Emphasis added are in bold, emphasis from the original decision are in italics.

47. […] in Semanza the Appeals Chamber made reference to the need to ensure “that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility”.  This reference was made in the context of a discussion of Rule 94(A), and the Appeals Chamber did not discuss the implications for Rule 94(B).  In both contexts, however, it remains the case that the practice of judicial notice must not be allowed to circumvent the presumption of innocence and the defendant’s right to a fair trial, including his right to confront his accusers.  Thus, it would plainly be improper for facts judicially noticed to be the “basis for proving the Appellant’s criminal responsibility” (in the sense of being sufficient to establish that responsibility), and it is always necessary for Trial Chambers to take careful consideration of the presumption of innocence and the procedural rights of the accused.

48. The Appeals Chamber, however, has never gone so far as to suggest that judicial notice under Rule 94(B) cannot extend to facts that “go directly or indirectly” to the criminal responsibility of the accused (or that “bear” or “touch” thereupon).  With due respect to the Trial Chambers that have so concluded,[1] the Appeals Chamber cannot agree with this proposition, as its logic, if consistently applied, would render Rule 94(B) a dead letter.  The purpose of a criminal trial is to adjudicate the criminal responsibility of the accused.  Facts that are not related, directly or indirectly, to that criminal responsibility are not relevant to the question to be adjudicated at trial, and, as noted above, thus may neither be established by evidence nor through judicial notice.[2]  So judicial notice under Rule 94(B) is in fact available only for adjudicated facts that bear, at least in some respect, on the criminal responsibility of the accused.[3]

49.     How can this observation be reconciled with the presumption of innocence?  First, as noted above, judicial notice under Rule 94(B) does not shift the ultimate burden of persuasion, but only the initial burden of production (the burden to produce credible and reliable evidence sufficient to bring the matter into dispute).  Analogously, in the context of alibi evidence, for instance, the accused bears the burden of production with respect to a matter centrally related to the guilt of the accused; yet this shift does not violate the presumption of innocence because, as the Appeals Chamber has repeatedly recognized, the prosecution retains the burden of proof of guilt beyond a reasonable doubt.[4]

50.     Notwithstanding this point, there is nonetheless reason for caution in allowing judicial notice under Rule 94(B) of facts that are central to the criminal responsibility of the accused—for ordinarily in criminal cases the burdens of production and persuasion are on the prosecution.  Although the latter always remains on the prosecution, even shifting the former has significant implications for the accused’s procedural rights, in particular his right to hear and confront the witnesses against him.[5]  The Appeals Chamber considers that as a result an exclusion from judicial notice under Rule 94(B) is appropriate, but one narrower than that adopted by the Trial Chamber: judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of the accused.  

51.     There are two reasons that this category of facts warrants complete exclusion, while other facts bearing less directly on the accused’s criminal responsibility are left to the Trial Chamber’s discretion.  First, this interpretation of Rule 94(B) strikes a balance between the procedural rights of the Accused and the interest of expediency that is consistent with the one expressly struck in Rule 92 bis, which governs the proof of facts other than by oral evidence—another procedural mechanism adopted largely for the same purpose as was Rule 94.[6]  Second, there is also a reliability concern—namely, there is reason to be particularly skeptical of facts adjudicated in other cases when they bear specifically on the actions, omissions, or mental state of an individual not on trial in those cases.  As a general matter, the defendants in those other cases would have had significantly less incentive to contest those facts than they would facts related to their own actions; indeed, in some cases such defendants might affirmatively choose to allow blame to fall on another.

52.     As to all other adjudicated facts relating to the criminal responsibility of the accused, it is for the Trial Chambers, 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.  […]

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”.

[…]

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. […]