622. […] The Appeals Chamber considers that a trial chamber may exercise its discretionary power to determine whether to take judicial notice of an adjudicated fact,[1] even if the fact may have been less central to the charges in the previous proceedings of the Tribunal than in the current proceedings,[2] so long as the adjudicated fact has been “established by the Trial Chamber [in the previous proceedings] on the basis of evidence”.[3] […]

92.    The Appeals Chamber held in the Kupreškić et al. case that proposed facts may be subject to judicial notice if the original judgement has not been appealed or where the judgement is finally settled on appeal.[1] It clarified that:

Since the Appeals Chamber may in the course of that appeal revise the findings of the Trial Chamber, the Appeals Chamber thinks it unwise to assume that the facts contained in the Trial Chamber’s judgement are ‘adjudicated’. Only 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).[2]

In a subsequent Appeals Chamber decision, Judge Shahabuddeen appended a separate opinion, elaborating that “if a particular finding on a fact is not the subject of appeal, judicial notice may be taken of it in other proceedings notwithstanding the pendency of an appeal on other aspects.”[3] In addition, trial chambers have interpreted the holding in the Kupreškić et al. Appeal Decision broadly to allow judicial notice of adjudicated facts from judgements pending appeal or review which are not themselves clearly at issue in the appeal, before the appeal is finally concluded.[4] The Appeals Chamber finds this interpretation of the Kupreškić et al. Appeal Decision to be persuasive. However, when determining whether proposed facts are subject to appeal or review, the Appeals Chamber emphasises that trial chambers should take a cautious approach and err on the side of excluding proposed facts which could be altered on appeal.

[…]

94.    While it is within a trial chamber’s discretion to determine whether proposed facts are subject to appeal or review for the purposes of taking judicial notice pursuant to Rule 94(B) of the Rules, as with all discretionary decisions, that discretion is subject to review.[5] The Appeals Chamber recalls that judicial notice of adjudicated facts is an exception to the ordinary burden of producing evidence.[6] Consequently, the Appeals Chamber considers that trial chambers should err on the side of exclusion of proposed facts which could be altered on appeal because judicial economy is poorly served in circumstances where parties in one proceeding are required to follow the status of another proceeding on appeal to determine which adjudicated facts are operative in their case.

[…]

96.    The Appeals Chamber has reviewed the grounds of appeal raised by the Popović et al. appellants to which Mladić refers^[] and has found that some of those grounds could have a bearing not only on general issues of trial fairness, but also on the veracity of specific Proposed Facts. […] The Appeals Chamber notes the difficulty in assessing the likely outcome of grounds of appeal in a separate proceeding and considers that it is not for this Bench of the Appeals Chamber to do so. The question before the Appeals Chamber is merely whether, if these grounds of appeal were successful, the integrity of the entire Popović et al. Trial Judgement could be undermined such that Proposed Facts from the judgement could not be considered truly adjudicated.[7] In these circumstances, the Appeals Chamber considers that it could potentially be so undermined. Consequently, the Appeals Chamber finds that the Trial Chamber failed to give these grounds of appeal sufficient weight in determining whether the Proposed Facts in question are subject to appeal, and therefore committed a discernible error.[8]

At paras 40-42, the Appeals Chambers explained the differences between judicial notice under Rule 94(A) and judicial notice under Rule 94(B).

10. Nsengiyumva requests that judicial notice be taken of portions of a sentencing judgement based on a guilty plea. In this respect, the Appeals Chamber notes that Trial Chambers of this Tribunal and of the International Criminal Tribunal for the former Yugoslavia have held that in order to be judicially noticed, facts must not be based on an agreement between the parties to the original proceedings,[1] and that, as such, facts shall not be deemed “adjudicated” if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings.[2] This position is based on the consideration that such facts are not proper sources of judicial notice because they have not been subjected to the same level of scrutiny as in other trial situations where one of the parties has the burden of proof,[3] and that the accused’s admissions “speak neither to the general currency of the fact nor to its indisputable character.”[4]

11. The Appeals Chamber agrees that facts based on an agreement between parties in previous proceedings cannot be deemed “adjudicated facts” within the meaning of Rule 94 of the Rules because they have not been established by the Trial Chamber on the basis of evidence. Rather, such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than the one applied to instances where the Prosecution must prove the facts upon which convictions are based beyond reasonable doubt. In light of this reasoning, the Appeals Chamber finds that the facts admitted by Michel Bagaragaza as set out in paragraphs 24 and 25 of the Bagaragaza Sentencing Judgement are not subject to judicial notice under Rule 94(B) of the Rules.

