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.

See para. 25:

25. The Appeals Chamber has held that the basis on which judicial notice is taken pursuant to this sub-Rule is that the material is notorious.[1] Facts of common knowledge under Rule 94(A) of the Rules have been considered to encompass common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature, as well as those facts that are generally known within a tribunal’s territorial jurisdiction.[2] Once a Chamber deems a fact to be of common knowledge, it must also determine that the matter is not the subject of reasonable dispute.[3] […]

26.    Although not clearly contested by either party, the Appeals Chamber will address the issue of whether and to what extent it is within a trial chamber’s discretion to reformulate proposed adjudicated facts prior to taking judicial notice of them. The Appeals Chamber notes that several trial chambers have held that it is within their discretion to make minor corrections to proposed facts to render their formulation consistent with the meaning intended by the original judgement, as long as the corrections do not introduce any substantive changes.[1] For example, the Popović et al. Trial Chamber held that:

[…] if the moving party’s formulation contains only a minor inaccuracy or ambiguity as a result of its abstraction from the context of the original judgement, the Chamber may, in its discretion, correct the inaccuracy or ambiguity proprio motu. In such circumstances, the correction should introduce no substantive change to the proposed fact, and the purpose of such correction should be to render the formulation consistent with the meaning intended by the original Chamber. The fact corrected in this manner may then be judicially noticed, as long as it fulfils all the other admissibility requirements of Rule 94(B).[2]

Moreover, in the Mićo Stanišić Decision, the Trial Chamber corrected proposed facts by adding information on their temporal and/or geographic scope drawn from the trial judgement from which the proposed fact was taken.[3]

27.    The Appeals Chamber also recalls that:

[a] Trial Chamber can and indeed must decline to take judicial notice of facts if it considers that the way they are formulated – abstracted from the context in the judgement from whence they came – is misleading or inconsistent with the facts actually adjudicated in the cases in question. A fact taken out of context in this way would not actually be an ‘adjudicated fact’ and thus is not subject to judicial notice under Rule 94(B).[4]

28.    The Appeals Chamber, Judge Robinson dissenting, considers that the approach taken by the trial chambers as set out above would not fall outside a chamber’s discretion to take judicial notice of adjudicated facts. However, only minor modifications or additions, which do not alter the meaning of the original judgement from which the proposed adjudicated fact originates, are permissible.

[…]

32.    The Appeals Chamber notes that the Trial Chamber frequently corrected or added information to Proposed Facts which it found did not meet one or more of the criteria for judicial notice. The Appeals Chamber is mindful of the Trial Chamber’s discretion to take judicial notice of adjudicated facts on a proprio motu basis pursuant to Rule 94(B) of the Rules. However, the Appeals Chamber considers that this does not provide the Trial Chamber with the authority to substantively alter facts as proposed by a moving party and that any such exercise of a trial chamber’s discretion should form a separate analysis.[5]

33.    As indicated above, the Appeals Chamber considers that it is within a trial chamber’s discretion to make minor corrections or additions to proposed facts to render them clearer and consistent with the meaning intended in the original judgement.[6] However, the Appeals Chamber considers that it is not permissible for a trial chamber to do so in a manner that introduces new information, which is extraneous to the proposed fact as submitted by the moving party.

After recalling the case-law on judicial notice of facts of common knowledge,[1] the Appeals Chamber held:

23. Whether a fact qualifies as a “fact of common knowledge” is a legal question.  By definition, it cannot turn on the evidence introduced in a particular case, and so the deferential standard of review ordinarily applied by the Appeals Chamber to the Trial Chamber’s assessment of and inferences from such evidence has no application. Mr. Nzirorera suggests that the Appeals Chamber should defer to the Trial Chamber’s discretion as to “admissibility of evidence” and “the manner in which facts are to be proven at trial”.[2] But the general rule that the Trial Chamber has discretion in those areas is superseded by the specific, mandatory language of Rule 94(A); as noted above, the Trial Chamber has no discretion to determine that a fact, although “of common knowledge”, must nonetheless be proven through evidence at trial.  For these reasons, a Trial Chamber’s decision whether to take judicial notice of a relevant[3] fact under Rule 94(A) is subject to de novo review on appeal.

