This week, the Defence for Jovica Stanišić filed a request in front of the Trial Chamber of the Mechanism for International Criminal Tribunals (MICT) to stay the proceedings until the Prosecution respects the principle of finality and the Appeal Chamber’s order for retrial.

On 31 May 2013, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and his co-accused, Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB.

In December 2015, the ICTY Appeals Chamber ordered that they be retried on all counts of the indictment.

In September 2016, the Prosecution filed its Pre-Trial Brief and other pre-trial materials.

In its request, the Defence submits that the Prosecution’s approach to the retrial amounts to ‘’such an egregious violation of the Accused’s rights that it is detrimental to the Court’s integrity, contravenes any sense of justice, and makes a fair trial impossible’’. The Defence submits that the Trial Chamber should stay the proceedings until the Prosecution fully respects the res judicata and non bis in idem principles and the order of the Appeals Chamber for a retrial on the previous Indictment without addition or expansion of the counts or charges.

The Defence says that certain findings from the previous trial were not the subject of the Prosecution’s appeal and were not reversed by the Appeals Chamber. Accordingly, they were waived or have otherwise been finally determined, making them res judicata and non bis in idem.

The Defence adds that the Prosecution have sought to not only expand the evidentiary basis for the retrial but also to seek convictions on counts/charges that were not part of the first case against the Accused even though the Appeals Chamber expressly limited the retrial and ordered that Stanišić “be retried on all counts of the Indictment”.

According to the Defence, the Prosecution have in fact sought a massive addition to, or expansion of, the charges against Stanišić in the case. It has proposed the addition of 70 material facts that amount to new charges or an expansion of the existing charges.

For the Defence, this amounts to a manipulation of the Court process and contravenes the Court’s sense of justice in the proceedings.

Such targeted selection of additional or expanded counts and charges is designed ‘’to optimise the Prosecution’s prospects for conviction on the successfully appealed counts or charges (that are properly the subject of the retrial), and the material allegations, charges or counts that are final (and not properly the subject of the retrial)’’. In taking this approach, says the Defence, the Prosecution abandons its obligation to respect the fundamental rights of suspects and Accused in favour of pursuing convictions at all costs.

The Defence for Jovica Stanišić thus submits that the proceedings should be stayed as an abuse of process until the additional or expanded charges are dismissed.

iLawyer Wayne Jordash QC is Lead Counsel for Jovica Stanišić.