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.

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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]