30. Likewise, it is not relevant that these facts constitute elements of some of the crimes charged and that such elements must ordinarily be proven by the Prosecution.  There is no exception to Rule 94(A) for elements of offences.  Of course the Rule 94(A) mechanism sometimes will alleviate the Prosecution’s burden to introduce evidence proving certain aspects of its case.  As the Appeals Chamber explained in Semanza, however, it does not change the burden of proof, but simply provides another way for that burden to be met […]. (footnotes omitted).

See also para. 37.

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

192. The Statute of the Tribunal provides that “[t]he accused shall be presumed innocent until proven guilty according to the provisions of the . . . Statute.”[1] The Trial Chamber in this case was careful to note that it could take judicial notice of facts of common knowledge under Rule 94 of the Rules, but that it could not “take judicial notice of inferences to be drawn from the judicially noticed facts.”[2] The Chamber emphasized that the “burden of proving the Accused’s guilt, therefore, continue[d] to rest squarely upon the shoulders of the Prosecutor for the duration of the trial proceeding,” and it stated that “the critical issue [was] what part, if any, . . . the Accused play[ed] in the events that took place.”[3] As these passages suggest, the Trial Chamber struck an appropriate balance between the Appellant’s rights under Article 20(3) and the doctrine of judicial notice by ensuring that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility. Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; that Rwanda became a state party to the Convention on the Prevention and Punishment of the Crime of Genocide (1948) on 16 April 1975; and that, at the time at issue, Rwanda was a state party to the Geneva Conventions of 12 August 1949 and their additional Additional Protocol II of 8 June 1977.[4] The Appeals Chamber finds that these judicially noted facts did not relieve the Prosecution of its burden of proof; they went only to the manner in which the Prosecution could discharge that burden in respect of the production of certain evidence which did not concern the acts done by the Appellant. When determining the Appellant’s personal responsibility, the Trial Chamber relied on the facts it found on the basis of the evidence adduced at trial.

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; […]

7. Rule 94(B) of the Rules provides that, at a request of a party or proprio motu, a Trial Chamber may decide to take judicial notice of adjudicated facts from other proceedings of the Tribunal relating to the matter at issue in the current proceedings.[1] The Appeals Chamber previously held that 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.”[2] Only facts which are not under challenge before the Appeals Chamber or, if challenged, have been upheld by the Appeals Chamber can be deemed “adjudicated” within the meaning of Rule 94(B) of the Rules.[3] By taking judicial notice of an adjudicated fact, a Chamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial.[4]

8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

11. […] The Appeals Chamber […] stresses the need for a clear distinction between the issue of the existence of genocide in Rwanda in 1994, a fact judicially noticed by the Appeals Chamber in the Karemera Decision,[1] from the separate questions regarding the existence of a conspiracy to commit genocide between the three co-appellants in the present case, and the Appellant’s participation in such a conspiracy. The Appeals Chamber finds that there is nothing in the Appellant’s arguments to suggest that the judicially noticed facts in the Karemera Decision would prevent him either from challenging the existence of a conspiracy to commit genocide or from disputing his participation therein. The Karemera Decision is clear in that its direction to the Trial Chamber to take judicial notice of facts of common knowledge does not shift the ultimate burden of persuasion, which remains on the Prosecution,[2] with respect to the personal responsibility of each accused. It has been subsequently specified by the Appeals Chamber that with regard to the Karemera Decision, “taking of judicial notice of this fact does not imply the existence of a plan to commit genocide”.[3] Therefore, the Appeals Chamber, noting that the Appellant indeed challenges the Trial Chamber’s findings of conspiracy, both in his Notice of Appeal and in his Appeal Brief,[4] considers that he has failed to demonstrate how the Karemera Decision, if applicable to his case, could impact on his ability to dispute that “he was party to a plan to commit genocide”.

12. […] The Appeals Chamber, finding that the Appellant has failed to raise on appeal any argument challenging the occurrence of genocide, considers therefore that he has not shown how the judicially noticed facts in the Karemera Decision, if applicable to his case, could adversely affect his appeal. His request for clarification in this regard is therefore denied as unfounded.

