Abuse of process
|Mistrial Decision - 02.04.2014||
STANIŠIĆ & ŽUPLJANIN
35. […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case. The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity. The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system. An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.
See also para. 22.
 R. v. Horseferry Road Magistrates' Court, Ex p. Bennett (No.1)  1 A.C. 42, H.L.(E.), 74G; Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], paras 74-75.
 Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 74.
 See, e.g., Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 112; Prosecutor v. Radoslav Brđanin & Momir Talić, Case No. IT-99-36-PT, Decision on Second Motion by Brđanin to Dismiss the Indictment, 16 May 2001, para. 5 (“[If a] Trial Chamber is satisfied that the absence of such resources will result in a miscarriage of justice, it has the inherent power and the obligation to stay the proceedings until the necessary resources are provided, in order to prevent the abuse of process involved in such a trial”).
 See R. v. A. (No. 2)  1 A.C. 45;  UKHL 25, in which Lord Steyn observed that it was well-established that the right to a fair trial was absolute in the sense that a conviction obtained in breach of it cannot stand (at p. 65, para. 38). See also R. v. Forbes  1 A.C. 473, 487;  UKHL 66, para. 24; R. v. Togher & Ors  3 All E.R. 463;  EWCA Crim 111, para. 33 (“if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe”).
|Decision on Holbrooke Agreement - 12.10.2009||
45. As the parties note, the jurisprudence of the Tribunal has relied in several instances on the common law rooted doctrine of abuse of process. In the Barayagwiza case, the Appeals Chamber recalled that under the doctrine of abuse of process “proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process”. The Appeals Chamber specified that the doctrine of abuse of process may be relied on by a court, as a matter of discretion, in two distinct situations: (i) where a fair trial for the accused is impossible, usually for reasons of delay; and (ii) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct. The applicable standard was further clarified by stating that a court may discretionally decline to exercise jurisdiction “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity”. The Barayagwiza Review Decision confirmed the applicable law on abuse of process as stated in the Barayagwiza Appeal Decision.
46. In the Nikolić Appeal Decision, the Appeals Chamber contextualised the doctrine of abuse of process by the Tribunal in the following conceptual framework:
Universally Condemned Offences are a matter of concern to the international community as a whole. There is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts.
It then considered how this legitimate expectation should be addressed in two distinct hypotheses, relevant to the case before it: (i) under what circumstances a violation of State sovereignty requires jurisdiction to be set aside, when the violation is brought about by the apprehension of fugitives from international justice; and (ii) under what circumstances a human rights violation requires jurisdiction to be set aside. As to the former question, the Appeals Chamber did not identify any hypothesis justifying that jurisdiction be set aside. As to the latter, the Appeals Chamber considered that, apart from “exceptional cases” of serious violations of human rights, the remedy of setting aside jurisdiction will usually be disproportionate, as “the correct balance must be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.
47. The Appeal Chamber considers that the Appellant correctly submitted that the jurisprudence of the Appeals Chamber did not introduce a dual standard for the abuse of process doctrine, depending on the nature of the entity which carried out the alleged misconduct. The Appeals Chamber also notes however that, in addressing the Appellant’s submission, the Trial Chamber adopted the common standard established by the Appeals Chamber in the Barayagwiza Decision and in the Nikolić Appeal Decision, and not a higher one, by considering whether the Appellant suffered a serious mistreatment or if there was any other egregious violation of his rights. The jurisprudence of the Appeals Chamber does not allow the abuse of process doctrine to deploy a standard lower than this, irrespective of the author of the alleged misconduct.
49. The Appeals Chamber recalls that the Appellant is charged with genocide, crimes against humanity and war crimes. The public interest in the prosecution of an individual accused of such offences, universally condemned, is unquestionably strong. Against the legitimate interest of the international community in the prosecution of the Appellant for Universally Condemned Offences stands the alleged violation of the Appellant’s expectation that he would not be prosecuted by the Tribunal, pursuant to the alleged Agreement.
52. The Appeals Chamber recalls that one of the fundamental aims of international criminal courts and tribunals is to end impunity and ensure that serious violations of international humanitarian law are prosecuted and punished. Individuals accused of such crimes can have no legitimate expectation of immunity from prosecution. The Appeals Chamber considers that the facts that allegedly gave rise to the Appellant’s expectations of impunity do not constitute an exception to this rule.
53. In light of the foregoing, the Appeals Chamber considers that the Appellant’s allegations, even if proved, would not trigger the doctrine of abuse of process justifying a stay of the proceedings against the Appellant.
 Barayagwiza Appeal Decision; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, (“Barayagwiza Review Decision”); Nikolić Appeal Decision [Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003].
 Barayagwiza Appeal Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 74.
 Barayagwiza Appeal Decision, paras 74, 77.
 Barayagwiza Appeal Decision, para. 74.
 Barayagwiza Review Decision, para. 51.
 For the definition of “Universally Condemned Offences”, see Nikolić Appeal Decision, para. 24 referring to crimes such as genocide, crimes against humanity and war crimes “which are universally recognised and condemned as such”.
 Nikolić Appeal Decision, para. 25.
 Nikolić Appeal Decision, paras 20-27.
 Nikolić Appeal Decision, paras 28-33.
 Nikolić Appeal Decision, para. 26.
 Nikolić Appeal Decision, para. 30.
 Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Third Amended Indictment, 27 February 2009.
 The UNSC Resolution establishing the Tribunal expressed a determination “to put an end to [flagrant violations of international humanitarian law]] and to take effective measures to bring to justice the persons who are responsible for them”; UNSC Resolution 827 (1993), 25 May 1993; see also Rome Statute Preamble, which affirms “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” and further emphasises the determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.
|Decision on Challenge by Croatia - 29.11.2002||
(IT-02-62-AR54bis & IT-02-62-AR108bis)
15. […] The Tribunal has an inherent power to stay proceedings which are an abuse of process, such a power arising from the need for the Tribunal to be able to exercise effectively the jurisdiction which it has to dispose of the proceedings. […]
 See Prosecutor v Tadić, IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, par 13.
|Decision - 03.11.1999||
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See paragraphs 73-74, 76-77 of the decision.
See also paragraph 75 of the decision.
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