Withdrawal of an appeal

Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

27. As noted earlier, both parties suggest that a defendant’s withdrawal of his appeal, like a guilty plea, must be informed.[1]  The Appeals Chamber agrees.  Where a defendant has invoked the legal right to appeal and now seeks to abandon this right, the Appeals Chamber should satisfy itself that this abandonment is informed.  In the Decision Accepting Withdrawals, the Appeals Chamber did not explicitly discuss whether Strugar’s withdrawal was an informed one.  The Appeals Chamber will now consider this issue. [See below in “Issues of particular interest”]

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[1] Defence Request [confidential Defence Request Seeking the Re-Opening of Appeal Proceedings before the Appeals Chamber, 26 March 2007], para 38; Prosecution Response [Confidential Prosecutions Response to Defence Confidential “Request Seeking the Re-Opening of Appeal Proceedings before the Appeals Chamber” Dated 26 March 2007, 5 April 2007], para. 4.  

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Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

20. […] The Decision Accepting Withdrawals terminated the appeal proceedings in Strugar’s case.  It transformed him from an appellant into an individual with a final sentence. […]

25. The Appeals Chamber concludes that the Decision Accepting Withdrawals is fundamentally different from the kind of “final judgement” referred to in both the Čelebići Decision and the Žigić Decision.  While the Decision Accepting Withdrawals may be a “final judgement” in the sense that it concluded the case,[2] it neither constitutes the kind of judgement envisioned in Article 25(2) of the Statute nor provides all the due process protections that naturally accompany a full judgement on the merits.  It is essentially of a sui generis nature and is limited to procedure and process.  It was adopted without any consideration of the merits of the Trial Chamber judgement.  Were reconsideration prohibited in such circumstances, then substantive injustice might result. […]

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[1] Decision Accepting Withdrawals [Final Decision on “Defence Notice of Withdrawing Appeal” and “Withdrawal of Prosecution’s Appeal Against the Judgement of Trial Chamber II Dated 31 January 2005”, 20 September 2006], p. 2.

[2] See supra note 53 and accompanying text.

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Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

20. […] To reopen his case, Strugar must thus convince the Appeals Chamber to revisit the Decision Accepting Withdrawals.  For the Appeals Chamber to revisit this Decision, however, it must have a jurisdictional basis for doing so.

21. One mechanism for reopening a case is to bring a successful motion for review under Article 26 of the Statute and Rules 119-120 of the Rules. […]

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121 ICTY Rule Rule 119;
120