99. […] Rule 94(A) of the Rules states: “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.” This standard is not discretionary; if a Trial Chamber determines that a fact is “common knowledge”, it must take judicial notice of it.[1] […]

7. The Trial Chamber’s decision in this case to deny admission of a transcript of evidence under Rule 92bis(D) of the Rules to rebut a judicially noticed fact is a discretionary decision to which the Appeals Chamber accords deference.[1]

14. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that the Defence may rebut the presumption by introducing “reliable and credible” evidence to the contrary.[2] The requirement that the evidence be “reliable and credible” must be understood in its proper context, through the lens of the general standard for admission of evidence at trial set out in Rule 89(C) of the Rules: “[a] Chamber may admit any relevant evidence which it deems to have probative value”. Only evidence that is reliable and credible may be considered to have probative value.[3]

15. It follows that, as for any other evidence for which no additional requirements have been specified in the Rules, the threshold for admission of this type of rebuttal evidence is relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia.[4] The final evaluation of the reliability and credibility, and hence the probative value of the evidence, 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.[5]

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[6] [...]

20. Lastly, the Trial Chamber reasoned that “the very purpose of admitting adjudicated facts would be undermined by permitting a party to admit such evidence” because “[j]udicial economy would not be achieved if parties were entitled to challenge adjudicated facts with evidence that has already been rejected in relation to that finding.”[7] In this respect, the Appeals Chamber underscores that the principle of judicial economy must yield to the fundamental right of the accused to a fair trial. A Trial Chamber cannot deny the Defence its right to put the adjudicated fact into question by introducing evidence to the contrary simply because it would frustrate judicial economy. Further, the Appeals Chamber emphasizes that Rule 94(B) of the Rules fosters judicial economy by avoiding the need for evidence in chief to be presented in support of a fact already previously adjudicated. Hence, the purpose of judicial economy underlying Rule 94(B) of the Rules is not frustrated by the admission of rebuttal evidence.

21. Similarly, the fact that the judicial notice mechanism was also created to favour consistency and uniformity of the case-law cannot be a matter that weighs against the admissibility of rebuttal evidence. In this respect, the Appeals Chamber stresses that adjudicated facts that are judicially noticed by way of Rule 94(B) of the Rules 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. The Rule 94(B) mechanism does not allow a Chamber to simply defer to the assessment of the evidence by another Chamber on the ground that this mechanism was fashioned to favour consistency and uniformity in the Tribunal’s case-law. 

22. The Appeals Chamber concludes that the Trial Chamber incorrectly applied the governing law in finding that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[8] This approach would have the effect of denying to the opposite party its fundamental right to contest the material admitted by rebutting the presumption created by the admission of the adjudicated fact. In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

At para. 16, ICTR Appeals Chamber held:

There is a significant difference between the taking of a judicial notice of a fact of genocide and the determination that an accused is individually criminally responsible for the crime of genocide. The former gives a factual context to the allegations of the crime of genocide. The latter requires a finding of whether the elements of the crimes of genocide, such as actus reus and mens rea, exist in order to ascertain whether an accused is responsible for the crime.” Consequently, the taking of judicial notice of genocide does not, in itself, go to the alleged conduct or acts of the Applicants as charged in the indictment.[1]

      At paras 24-26, the Appeals Chamber recalled its previous finding that a Trial Chamber has no    discretion to order that a fact of common knowledge be proved at trial:

That the Trial Chamber has no discretion to rule that a fact of common knowledge must be proved through evidence at trial. This determination was based on an interpretation of Rule 94(A) of the Rules. Such discretion only exists for matters of judicial notice which fall within the ambit of Rule 94(B) of the Rules, that is, adjudicated facts or documentary evidence from other proceedings of the Tribunal.

At para. 27, The Appeals Chamber emphasised:

The practice of judicial notice must not be allowed to circumvent the presumption of    innocence and the defendant’s right to a fair trial. Thus, it is always necessary for Trial  Chambers to take a careful consideration of the procedural rights of the accused.

Consequently, it reiterated that judicially noticed facts do not relieve the Prosecution of its burden of proof.

13. […] the Trial Chamber correctly held that the adjudicated facts sought to be judicially noticed must be relevant to the matters at issue in the current proceedings.[1]

14. […] Even though these Proposed Facts fall outside the time period charged in the Amended Indictment and are related to the acts, conduct and mens rea of his predecessor, Galić, the Appeals Chamber finds that they are clearly relevant to the present case inasmuch as they concern the campaign against civilians between September 1992 and August 1994.

