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Decision Granting in Part Prosecution's Motions for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B)

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Decision Granting in Part Prosecution's Motions for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) Ir:O{)-Q1- r j) -64 -"IS" - !J b314 UNITED 01 1rP1V~ .tOIO NATIONS International Tribunal for the Prosecution of Case No: IT-08-91-T Persons Responsible for Serious Violations of Date: 1 April 2010 International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 Original: English IN TRIAL CHAMBER 11 Before: Judge Burton Hall, Presiding Judge Guy Delvoie Judge Frederik Harhoff Registrar: Mr. John Hocking Decision of: 1 April 2010 PROSECUTOR v. MICO STANISIC AND STOJANZUPLJANIN PUBLIC DECISION GRANTING IN PART PROSECUTION'S MOTIONS FOR JUDICIAL NOTICE OF ADJUDICATED FACTS PURSUANT TO RULE 94(B) The Office of the Prosecutor Ms. Joanna Korner Mr. Thomas Hannis Counsel for the Accused Mr. Slobodan Zecevic and Mr. Slobodan Cvijetic for Mico Stanisic Mr. Igor Pantelic and Mr. Dragan Krgovic for Stojan Z:upljanin TRIAL CHAMBER 11 ("Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("Tribunal") is seised of the following motions: (i) "Prosecution's third motion for judicial notice of adjudicated facts, with annex", filed on 25 January 2008 ("Third Motion"); (ii) "Prosecution's fourth motion for judicial notice of adjudicated facts, with annex", filed on 24 April 2008 ("Fourth Motion"); (iii) "Prosecution's request and notice regarding application of adjudicated facts to Stojan Zupljanin with annex", filed on 23 February 2009 ("Notice"); (iv) "Prosecution's fifth motion for judicial notice of adjudicated facts, with annex" filed on 21 August 2009 ("Fifth Motion"); and (v) "Prosecution's sixth motion for judicial notice of adjudicated facts, with annex" filed on 2 February 2010 ("Sixth Motion") (collectively, "Prosecution Motions for Judicial Notice"). I. PROCEDURAL HISTORY 1. On 14 December 2007, prior to the joinder of the cases against Mico Stanisic and Stojan Zupljanin, Trial Chamber II issued a "Decision on judicial notice" ("First Decision") deciding the following three motions: "Prosecution's motion for judicial notice of facts of common knowledge and adjudicated facts, with annex", filed on 31 August 2006 ("First Motion"), the "Defence motion for judicial notice of adjudicated facts with annex", filed on 1 February 2007 ("Stanisic Defence Motion"), and the "Prosecution's second motion for judicial notice of adjudicated facts, with revised and consolidated annex", filed on 10 May 2007 ("Second Motion"). The Trial Chamber rejected the facts of common knowledge proposed by the Prosecution and took judicial notice of 853 of the adjudicated facts proposed by the Prosecution and the Defence of Mico Stanisic ("Stanisic Defence"). Case No. IT-08-91-T 2 1 April 2010 2. On 25 January 2008, the Prosecution filed the Third Motion, whereby it requests that the Trial Chamber take judicial notice of 59 proposed facts.! A further seven facts were proposed by the Prosecution in its Fourth Motion filed on 24 April 2008. On 8 February 2008, the Stanisic Defence responded to the Third Motion, requesting that the Trial Chamber deny judicial notice of all the 59 proposed facts. 2 The same request was made by the Stanisic Defence in its response filed 5 May 2008 in relation to the proposed seven facts in the Fourth Motion.3 3. On 23 September 2008, the Trial Chamber granted a Prosecution motion for joinder of the cases against Mico Stanisic and Stojan Zupljanin.4 On 23 February 2009, the Prosecution requested that the adjudicated facts of which the Trial Chamber took judicial notice in the First Decision be admissible as evidence against Stojan Zupljanin.5 The Prosecution also requested that the Third Motion and Fourth Motion apply to both Accused.6 4. On 31 March 2009, the Defence of Stojan Zupljanin ("Zupljanin Defence") replied to the Notice stating that it agreed to the admission of 161 proposed facts and requests the remaining proposed facts to be held inadmissible in the case against Stojan Zupljanin ("Zupljanin Response,,).7 On 7 April 2009, the Prosecution replied to the Zupljanin Response, requesting that the Trial Chamber reject the objections of the Zupljanin Defence. 8 The Chamber will grant leave to reply. 5. On 14 April 2009, the Zupljanin Defence filed the "Defence request for leave to respond and supplement to the response to Prosecution request and notice regarding application of adjudicated facts to Stojan Zupljanin" ("Supplemental Response"). The Trial Chamber notes that the Rules of Procedure and Evidence ("Rules") do not provide for rejoinders or "supplemental I The Trial Chamber notes that the Prosecution submits that there are 58 proposed facts. However, there are 59 proposed facts in the attached annex (Nos. 984-1042). 