40. The Trial Chamber took judicial notice of approximately 2,000 adjudicated facts pursuant to Rule 94(B) of the ICTY Rules. Mladić challenged the taking of judicial notice of adjudicated facts, including adjudicated facts relating to the acts or conduct of his alleged subordinates. The ICTY Appeals Chamber in this case reviewed the Trial Chamber’s approach and found that it was consistent with the applicable jurisprudence. Relying primarily on a decision in the Karemera et al. case, the ICTY Appeals Chamber, on 12 November 2013, held that it is within a trial chamber’s discretion to take judicial notice of “facts relating to the existence of a joint criminal enterprise, the conduct of its members other than an accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible”.

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45. In examining whether there is a clear error of reasoning in the Appeal Decision on Adjudicated Facts, the Appeals Chamber considers Mladić’s argument that the Karemera et al. Decision of 16 June 2006 overlooked the relevance of the Galić Decision of 7 June 2002 when considering whether to take judicial notice of adjudicated facts relating to the acts or conduct of proximate subordinates. The Appeals Chamber observes that the Galić Decision of 7 June 2002 does not preclude admission of written evidence in lieu of oral testimony relating to the acts and conduct of proximate subordinates. Rather, it only precludes the admission of such evidence pertaining to the acts and conduct or mental state of the accused. In that decision, the ICTY Appeals Chamber expressly noted that the ICTY rule on the admission of written statements in lieu of oral testimony did not exclude the admission of such statements going to the acts and conduct of others for which the accused is charged with responsibility. Even with respect to admission of written evidence that is “so pivotal to the prosecution case, and where the person whose acts and conduct […] is so proximate to the accused”, the Galić Decision of 7 June 2002 recognizes that this is a matter within the discretion of the trial chamber, observing that, in such circumstances, the trial chamber “may decide that it would not be fair to the accused” to permit its admission.

46. A review of the Karemera et al. Decision of 16 June 2006 shows that the ICTR Appeals Chamber explicitly considered as applicable in the context of judicial notice of adjudicated facts the ICTY Appeals Chamber’s analysis in the Galić Decision of 7 June 2002. In particular, the Karemera et al. Decision of 16 June 2006 recalled the distinction drawn therein between “‘(a) the acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible, and (b) the acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others’”, to emphasize that only adjudicated facts going to the latter warrant complete exclusion from judicial notice. With respect to all other adjudicated facts relating to the accused’s criminal responsibility, the ICTR Appeals Chamber adopted a cautious approach by declaring that “it is for the [t]rial [c]hambers, in the careful exercise of their discretion, to assess each particular fact in order to determine whether taking judicial notice of it – and thus shifting the burden of producing evidence rebutting it to the accused – is consistent with the accused’s rights under the circumstances of the case”. Upon review of both decisions, the Appeals Chamber considers that the Karemera et al. Decision of 16 June 2006 evinces a consistent approach with the Galić Decision of 7 June 2002. The Appeals Chamber further considers that Mladić’s position fails to recognize that adjudicated facts within the meaning of Rule 94(B) of the ICTR and ICTY Rules are presumptions and are not equivalent to the untested evidence at issue in the Galić Decision of 7 June 2002, and that this decision is therefore inapposite when considering what restrictions should be placed on a trial chamber when relying on adjudicated facts under Rule 94(B) of the ICTY Rules. In particular, adjudicated facts under Rule 94(B) of the ICTY Rules are rebuttable presumptions that can only be accepted where, inter alia, they have been tested and established in another trial proceeding whereas the reliability and credibility requirements for admission of untested evidence pursuant to Rules 89(C) and 92 bis of the ICTY Rules are far less onerous.

47. […] In view of the above, Mladić fails to demonstrate that the ICTY Appeals Chamber in the Appeal Decision on Adjudicated Facts erred in relying on the Karemera et al. Decision of 16 June 2006 or that it committed any other error.

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134. […] The Appeals Chamber recalls that taking judicial notice of an adjudicated fact serves only to relieve the Prosecution of its initial burden to produce evidence on the point, and the defence may then put the point into question by introducing reliable and credible evidence to the contrary. […]