"Decision on Judicial Notice"

8 June 2000
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)

Procedural Background

On 11 January 1999, the Prosecutor filed a Motion for Judicial Notice of Adjudicated facts in which she listed in Annex I 583 paragraphs from the judgements in The Prosecutor v. Dusko Tadic1 and The Prosecutor v. Zejnil Delalic et al.2.

In the instant case, in a Decision dated 19 March 1999 Trial Chamber III took judicial notice3 of facts contained in paragraphs 1 to 6, 8, 10 to 17, 21 to 70, 74, 78 to 87, 89, 96 to 113, 115 to 125 of Annex I of the Prosecutor’s Motion.

On 2 February 2000, the accused Mlado Radic filed the Defence Proposal for Admission of Adjudicated Facts in which he agreed to judicial notice of the facts from the Judgement of 15 July 1999 in the Tadic case with the exception of those listed in paragraphs 421 and 422 of the Annex to the Prosecutor’s Motion.

In the Prosecution’s Response to Defence Motions for the Admission of Adjudicated Facts dated 14 February 2000, the Prosecutor argued that if judicial notice were taken of the facts from the Judgement of 15 July 1999 in the Tadic case, the Decision should apply to all accused, with or without their consent.

In the Order on Judicial Notice dated 17 February 2000, Trial Chamber I required the Defence to respond to the previous pleadings and to specify which paragraphs, if any, in the Annex to the Prosecutor’s Motion dated 11 January 1999 they found objectionable.

On 22 February 2000, Zoran Zigic filed the Defence Motion Pursuant to the Trial Order Dated 17 February 2000, in which he objected to judicial notice.

In two status conferences held on 24 February and on 12 April 2000, the Prosecution and Defence of the five co-accused, Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac stated that they had agreed that, in the interests of justice, and in particular of expediting the trial, judicial notice should be taken of facts contained in 444 out of the 583 paragraphs proposed by the Prosecutor in Annex I to her Motion dated 11 January 1999.

In the Prosecution’s Rule 65 ter (E) (ii)4 Motion for Judicial Notice dated 28 April 2000, the Prosecutor requested the Trial Chamber to take judicial notice of the facts contained in the 444 paragraphs mentioned above and to draw legal conclusions, and, in particular, to declare that the facts establish the common elements of the crimes under Articles 3 and 5 of the Statute beyond a reasonable doubt.

In the Response of the Accused Kos to the Prosecution’s Rule 65 ter (E) (ii) Motion for Judicial Notice and the Defence Response to Prosecution’s Motion for Clarification of Additional Matters and Prosecution’s Rule 65 Motion for Judicial Notice filed respectively on 28 April and on 2 May 2000, the Defence of both Mlado Radic and Milojica Kos objected to drawing the legal conclusions related to Articles 35 and 56 of the Statute.

In the Prosecution’s Reply to the Defence Response to Prosecution’s Motion for Clarification of Additional Matters and Prosecution’s Rule 65 Motion for Judicial Notice dated 19 May 2000, the Prosecutor contended that the arguments raised by the accused Mlado Radic were without merit.

In the Defence Reply to the Prosecution’s Reply to Defence Response to Prosecution’s Motion for Clarification of Additional Matters and Prosecution’s Rule 65 Motion for Judicial Notice of Radic filed 30 May 2000, the Defence stressed its belief that concluding that the agreed adjudicated facts proved beyond a reasonable doubt the common elements of Articles 3 and 5 would be the practical equivalent of turning that agreement into a guilty plea.

The Submissions of the Parties

Defence Counsel for the two co-accused Mlado Radic and Milojica Kos both opposed the Trial Chamber’s legal conclusions on the common elements of Articles 3 and 5 of the Statute on the grounds that Rule 94 of the Rules of Procedure and Evidence7 authorized judicial notice of facts but not legal conclusions inferred from those facts, as held by Trial Chamber III in its Decision of 25 March 1999 in The Prosecutor v. Simic8. Defence Counsel for Milojica Kos added that such legal findings were not binding except between the parties in respect of a particular case. The Defence also argued that the parties were not authorised to resolve legal issues through mutual negotiation. They submitted that consent to a finding on the common elements could be regarded as a confession of guilt. According to the Defence, the common elements of Articles 3 and 5 may be considered at the same time only as individual criminal responsibility was considered pursuant to Article 7(1)9 and 7(3)10 of the Statute. Defence Counsel further claimed that there was a widespread and/or systematic attack in Bosnia and Herzegovina not only on the Muslim and Croatian civilian population, but also on the Serbian population. Hence the armed conflict allegedly did not have an international character. The Defence also pointed out that it was up to the Prosecution to prove the individual responsibility of the crimes in the indictment.

