Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem – Comments Occasioned by the Šainović et al. Appeal Judgment and the OTP Motion for Reconsideration of the Perišić Appeal Judgment

Abstract

This note comments on the implications of the change in the ICTY appellate jurisprudence regarding 'specific direction' as the element of the aiding and abetting liability from Perišić to Šainović, as well as on the prosecution motion for reconsideration of the former judgment in light of the latter . The paper addresses the contention between the differently constituted appellate benches from the perspective of judicial restraint, legal certainty, and stability of jurisprudence. It argues that the ICTY must uphold the principles of ne bis in idem and res judicata when deciding on the admissibility and merits of the prosecution motion.

Keywords: Perišić, Šainović, specific direction, reconsideration, review, legal certainty, ne bis in idem, res judicata