Facts from another proceeding

Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem

197. The Trial Chamber did not refer to evidence on the trial record in the present case when noting that informal or regional civil defence measures existed before the establishment of a civil defence on a national scale. Rather, it appears to have relied on an extraneous source, namely a discussion of facts in the Bagosora et al. Trial Judgement.[1]

198. In doing so, the Trial Chamber in fact took judicial notice of facts from another proceeding before the Tribunal. The only legal basis for such an approach would have been Rule 94 of the Rules […].

199. The existence of informal or regional civil defence measures prior to the implementation of civil defence on a national scale in Rwanda cannot be qualified as a fact of common knowledge under Rule 94(A) of the Rules.[2] The relevant parts of the Bagosora et al. Trial Judgement could therefore have been judicially noticed in Setako’s trial only as adjudicated facts pursuant to Rule 94(B) of the Rules.

200. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the Rules is a method of achieving judicial economy and harmonizing judgements of the Tribunal while ensuring the right of the accused to a fair, public, and expeditious trial.[3] For this reason, Rule 94(B) of the Rules requires a trial chamber to hear the parties before deciding to take judicial notice. In addition, the fact in question has to be “adjudicated”. According to established jurisprudence, this latter requirement is only met if the fact is determined in a final judgement, meaning that no appeal has been instituted against it or, if instituted, the fact in question has been upheld.[4] Here, the Trial Chamber took judicial notice of facts addressed in the Bagosora et al. Trial Judgement without hearing the parties and while the Bagosora et al. Trial Judgement was still pending appeal.[5] The Appeals Chamber therefore finds that the Trial Chamber violated Rule 94(B) of the Rules.

[1] While it is apparent that the Bagosora et al. Trial Judgement was only among several sources, the Trial Chamber did not disclose any other sources upon which it relied. See Trial Judgement, fn. 446.

[2] This category is confined to facts, which are not subject to reasonable dispute, that is commonly accepted or universally known facts, such as general facts of history or geography. See Bikindi Appeal Judgement, para. 99; Semanza Appeal Judgement, para. 194.

[3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006, para. 39; 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, para. 12.

[4] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98,41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010, para. 7; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Bicamumpaka’s Motion for Judicial Notice, 11 February 2004, paras. 4, 5.

[5] The Appeals Chamber notes that the Bagosora et al. Trial Chamber’s findings on the existence of civil defence programmes as such were not appealed. Only Nsengiyumva challenged the adequacy of his notice of the allegations and the Trial Chamber’s findings on his responsibility over civil defence forces in 1994. See Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Nsengiyumva’s Appeal Brief, filed 1 February 2010 (confidential) and 2 February 2010 (public), paras. 20-22, 35, 41, 59, 61, 63, 64, 77, 80, 121, 136.

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ICTR Rule Rule 94 ICTY Rule Rule 94