The Prosecutor argued that the Trial Chamber had the inherent power to draw legal conclusions from facts established beyond a reasonable doubt at any time during the proceeding. She recalled that the Defence of Miroslav Kvocka had said "we accept all the facts that are relevant to the jurisdiction of the Tribunal, the conflict, the fact that it was an armed conflict, the question of the nature and the ethnicity of the prisoners and so on". In the opinion of the Prosecutor the Defence of the accused Mlado Radic was partially correct when it submitted that parties were not authorised to resolve legal issues, including the common elements of the offences, by mutual negotiation, but they could reach an agreement pursuant to Rule 65 ter. The Prosecutor also considered that, while the Trial Chamber was not bound by a potential agreement between the parties about those elements, it may accept the agreement as a basis for making findings about the existence of the common elements.

The Reasoning

Trial Chamber I noted that Rule 94 of the Rules of Procedure and Evidence permitted it to take judicial notice of adjudicated facts from other proceedings of the Tribunal relating to matters at issue in the current proceedings. It further recalled that the Trial Chamber had informed the parties that it had taken note of their agreement.

Most importantly, Trial Chamber I held that even if Rule 94 of the Rules of Procedure and Evidence were concerned only with judicial notice of facts and documentary evidence, no provision in the Statute or the Rules precluded the Trial Chamber from drawing legal conclusions based on facts thereby established beyond a reasonable doubt, once the rights of the accused had been taken into account11.

Trial Chamber I nevertheless agreed with the argument of the Defence, according to which the Prosecution still had to prove the individual responsibility of the accused for the crimes in the indictment.

The Decision

Trial Chamber therefore took judicial notice of the facts contained in paragraphs 1 to 330, 332, 334 to 339, 342, 343, 345 to 366, 475 to 492, 519 to 583 in Annex I to the Motion of the Prosecutor dated 11 January 1999.

Trial Chamber I thus decided that at the times and places alleged in the indictment, there was an armed conflict, that the conflict included a widespread and systematic attack against the largely Muslim and Croatian population and that there was a nexus between this armed conflict and the widespread and systematic attack on the civilian population and the existence of the Omarska, Keraterm and Trnopolje camps and the mistreatment of prisoners therein.

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1.The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999. See the summary of this Decision in Judicial Supplement No. 6.
2.The Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21, Trial Chamber II quater, Judgement, 16 November 1998. See the summary of this Decision in Judicial Supplement No. 1.
3.The notion of judicial notice, also termed judicial cognizance or judicial knowledge, may be defined as a court’s power to accept, for purpose of convenience and without requiring a party’s proof, of a well-known and indisputable fact, universally regarded as established by common notoriety, as proved without the need to hear evidence.
4. "Once disclosure pursuant to Rules 66 and 68 is completed and any existing preliminary motions filed within the time-limit provided by Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, within a time-limit set by the pre-trial Judge and before the Pre-Trial Conference required by Rule 73 bis, to file the following […] admissions by the parties and a statement of matters which are not in dispute".
5."The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

6."The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

7."(A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.
      (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings".
8. The Prosecutor v. Simic et al., Case No. IT-95-09-PT, Decision on the pre-trial Motion by the Prosecution requesting that the Trial Chamber take judicial notice of the international character of the conflict in Bosnia-Herzegovina, Trial Chamber III, 25 March 1999 (summarised in Judicial Supplement No. 3). In this case, the Prosecutor requested that the Trial Chamber take judicial notice of the fact that the conflict in Bosnia and Herzegovina was, at least prior to 19 May 1992, international in that it was a conflict between two States, namely the Federal Republic of Yugoslavia and Bosnia and Herzegovina. The Prosecutor made this Request largely on the basis of previous rulings of the Chambers, notably in The Prosecutor v. Tadic, Case No. IT-94-014-T, and The Prosecutor v. Delalic at al., Case No. IT-95-21-A. Thus the essence of the submission was that the matter was res judicata (on res judicata, see the text box in this issue of the Judicial Supplement). Trial Chamber III rejected this approach considering that there was no doctrine of binding precedent at the Tribunal. The Trial Chamber held that judicial notice may be taken of "facts not subject to reasonable dispute" but that this should be balanced against an accused’s right to a fair trial. It further considered that Rule 94 of the Rules of Procedure and Evidence allows for judicial notice of facts only and not the legal consequences inferred from them. Trial Chamber III did nevertheless take notice of the fact that "(1) Bosnia and Herzegovina proclaimed its independence from the Socialist Federal Republic of Yugoslavia on 6 March 1992; (2) The independence of Bosnia and Herzegovina as a State was recognised by the European Community on 6 April 1992 and by the United States of America on 7 April 1992".
9. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime".
10. "The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof".
11. On the binding force of precedent, see The Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. It-99-36-PT, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge, 18 May 2000 (see the summary and analysis in Judicial Supplement No. 15), in which Judge David Hunt ruled that Trial Chambers were bound by Appeals Chamber Decisions rendered in other cases on issues of law (ratio decidendi) but not on issues of fact.