An Untapped Procedural Means of Judicial Efficiency

By Chad Kilpatrick, Tulane University Law School JD Candidate 2012 Documentation Center of Cambodia Summer Legal Associate 2010


International criminal tribunals are regularly criticized for their lack of efficiency. The Extraordinary Chambers in the Courts of Cambodia (ECCC) is no exception as donors and victims alike have voiced complaints about the unnecessarily slow and bureaucratic process of bringing to justice those most responsible for the crimes committed during the Khmer Rouge era. Indeed, the Accused and many of the victims are in their twilight years, making judicial efficiency essential not only to preserve the credibility and financial viability of the court but also to ensure legal processes conclude within the lifetimes of the interested parties. Although the ECCC has a unique structure, it should consider adopting procedural mechanisms employed in other international criminal tribunals as a means of preserving judicial economy.



The doctrine of judicial notice is a procedural principle that has been widely used in both domestic common law and civil law jurisdictions as a means of encouraging judicial efficiency. It has likewise had a substantial presence in international criminal law. At its core, judicial notice is the practice of recognizing facts that are beyond reasonable dispute without the need for evidence to avoid repetitive and unnecessary litigation. This promotes expediency at trial and in the context of international criminal tribunals may eliminate preliminary technicalities often necessary to provide an adequate assessment of personal responsibility, such as the establishment of historical background facts. Also beneficial is the uniformity that judicial notice can bring across court decisions and in the establishment of a historical record. In fact, a 1999 United Nations Expert Report concerning the operations and functioning of international criminal tribunals specifically recommended more use of judicial notice to promote judicial efficiency.



The ECCC is unique from other internationalized criminal tribunals in that it combines elements of Cambodian and international law, creating a hybrid court that is an independent entity within the Cambodian court structure. Consequently, in accordance with the ECCC Framework and subsequent jurisprudence, when determining the rules of procedure, the ECCC must first look to its Internal Rules, then to the Cambodian Code of Criminal Procedure, and finally to international standards. The Internal Rules do not provide specific guidelines regarding the principle of judicial notice, nor does the Cambodian Code of Criminal Procedure address judicial notice for domestic procedure. Therefore, the ECCC may look to the jurisprudence of other international criminal courts for guidance on the application of judicial notice.



Judicial Notice: International Standards



International courts, including the ICTR (Rwanda), the ICTY (former Yugoslavia), the Special Court for Sierra Leone and the International Criminal Court each have explicit rules for judicial notice in their rules of procedure. The ICTR and the ICTY in particular share an identical two-fold rule: First, Chambers must take judicial notice of facts of common knowledge; and second, Chambers may discretionarily take judicial notice of previously adjudicated facts from other proceedings. Both parts of this rule have been employed widely as a means of speeding up proceedings that would otherwise be slowed by repetitive and unnecessary litigation of facts that are already beyond reasonable dispute.



Taking judicial notice of facts of common knowledge is a practice used in many domestic jurisdictions and international criminal courts alike. Employing this mechanism, courts take notice of facts that are universally known and therefore beyond reasonable dispute. For example, general historical facts and geographical facts are often noticed. In essence, judicial notice of common knowledge facts presumes them to be so notorious or clearly established that evidence of their existence is unnecessary.



Judicial notice of adjudicated facts, however, is a mechanism unique to international criminal courts and offers another avenue for preserving judicial economy. Here, courts discretionarily take notice of facts that have been litigated in prior proceedings, even if those proceedings involved other parties. Once a court takes notice of a fact in this way, it creates a rebuttable presumption that can be challenged at trial. Thus, the rights of the parties are protected, while judicial efficiency is promoted.



International jurisprudence has also established limits to noticing adjudicated facts. For example, when determining whether to take judicial notice of a fact that has been previously litigated, courts will consider among other factors whether the fact is essentially of legal character; whether the fact relates to acts, conduct, or the mental state of the accused; and whether the fact is subject to pending appeal or review. Even when the various criteria laid out by international precedent are satisfied, courts may decide whether or not justice is best served by taking judicial notice of the fact in question.



Taking judicial notice of facts containing legal characteristics in particular are best avoided under either test. In the 2006 ICTR Karemera decision, the Appeals Chamber took judicial notice of the Rwandan genocide as a fact of common knowledge. The Chamber relied on “countless books, scholarly articles, media reports, U.N. reports and resolutions, national court decisions, and government and NGO reports” to determine that the Tribunal “need not demand further documentation” because the Rwandan genocide is “a fact as certain as any other.” This decision has been widely criticized because genocide is fundamentally a legal determination requiring proof of special intent elements and thus not appropriate for judicial notice. Some have suggested that the Court’s reasoning is also misleading because the evidence relied on to notice genocide as a fact of common knowledge may substantiate only the sociological, anthropological sense of the term, which often refers more generally to large-scale crimes based on discriminatory motives and may not be understood to encompass the requisite mental state of the legal definition.



Potential for ECCC Proceedings



The ECCC could benefit greatly from implementing judicial notice as an evidentiary procedure. First, the court may find it useful for judicial efficiency purposes to take notice of any common knowledge facts relevant to the proceedings. In particular, the brief temporal jurisdiction of the ECCC from April 17, 1975, to January 6, 1979, especially caters to judicial notice of historical facts because the events of the Khmer Rouge era have already been heavily documented by researchers, scholars, and historians. Thus, the court will almost certainly depend on background facts commonly known that would otherwise be litigated unnecessarily, perhaps in multiple proceedings.



Additionally, although the court has a limited jurisdiction and will probably take on a substantially smaller load of cases than other internationalized courts, the crimes to be prosecuted are likely to include overlapping factual contexts or common issues of law and criminality. This may allow for the possibility to take judicial notice of previously adjudicated facts from prior proceedings. If facts litigated in Case 001, for example, are relevant to Case 002 or other future proceedings, the ECCC may consider taking judicial notice of adjudicated facts, creating a rebuttable presumption that could be challenged at trial.



Thus, judicial notice provides an opportunity to speed up the trial processes at the ECCC while protecting the rights of the Accused. If implemented consistently with international standards, the interested parties may be more likely to survive the duration of the proceedings, the court may be more likely to maintain financial viability, and ultimately justice may be properly and swiftly rendered.


Independently Searching for the Truth since 1997.
MEMORY & JUSTICE

“...a society cannot know itself if it does not have an accurate memory of its own history.”

Youk Chhang, Director
Documentation Center of Cambodia
66 Sihanouk Blvd.,
Phnom Penh, Cambodia