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Stanišić & Župljanin: Motion on behalf of Mico Stanisic requesting a declaration of mistrial.

Stanišić & Župljanin: Motion on behalf of Mico Stanisic requesting a declaration of mistrial.

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Published by ICTY News
Stanišić & Župljanin: Motion on behalf of Mico Stanisic requesting a declaration of mistrial.
Stanišić & Župljanin: Motion on behalf of Mico Stanisic requesting a declaration of mistrial.

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Published by: ICTY News on Oct 23, 2013
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10/26/2013

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IT-08-91-A 14 October 2013
THE INTERNATIONAL CRIMINAL TRIBUNALFOR THE FORMER YUGOSLAVIACase No. IT-08-91-AIN THE APPEALS CHAMBER Before: Judge Theodor Meron, PresidingJudge Carmel AgiusJudge Patrick RobinsonJudge Liu DaqunJudge Arlette RamarosonRegistrar: Mr. John HockingDate Filed: 14 October 2013THE PROSECUTOR v.
MIĆ
O
STANIŠIĆ
 and
STOJAN Ž
UPLJANIN
PUBLIC 
MOTION ON BEHALF OF
MIĆO STANIŠIĆ
REQUESTINGA DECLARATION OF MISTRIAL
The Prosecutor:
 
Mr. Serge BrammertzCounsel for the Defence:Mr.
Slobodan Zečević
and Mr. Stéphane Bourgon for
Mićo Stanišić
 
Mr. Dragan Krgović
and Ms. Tatjana
Čmerić
for
Stojan Ž
upljanin
4123IT-08-91-AA4123 - A411323 October 2013 GM
 
IT-08-91-A 1 14 October 2013Further to the decisions issued by the specially convened Chamber in
 Prosecutor v Šešelj
,Counsel representing
Mićo Stanišić
(
“Applicant”
 
or “Mr. Stanišić”
) hereby submits this
MOTION ON BEHALF OF
MIĆO STANIŠIĆ
REQUESTINGA DECLARATION OF MISTRIAL
 pursuant to Articles 20 and 21 of the Statute of the International Criminal Tribunal for the
former Yugoslavia (“International Tribunal” and “Statute”),
Rules 54 and 107 of the Rules of Procedure and Evidence of the Inter 
national Tribunal (the “Rules”) and
the Practice Directionon Procedure for the Filing of Written Submissions in Appeal Proceedings Before theInternational Tribunal (IT/115 Rev.4).
OVERVIEW
1.
 
The Applicant files this Motion on the basis of the final determination in
 Prosecutor v
Šešelj
on the disqualification of Judge Frederik Harhoff due to an unacceptableappearance of bias in favour of convicting accused persons.
1
 2.
 
It is evident that the unacceptable appearance of bias on the part of Judge Harhoff isnot limited to a particular accused or a particular set of proceedings.
2
Quite to thecontrary, it is a final decision finding an unacceptable appearance of bias in favour of the conviction of accused persons.
3
 3.
 
In light of this unprecedented finding, and considering that Judge Harhoff was amember of the bench that convicted the Applicant, it is evident that Mr.
Stanišić’s
fair trial rights have been irreparably violated by the adjudication of his trial by a judge inrespect of whom the presumption of impartiality has been rebutted. Because theApplicant was not tried by a properly constituted trial chamber comprising threeimpartial judges, the entire trial process culminating in the Trial Judgement does notaccord with recognised international legal standards and must be vacated.
1
 
 Prosecutor v Šešelj
, IT-03-67-T, Decision on Prosecution Motion for Reconsideration of Decision on
Disqualification, Requests for Clarification, and Motion on Behalf of Stanišić and Župljanin, 7 October 2013(“Denial of Reconsideration of Disqualification”).
 
2
 
 Prosecutor v Šešelj
, IT-03-67-T, Decision on Defence Motion for Disqualification of Judge Frederik Harhoff and Report to the Vice-President, 28 August 2013, paras. 12-
14 (“Disqualification Decision”).
 
3
Denial of Reconsideration of Disqualification, paras. 13, 16.
4122
 
IT-08-91-A 2 14 October 20134.
 
Given the seriousness of the breach of fair trial rights at issue, the proceedings againstthe Applicant must be immediately discontinued.5.
 
Consequently, an application for provisional release will be filed forthwith by theApplicant, as there is no legal basis for his continued detention.
ARGUMENTThe Disqualification Decision is Directly Applicable to the Applicant
s Case
6.
 
On 28 August 2013, the specially constituted Chamber in the
 Prosecutor v Šešelj
(“Chamber”) held that
the
letter written by Judge Harhoff “
has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias. As such an unacceptable appearance of bias exists
.”
4
 7.
 
In its recent decision, the Chamber declined
the Prosecution’s request
to reconsider the disqualification of Judge Harhoff.
5
This final determination of the disqualification proceedings therefore upholds the finding that the presumption of impartialityafforded to Judges of the International Tribunal has been rebutted in respect of JudgeHarhoff.
6
 8.
 
The Chamber 
s finding that the presumption of impartiality has been rebutted inrespect of Judge Harhoff applies equally to the present proceedings.9.
 
The Chamber did not find that Judge Harhoff had an unacceptable appearance of bias
in favour of convicting the accused Šešelj, rather the Chamber’s finding was an
unacceptable appearance of bias on the part of J
udge Harhoff “
in favour of conviction
of accused persons.
7
 10.
 
That the finding was one of an appearance of bias of convicting accused in general ismanifest
from the Chamber’
s decision. Moreover, that the finding of an unacceptableappearance of bias in favour of conviction is directly applicable to the present case is
 patently clear from the Chamber’s findings.
 
4
Disqualification Decision, para.14.
5
Denial of Reconsideration of Disqualification, para. 22. See
also
Disqualification Decision, paras. 12-14.
6
Disqualification Decision, para. 14.
7
Disqualification Decision, paras. 12-14.
4121

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