The Prosecutor v. Pasko Ljubicic - Case No. IT-00-41-PT

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

23 January 2003
Trial Chamber I (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· On 19 December 2002, the Prosecution requested the Trial Chamber, pursuant to Rule 94(B) of the Rules of Procedure and Evidence¹, to take judicial notice of adjudicated facts derived from the Judgements of the Trial Chambers in the Furundzija, Aleksovski, Kupreskic et al., Blaskic and Kordic & Cerkez cases.²

· On 22 January 2003, the Defence requested the Trial Chamber to deny the Motion.³

The Decision

The Trial Chamber allowed the Motion in respect of the facts listed in the annex to its Decision, which consists of the facts the Prosecution derived from the Furundzija, Aleksovski and Kupreskic et al. Judgements. It denied the Motion in all other respects.

The Reasoning

The Trial Chamber considered the finding of the Appeals Chamber in the Kupreskic et al. case on 8 May 2001, according to which “[o]nly facts in a Judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed ‘adjudicated facts’ within the meaning of Rule 94 (B)”⁴. It noted that “that statement was made in the context of a request to the Appeals Chamber to take judicial notice of an entire Judgement which at the time was before the Appeals Chamber”.⁵ The Trial Chamber also considered the statement of Trial Chamber III that the “Trial Chamber is 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”.⁶

The Trial Chamber, having considered the above-mentioned case-law of the Tribunal, found that whether an adjudicated fact is taken from a Judgement under appeal or from a Judgement confirmed on appeal, it may, in either case, be open to refutation or qualification, and that judicial notice of an adjudicated fact means only that the proposing party (Prosecution or Defence) does not have to prove that fact at trial, not that that fact cannot be challenged, refuted, or qualified by evidence led at trial”. It added that “judicial notice of adjudicated facts should generally not be taken of facts which are themselves being appealed”.⁷

In the present case the Trial Chamber was “not persuaded that the proposed adjudicated facts derived from the Blaskic and Kordic & Cerkez cases are not themselves currently being appealed”⁸ and therefore solely allowed the facts derived from the Furundzija, Aleksovski, and Kupreskic et al. Judgements.

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1. Rule 94 (Judicial Notice) (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. Prosecution’s Motion for Judicial Notice of Adjudicated Facts (hereinafter the “Motion”), 19 December 2002. The Prosecution principally sought the judicial notice of adjudicated facts so as to reduce the number of Prosecution witnesses in the trial and thereby shorten the trial and ensure judicial economy.
3. Defence Response to Prosecution’s Motion for Judicial Notice of Adjudicated facts, 22 January 2003. The Defence requested the denial of the request on the ground, inter alia, that one source of the fact (the Kupreskic et al. Judgement) was corrected on appeal, when three accused were freed, and that two other sources (the Blaskic and Kordic & Cerkez Judgements) presently are under appeal, which makes the proposed facts totally uncertain.
4. Kupreskic et al., IT-95-16-A, Decision on the Motions of Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001, Judicial Supplement No. 24.
5. Italics by the Trial Chamber.
6. Milosevic, IT-02-54-T, Decision on the Prosecution’s Motion for Judicial Notice of Adjudicated Relevant to the Municipality of Brcko, 5 June 2002, Judicial Supplement No. 34.
7. Italics by the Trial Chamber.
8. Ibid.