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.