2 Defence response to prosecution's third motion for judicial notice of adjudicated facts, 8 Feb 2008 ("Stanisic Third Motion Response"), para. 11. J Defence response to Prosecution's fourth motion for judicial notice of adjudicated facts, with annex, 5 May 2008 ("Stanisic Fourth Motion Response"), para. 5. 4 Prosecutor v. StanisiG(, Case No. IT-04-79-PT and Prosecutor v. Stojan Zupljanin, Case No. IT-99-3 6/2-PT, Decision on Prosecution's motion for joinder and for leave to consolidate and amend indictments, 23 Sep 2008. S Notice, para. 8. Except as specified in paragraph 6 and Annex A of the Notice. 6 Notice, para. 8. 7 Defence request for leave to exceed the word limit and response to Prosecution request and notice regarding application of adjudicated facts to Stojan Zupljanin, 31 March 2009 ("Zupljanin Response"), para 30. The Zupljanin Response is timely because on 2 March 2009 the Zupljanin Defence filed "Stojan Zupljanin's Request for an extension of time to respond to the Prosecution's notice of 23 February 2009 regarding adjudicated facts" which requested an extension for filing a response until 1 May 2009. On 5 March 2009 the Prosecution filed "Prosecution response to Stojan Zupljanin's request for an extension of time to respond to the Prosecution's notice of 23 February 2009 regarding adjudicated facts" in which no objection to the extension' was raised. On 6 March 2009 the Trial Chamber issued an "Order regarding an extension of time for Stojan Zupljanin's response" which granted an extension until 1 April 2009, finding the original request by the Zupljanin Defence to be excessive. Further, the request to exceed the word limit is granted. Case No. IT-08-91-T 3 1 April 2010 responses". In the interest of the clarity of the record, however, it will consider the Supplemental Response only insofar as it addresses mistakes or errors in the Zupljanin Response. The Trial Chamber notes that this only concerns paragraph 4 of the filing, wherein the Zupljanin Defence withdraws in part its objection regarding proposed fact 877. 6. On 24 August 2009, the Prosecution filed the Fifth Motion requesting that the Trial Chamber take judicial notice of an additional 393 proposed facts. 9 On 7 September 2009, in separate responses, the Stanisic Defence and Zupljanin Defence both objected to the Fifth Motion in its entirety.lO On 14 September 2009, the Prosecution requested leave to reply and filed a reply whereby it requested the Trial Chamber to dismiss the Stanisic Defence and Zupljanin Defence responses. I I The Chamber will grant leave to reply. 7. On 2 February 2010, the Prosecution filed a further motion requesting the Trial Chamber to take judicial notice of 10 proposed facts ("Sixth Motion,,).12 The Stanisic Defence responded on 5 February 2010, opposing the Sixth Motion. 13 On 15 February 2010, the Zupljanin Defence joined the Stanisic response to the Sixth Motion. 14 11. SUBMISSIONS A. In respect of the Third Motion and the Fourth Motion 8. In the Third Motion, the Prosecution re-submits 41 proposed facts of which the Trial Chamber declined to take judicial notice in the First Decision, arguing that it has cured the defects found by the Trial Chamber. 15 Moreover, the Prosecution seeks judicial notice of 18 previously un submitted proposed facts. 16 The Prosecution argues that the proposed facts meet the nine criteria 8 Prosecution leave to reply and reply to Stojan Zupljanin's request for leave to exceed the word limit and response to Prosecution request and notice regarding application of adjudicated facts to Stojan Zupljanin, 8 April 2009, para. 25 . 9 Prosecution also filed a Corrigendum to the Prosecution's fifth motion for judicial notice of adjudicated facts, 16 Sep 2009, amending the word "none" to "nine" in proposed fact 1365. 10 Mr Mico StanisiC's response to the Prosecution's fifth motion for judicial notice of adjudicated facts, with annex, 7 Sep 2009 ("StaniSiC Fifth Motion Response"), para. 18; Defence request for leave to exceed the word limit and response to Prosecution's fifth motion for judicial notice of adjudicated facts, with annex, 7 Sep 2009 C"Zupljanin Fifth Motion Response"), para. 27. 11 Prosecution's motion for leave to reply and reply to Stanisic and Zupljanin responses to the Prosecution fifth motion for judicial notice of adjudicated facts, 14 Sep 2009 ("Reply"). 12 Prosecution's sixth motion for judicial notice of adjudicated facts, with annex, 2 Feb 2010. 13 Mr. Stanisic's response to the Prosecution's sixth motion for judicial notice of adjudicated facts, 5 Feb 2010 ("Stanisic Sixth Motion Response"). 14 Zupljanin submission joining the Stanisic response to Prosecution's sixth motion for judicial notice of adjudicated facts, 15 Feb 2010 C"Zupljanin Sixth Motion Response"). 15 Third Motion, para. 10. The 41 proposed facts are found in the attached annex to the Third Motion. The Trial Chamber notes that the inserted wording in brackets are used by the Prosecution for a better understanding of each fact standing alone. 16 Proposed facts 991, 1013-1029 in the attached annex to Third Motion.
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