پریسا عدالتیان شعرباف

Abstract

The doctrine of abuse of process pertains to the judicial power to issue an order to temporarily or permanently stay proceedings on the grounds that the defendant is deprived of the opportunity to access a fair trial, or that the proceedings have resulted in harm to the credibility of the judicial system. Abuse of process refers to the misapplication of legal principles in a manner contrary to their intended purpose, in a way that undermines essential legal tenets such as good faith, fairness, and the right to a fair trial. This misapplication risks violating not only the defendant’s fundamental rights but also the broader interests of the international community.

A review of case law, particularly within the common law tradition from which this doctrine originates, reveals that courts take a stringent approach to its application, invoking the doctrine only in exceptional circumstances and on a case-by-case basis. International criminal tribunals, including the International Criminal Court (ICC), adhere to a similar stance, recognizing the doctrine only in rare instances where abuse of process results in the deprivation of the defendant’s right to a fair trial or undermines the integrity of the judicial system and the perception of justice.

Despite its critical importance, the practical application of the abuse of process doctrine is fraught with complexities, and orders to stay proceedings on this basis are seldom issued. These complexities, along with the potential for adverse consequences, can lead to inconsistent practices across jurisdictions, potentially undermining the efficacy of criminal justice and eroding public confidence in the judicial system. Consequently, while the abuse of process doctrine remains a significant safeguard for ensuring a fair trial, its application demands further clarification and the establishment of more precise and consistent criteria, particularly in the context of international criminal tribunals. 

Keywords: Abuse of process, Doctrine of abuse of process, Fair trial, International Criminal Court (ICC), International criminal tribunals, Judicial procedure.