13. […] the Trial Chamber correctly held that the adjudicated facts sought to be judicially noticed must be relevant to the matters at issue in the current proceedings.[1]

14. […] Even though these Proposed Facts fall outside the time period charged in the Amended Indictment and are related to the acts, conduct and mens rea of his predecessor, Galić, the Appeals Chamber finds that they are clearly relevant to the present case inasmuch as they concern the campaign against civilians between September 1992 and August 1994.

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.”[1] 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.[2] It is irrelevant whether the fact in question is defined by terms with a legal meaning as long as these terms describe factual situations.[3] 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.[4] 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.”[5] This constitutes an accurate reflection of the Karemera Appeals Decision.[6] Furthermore, “whereas judicial notice under Rule 94(A) is mandatory, judicial notice under Rule 94(B) is discretionary.”[7] 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”.[8] 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.”[9] 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”.[10] 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[11] – including after the issuance of the Karemera Appeals Decision.[12]

25. […] Accordingly, the Appeals Chamber concludes that it has the power to reconsider the Decision Accepting Withdrawals in the same way that it has the power to reconsider other decisions that do not constitute judgements on the merits.[1]

21. [… ] The Decision Accepting Withdrawals can be considered a “final judgement” for purposes of Article 26 because it “terminates the proceedings”.[1]  Strugar nowhere suggests, however, that he is bringing a motion for review, and he fails to address how he satisfies the basic requirements for review.  He nowhere explains, for example, how an apparent legal impediment constitutes a “fact”[2] or how it can be deemed “new” where the matter of legal impediments was plainly at issue in the earlier proceedings.[3]  Accordingly, the Appeals Chamber does not consider the Defence Request to constitute a motion for review.

20. […] The Decision Accepting Withdrawals terminated the appeal proceedings in Strugar’s case.  It transformed him from an appellant into an individual with a final sentence. […]

25. The Appeals Chamber concludes that the Decision Accepting Withdrawals is fundamentally different from the kind of “final judgement” referred to in both the Čelebići Decision and the Žigić Decision.  While the Decision Accepting Withdrawals may be a “final judgement” in the sense that it concluded the case,[2] it neither constitutes the kind of judgement envisioned in Article 25(2) of the Statute nor provides all the due process protections that naturally accompany a full judgement on the merits.  It is essentially of a sui generis nature and is limited to procedure and process.  It was adopted without any consideration of the merits of the Trial Chamber judgement.  Were reconsideration prohibited in such circumstances, then substantive injustice might result. […]

9. […] The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) only where they challenge an indictment on the ground that it does not relate to: (i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute (“personal jurisdiction”); (ii) the territories indicated in Articles 1, 8 and 9 of the Statute (“territorial jurisdiction”); (iii) the period indicated in Articles 1, 8 and 9 of the Statute (“temporal jurisdiction”); or (iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute (“subject-matter jurisdiction”).[1]

7. When reviewing a Trial Chamber’s decision on jurisdiction under Rule 72(B)(i) of the Rules, the Appeals Chamber will only reverse the decision “if the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant considerations or irrelevant considerations in an unreasonable manner.”[1] In reaching its decision, it is incumbent upon a Trial Chamber “to provide a reasoned opinion that, among other things, indicates its view on all those relevant factors that a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2]

The Appeals Chamber recalled that vagueness in an indictment may be cured by appropriate notice found in a summary of witness’s anticipated testimony annexed to a Prosecution pre-trial brief. However, in the present case, the Appeals Chamber rejected such notice as insufficient where the relevant summary did not provide clear and consistent information to the Appellant:

223. In the Gacumbitsi Appeal Judgement, the Appeals Chamber held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief could, in certain circumstances, cure a defect in an indictment.[1] In that case, the indictment alleged generally that “Gacumbitsi killed persons by his own hands”.[2] The Appeals Chamber found this allegation to be vague, in particular as it referred to the physical commission of murder of a particular person.[3] However, a summary of anticipated testimony contained in an annex to the pre-trial brief referred to a specific killing and connected it to the crime of genocide.[4] The Appeals Chamber also observed that the summary did not conflict with any other information that was provided to the accused and was provided in advance of trial.[5] The information in the annex to the pre-trial brief was thus found to be timely, clear, and consistent and to provide sufficient notice of the allegation of the specific murder mentioned in the summary.[6]

224. The circumstances presented in this instance, however, are different. The summary of Witness AW’s anticipated testimony does not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the summary modifies the time, location, and physical perpetrator, matters that were already specifically pleaded in the Indictment, albeit in a materially different manner. In such circumstances, the summary of Witness AW’s anticipated testimony in the annex of the Pre-Trial Brief and the disclosure of his witness statement do not provide clear and consistent information sufficient to put the Appellant on notice that he was being charged with physically committing the murder of Pascasie Mukaremera on Rugona Hill in mid-May 1994. The summary of Witness AW’s testimony does not supplement or provide greater detail, but materially alters key facets of this paragraph. This discrepancy should have been immediately apparent to the Prosecution as it prepared its Pre-Trial Brief and listed the anticipated testimony of Witness AW in support of a paragraph of the Indictment that materially conflicted with it, in particular given that the Prosecution had shortly prior to that added this allegation to the Indictment for the purpose of providing specificity to the Accused. (footnotes omitted).

58. […] The Appeals Chamber recalls that, while a Trial Chamber is required to consider inconsistencies and any explanations offered in respect of them when weighing the probative value of evidence, it does not need to individually address them in the Trial Judgement. Furthermore, the presence of inconsistencies within or amongst witnesses’ testimonies does not per se require a reasonable Trial Chamber to reject the evidence as being unreasonable.

The Appellant did not make any submission at trial concerning the mitigating circumstances in his case and the Trial Chamber found no mitigating circumstances. On appeal, he argued that the Trial Chamber was obliged to consider mitigating circumstances. The Appeals Chamber found:

231. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence.[1] The accused, however, bears the burden of establishing mitigating factors by a preponderance of the evidence.[2] The Appeals Chamber notes that the Appellant made no sentencing submissions at trial.[3] In such circumstances, the Trial Chamber’s determination that there were no mitigating circumstances was within its discretion and does not constitute a legal error. If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[4] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore the Appellant’s prerogative to identify any mitigating circumstances instead of directing the Trial Chamber’s attention to the record in general. The Appellant is simply advancing arguments on appeal that he failed to put forward at the trial stage, and the Appeals Chamber “does not consider itself to be the appropriate forum at which such material should first be raised”.[5]

232. In any event, the Appellant’s submissions fail to demonstrate that the Trial Chamber’s finding of “no mitigating circumstances” is unreasonable.[6] […]