16.01.07 - ICTR/JURISPRUDENCE- JUDICIAL NOTICE OF FACTS OF COMMON KNOWLEDGE AND ADJUDICATED FACTS

 Arusha, 16 january 2007 (FH) – The judicial notice, which cut short the discussion about the genocide in Rwanda in 1994, affirming it was a fact of common knowledge, is a practice motivated by achieving judicial economy and harmonising judgements. This practice can be extended to adjudicated facts but that has to result from each Chamber’s decisions. On 11 December 2006, in Prosecutor v. Karemera et al., the Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) intervened in order to take judicial notice of facts of common knowledge, pursuant to decisions of 16 June 2006 and 1 December 2006 by the Appeals Chamber, and of facts adjudicated from other procedures. Initially the Defence for Ngirumpatse submitted that there was no requirement in the Rules that the Trial Chamber was bound to follow the Appeals Chamber’s directives on the question of the determination of facts of common knowledge. Quoting the Appeals Chamber’s decision on 1 December 2006, the Trial Chamber recalls that it has no discretion and must take judicial notice of a fact of common knowledge. According to the attitude established on 22 September 2006 in Prosecutor v. Bizimungu, this rule is binding upon all Trial Chambers. But the judicial notice of adjudicated facts, provided by Rule 94 B) of the Rules of Procedure and Evidence, is different in nature from the judicial notice of facts of common knowledge. There is no requirement that adjudicated facts be beyond reasonable dispute. They are facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of their case. The judicial notice of facts of common knowledge is mandatory and conclusive whereas the judicial notice of adjudicated facts is discretionary and considered as conclusively binding only, at most, on the parties to those proceedings. It enables to relieve the Prosecution of its initial burden to produce without shifting its ultimate burden of persuasion however. These facts are presumptions that may be rebutted by the Defence. On 16 June 2006, the Appeals Chamber remanded the judicial notice matter to the Trial Chamber for further consideration of the purported adjudicated facts on the basis of two particular findings. The Appeals Chamber firstly found that the Trial Chamber had erred to the extent that it was categorically impermissible to take judicial notice of facts relating directly or indirectly to the criminal responsibility of the Accused. Although the Appeals Chamber recognizes the need for caution, it restrains the exclusion of a judicial notice to the facts related to the acts, conducts or mental state of the Accused. Assessing the facts, the Trial Chamber should determine whether, under the circumstances of the case, admitting these facts will advance the objective of expediency without compromising the rights of the Accused. The Appeals Chamber secondly held that the Trial Chamber must not take judicial notice of facts if it considers that the way they are formulated, abstracted from the context in the judgement from which they came, is misleading or inconsistent with the facts actually adjudicated in the cases in question. Considering these points, the Trial Chamber reconsidered its analysis referring to guiding principles laid down by both this Tribunal and the International Criminal Tribunal for the former Yugoslavia concerning whether or not to take judicial notice of purported adjudicated facts. Pursuant to these principles, the Chamber must examine with caution the purported fact in the context of the original judgement. Then, the Chamber has to decide whether the fact is distinct, concrete and identifiable. It must be in the same or in a substantially similar form to how it was expressed by the original Chamber. Facts proposed for judicial notice must constitute factual findings and must not include legal characterizations. They can not be considered as adjudicated in circumstances where those facts are subject to pending appeal. AV/PB/CV © Hirondelle News Agency