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

“Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts”

16 December 2003
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 28 October 2003, the Appeals Chamber issued its “Decision on the Prosecutor’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts” by which it “returned the matter to the Trial Chamber for it to review the taking of judicial notice of the adjudicated facts in accordance with the present decision”.¹

· On 6 November 2003, the Trial Chamber issued a “Further Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts” in which it required the parties and amici curiae to make submissions on the effect of the Appeals Chamber ruling.

· On 18 November 2003, the amici curiae filed their response² in which they submitted that the Prosecution should be put to the task of persuading the Trial Chamber that a revised and less extensive list of facts could be admitted without compromising the right of the Accused to a fair trial. On 26 November 2003, the Prosecution filed its response in which it adhered to its initial application.³

Decision

The Trial Chamber admitted some of the facts set out by the Prosecution⁴ and decided that those could be challenged by the Accused.

Reasoning

The Trial Chamber reviewed the taking of judicial notice in accordance with the Appeals Chamber’s Decision in which it had been held that “by taking 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, but which, subject to that presumption, may be challenged at that trial” (thereby creating a “rebuttable presumption”).⁵

The Trial Chamber found force in the arguments submitted by the amici curiae, in particular in their proposition that the wholesale nature of the application to admit the 332 remaining facts was capable of offending the principle of a fair trial by creating too onerous a burden of rebuttal upon the Accused.⁶

The Trial Chamber used its discretion under Rule 94(B)⁷ to determine the admissibility of the facts. In the exercise of its discretion, it found that it may consider the tendentiousness of the facts sought to be admitted and recalled that there have been areas of evidence, i.e. the role of the JNA and the Serb paramilitaries in the takeover of municipalities and villages in Croatia and Bosnia and Herzegovina, where the Trial Chamber has consistently allowed the Accused to cross-examine.⁸

In its Decision, the Appeals Chamber had previously acknowledged that the principle of judicial economy lies behind the exercise of the discretion to admit facts pursuant to Rule 94(B). In applying this principle to the case, the Trial Chamber found that the admission on a wholesale basis of adjudicated facts would not only “raise the possibility of placing a heavy burden upon the Accused in the preparation and the conduct of his case, but attempts by an Accused to rebut these facts may absorb considerable time and resources during the course of the proceedings, thereby not promoting the judicial economy or expeditiousness”.⁹

The Trial Chamber dealt with the remaining adjudicated facts for which the Prosecution sought admission by subject category. The Chamber concentrated on the salient facts and excluded those which, when taken together, would result in such a large number as to compromise the principle of a fair and expeditious trial. The specific reasons for not admitting certain facts were that they were either too broad, too tendentious, not sufficiently significant, too detailed, too numerous, repetitive of other evidence already admitted by the Chamber, or not sufficiently relevant to the case.

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1. Milosevic, IT-02-54-AR73.5, Decision on the Prosecutor’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (“Appeals Chamber Decision”), 28 October 2003, p. 4, Judicial Supplement No. 44.
2. Milosevic, IT-02-54, Amici Curiae Submissions in Response to Trial Chamber Further Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts dated 6 November 2003, 19 November 2003.
3. Milosevic, IT-02-54, Prosecution’s Submissions on the Effect of the Appeals Chamber’s Decision of 28 October 2003 Concerning Judicial Notice of Adjudicated Facts, 26 November 2003.
4. The Trial Chamber admitted facts 175-178, 182-188, 190-201, 205-209, 213, 220-223, 243 and 260-367, as set out by the Prosecution in its Initial Motion.
5. Appeals Chamber Decision, pp. 3-4.
6. Trial Chamber Decision, paras. 7 and 8.
7. Milosevic, IT-02-54-T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 10 April 2003, p. 4: “the wholesale admission of facts taken from a judgment based upon the assessment by another Trial Chamber of the evidence before it is not an appropriate exercise of a Trial Chamber’s discretion under Rule 94 (B), and is in conflict with the accused’s right to a fair trial”.
8. Milosevic, IT-02-54-T, Decision on Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D) – Foca Transcripts, 30 June 2003, para. 28.
9. Trial Chamber Decision, para. 11. In this paragraph, the Chamber also referred to the Dissenting Opinion of Judge Hunt with respect to the Appeals Chamber Decision. In paragraph 9 of his Dissenting Opinion, Judge Hunt argued that in order for the adjudicated facts to be admissible, they should not be the subject of reasonable dispute between the parties, for both legal and practical reasons.