6. […] The Rules are silent on this point of whether a judgement of a Trial Chamber can amount to either “adjudicated facts” or “documentary evidence” within the province of Rule 94(B).[1] The Appeals Chamber notes that the judgement in Prosecutor v. Kordić and Cerkez is currently being appealed by both the accused and the Prosecution. Since the Appeals Chamber may in the course of that appeal revise the findings of the Trial Chamber, the Appeals Chamber thinks it unwise to assume that the facts contained in the Trial Chamber’s judgement are “adjudicated”. Only 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). As to Rule 94(B)’s authorisation for judicial notice of “documentary evidence” in a different set of proceedings, the Appeals Chamber believes this Rule envisioned permitting a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.

12. […] The Appeals Chamber considers that a vague and generalised request to take notice of an entire judgement is insufficient to invoke Rule 94(B). 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. Equally, as expressed earlier with regard to the Second Josipovi} Request, an entire judgement may not be the object of judicial notice.

45. With respect to the Prosecution’s argument to the effect that documentary evidence must also be adjudicated evidence, the Appeals Chamber concurs with the Trial Chamber in the Bizimungu case which concluded that the wording of Rule 94(B) of the Rules suggests that the term “adjudicated” only relates to “facts” and does not extend to “documentary evidence”. Thus, the Trial Chamber held that:

“…under Sub-Rule 94(B), both facts (which have been previously adjudicated) and documents (which have been received and admitted in previous proceedings) may be judicially noticed. Therefore, to be taken judicial notice of, the facts must be adjudicated facts, meaning facts upon which, on a previous occasion, in another case, this Tribunal in any of its several Chambers has deliberated and made a decision. Such decision must be conclusive in that it is not under challenge before the Appeals Chamber or if challenged, the Appeals Chamber upheld it. Regarding the second part of Sub-Rule 94(B), to be taken judicial notice of, documents must constitute “documentary evidence from other proceedings of the Tribunal” and must “relate to the matter at issue in this case”. [1]

[…] Documents do not need to be “adjudicated” i.e. the Chamber in other proceedings does not need to have pronounced a specific and unchallenged or unchallengeable decision on the admissibility of the document. It is enough that the document was admitted into evidence or “admis lors d’autres affaires portées devant le Tribunal”[2]

[…]

47. The Appeals Chamber notes that concerning “documentary evidence”, Rule 94(B) of the Rules enables a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.[3] Accordingly, the Appeals Chamber could take judicial notice of the section of the report proffered […] if it was satisfied that it meets the requirements set out in Rules 94(B) and 115 of the Rules. […] The Appeals Chamber finds nonetheless, that it would not serve judicial economy to grant the Appellant’s request and judicially notice entire sections of a report or document, since the Appellant has not  demonstrated  exactly which part of the section is relevant to the current proceedings.  The mere reference to whole sections or paragraphs of “documentary evidence” of a previous judgement is insufficient to trigger the exercise of the Chamber’s discretion under Rule 94(B) of the Rules.[4]

[…]

55. […] Bearing in mind the text of Rule 94(B) of the Rules, the Appeals Chamber notes that one paragraph in a judgement can contain more than one fact. Accordingly, a request pursuant to Rule 94(B) of the Rules must be specific if the facts sought to be judicially noticed are to be clearly determined. A motion under Rule 94(B) of the Rules should specify exactly which fact is sought to be judicially noticed and how each fact relates to the matters at issue in the current proceedings, in the instant case, to the grounds of appeal raised.[5]

50. In articulating its approach to evidence presented in rebuttal to adjudicated facts, the Trial Chamber specified, in part, as follows:

The Trial Chamber analysed the evidence and considered, as an initial step, whether evidence contradicted the Adjudicated Facts. The Trial Chamber required evidence to be unambiguous in its meaning in order to be termed as ‘contradicting the Adjudicated Facts’. For example, evidence suggesting mere possibilities was deemed not to reach that threshold. In other words, merely pointing at the possibility of alternative scenarios was in itself not sufficient ground to reopen the evidentiary debate. A contradiction can exist in either presenting evidence on a specific alternative scenario, as opposed to a mere suggestion of one or more possible alternative scenarios, or in the unambiguous demonstration that the scenario as found in the Adjudicated Fact must reasonably be excluded as true. […] The Trial Chamber was mindful that evidence contradicting adjudicated facts does not automatically rebut the adjudicated fact. The presumption of accuracy of the adjudicated fact is only rebutted by ‘reliable and credible’ contradictory evidence.[1]

 […]

54.  […] The ICTR Appeals Chamber in the Karemera et al. case has clarified that “the effect [of judicially noticing an adjudicated fact] is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may then put the point into question by introducing reliable and credible evidence to the contrary”.[2]  In this respect, Mladić contends that “[t]he need for rebuttal evidence to be ‘credible and reliable’ […] must be read in light of the general standard for the admissibility of evidence”,[3] which is “relatively low”,[4] and “was never intended to be applied in conjunction with an additional requirement that the evidence be 'unambiguous’”.[5] He argues that the Trial Chamber’s error in heightening the standard resulted in his evidence being deemed “insufficient to enliven the rebuttal procedure or to rebut the accuracy of the adjudicated fact”.[6]

55.   In the Appeals Chamber’s view, Mladić confuses the standard for the admissibility of evidence with the final evaluation thereof. A reading of the Trial Judgement shows that the Trial Chamber’s criterion of unambiguity was not related to the reliability or credibility of evidence, but rather to its contrary nature.[7] In accordance with the standard elucidated by the ICTR Appeals Chamber in the Karemera et al. case, in order for evidence presented in rebuttal of an adjudicated fact to be admissible, and thereby bringing the presumption of its accuracy into dispute, such evidence must be contrary to the adjudicated fact and bear sufficient indicia of prima facie reliability and credibility.[8] The Appeals Chamber stresses, however, that “adjudicated facts that are judicially noticed […] remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial”.[9] As such, the final evaluation of the probative value of rebuttal evidence, which includes a final assessment of its reliability and credibility, as well as the extent to which it is consistent with or contradicts adjudicated facts, “will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it”.[10]

56.   In light of the above, and considering that, once judicially noticed, an adjudicated fact is presumed to be true, the Appeals Chamber finds no dissonance in the Trial Chamber’s requirement that evidence produced in rebuttal thereof should be “unambiguous in its meaning” – namely that it must either point to “a specific alternative scenario” or “unambiguous[ly] demonstrat[e] that the scenario as found in the Adjudicated Fact must reasonably be excluded as true”[11] – in order to successfully contradict it. […]

116. The Appeals Chamber recalls that decisions on taking judicial notice of adjudicated facts fall within the discretion of trial chambers.[1] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

117. Rule 94(B) of the ICTY Rules provides that, at the request of a party or proprio motu, a trial chamber, after hearing the parties, may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the ICTY relating to the matter at issue. Adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding”.[3] Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of an accused.[4]

118. It is not disputed that the practice of taking judicial notice of adjudicated facts is well-established in the jurisprudence of the ICTY and the ICTR,[5] and it is accepted as a method of achieving judicial economy while ensuring the right of an accused to a fair and expeditious trial.[6] In this respect, a number of procedural safeguards are set out in the jurisprudence,[7] which are intended to ensure that trial chambers exercise their discretion cautiously and in accordance with the rights of the accused, including the right to be presumed innocent until proven guilty pursuant to Article 21(3) of the ICTY Statute.[8]

119. […] Karadžić challenges the “constitutionality” of the practice of taking judicial notice of adjudicated facts, notwithstanding the express provision for it in the ICTY Rules.[9] The Appeals Chamber recalls that, where the respective Rules or Statute of the ICTY are at issue, it is bound to consider the relevant precedent when interpreting them.[10] This Appeals Chamber is presently being called upon to assess the propriety of decisions taken by an ICTY trial chamber, that was bound by the ICTY Rules and the ICTY Statute as well as by decisions of the ICTY Appeals Chamber.[11] Bearing this context in mind, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTY and the ICTR Appeals Chambers and depart from them only where cogent reasons in the interests of justice exist, that is, where a previous decision has been decided on the basis of a wrong legal principle or has been “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[12] Therefore, in order to succeed on appeal, Karadžić must demonstrate that there are cogent reasons in the interests of justice that justify departure from jurisprudence on judicial notice of adjudicated facts.

