Hague: Appellate proceedings in Strugar case

Hague: Appellate proceedings in Strugar case

The Appeals Chamber granted his application.

In September 2006, the Trial Chamber sentenced Strugar, who commanded the JNA’s Dubrovnik operation, to eight years in prison for the shelling of the Old Town of Dubrovnik on December 6, 1991.

Both sides appealed the judgment: the defense appealed the conviction and the finding on General Strugar’s competence to stand trial, and the prosecution appealed against the sentence, calling for a harsher one.

In an effort to be allowed to serve the rest of his sentence in a prison in Montenegro, General Strugar withdrew his appeal last September.

The prosecution did the same, for “exceptional humanitarian circumstances,” particularly the general’s “advanced age, ill health and general condition.” The first instance judgment thus became final.

It turned out in the meantime that there were insurmountable legal obstacles for his transfer to Montenegro, since the UN Secretary-General’s report, an integral part of the Security Council Resolution 827 establishing the Tribunal, stipulates that because of the nature and severity of the crimes, the sentences imposed by the Tribunal would be “served outside of the territory of the former Yugoslavia.”

The Appeals Chamber concluded that when General Strugar had withdrawn the appeal against the conviction and sentence, he “was not informed of the legal obstacle” and had misunderstood the promises made by Judge Schomburg, in charge of the pre-appellate proceedings.

The judge told General Strugar he would urge the ICTY President and the Registrar to facilitate his transfer to a prison in Montenegro.

The decision to reopen the proceedings and to deal with the appeals of both parties was made by a majority of votes.

Judge Schomburg voted against, because he believed that Strugar’s decision to withdraw the appeal was “informed” and “final”, that he was clearly told there were “no guarantees” and that the ICTY President could have used his discretion and allowed the transfer of the accused to a prison in Montenegro because of “exceptional humanitarian circumstances.”