The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T

"Decision on Prosecution's Motion for Judicial Notice of Adjudicated Facts relevant to the Municipality of Brcko"

5 June 2002
Trial Chamber I (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· On 25 April 2002, the Office of the Prosecutor filed a Motion requesting that the Trial Chamber take judicial notice of facts related to events which occurred in the municipality of Brcko during a time relevant to the period in the Indictment, pursuant to Rule 94(B) of the Rules of Procedure and Evidence1 and related to the case The Prosecutor v. Goran Jelisic.2

· On 9 May 2002, the amici curiae responded to the Motion and requested that the Trial Chamber deny the application.

The Decision

The Trial Chamber dismissed the Motion.

The Reasoning

The Trial Chamber held that for a fact to be capable for admission under Rule 94(B) of the Rules it "should be truly adjudicated and not based upon an agreement between parties to previous proceedings". It stated that it was "persuaded" that the position taken by Trial Chamber III of the International Criminal Tribunal for Rwanda in the Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Fact Pursuant to Rule 94 and 54 dated 3 November 2000 in The Prosecutor v. Laurent Semanza3 was "correct".

The Trial Chamber held that although it was willing to consider the admission of truly adjudicated facts "particularly where such facts are extracted from cases for which the Appeals Chamber has ruled on the merits or has not been called upon to do so", it did not find the facts presented under the circumstances of the Jelisic case to be properly susceptible of judicial notice, in particular since "those facts concerned the genocidal intent of the accused" and "were led in respect of that limited issue".

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1. Rule 94 (Judicial Notice)
(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.
2. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-01-T, Trial Chamber I, Judgement, 14 December 1999. Summarised in Judicial Supplement No. 10.
3. The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-I, Trial Chamber III, Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Fact Pursuant to Rules 94 and 54, 3 November 2000, in which the Trial Chamber stated that "facts that are voluntarily admitted by an accused […] are not the proper subject of judicial notice because such admissions speak neither to the general currency of the fact nor its indisputable character". See also The Prosecutor v. Pauline Nyiramasuhuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, The Prosecutor v. Sylvain Nsabimana & Alphonse Nteziryayo, Case No. ICTR-97-29A and B-T, The Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, The Prosecutor v. Elie Ndayambaje, Case No. ICTR-96-8-T, Case No. ICTR-98-42-T, Trial Chamber II, Decision on the Prosecutor's Motion for Judicial Notice and Admission of Evidence, 15 May 2002, para. 38.