed” and “not whether a proposition is put in legal or layman’s terms.” When a Trial Chamber determines that a fact is notorious and not subject to reasonable dispute, it is obliged to take judicial notice of it under Rule 94(A) of the Rules. It has no discretion to act otherwise. It is irrelevant whether the fact in question is defined by terms with a legal meaning as long as these terms describe factual situations. In this respect, the Appeals Chamber does not agree with the Prosecution that the Trial Chamber held “that legal conclusions could be judicially noticed under Rule 94(A)” of the Rules. The Trial Chamber limited itself to noting that the Appeals Chamber in Karemera ruled that “the submission that the term ‘genocide’ is a legal characterisation” could not even be considered given that “Rule 94(A) does not provide the Trial Chamber with discretion to refuse judicial notice on this basis.” This constitutes an accurate reflection of the Karemera Appeals Decision. Furthermore, “whereas judicial notice under Rule 94(A) is mandatory, judicial notice under Rule 94(B) is discretionary.” Thus, the Trial Chamber correctly interpreted the Karemera Appeals Decision when it ruled that its conclusions with regard to Rule 94(A) could not be apposite to Rule 94(B) of the Rules.
22. The Appeals Chamber additionally notes that the Trial Chamber correctly held that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”. To determine “whether a proposed fact is truly a factual finding”, the Trial Chamber referred to the Krajišnik Decision which adjudicated that “many findings have a legal aspect, if one is to construe this expression broadly. It is therefore necessary to determine on a case-by-case basis whether the proposed fact contains findings or characterizations which are of an essentially legal nature and which must, therefore, be excluded.” Thus, the Prosecution does not accurately represent the findings in the Impugned Decision when it claims that the Trial Chamber held “that facts could not be judicially noticed if they were described with legal language”. The Appeals Chamber also observes that the Trial Chamber’s conclusion is fully in line with the jurisprudence of the Trial Chambers on this issue – including after the issuance of the Karemera Appeals Decision.
 Karemera Appeals Decision, para. 29.
 Ibid., paras 29, 37.
 Prosecution’s Interlocutory Appeal, para. 29.
 Impugned Decision, para. 35, citing the Karemera Appeals Decision, para. 37.
 Karemera Appeals Decision, para. 37.
 Ibid., para. 41.
 Impugned Decision, para. 33.
 Impugned Decision, para. 33, quoting Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts, 24 March 2005 (“Krajišnik Decision”), para. 15 (In this decision, the Trial Chamber further observed that findings of an essentially legal nature “must, therefore, be excluded. In general, findings related to the actus reus or the mens rea of a crime are deemed to be factual findings. As long as they also comply with the other criteria […] they may be admitted.” (para. 15)).
 Prosecution’s Interlocutory Appeal, para. 33.
 Krajišnik Decision, para. 15; See also, inter alia, Prosecution v. Enver Hadžihasanović et al., Case No. IT-01-47-T, Decision on Judicial Notice of Adjudicated Facts Following the Motion Submitted by Counsel for the Accused Hadžihasanović and Kubura on 20 January 2005, 14 April 2005, p. 5, and Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004, pp. 7, 8; Prosecutor v. Željko Mejakić, Case No. IT-02-65-PT, Decision on Prosecution Motion for Judicial Notice pursuant to Rule 94(B), 1 April 2004, p. 4; Prosecution v. Vidoje Blagojević et al., Case No. IT-02-60-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence, 19 December 2003, para. 16; Prosecution v. Jadranko Prlić et al., Case No. IT-04-74-PT, Decision on Motion for Judicial Notice of Adjudicated Facts pursuant to Rule 94(B), 14 March 2006, para. 12.
 Prlić Decision [Prosecution v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative aux requêtes des 14 et 23 juin 2006 de l’Accusation aux fins de dresser le constat judiciaire de faits admis, 7 September 2006], para. 23, (“Quant à la condition nº 3 relative à l’absence de qualification juridique, la Chambre considère qu’elle doit être appréciée au cas par cas et interprétée de façon restrictive. En effet, certains paragraphes de jugements et arrêts proposés pour constat judiciaire, tout en décrivant essentiellement des réalités factuelles, renferment également, souvent, des termes juridiques. Ces paragraphes sont susceptibles d’être admis en application de l’article 94 B) du Règlement. Ce n’est que lorsque des paragraphes tirent principalement des conclusions juridiques qu’ils ne feront pas l’objet de constat judicaire. ” (footnotes omitted)); Popović Decision [Prosecutor v. Vujadin Popović at al., Case No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex, 26 September 2006], para. 10 (The Trial Chamber endorsed the above-quoted position in the Krajišnik Decision).
|ICTR Rule Rule 94 ICTY Rule Rule 94|