120. The Appeals Chambers of the ICTY and the ICTR have consistently held that judicial notice of adjudicated facts is merely a presumption that may be rebutted by defence evidence at trial.[13] Judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” but only relieves the Prosecution of the initial burden to produce evidence on the given point.[14]

121. The Appeals Chamber notes that the concern that accused in other cases may have focused their defence on arguing that they were not responsible for the perpetrators of crimes rather than on contesting the existence of crimes is one of the reasons why judicial notice may not be taken of adjudicated facts from other cases relating to the acts, conduct, and mental state of the accused.[15] It is, nevertheless, permissible to take judicial notice of adjudicated facts relating directly or indirectly to an accused’s guilt,[16] for example, of facts relating to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible.[17] This is as long as the burden remains on the Prosecution to establish the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question by evidence other than judicial notice.[18] In addition, the discretion to accept adjudicated facts is limited by the need to ensure the accused’s right to a fair and expeditious trial.[19] Apart from disagreeing with the case law, Karadžić fails to demonstrate that there are cogent reasons in the interests of justice to depart from consistent jurisprudence of the ICTR and the ICTY on this matter.

122. The Appeals Chamber does not consider that by taking judicial notice of the existence of a crime committed by Karadžić’s alleged subordinates,[20] for example, the Trial Chamber relieved the Prosecution from proving the actus reus of the crimes charged in the Indictment. The Appeals Chamber recalls that there is a distinction between facts related to the conduct of physical perpetrators of a crime for which an accused is being alleged criminally responsible through another mode of liability and those related to the acts and conduct of the accused himself.[21] The burden remained on the Prosecution to establish by evidence other than judicial notice that Karadžić possessed the relevant mens rea and engaged in the required actus reus to be held responsible for the crimes established by way of judicial notice of adjudicated facts.  

123. Finally, the Appeals Chamber finds without merit Karadžić’s submission that judicial notice of adjudicated facts deprives an accused of the possibility that a trial chamber would reach a different conclusion had it heard the evidence itself. The Appeals Chamber recalls that adjudicated facts are not accepted as conclusive in proceedings involving parties who did not have the chance to contest them,[22] and, as noted above, are merely presumptions that may be rebutted with evidence at trial.[23]

[…]

219. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the ICTY Rules is a method of achieving judicial economy while ensuring the right of the accused to a fair, public, and expeditious trial.[24] Rule 94(B) of the ICTY Rules requires a trial chamber to hear the parties before deciding to take judicial notice.[25] Moreover, facts admitted under Rule 94(B) of the ICTY Rules are merely presumptions that may be rebutted by the defence with evidence at trial.[26] Consequently, judicial notice of adjudicated facts does not shift the ultimate burden of proof or persuasion, which remains squarely on the Prosecution.[27]

220. […] The fact that the Trial Chamber took judicial notice of considerably more adjudicated facts than in other cases does not, in itself, render the trial unfair as long as the Trial Chamber followed the procedure provided for in the ICTY Rules. In this respect, Karadžić’s comparison of the number of judicially noticed adjudicated facts in his case with other cases fails to account for factors such as the unprecedented scope and size of his own trial in relation to others.

See also paras. 221, 222.

452. […] [A]djudicated facts, within the meaning of Rule 94(B) of the ICTY Rules, are presumptions and are not equivalent to untested evidence requiring sufficient corroboration to be relied upon in support of conviction.[1] Specifically, the Appeals Chamber recalls the jurisprudence of the ICTY Appeals Chamber that “by taking judicial notice of an adjudicated fact, a [trial] [c]hamber 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.”[2] Requiring corroboration of adjudicated facts after their admission would undermine the judicial economy function served by taking judicial notice of adjudicated facts,[3] as judicial notice under Rule 94(B) of the ICTY Rules relieves the Prosecution of the initial burden of producing evidence on such facts.[4] Moreover, adjudicated facts may relate to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be responsible.[5] In this context, trial chambers, after having reviewed the record as a whole, may rely on adjudicated facts to establish the underlying crime base when making findings in support of convictions.[6]