21. [In the Karemera Appeals Decision] the Appeals Chamber held that the key question regarding admission of facts of common knowledge, pursuant to Rule 94(A) of the Rules, is “whether the proposition can reasonably be disputed” and “not whether a proposition is put in legal or layman’s terms.”[1] When a Trial Chamber determines that a fact is notorious and not subject to reasonable dispute, it is obliged to take judicial notice of it under Rule 94(A) of the Rules. It has no discretion to act otherwise.[2] It is irrelevant whether the fact in question is defined by terms with a legal meaning as long as these terms describe factual situations.[3] In this respect, the Appeals Chamber does not agree with the Prosecution that the Trial Chamber held “that legal conclusions could be judicially noticed under Rule 94(A)” of the Rules.[4] The Trial Chamber limited itself to noting that the Appeals Chamber in Karemera ruled that “the submission that the term ‘genocide’ is a legal characterisation” could not even be considered given that “Rule 94(A) does not provide the Trial Chamber with discretion to refuse judicial notice on this basis.”[5] This constitutes an accurate reflection of the Karemera Appeals Decision.[6] Furthermore, “whereas judicial notice under Rule 94(A) is mandatory, judicial notice under Rule 94(B) is discretionary.”[7] Thus, the Trial Chamber correctly interpreted the Karemera Appeals Decision when it ruled that its conclusions with regard to Rule 94(A) could not be apposite to Rule 94(B) of the Rules.

22. The Appeals Chamber additionally notes that the Trial Chamber correctly held that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”.[8] To determine “whether a proposed fact is truly a factual finding”, the Trial Chamber referred to the Krajišnik Decision which adjudicated that “many findings have a legal aspect, if one is to construe this expression broadly. It is therefore necessary to determine on a case-by-case basis whether the proposed fact contains findings or characterizations which are of an essentially legal nature and which must, therefore, be excluded.”[9] Thus, the Prosecution does not accurately represent the findings in the Impugned Decision when it claims that the Trial Chamber held “that facts could not be judicially noticed if they were described with legal language”.[10] The Appeals Chamber also observes that the Trial Chamber’s conclusion is fully in line with the jurisprudence of the Trial Chambers on this issue[11] – including after the issuance of the Karemera Appeals Decision.[12]

261. Further, the Appeals Chamber recalls that adjudicated facts of which a trial chamber takes judicial notice pursuant to Rule 94(B) of the Rules “are merely presumptions that may be rebutted […] with evidence at trial”.[1] In this context, the Appeals Chamber emphasises that the final assessment of a piece of evidence is based on the totality of the evidence in a given case, as the same piece of evidence can be assessed differently in different cases because of other evidence on the record.[2] The mechanism of Rule 94(B) of the Rules does not allow a trial chamber to defer to the assessment of the evidence by another trial chamber on the ground that it was fashioned to favour consistency and uniformity in the Tribunal’s case-law.[3] The Trial Chamber therefore had the obligation to assess the evidence and reach its own conclusion.[4] The Appeals Chamber therefore finds that the Trial Chamber did not err in law in finding that the adjudicated fact in question, namely the accuracy of the Užice Hospital Records, was rebutted by the evidence presented at trial.

8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

17. The Appeals Chamber emphasizes that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise. Accordingly, on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted.  For a fact capable of judicial notice to be admitted on appeal, the requirements provided for by Rule 115 of the Rules need to be satisfied.

18. Accordingly, the Appeals Chamber finds that a motion filed solely under Rule 94 of the Rules, without addressing the requirements of Rule 115 of the Rules, is an incorrect way to seek to have facts or documentary evidence admitted on appeal. Contrary to the argument of the Appellant, the Appeals Chamber finds that this will not “eviscerate” Rule 94 of the Rules in relation to all appellate proceedings, since the legal consequences attached to the taking of judicial notice remain the same. In this respect, the Appeals Chamber recalls that the taking of judicial notice under Rule 94(A) or 94(B) of the Rules entails specific consequences for the moving party.

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.

[…]

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. […]

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]