DE: No revocation of a withdrawal of an appeal

Feb 11, 2022 Benn-Ibler Rechtsanwälte

A declaration of withdrawal of a filed appeal is irrevocable - according to the German Federal Supreme Court (Bundesgerichtshof, BGH).

A person who has expressly declared that he or she wishes to withdraw the filed appeal cannot revoke this declaration. In this case, the BGH established the effectiveness of the withdrawal of the declaration de facto when the defendant wanted to retract his previously submitted declaration of withdrawal. According to the BGH, the justification that he had made a mistake when withdrawing his appeal did not qualify.

The Traunstein Regional Court had sentenced the defendant to six and a half years' imprisonment for manslaughter and also ordered a preliminary sentence in a rehabilitation centre. His defence lawyer appealed to the BGH. The accused then wrote to the court on his own initiative that he would like to withdraw the appeal he had filed on the condition that he would be sent to a prison for people with special needs before the end of December. On December 2, the accused replied to a letter from the court stating that a conditional withdrawal would be ineffective, saying that he had now finally come to the decision to withdraw the appeal, even though he had previously discussed the contrary with his defence lawyer. After another visit by his defence lawyer, the defendant changed his mind again and he stated in writing that he now irrevocably wanted to carry out an appeal and that his previously made withdrawal was to be accepted as invalid, because he had been mistaken in his statement that the appeal would prevent his therapy.

According to the BGH, the accused's declaration from December 2 is to be regarded as an effective declaration of withdrawal of the appeal according to Section 302 para 1 of the Code of Criminal Procedure (Strafprozessordnung, StPO). The defendant's declaration is to be understood unequivocally and expressly to the effect that he withdraws the appeal filed. Such a declaration is irrevocable and incontestable. In the present case, there are also no indications that the defendant did not freely form his will. Rather, it was clearly recognisable from the letter that he had made his decision after thorough consideration.

BGH 1 StR 285/21 (16.12.2021)